Khera v SSHD; Khawaja v SSHD

No Comments » Written on September 6th, 2010 by dls
Categories: Leading Cases
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Khera -v- Secretary of State for The Home Department; Khawaja -v- Secretary of State for The Home Department – HL – 10-Feb-83 – Lord Fraser of Tullybelton, Lord Wilberforce, Lord Scarman, Lord Bridge of Harwich and Lord Templeman (lip, [1983] 2 WLR 321, [1984] 1 AC 74, Bailii, [1982] UKHL 5, Bailii, [1983] UKHL 8, [1983] 1 All ER 765, [1982] Imm AR 139) – Immigration – Judicial Review – Evidence
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal immigrant.
Held: The term ‘illegal immigrant’ included anyone entering unlawfully. This could include those obtaining leave to enter by deception as well as those entering clandestinely. There is no duty of absolute candour upon someone applying for entry, but silence as to certain important facts might amount to fraud: “it would be wrong to construe the Immigration Act 1971 as if it imposed on persons applying for leave to enter a duty of candour approximating to uberrima fides. But, of course, deception may arise from silence as to a material fact in some circumstances; for example, the silence of the appellant Khawaja about the fact of his marriage to Mrs Butt and the fact that she had accompanied him on the flight to Manchester were, in my view, capable of constituting deception, even if he had not told any direct lies to the immigration officer.”
Habeas Corpus is available to all, not just British Nationals. When reviewing the decision of the immigration officer the court should go beyond asking only whether there was evidence on which the officer could have reached his decision, and look also at the sufficiency of that evidence. On a judicial review it was for the administrative authority to prove the facts upon which the decision it had reached had been made. The house was free to not follow its earlier decisions. The decision in Zamir was too narrow.
Lord Scarman said: “My Lords, I would adopt as appropriate to cases of restraint put by the executive upon the liberty of the individual the civil standard flexibly applied in the way set forth in the cases cited: and I would direct particular attention to the words of Morris LJ already quoted. It is not necessary to import into the civil proceedings of judicial review the formula devised by judges for the guidance of juries in criminal cases. Liberty is at stake: that is, as the court recognised in Bater v Bater [1951] P 35 and in Hornal v Neuberger Products Ltd [1957] 1 QB 247, a grave matter. The reviewing court will therefore require to be satisfied that the facts which are required for the justification of the restraint put upon liberty do exist. The flexibility of the civil standard of proof suffices to ensure that the court will require the high degree of probability which is appropriate to what is at stake. The nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue”: Dixon J in Wright v Wright (1948) 77 CLR 191, 210. I would, therefore, adopt the civil standard flexibly applied in the way described in the case law to which I have referred. And I completely agree with the observation made by my noble and learned friend, Lord Bridge of Harwich, that the difficulties of proof in many immigration cases afford no valid ground for lowering the standard of proof required.
Accordingly, it is enough to say that, where the burden lies on the executive to justify the exercise of a power of detention, the facts relied on as justification must be proved to the satisfaction of the court. A preponderance of probability suffices: but the degree of probability must be such that the court is satisfied. The strictness of the criminal formula is unnecessary to enable justice to be done: and its lack of flexibility in a jurisdiction where the technicalities of the law of evidence must not be allowed to become the master of the court could be a positive disadvantage inhibiting the efficacy of the developing safeguard of judicial review in the field of public law.”
Lord Bridge said: “the civil standard of proof by a preponderance of probability will suffice, always provided that, in view of the gravity of the charge of fraud which has to be made out and of the consequences which will follow if it is, the court should not be satisfied with anything less than probability of a high degree.”
Statutes:
Immigration Act 1971 s. 33(1)

Cases Cited:
Regina -v- Secretary of State for the Home Department, Ex parte Zamir HL 1980 ([1980] AC 930 HL, Bailii, [1980] UKHL 14, [1980] 2 All ER 768, [1980] 3 WLR 249) – Not followed
Bater -v- Bater CA 1951 ([1951] P 35)
Hornal -v- Neuberger Products Ltd CA 1956 ([1957] 1 QB 247, (1956) 3 All ER 970)
In re Dellow’s Will Trusts ChD 1964 ([1964] 1 WLR 451)
Wright -v- Wright 1948 ((1948) 77 CLR 191)
Sommersett’s Case 1772 ((1772) 20 StTr 1)
Practice Statement (Judicial Precedent) HL 1966 ([1966] 3 All ER 77, [1966] 1 WLR 1234)

Cited by:
Regina (on the application of Abassi and Another) -v- Secretary of State for Foreign and Commonwealth Affairs and Another CA 6-11-2002 (Times 08-Nov-02, Bailii, Gazette 06-Dec-02, [2002] EWCA Civ 1598, [2002] All ER (D) 70, [2003] UKHR 76)
Regina -v- Secretary of State for the Home Department ex parte Bugdaycay HL 1987 ([1987] AC 514, [1987] 2 WLR 606, Bailii, [1986] UKHL 3, [1987] 1 All ER 940)
Regina -v- Secretary of State for Home Department ex parte Dolapo Omolara Martins Admn 29-11-1996 (Bailii, [1996] EWHC Admin 302)
Regina -v- Secretary of State for Home Department ex parte Cengiz Doldur Admn 26-6-1997 (Bailii, [1997] EWHC Admin 600)
Szoma -v- Secretary of State for the Department of Work and Pensions HL 28-7-2005 (Bailii, [2005] UKHL 64, House of Lords, Times 01-Nov-05, [2006] 1 AC 564)
Regina -v- Fraydon Navabi; Senait Tekie Embaye CACD 11-11-2005 (Bailii, [2005] EWCA Crim 2865, Times 05-Dec-05)
AN, Regina (on the Application of) -v- Mental Health Review Tribunal (Northern Region) and others CA 21-12-2005 (Bailii, [2005] EWCA Civ 1605, Times 12-Jan-06, [2006] 4 All ER 194, [2006] 2 WLR 850, [2006] QB 468)
SK, Regina (on the Application of) -v- Secretary of State for the Home Department Admn 25-1-2008 (Bailii, [2008] EWHC 98 (Admin))
In re D; Doherty, Re (Northern Ireland); Life Sentence Review Commissioners v D HL 11-6-2008 (Bailii, [2008] UKHL 33, Times 24-Jun-08, HL, [2008] NI 292, [2009] Fam Law 192, [2008] 4 All ER 992, [2008] 1 WLR 1499)
In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-6-2008 (Bailii, [2008] UKHL 35, [2008] 2 FLR 141, HL, [2009] 1 AC 11, [2008] 3 WLR 1, [2008] Fam Law 837, [2008] 2 FCR 339, [2008] Fam Law 619, [2008] 4 All ER 1)
A, Regina (on the Application of) v London Borough of Croydon SC 26-11-2009 (Bailii, [2009] UKSC 8, Times, [2010] 1 All ER 469, [2009] 3 FCR 607, [2009] 1 WLR 2557)
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Dunlop Pneumatic Tyre Company Ltd -v- New Garage and Motor Company Ltd

No Comments » Written on September 4th, 2010 by dls
Categories: Leading Cases
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Dunlop Pneumatic Tyre Company Ltd -v- New Garage and Motor Company Ltd – HL – 01-Jul-14 – Lord Dunedin ([1915] AC 67, Bailii, [1914] UKHL 1) – Contract – Damages
It is a fundamental principle of English law that only a party to a contract who had provided consideration could sue on it. The House, in discussing penalty clauses, drew a distinction between a payment on breach stipulated as in terrorem of the offending party and a genuine covenanted pre-estimate of damage, and summarised the law.
Lord Dunedin said: “(1) Though the parties to a contract who use the words ´penalty’ or ´liquidated damages’ may prima facie be supposed to mean what they say, yet the expression used is not conclusive. The court must find out whether the payment stipulated is in truth a penalty or liquidated damages. . . (2) The essence of a penalty is a payment of money stipulated as in terrorem of the offending party; the essence of liquidated damages is a genuine pre-estimate of damage. (3) The question whether a sum stipulated is a penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of at the time of the making of the contract, not as at the time of the breach. (4) To assist this task of construction various tests have been suggested which, if applicable to the case under consideration, may prove helpful or even conclusive. Such are: (a) It will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach. (b) It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid … (c) There is a presumption (but no more) that it is a penalty when ´a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage.’ On the other hand: (d) It is no obstacle to the sum stipulated being a genuine pre-estimate of damage, that the consequences of the breach are such as to make precise pre-estimation almost an impossibility. On the contrary, that is just the situation when it is probable that pre-estimated damage was the true bargain between the parties.”

Cited by:
Paul Jeremy Duffen -v- Fra Bo Spa CA 30-4-1998 (Times 15-Jun-98, Bailii, [1998] EWCA Civ 748, [2000] EuLR 167) – Applied
Phillips (Hong Kong) Ltd -v- The Attorney General of Hong Kong PC 1993 ((1993) 61 BLR 49) – Affirmed
Murray -v- Leisureplay Plc QBD 5-8-2004 (Bailii, [2004] EWHC 1927 (QB), [2005] IRLR 946)
Cine Bes Filmcilik Ve Yapimcilik & Another -v- United International Pictures and Others CA 21-11-2003 ([2003] EWCA Civ 1669, Bailii, [2004] 1 CLC 401)
Philips Hong Kong Ltd -v- The Attorney-General of Hong Kong PC 1993 ((1993) 61 BLR 49) – Approved
R -v- Her Majesty’s Attorney-General for England and Wales PC 17-3-2003 (PC, Bailii, [2003] UKPC 22, PC)
Euro London Appointments Ltd -v- Claessens International Ltd CA 6-4-2006 (Bailii, [2006] EWCA Civ 385, Times 02-Jun-06)
Lordsvale Finance Plc -v- Bank of Zambia QBD 20-3-1996 (Times 08-Apr-96, [1996] QB 752)
Beswick -v- Beswick HL 29-6-1967 ([1968] AC 58, [1967] 3 WLR 932, [1967] 2 All ER 1197 HL(E), Bailii, [1967] UKHL 2) – Mentioned
Jeancharm Ltd (T/A Beaver International) -v- Barnet Football Club Ltd CA 16-1-2002 (Bailii, [2003] EWCA Civ 58)
Anglo Group Plc, Winther Brown & Co Ltd -v- Winter Brown & Co Ltd, BML (Office Computers) Ltd, Anglo Group Plc, BML (Office Computers) Ltd TCC 8-3-2000 (Bailii, [2000] EWHC Technology 127)
Tullett Prebon Group Ltd -v- El-Hajjali QBD 31-7-2008 (Bailii, [2008] EWHC 1924 (QB), [2008] IRLR 760)
Azimut-Benetti Spa (Benetti Division) -v- Healey ComC 3-9-2010 (Bailii, [2010] EWHC 2234 (Comm))

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Silver v UK – Prisoners Rights

No Comments » Written on August 24th, 2010 by dls
Categories: Leading Cases
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Silver And Others -v- The United Kingdom – ECHR – 25-Mar-83 – (6205/73, [1983] 6 EHHR 62, [1983] 5 EHRR 347, Bailii, [1983] ECHR 5, Bailii, [1983] ECHR 11, 7052/75, ECHR, ECHR, 5947/72) – Human Rights – Damages – Prisons
There had been interference with prisoners’ letters by prison authorities. The Commission considered Standing Orders and Circular Instructions in relation to restrictions on correspondence. The rules were not available to prisoners and were restrictive.
Held: “it is true that those applicants who were in custody may have experienced some annoyance and sense of frustration as a result of the restrictions that were imposed on particular letters. It does not appear, however, that this was of such intensity that it would in itself justify an award of compensation for non-pecuniary damage.” Restrictions were however justifiable so long as the law was sufficiently precise to enable the individual to regulate his conduct, and that orders and instructions could be properly taken into account. ” and “a law which confers a discretion must indicate the scope of that discretion.” though “the Court has already recognised the impossibility of attaining absolute certainty in the framing of laws and the risk that the search for certainty may entail excessive rigidity . . [T]he Court points out once more that ‘many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.” As to the rule prohibiting “letters which discuss crime in general or the crime of others’: “The Commission considers that this restriction is also an obvious requirement of imprisonment and although it is not specified in the Prison Rules 1964, as amended, the Commission is of the opinion that it is a reasonable and foreseeable consequence of the Home Secretary’s power under rule 33(1) of the Prison Rules 1964 to impose restrictions on prisoners’ correspondence in the interests of good order, the prevention of crime or the interests of any persons. Prison security is, in the Commission’s opinion, an essential part of such interest. The prohibition on prisoners’ letters which discuss crime in general or the crime of others can, accordingly, be said to be ‘in accordance with the law’ within the meaning of Article 8(2). . . . On the justification issue, the Commission considers that a prohibition on prisoners’ letters which discuss crime in general or the crime of others is, in principle, an ordinary and reasonable requirement of imprisonment, ‘necessary in a democratic society … for the prevention of disorder or crime’ within the meaning of Article 8(2).”
ECHR Judgment (Just Satisfaction) – Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – Convention proceedings.
Statutes:
European Convention on Human Rights s. 6-1 s. 8 s. 13

Cases Cited:
Silver -v- United Kingdom ECHR 1980 ((1980) 3 EHRR 475) – At the Commission

Cited by:
Anufrijeva and Another -v- London Borough of Southwark CA 16-10-2003 (Bailii, Gazette 20-Nov-03, Times 17-Oct-03, [2003] EWCA Civ 1406)
Szuluk, Regina (on the Application of) -v- HM Prison Full Sutton Admn 20-2-2004 (Bailii, [2004] EWHC 514 (Admin))
Begum, Regina (on the Application of) -v- Denbigh High School Admn 15-6-2004 (Bailii, [2004] EWHC 1389 (Admin), Times 18-Jun-04, [2004] ELR 374)
S, Regina (on Application of) -v- South Yorkshire Police; Regina -v- Chief Constable of Yorkshire Police ex parte Marper HL 22-7-2004 (House of Lords, [2004] UKHL 39, Bailii, Times 23-Jul-04, [2004] 1 WLR 2196, [2004] 4 All ER 193, [2004] UKHRR 967)
Nilsen -v- HM Prison Full Sutton and Another CA 17-11-2004 (Bailii, [2004] EWCA Civ 1540, Times 23-Nov-04, [2005] 1 WLR 1028)
Regina -v- Secretary of State for The Home Department Ex Parte Simms, Secretary of State For The Home Department, ex Parte O’Brien HL 11-2-1999 (Times 09-Jul-99, Gazette 28-Jul-99, House of Lords, Bailii, [1999] UKHL 33, [2000] 2 AC 115, [1999] 3 All ER 400, [1999] 3 WLR 328)
Hirst -v- United Kingdom (2) ECHR 6-10-2005 (Times 10-Oct-05, ECHR, 74025/01, (2005) 42 EHRR 41)

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Three Rivers DC v Bank of England (No 3)

No Comments » Written on August 24th, 2010 by dls
Categories: Leading Cases
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Three Rivers District Council and Others -v- Governor and Company of The Bank of England (No 3) – HL – 23-Mar-01 – Lord Steyn, Lord Hope of Craighead, Lord Hutton, Lord Hobhouse of Woodborough, Lord Millett (Times 23-Mar-01, House of Lords, Bailii, House of Lords, [2001] 2 All ER 513, [2001] UKHL 16, [2000] 2 WLR 1220, [2003] 2 AC 1, [2001] Lloyds Rep Bank 125, (2001) 3 LGLR 36) – Torts – Other – Banking – Civil Procedure Rules
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also where he acted with knowledge of, or with reckless indifference to the illegality of the act, or with reckless indifference to the probability of causing harm. The directive placed general duties of supervision on the Bank of England, but imposed sufficiently detailed duties to give rise to private rights.
As to the Rules, the difference between the words of rule 24.2 and rule 3.4(2)(a) (between a test which asks the question ‘is the claim bound to fail?’ and one which asks ‘does the claim have a real prospect of success’) is elusive, but the practical effect of the two rules will often be the same and, in more complex cases, attention to the overriding objective of dealing with the case justly is likely to be more important than a search for their precise meaning: “For the reasons which I have just given, I think that the question is whether the [defence] has no real prospect of succeeding at trial and that it has to be answered having regard to the overriding objective of dealing with the case justly. But the point which is of crucial importance lies in the answer to the further question that then needs to be asked, which is – what is to be the scope of that inquiry?”
“The second principle, which is quite distinct, is that an allegation of fraud or dishonesty must be sufficiently particularised, and that particulars of facts which are consistent with honesty are not sufficient. This is only partly a matter of pleading. It is also a matter of substance. As I have said, the defendant is entitled to know the case he has to meet. But since dishonesty is usually a matter of inference from primary facts, this involves knowing not only that he is alleged to have acted dishonestly, but also the primary facts which will be relied upon at trial to justify the inference. At trial the court will not normally allow proof of primary facts which have not been pleaded, and will not do so in a case of fraud. It is not open to the court to infer dishonesty from facts which have not been pleaded, or from facts which have been pleaded but are consistent with honesty. These must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved.”
Statutes:
Civil Procedure Rules

Cases Cited:
Ashby -v- White KB 1703 ([1703] 92 ER 126, 1 Smith’s Leading Cases (13th ed ) 253)

Cited by:
Brown and Another -v- Bennett and Others (No 2) ChD 16-11-2001 (Times 21-Nov-01, Gazette 10-Jan-02)
WWF – World Wide Fund for Nature (Formerly World Wildlife Fund); World Wildlife Fund Inc -v- World Wrestling Federation Entertainment Inc CA 27-2-2002 (Times 12-Mar-02, Bailii, Gazette 11-Apr-02, [2002] EWCA Civ 196)
Campbell -v- Frisbee ChD 14-3-2002 (Bailii, [2002] EWHC 328 (Ch))
Cornelius -v- Hackney London Borough Council CA 25-7-2002 (Times 27-Aug-02, Bailii, [2002] EWCA Civ 1073)
Lord Ashcroft -v- Attorney General and Department for International Development QBD 31-5-2002 (Bailii, [2002] EWHC 1122 (QB))
Osayanimo Mercy Akenzua, Caroline Liza Coy (Administrators of the Estate of Marcia Zena Laws (Deceased)) -v- Secretary of State for the Home Department, the Comissioner of Police for the Metropolis CA 23-10-2002 (Times 30-Oct-02, Bailii, Gazette 05-Dec-02, [2002] EWCA Civ 1470)
R Cruickshank Limited -v- The Chief Constable of Kent County Constabulary CA 13-12-2002 (Times 27-Dec-02, Bailii, [2002] EWCA Civ 1840)
E D & F Man Liquid Products Ltd -v- Patel & Another CA 4-4-2003 (Bailii, [2003] EWCA Civ 472, Times 18-Apr-03, Gazette 19-Jun-03, [2003] CP Rep 51, [2003] CPLR 384, [2003] CPLR 349, [2003] QB 1556, [2003] 3 WLR 667)
Keegan and Others -v- Chief Constable of Merseyside CA 3-7-2003 (Bailii, [2003] EWCA Civ 936, Times 17-Jul-03, Gazette 11-Sep-03)
Equitable Life Assurance Society -v- Ernst & Young CA 25-7-2003 (Bailii, [2003] EWCA Civ 1114, Gazette 02-Oct-03, [2003] 2 BCLC 603, [2007] Lloyd’s Rep PN 22, [2004] PNLR 16)
Chagos Islanders -v- The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-10-2003 ([2003] EWHC 2222 (QB), Bailii, Times 10-Oct-03, [2003] All ER (D) 166)
Equitable Life Assurance Society -v- Bowley and others ComC 17-10-2003 (Bailii, [2003] EWHC 2263 (Comm))
Criterion Properties Plc -v- Stratford UK Properties and others CA 18-12-2002 (Bailii, [2002] EWCA Civ 1783, [2003] 1 WLR 218)
Quark Fishing Ltd, Regina (on the Application Of) -v- Secretary of State for Foreign & Commonwealth Affairs Admn 22-7-2003 (Bailii, [2003] EWHC 1743 (Admin))
Chagos Islanders -v- Attorney-General and Another CA 22-7-2004 (Bailii, [2004] EWCA Civ 997, Times 21-Sep-04)
Chagos Islanders -v- Attorney-General and Another CA 22-7-2004 (Bailii, [2004] EWCA Civ 997, Times 21-Sep-04)
Jeffrey Shane Watkins -v- Secretary of State for The Home Departmentand others CA 20-7-2004 (Bailii, [2004] EWCA Civ 966, Times 05-Aug-04, [2005] QB 883)
Celador Productions Ltd -v- Melville ChD 21-10-2004 (Bailii, [2004] EWHC 2362 (Ch))
George Wimpey UK Ltd -v- VI Construction Ltd CA 3-2-2005 (Bailii, [2005] EWCA Civ 77, Times 16-Feb-05, [2005] BLR 135)
Douglas and others -v- Hello! Ltd and others (No 3) CA 18-5-2005 (Bailii, [2005] EWCA Civ 595, Times 24-May-05, [2005] 4 All ER 128, [2005] 3 WLR 881, [2006] QB 125)
Iqbal -v- Legal Services Commission CA 10-5-2005 (Bailii, [2005] EWCA Civ 623)
Marks and Spencer Plc -v- Customs and Excise HL 28-7-2005 (Bailii, [2005] UKHL 53, House of Lords, [2005] STC 1254)
Armstrong -v- Times Newspapers Ltd and David Walsh, Alan English CA 29-7-2005 (Bailii, [2005] EWCA Civ 1007)
Weston -v- John Gribben ChD 20-12-2005 (Bailii, [2005] EWHC 2953 (Ch))
Weir and others -v- Secretary of State for Transport and Another ChD 14-10-2005 (Bailii, [2005] EWHC 2192 (Ch))
Watkins -v- Home Office and others HL 29-3-2006 (Bailii, [2006] UKHL 17, Times 03-Apr-06, [2006] 2 WLR 807, [2006] 2 AC 395)
Henderson -v- 3052775 Nova Scotia Ltd HL 10-5-2006 (Bailii, [2006] UKHL 21, 2006 SCLR 626)
Vibixa Ltd Polestar Jowetts Ltd -v- Komori UK Ltd & Anr Spectral Technology Ltd CA 9-5-2006 (Bailii, [2006] EWCA Civ 536, Times 30-May-06)
Adidas-Salomon Ag -v- Drape and others ChD 7-6-2006 (Bailii, [2006] EWHC 1318 (Ch))
Ashley and Another -v- Sussex Police CA 27-7-2006 ([2007] 1 WLR 398, Bailii, [2006] EWCA Civ 1085, Times 30-Aug-06)
Ansar -v- Lloyds TSB Bank Plc and others CA 9-10-2006 (Bailii, [2006] EWCA Civ 1462)
Hilda Amoo-Gottfried -v- Legal Aid Board (No 1 Regional Committee) CA 1-12-2000 (Bailii, [2000] EWCA Civ 301)
Walsh -v- Staines and others ChD 26-7-2007 (Bailii, [2007] EWHC 1814 (Ch))
Bray -v- Deutsche Bank Ag QBD 12-6-2008 (Bailii, [2008] EWHC 1263 (QB))
D Pride & Partners (A Firm) and Others -v- Institute for Animal Health and Others QBD 31-3-2009 (Bailii, [2009] EWHC 685 (QB))
Alexander-David -v- London Borough of Hammersmith & Fulham CA 1-4-2009 (Bailii, [2009] EWCA Civ 259, Times)
Imerman -v- Tchenguiz and Others QBD 27-7-2009 (Bailii, [2009] EWHC 2024 (QB), [2009] Fam Law 1135, [2010] 1 FCR 14)
Mexfield Housing Co-Operative Ltd v Berrisford ChD 5-10-2009 (Bailii, [2009] EWHC 2392 (Ch))
L -v- L and Hughes Fowler Carruthers QBD 1-2-2007 (Bailii, [2007] EWHC 140 (QB), [2007] 2 FLR 171)
Land Securities Plc and Others v Fladgate Fielder (A Firm) CA 18-12-2009 (Bailii, [2009] EWCA Civ 1402, Times)
Gold Group Properties Ltd v BDW Trading Ltd TCC 3-3-2010 (Bailii, [2010] EWHC 323 (TCC))
JO1 v Garret and Another QBD 31-3-2010 (Bailii, [2010] EWHC 657 (QB))
Kaschke -v- Gray and Another QBD 29-3-2010 (Bailii, [2010] EWHC 690 (QB))
Abbar and Another -v- Saudi Economic & Development Company (Sedco) Real Estate Ltd and Others ChD 5-8-2010 (Bailii, [2010] EWHC 2132 (Ch))
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Armitage v Nurse

No Comments » Written on August 24th, 2010 by dls
Categories: Leading Cases
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Paula Rachel Armitage -v- Richard Nurse; Dudley Thomas Bowman Stammers and Brian Arthur Stammers (the Personal Representatives of Arthur George Stammers, Deceased); Margaret Lambert Mcleod Flatman (the Personal Representative of Keith Flatman, Deceased, S – CA – 19-Mar-97 – Millett LJ (Times 31-Mar-97, Bailii, [1997] EWCA Civ 1279, [1998] Ch 241, [1997] 2 All ER 705, [1997] 3 WLR 1046) – Trusts – Torts – Other
A clause in a trust deed may validly excuse trustees from personal liability for even gross negligence. The trustee was exempted from liability for loss or damage “unless such loss or damage shall be caused by his own actual fraud”.
Held: The trustee was under no liability in absence of any dishonest intention. Millett LJ criticised the existing law. Care was needed when applying concepts relevant to the tort of deceit to a breach of trust because breaches of trust were of many different kinds. An exemption clause could exclude the trustee from liability for loss and damage to the trust property “no matter how indolent, imprudent, lacking in diligence, negligent or wilful he may have been, so long as he had not acted dishonestly”.
Millett LJ held that a fraudulent breach of trust: ‘simply means dishonesty. I accept that formulation put forward by Mr Hill on behalf of the respondents which (as I have slightly modified it) is that it connotes at the minimum an intention on the part of the trustee to pursue a particular course of action, either knowing that it is contrary to the interests of the beneficiaries or being recklessly indifferent whether it is contrary to their interests or not.
It is the duty of a trustee to manage the trust property and deal with it in the interests of the beneficiaries. If he acts in a way which he does not honestly believe is in their interests then this is acting dishonestly. It does not matter whether he stands or thinks he stands to gain personally from his actions. A trustee who acts with the intention of benefiting persons who are not the objects of the trust is not the less dishonest because he does not intend to benefit himself.’

Cases Cited:
Armitage -v- Nurse and Others ChD 3-7-1995 (Ind Summary 03-Jul-95) – Appeal from

Cited by:
DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH -v- Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) -v- Same (No 3) CA 28-7-2003 (Bailii, [2003] EWCA Civ 1048, Times 09-Sep-03, [2004] 1 BCLC 131)
Barraclough -v- Mell and others ChD 1-12-2005 (Bailii, [2005] EWHC B17 (Ch))
Crawford -v- Financial Institutions Services Ltd PC 2-11-2005 (Bailii, [2005] UKPC 40, PC)
Berezovsky -v- Abramovich ComC 22-5-2008 (Bailii, [2008] EWHC 1138 (Comm))
Cavell USA, Inc and Randall -v- Seaton Insurance Company and Another (Rev 1) CA 16-12-2009 (Bailii, [2009] EWCA Civ 1363, Times)
Armitage -v- Nurse SCCO 11-4-2000 (Bailii, [2000] EWHC 9008 (Costs)) – See Also
Abbar and Another -v- Saudi Economic & Development Company (Sedco) Real Estate Ltd and Others ChD 5-8-2010 (Bailii, [2010] EWHC 2132 (Ch))

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RST v UVW – Without Notice Injunction – threatened breach of confidence

No Comments » Written on August 22nd, 2010 by dls
Categories: Leading Cases
Tags: ,

RST -v- UVW – QBD – 11-Sep-09 – Tugendhat J (Bailii, [2009] EWHC B24 (QB), Bailii, [2009] EWHC 2448 (QB), [2010] EMLR 13, [2010] Fam Law 141, [2010] 1 FLR 950, [2009] EWHC B24 (QB)) – Media – Contract – Intellectual Property
The applicant sought an interim and without notice injunction preventing the defendant from disclosing confidential information covered by an agreement between the parties.
Held: The order was made on a without notice application because there was a real risk that if given notice the respondent would take steps to defeat its purpose. The applicant had had sexual encounters with the respondent several years before, in return for money. She more recently came back asking for money not to disclose the events. He paid under a formal written agreement for confidentiality. Later her agent approached others with a view to selling her story. When challenged, the agent threatened to publish anyway.

Cases Cited:
Bonnard -v- Perryman CA 2-1-1891 ([1891] 2 Ch 269)
Gulf Oil -v- Page CA 1987 ([1987] 1 Ch 327)
Joyce -v- Sengupta and Another CA 31-7-1992 (Gazette 28-Oct-92, [1993] 1 WLR 337, Bailii, [1992] EWCA Civ 9)
Service Corporation International plc -v- Channel Four Television ChD 1999 ([1999] EMLR 83)
Theakston -v- MGN Ltd QBD 14-2-2002 (Bailii, [2002] EWHC 137 (QB), [2002] EMLR 22, [2002] EMLR 398)
A -v- B plc and Another CA 11-3-2002 (Times 13-Mar-02, Bailii, Gazette 25-Apr-02, [2002] 3 WLR 542, [2002] EWCA Civ 337, [2003] QB 195)
Campbell -v- Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-5-2004 (Bailii, [2004] UKHL 22, Times 10-May-04, House of Lords, [2004] 2 WLR 1232, [2004] 2 AC 457, [2004] UKHRR 648, [2004] EMLR 15, 16 BHRC 500, [2004] HRLR 24, [2004] 2 All ER 995)
Von Hannover -v- Germany ECHR 24-6-2004 ([2004] EMLR 21, 59320/00, Bailii, [2004] ECHR 294, Bailii, [2005] ECHR 555, [2005] 40 EHRR 1, (2004) 16 BHRC 545, Bailii, Bailii)
In re S (a Child) (Identification: Restrictions on Publication) HL 28-10-2004 (House of Lords, [2004] UKHL 47, Bailii, Times 29-Oct-04, [2005] 1 FLR 591, [2005] 1 AC 593, 17 BHRC 646, [2004] 4 All ER 683, [2005] Crim LR 310, [2004] 3 FCR 407, [2005] HRLR 5, [2004] 3 WLR 1129, [2005] EMLR 11, [2005] UKHRR 129, [2005] EMLR 2)
Greene -v- Associated Newspapers Ltd CA 5-11-2004 (Bailii, [2004] EWCA Civ 1462, Times 10-Nov-04, [2005] QB 972)
Ash and Another -v- McKennitt and others CA 14-12-2006 (Bailii, [2006] EWCA Civ 1714, Times 20-Dec-06, [2007] EMLR 113, [2006] EMLR 178, [2008] QB 73, [2007] 3 WLR 194)
Associated Newspapers Ltd -v- Prince of Wales CA 21-12-2006 (Bailii, [2006] EWCA Civ 1776, Times 28-Dec-06, [2008] EMLR 4, (2007) 104 LSG 30, [2007] Info TLR 267, [2008] Ch 57, [2007] 2 All ER 139, [2007] 3 WLR 222, [2008] EMLR 121)
Murray -v- Big Pictures (UK) Ltd; Murray -v- Express Newspapers CA 7-5-2008 (Bailii, [2008] EWCA Civ 446, [2008] 3 WLR 1360, [2008] HRLR 33, [2008] UKHRR 736, [2008] 2 FLR 599, [2008] 3 FCR 661, [2008] ECDR 12, [2008] EMLR 1, [2008] Fam Law 732)
Karako -v- Hungary ECHR 28-4-2009 (39311/05, Bailii, [2009] ECHR 712)

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Woolmington v DPP – Proof Beyond Reasonable Doubt

No Comments » Written on August 21st, 2010 by dls
Categories: Leading Cases
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Woolmington -v- Director of Public Prosecutions – HL – 23-May-35 – Viscount Sankey LC, Lord Hewart LC, Lord Atkin, Lord Tomlin, and Lord Wright ([1935] AC 462, Bailii, [1935] UKHL 1) – Crime
The appellant had been convicted of the murder of his wife. She had left him and returned to live with her mother. He went to the house. He said he intended to frighten her that he would kill himself if she did not return. He wired a shotgun to allow this, and wrote a suicide note, but when attempting to show what he intended, the gun went off killing her. He denied intending to harm her. The judge directed the jury “The killing of a human being is homicide, however he may be killed, and all homicide is presumed to be malicious and murder, unless the contrary appears from circumstances of alleviation, excuse, or justification. ‘In every charge of murder, the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him; for the law presumeth the fact to have been founded in malice, unless the contrary appeareth.’”
Held: The ‘golden thread’ of British justice is that it is for the prosecution to prove an offence against the defendant. “Juries are always told that, if conviction there is to be, the prosecution must prove the case beyond reasonable doubt.” and “Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.” However the rule is subject to exceptions created by statute.
Viscount Sankey LC: “If at any period of a trial it was permissible for the judge to rule that the prosecution had established its case and that the onus was shifted on the prisoner to prove that he was not guilty and that unless he discharged that onus the prosecution was entitled to succeed, it would be enabling the judge in such a case to say that the jury must in law find the prisoner guilty and so make the judge decide the case and not the jury, which is not the common law.”
Statutes:
Criminal Appeal Act 1907 s. 1 s. 4
Criminal Evidence Act 1898

Cases Cited:
Daniel M’Naghten’s Case HL 1843 ((1843) 10 Cl & Fin 200, [1843] 8 ER 718, Bailii, [1843] UKHL J16, [1843] EngR 875, Commonlii)
Mackalley’s case 1611 ((1611) 9 Co Rep 65 b, (1611) Cro Jac 279, [1611] ER 824)
Rex -v- Greenacre 1837 ((1837) 8 C&P 35)
Rex -v- Legg 1674 ((1674) Kelyng 27)
Rex -v- Davies 1913 ((1913) 29 Times L R 350, (1913) 8 Cr App R 211)
Rex -v- Stoddart 1909 ((1909) 2 Cr App R 217)
Rex -v- Oneby 1727 ((1727) 2 Stra 766, (1727) 1 Barn KB 17)
Rex -v- Schama; Rex -v- Abramovitch CCA 1914 ((1914) 84 LJKB 396, (1914) 112 LT 480, (1914) 79 JP 184, (1914) 31 TLR 88, (1914) 59 Sol Jo 288)
Lawrence -v- The King PC 1933 ([1933] AC 699)
Rex -v Sanders 1919 ((1919) 14 Cr App R 1)
Rex v- Grinberg 1917 ((1917) 33 Times L R 428)
Rex -v- Aubrey 1915 ((1915) 11 Cr. App. R. 182)

Cited by:
Grant -v- Director of Public Prosecutions Admn 22-1-2003 (Bailii, [2003] EWHC 130 (Admin))
Regina -v- Derek William Bentley (Deceased) CACD 30-7-1998 (Times 31-Jul-98, Bailii, [1998] EWCA Crim 2516, (2001) 1 Cr App R 307)
George Worme Grenada Today Limited -v- The Commissioner of Police PC 29-1-2004 (Bailii, [2004] UKPC 8, Times 05-Feb-04, PC, Gazette 04-Mar-04)
Mancini -v- Director of Public Prosecutions HL 1942 ([1942] AC 1)
Regina -v- Lambert HL 5-7-2001 (Times 06-Jul-01, Bailii, House of Lords, Gazette 31-Aug-01, [2001] 3 WLR 206, [2001] UKHL 37, [2002] 2 AC 545, [2002] 1 All ER 2, [2001] HRLR 55, [2001] 2 Cr App R 28, [2001] UKHRR 1074, [2001] 3 All ER 577)
B (A Minor) -v- Director of Public Prosecutions HL 25-2-2000 (Times 25-Feb-00, House of Lords, Gazette 16-Mar-00, House of Lords, Bailii, [2000] 2 AC 428, [2000] UKHL 13, [2000] 2 WLR 452, [2000] 1 All ER 833, [2000] Crim LR 403)
Michael Yearwood -v- The Queen PC 26-6-2001 (Bailii, PC, [2001] UKPC 31, [2001] 5 LRC 247)
Sheldrake -v- Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-10-2004 (House of Lords, Bailii, [2004] UKHL 43, [2005] 1 AC 264, Times 14-Oct-04, [2005] 1 All ER 237, [2004] 3 WLR 976)
Wang, Regina -v- HL 10-2-2005 (Bailii, [2005] UKHL 9, Times 11-Feb-05, [2005] 1 WLR 661)
Regina -v- Morgan HL 30-4-1975 ([1976] AC 182, [1975] 1 All ER 8, Bailii, [1975] UKHL 3)
Regina -v-Hunt (Richard) HL 1987 ([1987] 1 AC 352)
Clarke -v- Regina CACD 23-4-2008 (Bailii, [2008] EWCA Crim 651)
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Kuwait Airways v Iraqi Airways – Nature of Conversion

No Comments » Written on August 21st, 2010 by dls
Categories: Leading Cases
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Kuwait Airways Corporation -v- Iraqi Airways Company and others; Kuwait Airways Corporation -v- Iraqi Airways Company and Others (Nos 4 and 5) – HL – 16-May-02 – Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Hope of Craighead and Lord Scott of Foscote (House of Lords, Times 21-May-02, Bailii, [2002] 2 WLR 1353, [2002] 2 AC 883, [2002] UKHL 19) – Torts – Other – International – Damages
After the invasion of Kuwait, the Iraqi government dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim lay for the four planes destroyed by Allies’ action, but the Iraqi airline was responsible for the other six. It was legitimate for an English court to have regard to the content of international law in deciding whether to recognise a foreign law. The Iraqi action was a clear breach of international law. The planes had been converted. That it had been done originally by the Iraqi state was no effective defence. Every person through whose hands goods passed in a series of conversions was himself guilty of conversion. Conversion of goods is so various that a precise definition is nigh impossible. The features of the tort are threefold. First the defendant’s conduct was inconsistent with the rights of the owner (or other person entitled to possession). Second, the conduct was deliberate, not accidental. Third, the conduct was so extensive an encroachment on the rights of the owner as to exclude him from use and possession of the goods. The contrast is with lesser acts of interference.
Hoffmann L said: “There is no uniform causal requirement for liability in tort. Instead, there are varying causal requirements, depending upon the basis and purpose of liability. One cannot separate questions of liability from questions of causation . . the question of causation is decided by applying the rules which lay down the causal requirements for that form of liability to the facts of the case.”
Lord Nichols discussed the identification of losses flowing from a tort, saying: “How, then does one identify a plaintiff’s “true loss” in cases of tort? This question has generated a vast amount of legal literature. I take as my starting point the commonly accepted approach that the extent of a defendant’s liability for the plaintiff’s loss calls for a twofold inquiry: whether the wrongful conduct causally contributed to the loss and, if it did, what is the extent of the loss for which the defendant ought to be held liable. The first of these inquiries, widely undertaken as a simple “but for” test, is predominately a factual inquiry. The application of this test in cases of conversion is the matter now under consideration. I shall return to this in a moment.
The second inquiry, although this is not always openly acknowledged by the courts, involves a value judgment (“ought to be held liable”). Written large the second inquiry concerns the extent of the loss for which the defendant ought fairly or reasonably or justly to be held liable (the epithets are unchangeable). To adapt the language of Jane Stapleton in her article “Unpacking ‘Causation’” in Relating to Responsibility, ed Cane and Gardner (2001), p 168, the inquiry is whether the plaintiff’s harm or loss should be within the scope of the defendant’s liability, given the reasons why the law has recognised the cause of action in question. The law has to set a limit to the causally connected losses for which a defendant is to be held responsible. In the ordinary language of lawyers, losses outside the limit may bear one of several labels. They may be described as too remote because the wrongful conduct was not a substantial or proximate cause or because the loss was the product of an intervening cause. The defendants’ responsibility may be excluded because the plaintiff failed to mitigate his loss. Familiar principles, such as foreseeability, assist in promoting some consistency of general approach. These are guidelines, some more helpful than others, but they are never more than this.”

Cases Cited:
Buttes Gas and Oil Co -v- Hammer (No 3) HL 1982 ([1982] AC 888)
Oppenheimer -v- Cattermole HL 1976 ([1976] AC 249)
Kuwait Airways Corporation -v- Iraqi Airways Company (Conjoined Appeals 4 and 5) CA 10-11-2000 (Gazette 15-Dec-00, Times 21-Nov-00, Bailii, [2000] EWCA Civ 284, [2001] 3 WLR 1117) – Appeal from
Kuwait Airways Corporation -v- Iraqi Airways Company and Another (No 2) HL 8-2-2001 (Gazette 15-Feb-01, Times 14-Feb-01, House of Lords, Bailii, [2001] 1 Lloyd’s Rep 485, [2001] 1 WLR 429) – See Also

Cited by:
Marcq -v- Christe Manson and Woods (t/a Christies) QBD 29-10-2002 (Times 25-Nov-02, Gazette 28-Nov-02)
Coflexip Sacoflexip Stena Offshore Limited -v- Stolt Offshore Limitedstolt Offshore Limited Stolt Offshore A/S CA 13-3-2003 (Bailii, [2003] EWCA Civ 296)
Peer International Corporation Southern Music Publishing Company Inc Peermusic (Uk) Limited -v- Termidor Music Publishers Limited Termidor Musikverlag Gmbh & Co Kg -And-Editoria Musical De Cuba CA 30-7-2003 (Bailii, [2003] EWCA Civ 1156, Times 11-Sep-03, Gazette 02-Oct-03)
Rupert St John Loftus-Brigham and Another -v- London Borough of Ealing CA 28-10-2003 ([2003] EWCA Civ 1490, Bailii) – Followed
Fairchild (Suing on Her Own Behalf and on Behalf of the Estate of and Dependants of Arthur Eric Fairchild (Deceased)) -v- Glenhaven Funeral Services Ltd and Others; Fox (Suing As Widow and Administratirix of Thomas Fox (Deceased)) Spousal (Midlands) Ltd M HL 20-6-2002 (House of Lords, Times 21-Jun-02, Bailii, [2002] UKHL 22, [2003] 1 AC 32, [2002] Lloyds Rep Med 361, [2002] 3 All ER 305, [2002] PIQR P28, (2002) 67 BMLR 90, [2002] 3 WLR 89, [2002] ICR 798)
Jones & Milling, Olditch & Pritchard, and Richards -v- Gloucestershire Crown Prosecution Service CACD 21-7-2004 ([2004] EWCA Crim 1981, Bailii, [2005] QB 259)
Chester -v- Afshar HL 14-10-2004 ([2005] 1 AC 134, House of Lords, Bailii, [2004] UKHL 41, Times 19-Oct-04, [2004] 3 WLR 927)
OBG Ltd OBG (Plant & Transport Hire) Ltd -v- Raymond International Ltd; OBG Ltd -v- Allen CA 9-2-2005 (Bailii, [2005] EWCA Civ 106, Times 24-Feb-05, [2005] QB 762, [2005] 2 All ER 602, [2005] BPIR 928, [2005] PNLR 27, [2005] 1 All ER (Comm) 639, [2005] BLR 245, [2005] 1 BCLC 711, [2005] 2 WLR 1174)
Borders (UK) Ltd and others -v- Commissioner of Police of the Metropolis and Another CA 3-3-2005 (Bailii, [2005] EWCA Civ 197, Times 15-Apr-05)
Kuwait Airways Corporation -v- Iraqi Airways Company (No 6) CA 16-3-2005 (Bailii, [2005] EWCA Civ 286, Times 25-Apr-05, [2005] 1 WLR 2734)
Vision Golf -v- Weightmans (a Firm) ChD 26-7-2005 (Times 01-Sep-05)
Vision Golf Ltd. -v- Weightmans (A Firm) ChD 26-7-2005 (Bailii, [2005] EWHC 1675 (Ch))
A and others -v- Secretary of State for the Home Department (No 2) HL 8-12-2005 (Bailii, [2005] UKHL 71, House of Lords, Times 09-Dec-05, [2005] 3 WLR 1249, [2006] 2 AC 221)
Hilal Abdul-Razzaq Ali Al-Jedda -v- Secretary of State for Defence CA 29-3-2006 (Bailii, [2006] EWCA Civ 327, Times 25-Apr-06, [2007] QB 621)
Scheps -v- Fine Art Logistic Ltd QBD 16-3-2007 (Bailii, [2007] EWHC 541 (QB))
Scheps -v- Fine Art Logistic Ltd QBD 16-3-2007 (Bailii, [2007] EWHC 541 (QB))
White -v- Withers Llp and Dearle CA 27-10-2009 (Bailii, [2009] EWCA Civ 1122, [2010] Fam Law 26, [2009] 3 FCR 435 [2009] 3 FCR 435)
Spencer -v- Wincanton Holdings Ltd (Wincanton Logistics Ltd) CA 21-12-2009 (Bailii, [2009] EWCA Civ 1404, [2010] PIQR P8)
Chubb Fire Ltd -v- The Vicar of Spalding & Churchwardens and Church Council of The Church of St Mary & St Nicholas, Spalding CA 20-8-2010 (Bailii, [2010] EWCA Civ 981)
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Pointe Gourde v Sub-Intendant of Crown Lands

No Comments » Written on August 9th, 2010 by dls
Categories: Leading Cases
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Pointe Gourde Quarrying and Transport Co Ltd -v- Sub-Intendant of Crown Lands – PC – 1947 – Lord MacDermott ([1947] AC 565, (1947) 63 TLR 486) – Commonwealth – Damages – Land
Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used to provide materials to construct the air base. It used compulsory powers to do so. Compensation was to be assessed. The landowner said that the limestone was now more valuable because of the need for it for the air base.
Held: The Board set out the basis for valuation of land purchased compulsorily at common law. The 1919 Act, following the Scott Committee limited compensation payable for the “special suitability or adaptability” of the land with a Rule for assessing compensation; that it should not for any purpose be be taken into account if that purpose is a purpose to which it could be applied only in pursuance of statutory powers, or for which there is no market apart from the special needs of a particular purchaser or the requirements of any Government Department or any local or public authority.
The Act mofified “the effect of certain decisions of the Courts relating to the quantum of compensation in cases of compulsory purchase”.
The rule did not apply to the facts of this case. The word “purpose” here meant “a purpose to which the land can be applied. It therefore connotes “a use, actual or potential, of the land itself, and cannot be regarded as meaning a purpose which is only concerned with the use of the products of the land elsewhere”.
The award of £15,000 “for special adaptability” was disallowed because it could only relate to the additional value which was given to the quarry land by the scheme for which the land was acquired, the establishment by the United States of a naval base in Trinidad. In general, any increase or decrease in value due solely to the scheme under which the land is acquired is to be discounted.
Lord MacDermott said: “It is well settled that compensation for the compulsory acquisition of land cannot include an increase in value which is entirely due to the scheme underlying the acquisition.”
Statutes:
Acquisition of Land (Assessment of Compensation) Act 1919

Cases Cited:
South Eastern Railway Co -v- London County Council 1915 ([1915] 2 Ch 252)
Fraser -v- City of Fraserville PC 1917 ([1917] AC 187)

Cited by:
Melville J and Elizabeth L Waters and others -v- Welsh Development Agency CA 28-6-2002 (Gazette 12-Sep-02, Bailii, [2002] EWCA Civ 924, [2003] 4 All ER 384, [2002] JPL 1481, [2002] RVR 298)
C F & M G Roberts -v- South Gloucestershire District Council LT 31-12-1994 (ACQ/90/93)
Bolton Metropolitan Borough Council -v- Tudor Properties Ltd and Others CA 19-4-2000 (Bailii, [2000] EWCA Civ 136, (2000) RVR 292)
Wilson -v- Liverpool Corporation CA 1971 ([1971] 1WLR 302) – Explained
Waters and others -v- Welsh Development Agency HL 29-4-2004 (House of Lords, [2004] UKHL 19, Bailii, Times 05-May-04, Gazette 13-May-04, [2004] 1 WLR 1304, [2004] NPC 68, [2004] RVR 153, [2004] 19 EGCS 165, [2004] 2 All ER 915)
Rugby Joint Water Board -v- Shaw-Fox HL 1973 ([1973] AC 202) – Applied
Davy -v- Leeds Corporation HL 1965 ([1965] 1 WLR 445)
Camrose -v- Basingstoke Corporation CA 1966 ([1966] 1 WLR 1100)
Myers -v- Milton Keynes Development Corporation CA 1974 ([1974] 1 WLR 696) – Applied
Bird and Bird -v- Wakefield Metropolitan Borough Council 1976 ((1976) 33 P&CR 478) – Developed
Batchelor -v- Kent County Council CA 1989 ([1992] 1 EGLR 217, (1990) 59 P&CR 357)
J A Pye (Oxford) Limited -v- Kingswood Borough Council CA 6-4-1998 (Gazette 16-Apr-98, Bailii, [1998] EWCA Civ 643, [1998] 2 EGLR 159, [2000] RVR 40)
Batchelor -v- Kent County Council LT 1-3-1987 (117/1986, (1989) 59 P & CR 357)
Newell and others -v- Secretary of State for the Environment and Another; Fletcher Estates (Harlescott) Ltd -v- Secretary of State for the Environment and Another HL 17-2-2000 (Times 23-Feb-00, House of Lords, Gazette 02-Mar-00, Bailii, [2000] UKHL 10, [2000] 2 AC 307, [2000] 1 All ER 929, [2000] 2 WLR 438)
Transport for London (London Underground Ltd -v- Spirerose Ltd HL 30-7-2009 (Bailii, [2009] UKHL 44, Times)
Graham -v- The Council of The City of Newcastle Upon Tyne UTLC 20-1-2010 (Bailii, [2009] UKUT 281 (LC))
Star Energy Weald Basin Ltd and Another -v- Bocardo Sa SC 28-7-2010 (Bailii, [2010] UKSC 35, SC, WLRD, Bailii Summary, SC Summary, [2010] WLR (D) 204) – Applied

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AG v Guardian – Spycatcher 2

No Comments » Written on August 5th, 2010 by dls
Categories: Leading Cases
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Attorney-General -v- Guardian Newspapers Ltd (No 2) (‘Spycatcher’) – HL – 13-Oct-88 – Lord Goff of Chieveley, Lord Hutton, Lord Hobhouse of Woodborough, Lord Griffiths, Lord Jauncey ([1990] 1 AC 109, Bailii, [1988] UKHL 6, [1987] 1 WLR 776, [1988] 3 All ER 545) – Media – Human Rights – Information
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 made. The AG sought to restrain those publications.
Held: A duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others. There would be no point in imposing a duty of confidence in respect of the secrets of the marital bed if newspapers were free to publish those secrets when betrayed to them by the unfaithful partner. When trade secrets are betrayed by a confidant it is usually the third party who exploits the information and it is the activity of the third party that must be stopped. The court could look to the Convention to help decide how common law should develop. There was in principle no difference between article 10 of the European Convention of Human Rights and the English law of confidence. “…the principle of confidentiality only applies to information to the extent that it is confidential. In particular, once it has entered what is usually called the public domain (which means no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential) then, as a general rule, the principle of confidentiality can have no application to it.” and ” I conceive it to be my duty, when I am free to do so, to interpret the law in accordance with the obligations of the Crown under [the Convention]. But for present purposes the important words are “when I am free to do so”. The sovereign legislator in the United Kingdom is Parliament. If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crown in breach of an international treaty or not.”

Lord Griffiths considered the correct approach to the defence of public interest in a copyright action: “If Peter Wright owns the copyright in Spycatcher, which I doubt, it seems to me extremely unlikely that any court in this country would uphold his claim to copyright if any newspaper or any third party chose to publish Spycatcher and keep such profits as they might make to themselves. I would expect a judge to say that the disgraceful circumstances in which he wrote and published Spycatcher disentitled him to seek the assistance of the court to obtain any redress: see Glyn v Weston Feature Film Co. [1916] 1 Ch. 261.” A third limiting pribciple of the protection afforded by the law of confidence was “. . . although the basis of the law’s protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure. This limitation may apply, as the learned judge pointed out, to all types of confidential information. It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure.”

Lord Jauncey “The courts of the United Kingdom will not enforce copyright claims in relation to every original literary work. . . . The publication of Spycatcher was against the public interest and was in breach of the duty of confidence which Peter Wright owed to the Crown. His action reeked of turpitude. It is in these circumstances inconceivable that a United Kingdom court would afford to him or his publishers any protection in relation to any copyright which either of them may possess in the book.”

Lord Goff of Chievely An obligation of confidence could arise even where the information in question had not been confided by a confider to a confidant: “I realise that, in the vast majority of cases, in particular those concerned with trade secrets, the duty of confidence will arise from a transaction or relationship between the parties – often a contract, in which event the duty may arise by reason of either an express or an implied term of that contract. It is in such cases as these that the expressions “confider” and “confidant” are perhaps most aptly employed. But it is well settled that a duty of confidence may arise in equity independently of such cases; and I have expressed the circumstances in which the duty arises in broad terms, not merely to embrace those cases where a third party receives information from a person who is under a duty of confidence in respect of it, knowing that it has been disclosed by that person to him in breach of his duty of confidence, but also to include certain situations, beloved of law teachers – where an obviously confidential document is wafted by an electric fan out of a window into a crowded street, or where an obviously confidential document, such as a private diary, is dropped in a public place, and is then picked up by a passer-by.”
Lord Goff set out three limiting principles for the rights of confidentiality: “The first limiting principle (which is rather an expression of the scope of the duty) is highly relevant to this appeal. It is that the principle of confidentiality only applies to information to the extent that it is confidential. In particular, once it has entered what is usually called the public domain (which means no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential) then, as a general rule, the principle of confidentiality can have no application to it. …
The second limiting principle is that the duty of confidence applies neither to useless information, nor to trivia. There is no need for me to develop this point.
The third limiting principle is of far greater importance. It is that, although the basis of the law’s protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure. This limitation may apply, as the learned judge pointed out, to all types of confidential information. It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure”.
Statutes:
European Convention on Human Rights

Cases Cited:
O Mustad & Son –v- Dosen and Another; O Mustad & Son –v-Allcock HL 1924 ([1964] 1 WLR 109, [1963] 3 All ER 416) – Approved
Lion Laboratories Ltd -v- Evans CA 1985 ([1985] QB 526) – Approved
Glyn -v- Weston Feature Film Co 1916 ([1916] 1 Ch 261)
Bile Bean Manufacturing Co -v- Davidson CS 1906 ((1906) 23 RPC 725)
Slingsby -v- Bradford Patent Truck and Trolley Co 1905 ([1906] WN 51, [1905] WN 122)
Attorney General -v- Guardian Newspapers Ltd (No.1) HL 13-8-1987 (Bailii, [1987] UKHL 13, [1987] 1 WLR 1248, [1987] 3 All ER 316) – See Also

Cited by:
Attorney-General -v- Greater Manchester Newspapers Ltd QBD 4-12-2001 (Times 07-Dec-01, Bailii, Gazette 06-Feb-02, [2001] EWHC QB 451, [2001] All ER (D) 32 (Dec))
Frankson and Others -v- Secretary of State for the Home Department; Johns -v- Same CA 8-5-2003 (Times 12-May-03, [2003] 1 WLR 1952, [2003] EWCA Civ 655)
Kiam -v- MGN Ltd CA 28-1-2002 (Gazette 15-Mar-02, Bailii, [2002] EWCA Civ 43, [2002] 1 WLR 2810, [2003] QB 281)
Director of Public Prosecutions -v- Jones and Another HL 4-3-1999 (Times 05-Mar-99, House of Lords, Gazette 17-Mar-99, Gazette 31-Mar-99, Bailii, [1999] 2 AC 240, [1999] UKHL 5)
Reynolds -v- Times Newspapers Ltd and others HL 28-10-1999 (Times 29-Oct-99, Gazette 25-Nov-99, Gazette 17-Nov-99, House of Lords, Bailii, [2001] 2 AC 127, [1999] UKHL 45, [1999] 4 All ER 609, [1999] 3 WLR 1010)
Campbell -v- Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-5-2004 (Bailii, [2004] UKHL 22, Times 10-May-04, House of Lords, [2004] 2 WLR 1232, [2004] 2 AC 457, [2004] UKHRR 648, [2004] EMLR 15, 16 BHRC 500, [2004] HRLR 24, [2004] 2 All ER 995)
Tillery Valley Foods -v- Channel Four Television, Shine Limited ChD 18-5-2004 ([2004] EWHC 1075 (Ch), Bailii, Times 21-May-04, Gazette 03-Jun-04)
X, A Woman Formerly Known As Mary Bell -v- Stephen O’Brien, News Group Newspapers Ltd MGN Ltd QBD 21-5-2003 (Bailii, [2003] EWHC QB 1101, [2003] 2 FCR 686)
A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou -v- Secretary of State for the Home Department CA 11-8-2004 (Time 05-Oct-04, Bailii, [2004] EWCA Civ 1123, [2005] 1 WLR 414)
Paddick -v- Associated Newspapers Ltd QBD 10-12-2003 (Bailii, [2003] EWHC 2991 (QB))
EPI Environmental Technologies Inc and Another -v- Symphony Plastic Technologies Plc and Another ChD 21-12-2004 (Bailii, [2004] EWHC 2945 (Ch), Times 14-Jan-05, [2005] 1 WLR 3456)
Hyde Park Residence Ltd -v- David Yelland, News Group Newspapers Ltd, News International Ltd, Reuben Murrell CA 10-2-2000 (Times 16-Feb-00, Gazette 24-Feb-00, Bailii, [2000] EWCA Civ 37, [2001] Ch 143)
Douglas and others -v- Hello! Ltd and others (No 3) CA 18-5-2005 (Bailii, [2005] EWCA Civ 595, Times 24-May-05, [2005] 4 All ER 128, [2005] 3 WLR 881, [2006] QB 125)
Hellewell -v- Chief Constable of Derbyshire QBD 13-1-1995 (Gazette 15-Feb-95, Times 13-Jan-95, [1995] 1WLR 804, [1995] 4 All ER 473)
Derbyshire County Council -v- Times Newspapers Ltd and Others HL 18-2-1993 (Gazette 07-Apr-93, [1993] AC 534, Bailii, [1992] UKHL 6) – Approved
Regina -v- Secretary of State for The Home Department Ex Parte Simms, Secretary of State For The Home Department, ex Parte O’Brien HL 11-2-1999 (Times 09-Jul-99, Gazette 28-Jul-99, House of Lords, Bailii, [1999] UKHL 33, [2000] 2 AC 115, [1999] 3 All ER 400, [1999] 3 WLR 328)
Axon, Regina (on the Application of) -v- Secretary of State for Health and Another Admn 23-1-2006 (Bailii, [2006] EWHC 37 (Admin), Times 23-Jan-06, [2006] 2 WLR 1130)
McKennitt and others -v- Ash and Another QBD 21-12-2005 (Bailii, [2005] EWHC 3003 (QB), [2006] EMLR 10)
Associated Newspapers Ltd -v- Prince of Wales CA 21-12-2006 (Bailii, [2006] EWCA Civ 1776, Times 28-Dec-06)
Lord Browne of Madingley -v- Associated Newspapers Ltd CA 3-4-2007 (Bailii, [2007] EWCA Civ 295, [2008] QB 103)
Mosley -v- News Group Newspapers Ltd QBD 24-7-2008 (Bailii, [2008] EWHC 1777 (QB))
Callaghan -v- Independent News & Media Ltd QBNI 7-1-2009 (Bailii, [2009] NIQB 1)
Mohamed, Regina (on the Application of) -v- Secretary of State for Foreign & Commonwealth Affairs (No 4) Admn 4-2-2009 (Bailii, [2009] EWHC 152 (Admin))
Barclays Bank Plc -v- Guardian News Media Ltd QBD 19-3-2009 (Bailii, [2009] EWHC 591 (QB))
Tchenguiz and Others -v- Imerman CA 29-7-2010 (Bailii, [2010] EWCA Civ 908, [2010] WLR (D) 217, WLRD)

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Prince Albert v Strange – Rights in Confidence

No Comments » Written on August 4th, 2010 by dls
Categories: Leading Cases
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Prince Albert -v- Strange – – 08-Feb-49 – Vice-Chancellor Knight-Bruce, Lord Cottenham LC ((1849) 1 H & Tw 1, 2 De G & SM 293, (1849) 1 Mac & G 25, Bailii, [1849] EWHC Ch J20, [1849] EngR 255, Commonlii, (1849) 41 ER 1171, [1849] EngR 261, Commonlii, (1849) 47 ER 1302) – Intellectual Property – Information
The Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. The etchings appeared to have been removed surreptitiously from or by one Brown. A personal confidence was claimed.
Held: The jurisdiction in confidence is based not so much on property or on contract as on a duty of good faith. In granting an injunction restraining the publication of the catalogue containing descriptions of etchings, the court said it was “an intrusion – an unbecoming and unseemly intrusion . . offensive to that inbred sense of propriety natural to every man – if, intrusion, indeed, fitly describes a sordid spying into the privacy of domestic life – into the home (a word hitherto sacred among us).” The plaintiff’s affidavits: “state distinctly the belief of the Plaintiff, that the catalogue and the descriptive and other remarks therein contained, could not have been compiled or made, except by means of the possession of the several impressions of the said etchings surreptitiously and improperly obtained. To this case no answer is made . . If then, these compositions were kept private, except as to some . . sent to [B] for the purposes of having certain impressions taken, the possession of the Defendant . . must have originated in a breach of trust, confidence, or contract, in [B] or some person in his employ taking more impressions than were ordered, and retaining the extra number.” Lord Cottenham LC said: “privacy is the right invaded.”

Cited by:
Douglas, Zeta-Jones, Northern & Shell Plc -v- Hello! Ltd, Hola, S A , Junco, The Marquesa De Varela, Neneta Overseas Ltd, Ramey (No 3) ChD 11-4-2003 (Bailii, [2003] EWHC 786 (Ch), Times 21-Apr-03, [2003] 3 All ER 996, [2003] EMLR 31)
British Steel Corporation -v- Granada Television Ltd HL 7-5-1980 ([1981] AC 1096, [1981] 1 All ER 452)
Campbell -v- Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-5-2004 (Bailii, [2004] UKHL 22, Times 10-May-04, House of Lords, [2004] 2 WLR 1232, [2004] 2 AC 457, [2004] UKHRR 648, [2004] EMLR 15, 16 BHRC 500, [2004] HRLR 24, [2004] 2 All ER 995)
Coco -v- A N Clark (Engineers) Ltd ChD 1969 ([1969] 86 RPC 41)
Douglas and others -v- Hello! Ltd and others (No 3) CA 18-5-2005 (Bailii, [2005] EWCA Civ 595, Times 24-May-05, [2005] 4 All ER 128, [2005] 3 WLR 881, [2006] QB 125)
Murray -v- Express Newspapers Plc and Another ChD 7-8-2007 (Bailii, [2007] EWHC 1908 (Ch), Times 04-Oct-07)
Tchenguiz and Others -v- Imerman CA 29-7-2010 (Bailii, [2010] EWCA Civ 908, [2010] WLR (D) 217, WLRD)
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Ladd v Marshall – New Evidence on Appeal?

No Comments » Written on August 3rd, 2010 by dls
Categories: Leading Cases
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Ladd -v- Marshall – CA – 29-Nov-54 – Denning, Parker, Hobson LJJ ([1954] 1 WLR 1489, [1954] 3 All ER 745, Bailii, [1954] EWCA Civ 1) – Evidence – Litigation Practice
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence or for a retrial.
Held: The court considered guidelines for the admission of new evidence on an appeal against the background of its availability at the first hearing. Such evidence might be admissible where a witness had made a material mistake and wished to correct it. If a witness had been bribed or coerced into telling a lie and wished to correct it, then a retrial might be appropriate. ´first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or, in other words, it must be apparently credible though it need not be incontrovertible.’

Cases Cited:
Braddock -v- Tillotsons Newspapers Ltd 1949 ([1949] 2 All ER 306, [1950] 1 KB 47)
Richardson -v- Fisher 1823 (130 ER 59, (1823) 1 Bing 145)
Brown -v- Dean 1910 ([1910] AC 373)

Cited by:
Hertfordshire Investments Ltd -v- Bubb and Another CA 25-7-2000 (Times 31-Aug-00, [2000] 1 WLR 2318, [2000] CPLR 588, [2001] CP Rep 38, [2000] EWCA Civ 3013, Bailii) – Applied
Taylor -v- Lawrence CA 4-2-2002 (Times 04-Feb-02, Bailii, Gazette 21-Mar-02, [2002] EWCA Civ 90, [2002] 2 All ER 353, [2002] 3 WLR 640, [2003] QB 528)
Voaden -v- Champion ( ‘Baltic Surveyor’ ) CA 31-1-2002 (Bailii, [2002] EWCA Civ 89, [2002] 1 Lloyd’s Rep 623)
Dennis Pritchard Evans -v- Tiger Investments Limited, David John Moore CA 20-2-2002 (Bailii, [2002] EWCA Civ 161) – Applied
Zarvos -v- Pradhan and another CA 7-3-2003 (Times 04-Apr-03, Bailii, [2003] EWCA Civ 208, Gazette 09-May-03, [2003] 13 EG 114, [2003] 2 P & CR 122)
Regina -v- Immigration Appeal Tribunal ex parte Tewedros Tadesse Haile CA 2002 ([2002] INLR 283)
Regina -v- Secretary of State for the Home Department ex parte Ali 1984 ([1984] 1 WLR 663)
Sharon Ann Lord and Catherine Elizabeth Haslewood-Ogram -v- Michael Norman Jessop CA 21-4-1999 (Bailii, [1999] EWCA Civ 1228) – Applied
Petrus Couwenbergh -v- Bilyana Angelova Valkova CA 27-5-2004 (Bailii, [2004] EWCA Civ 676)
Regina -v- Secretary of State for the Home Department Ex Parte Onibiyo CA 28-3-1996 (Gazette 09-May-96, [1996] QB 768, [1996] 2 All ER 901, [1996] Imm AR 370, Bailii, [1996] EWCA Civ 1338, [1996] 2 WLR 490)
In re K (Children) (Non-accidental injuries: Perpetrator: New Evidence) CA 27-8-2004 ([2004] EWCA Civ 1181, Bailii, [2005] 1 FLR 285)
Dr Giuseppe Ruscill, Council for the Regulation of Health Care Professionals -v- The General Medical Council & Another, The Council for the Regulation of Health Care Profesionals, The Nursing and Midwifery Council, Steven Truscott CA 20-10-2004 (Bailii, [2004] EWCA Civ 1356, Times 27-Oct-04)
Breeze -v- Ahmad CA 8-3-2005 (Bailii, [2005] EWCA Civ 223)
Secretary of State for Trade & Industry -v- Paulin ChD 13-5-2005 (Bailii, [2005] EWHC 888 (Ch), Times 26-May-05)
Fisher -v- Cadman and Others ChD 14-6-2005 (Times 23-Jun-05, Bailii, [2005] EWHC 377 (Ch), [2006] 1 BCLC 499)
Petrus Couwenbergh -v- Bilyana Angelova Valkova CA 28-1-2005 (Bailii, [2005] EWCA 145 Civ)
Williams -v- Attridge Solicitors (a Firm) CA 8-7-1997 (Bailii, [1997] EWCA Civ 2049)
Rudra -v- National & Provincial Building Society; Stickley and Kent (Risk Management Unit) Ltd CA 22-8-1997 (Bailii, [1997] EWCA Civ 2310)
Williams -v- The Queen PC 23-11-1998 (Bailii, [1998] UKPC 45)
Riyad Bank and others -v- Ahli United Bank (Uk) Plc CA 23-11-2005 (Times 16-Dec-05, Bailii, [2005] EWCA Civ 1419)
Hamilton -v- Al-Fayed (2) CA 13-10-2000 (Times 13-Oct-00, Gazette 26-Oct-00, [2001] EMLR 15, [2002] 3 All ER 641)
Charlesworth -v- Road Relay 2001 ([2001] 1 WLR 230)
Barry Martin Parker -v- Lawrence Stephen Synder, Andrea Siddons, David Price CA 1-11-2005 ([2005] EWCA Civ 1416)
B, Regina (on the Application Of) -v- SS (Responsible Medical Officer) and others CA 26-1-2006 (Bailii, [2006] EWCA Civ 28, Times 02-Feb-06)
Prince Radu of Hohenzollern -v- Houston and Another QBD 7-3-2006 (Bailii, [2006] EWHC 231 (QB))
Ashton , Regina -v-; Regina -v- Draz; Regina -v- O’Reilly CACD 5-4-2006 (Bailii, [2006] EWCA Crim 794, Times 18-Apr-06, [2007] 1 WLR 181)
Banks and Another -v- Cox and Another CA 17-7-2000 (Transcript No. 1476 of 2000)
Capital Bank Plc -v- Mcdiarmid CA 7-2-2006 (Bailii, [2006] EWCA Civ 226)
June Goulding; Marcus Geoffrey Goulding -v- John Michael James and Peter James Daniel CA 10-12-1996 (Times 07-Feb-97, Bailii, [1996] EWCA Civ 1156)
Electra Private Equity Partners (a Limited Partnership) and others -v- KPMG Peat Marwick (a Firm) and others CA 23-4-1999 (Bailii, [1999] EWCA Civ 1247, [2001] 1 BCLC 589)
Al-Koronky and Another -v- Time-Life Entertainment Group Ltd and Another CA 28-7-2006 (Bailii, [2006] EWCA Civ 1123, Times 28-Aug-06)
Thune -v- London Properties Limited CA 1990 ([1990] 1 WLR 562)
Livingstone -v- The Adjudication Panel for England Admn 19-10-2006 (Bailii, [2006] EWHC 2533 (Admin), Times 09-Nov-06, [2006] BLGR 799, [2006] HRLR 45, [2007] ACD 22)
Ali -v- Lane and Another CA 21-11-2006 (Bailii, [2006] EWCA Civ 1532, Times 04-Dec-06)
Ferguson -v- Welsh HL 29-10-1987 ([1987] 1 WLR 1553, Bailii, [1987] UKHL 14)
Berezovsky -v- Forbes Inc and Michaels; Glouchkov -v- Same HL 16-5-2000 (Times 16-May-00, House of Lords, Gazette 31-May-00, House of Lords, Bailii, [2000] 1 WLR 1004, [2000] UKHL 25, [2000] 2 All ER 986)
Zambia -v- Meer Care & Desai (A Firm) and others CA 9-7-2008 (Bailii, [2008] EWCA Civ 754)
David -v- Charlemagne CA 1996 ((1996) 5 PIQR 318)
Judge -v- Judge and others CA 19-12-2008 (Bailii, [2008] EWCA Civ 1458, [2009] 1 FLR 1287)
Lifely -v- Lifely CA 30-7-2008 (Bailii, [2008] EWCA Civ 904, Times 27-Aug-08)
Wileman -v- Minilec Engineering Ltd 1988 ([1988] ICR 318)
Todd (T/A Hygia Professional Training) -v- Cutter EAT 13-7-2007 (Bailii, [2007] UKEAT 0063_07_1307)
Webster (the Parents) -v- Norfolk County Council and others (Rev 1) CA 11-2-2009 (Bailii, [2009] EWCA Civ 59)
Langdale -v- Danby HL 1982 ([1982] 1 WLR 1123, [1982] 3 All ER 129)
Rudra -v- Abbey National Plc and Stickley and Kent (Risk Management Unit) Limited CA 26-2-1998 (Bailii, [1998] EWCA Civ 361)
Skone v Skone and Another HL 1971 ([1971] 1 WLR 812, [1971] 2 All ER 582) – Approved
Owens v Noble CA 10-3-2010 (Bailii, [2010] EWCA Civ 224, [2010] WLR (D) 73, WLRD, Times)
Hamilton -v- Al Fayed CA 21-12-2000 (Bailii, [2000] EWCA Civ 3012, [2001] EMLR 15)
Roe and Another v Robert McGregor and Sons Ltd; Bills v Roe CA 1968 ([1968] 1 WLR 925)
Westlaw Services Ltd and Another -v- Boddy CA 30-7-2010 (Bailii, [2010] EWCA Civ 929)

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Chartbrook Ltd -v- Persimmon Homes Ltd and Others

No Comments » Written on August 3rd, 2010 by dls
Categories: Leading Cases
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Chartbrook Ltd -v- Persimmon Homes Ltd and Others – HL – 01-Jul-09 – Lord Hope of Craighead, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Baroness Hale of Richmond (Bailii, [2009] UKHL 38, Times, [2009] 27 EG 91, [2009] BLR 551, 125 Con LR 1, [2009] 3 WLR 267, [2010] 1 P & CR 9, [2009] Bus LR 1200, [2009] NPC 86, [2009] CILL 2729, [2009] 4 All ER 677, [2009] 1 AC 1101, [2009] WLR (D) 223, WLRD, HL) – Land – Contract – Evidence – Equity
The parties had entered into a development contract under which compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: There were difficulties in construing the contract. The contract came to be read after a period of sharp falls in value which were not reflected comfortably in the words used, and the phrase “additional residential payment” made no particular commercial sense. It was necessary for it to be clear first that the language had gone awry, and second what a reasonable bystander would have understood the parties to have meant. Those conditions being satisfied, the appeal was allowed.
Evidence of negotiations can be given to establish that “a fact which may be relevant as background was known to the parties”. It was also argued that the course pre-contractual negotiations should be allowed and taken into account in construing the contract. There was however no clear case shown for departing from this exclusionary rule or changing what is now settled practice.
The court should consider “what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean.”

Cases Cited:
Chartbrook Ltd -v- Persimmon Homes Ltd and Another ChD 2-3-2007 (Bailii, [2007] EWHC 409 (Ch), [2007] 2 P & CR 9, [2007] 1 All ER (Comm) 1083, [2007] 11 EG 160) – At first instance
Chartbrook Ltd -v- Persimmon Homes Ltd CA 12-3-2008 (Bailii, [2008] EWCA Civ 183, [2008] 11 EG 92, [2008] 2 All ER (Comm) 387) – Appeal from
A & J Inglis -v- Buttery & Co CA 1877 ((1877) 5 R 58)
River Wear Commissioners -v- Adamson HL 1877 ((1877) 2 App Cas 743)
Prenn -v- Simmonds HL 1971 ([1971] 1 WLR 1381, [1971] 3 All ER 237)
Birmingham City Council -v- Walker HL 16-5-2007 (Bailii, [2007] UKHL 22, Times 18-May-07)
A & J Inglis -v- Buttery & Co HL 1978 ((1878) 3 AppCas 552)
KPMG Llp -v- Network Rail Infrastructure Ltd CA 27-4-2007 (Bailii, [2007] EWCA Civ 363, [2007] Bus LR 1336)
Alexiou and Another -v- Campbell PC 26-2-2007 (Bailii, [2007] UKPC 11)
Kirin-Amgen Inc and others -v- Hoechst Marion Roussel Limited and others; Kirin-Amgen Inc and others -v- Hoechst Marion Roussel Limited and others HL 21-10-2004 (House of Lords, [2004] UKHL 46, Bailii, [2005] RPC 169, (2005) 28(7) IPD 28049, [2005] 1 All ER 667)
Bank of Credit and Commerce International SA -v- Ali, Khan and others (No 1); BCCI -v- Ali HL 1-3-2001 (Times 06-Mar-01, Gazette 12-Apr-01, House of Lords, Bailii, [2001] UKHL 8, [2001] 1 All ER 961, [2001] 2 WLR 735, [2002] 1 AC 251, [2001] ICR 337, [2001] IRLR 292, [2001] Emp LR 359)
East -v- Pantiles Plant Hire Ltd ChD 1981 ([1982] 2 EGLR 111, (1981) 263 EG 61)
Jumbo King Ltd -v- Faithful Properties Ltd 2-12-1999 ((1999) 2 HKCFAR 279, HKLII)
Investors Compensation Scheme Ltd -v- West Bromwich Building Society HL 19-6-1997 (Times 24-Jun-97, House of Lords, Bailii, [1997] UKHL 28, [1998] 1 All ER 98, [1998] 1 WLR 896, [1998] AC 896)
Mannai Investment Co Ltd -v- Eagle Star Assurance HL 21-5-1997 (Times 26-May-97, House of Lords, Bailii, [1997] 2 WLR 945, [1997] UKHL 19, [1997] AC 749, [1997] 3 All ER 352, [1997] 24 EG 122)
Countess of Rutland’s Case 1604 ((1604) 5 Co Rep 25, Commonlii 01-Jan-04)
Owners of cargo lately laden on board the ship or vessel ‘Starsin’ and others -v- Owners and/or demise charterers of the ship or vessel ‘Starsin’; Homburg Houtimport BV -v- Agrosin Private Ltd HL 13-3-2003 (House of Lords, [2003] UKHL 12, Bailii, Times 17-Mar-03, Gazette 15-May-03, [2003] 2 WLR 711, [2004] 1 AC 715, [2003] 1 CLC 921, 2003 AMC 913, [2003] 1 Lloyd’s Rep 571, [2003] 1 All ER (Comm) 625, [2003] 2 All ER 785, [2003] 1 LLR 571)
Bratton Seymour Service Co Ltd -v- Oxborough CA 1992 ([1992] BCLC 693)
National Bank of Sharjah -v- Dellborg and others CA 9-7-1997 (Bailii, [1997] EWCA Civ 2070)
Pepper (Inspector of Taxes) -v- Hart HL 26-11-1992 (lip, [1992] 3 WLR 1032, [1993] AC 593, [1993] 1 All ER 42, Bailii, [1992] UKHL 3)
Practice Statement (Judicial Precedent) HL 1966 ([1966] 3 All ER 77, [1966] 1 WLR 1234)
Partenreedesei Karen Oltmann -v- Scarsdale Shipping Co Ltd (The Karen Oltmann) 1976 ([1976] 2 Lloyds Rep 708)
Shore -v- Wilson 1842 ((1842) 9 CI & Fin 355, [1842] EngR 950, Commonlii, (1839,1842) 9 Cl & Fin 355, (1842) 8 ER 450)
Regina -v- National Insurance Commissioner, Ex parte Hudson HL 1972 ([1972] AC 944)
Antaios Cia Naviera -v- Salen Rederiana AB (The Antaios) HL 1985 ([1985] AC 191)

Cited by:
Sigma Finance Corporation, Re; (in administrative receivership) SC 29-10-2009 (Bailii, [2009] UKSC 2)
Westvilla Properties Ltd v Dow Properties Ltd ChD 15-1-2010 (Bailii, [2010] EWHC 30 (Ch))
Oceanbulk Shipping & Trading Sa v TMT Asia Ltd CA 15-2-2010 (Bailii, [2010] EWCA Civ 79, Times)
Horwood and Others -v- Land of Leather Ltd and Others ComC 18-3-2010 (Bailii, [2010] EWHC 546 (Comm))
Pink Floyd Music Ltd and Another v EMI Records Ltd ChD 11-3-2010 (Bailii, [2010] EWHC 533 (Ch))
Ashcroft -v- Barnsdale and Others ChD 30-7-2010 (Bailii, [2010] EWHC 1948 (Ch))

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Banks v Goodfellow – Testamentary Capacity

No Comments » Written on July 29th, 2010 by dls
Categories: Leading Cases
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Banks -v- Goodfellow – QBD – 1870 – Cockburn CJ ((1870) LR 5 QB 549) – Wills and Probate – Health
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: “The question is whether . . the testator was capable of having such a knowledge and appreciation of facts, and was so far master of his intentions, free from delusions, as would enable him to have a will of his own in the disposition of his property, and act upon it.”
Held: The will was effective. English law gives testators “absolute freedom” in the disposal of their property. However the court pointed to “a moral responsibility of no ordinary importance . . the instincts and affections of mankind, in the vast majority of instances, will lead men to make provision for those who are the nearest to them in kindred and who in life have been the objects of their affection.” To disappoint reasonable expectation of this kind is to “shock the common sentiments of mankind, and to violate what all men concur in deeming an obligation of the moral law”. English law “leaves everything to the unfettered discretion of the testator” on the assumption that “the instincts, affections and common sentiments of mankind may safely be trusted to secure, on the whole, a better disposition of the property of the dead” than stereotyped and inflexible rules. The court considered the test for testamentary capacity.
Cockburn CJ: “It is unnecessary to consider whether the principle of the foreign law or that of our own is the wiser. It is obvious, in either case, that to the due exercise of a power thus involving moral responsibility, the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition. It is essential to the exercise of such a power (of making a will) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgment are lost, and the mind becomes a pray to insane delusions calculated to interfere with and disturb its function, and to lead to a testamentary disposition, due only to their baneful influence – in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand.”

Cases Cited:
Greenwood -v- Greenwood 1776 ([1776] 3 Curt App) – Approved
Charles Harwood -v- Maria Baker PC 1840 ((1840) 3 Moore’s PCC 282, Commonlii, [1840] EngR 1087, (1840) 3 Moo PC 282, (1840) 13 ER 117) – Approved
Den -v- Vancleve 1819 ((1819) 2 Southard 589)
Burdett -v- Thompson 1878 ((1878) 3 P&D 72)

Cited by:
Ewing -v- Bennett CA 25-2-1998 (Bailii, [1998] EWCA Civ 342)
Clancy -v- Clancy ChD 31-7-2003 (Times 09-Sep-03, Gazette 02-Oct-03, [2003] WTLR 1097)
Thompson and others -v- Thompson and others FdNI 16-2-2003 (Bailii, [2003] NIFam 3, GIRF3864)
Hoff and others -v- Atherton CA 19-11-2004 (Bailii, [2004] EWCA Civ 1554, [2005] WTLR 99)
Potter -v- Potter FdNI 5-2-2003 (Bailii, [2003] NIFam 2)
Edith Alice Billington (By Jack Johnson Billington Her Next Friend) Thomas Joseph Billington Edith Annie Warburton -v- Joan Blackshaw CA 16-12-1997 (Bailii, [1997] EWCA Civ 3003)
Robin Sharp and Malcolm Bryson -v- Grace Collin Adam and Emma Adam and others CA 28-4-2006 (Bailii, [2006] EWCA Civ 449, [2006] WTLR 1059)
Martin Masterman-Lister -v- Brutton & Co, Jewell & Home Counties Dairies (No 1) CA 19-12-2002 (Times 28-Dec-02, [2002] EWCA Civ 1889, Bailii, [2003] 1 WLR 1511, (2003) 73 BMLR 1, [2003] Lloyds Rep Med 244, [2003] PIQR P20, [2003] WTLR 259, [2003] CP Rep 29, [2003] 3 All ER 162, (2004) 7 CCL Rep 5)
Kostic -v- Chaplin and others ChD 15-10-2007 (Bailii, [2007] EWHC 2298 (Ch))
Judy Ledger -v- Wootton and Another ChD 2-10-2007 (Bailii, [2007] EWHC B13 (Ch), [2007] EWHC 2599 (Ch))
Boughton -v- Knight 1873 ((1873) LR 3 P & D 64)
Carr and others -v- Beaven and others ChD 29-10-2008 (Bailii, [2008] EWHC 2582 (Ch))
Scammell and Another -v- Farmer ChD 22-5-2008 (Bailii, [2008] EWHC 1100 (Ch))
Zorbas -v- Sidiropoulous (No 2) 10-7-2009 ([2009] NSWCA 197, Austlii)
Perrins -v- Holland and Another ChD 31-7-2009 (Bailii, [2009] EWHC 1945 (Ch))
Key and Another v Key and Others ChD 5-3-2010 (Bailii, [2010] EWHC 408 (Ch))
Perrins -v- Holland and Others; In re Perrins, deceased CA 21-7-2010 (Bailii, [2010] EWCA Civ 840, [2010] WLR (D) 196, WLRD)

R v SSHD ex part Leech (No 2) – Prisoners Access to Justice System

No Comments » Written on July 29th, 2010 by dls
Categories: Leading Cases
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Regina -v- Secretary of State Home Department, ex parte Leech (No 2) – CA – 20-May-93 – Steyn LJ, Neill LJ, Rose LJ (Independent 20-May-93, Times 20-May-93, [1994] QB 198, Bailii, [1993] EWCA Civ 12, [1993] 3 WLR 1125) – Judicial Review – Human Rights – Prisons
Prison rules were ultra vires in so far as they provided for reading letters between prisoners and their legal advisers. Every citizen has a right of unimpeded access to the court. A prisoner’s unimpeded access to a solicitor for the purpose of receiving advice and assistance in connection with a possible institution of proceedings in the courts forms an inseparable part of the right of access to the courts themselves and that section 47(1) did not authorise the making of any rule which created an impediment to the free flow of communication between a solicitor and a client about contemplated legal proceedings. Section 47(1) did not expressly authorise the making of a rule such as rule 33(3), and a fundamental right such as the common law right to legal professional privilege would very rarely be held to be abolished by necessary implication. But section 47(1) should be interpreted as conferring power to make rules for the purpose of preventing escapes from prison, maintaining order in prisons, detecting and preventing offences against the criminal law and safeguarding national security. Rules could properly be made to permit the examining and reading of correspondence passing between a prisoner and his solicitor in order to ascertain whether it was in truth bona fide correspondence and to permit the stopping of letters which failed such scrutiny. The crucial question was whether rule 33(3) was drawn in terms wider than necessary to meet the legitimate objectives of such a rule. “The question is whether there is a self-evident and pressing need for an unrestricted power to read letters between a prisoner and a solicitor and a power to stop such letters on the ground of prolixity and objectionability.”
Statutes:
Prisons Act 1952 s. 47(1)
Prison Rules 1964 (SI 1964/388) s. 33(3)

Cases Cited:
Campbell -v- The United Kingdom ECHR 25-3-1992 (13590/88, (1992) 15 EHRR 137, Bailii, [1992] ECHR 41, ECHR, , Bailii) – Applied
Raymond -v- Honey HL 4-3-1981 ([1982] AC 1, Bailii, [1981] UKHL 8)

Cited by:
Regina (Daly) -v- Secretary of State for the Home Department HL 23-5-2001 (Times 25-May-01, Gazette 21-Jun-01, Bailii, House of Lords, [2001] 3 All ER 433, [2001] 1 AC 532, [2001] 2 WLR 1622, [2001] UKHL 26)
Regina -v- Secretary of State for The Home Department Ex Parte Simms, Secretary of State For The Home Department, ex Parte O’Brien HL 11-2-1999 (Times 09-Jul-99, Gazette 28-Jul-99, House of Lords, Bailii, [1999] UKHL 33, [2000] 2 AC 115, [1999] 3 All ER 400, [1999] 3 WLR 328) – Approved
Regina -v- Secretary of State for the Home Department, Ex Parte Pierson HL 21-5-1997 (Times 28-Jul-97, Gazette 01-Oct-97, House of Lords, Bailii, [1997] UKHL 37, [1998] AC 539, [1997] 3 All ER 577, [1997] 3 WLR 492)
Regina -v- Secretary of State for Home Department ex parte Ian Simms and Michael Alan Mark O’Brien QBD 19-12-1996 (Times 17-Jan-97, Bailii, [1996] EWHC Admin 388)
Jeffrey Shane Watkins -v- Secretary of State for The Home Departmentand others CA 20-7-2004 (Bailii, [2004] EWCA Civ 966, Times 05-Aug-04, [2005] QB 883)
Nilsen -v- HM Prison Full Sutton and Another CA 17-11-2004 (Bailii, [2004] EWCA Civ 1540, Times 23-Nov-04, [2005] 1 WLR 1028)
Regina -v- Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-10-2005 (House of Lords, Times 18-Oct-05, Bailii, [2005] UKHL 58, [2005] 2 WLR 695, [2006] 2 AC 148, [2006] Lloyds Rep Med 1, [2006] 4 All ER 736, [2005] MHLR 276, [2005] HRLR 42, (2005) 86 BMLR 84)
Watkins -v- Home Office and others HL 29-3-2006 (Bailii, [2006] UKHL 17, Times 03-Apr-06, [2006] 2 WLR 807, [2006] 2 AC 395)
Medical Justice, Regina (on The Application of) -v- Secretary of State for The Home Department Admn 26-7-2010 (Bailii, [2010] EWHC 1925 (Admin))
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Betts v Stevens

No Comments » Written on July 28th, 2010 by dls
Categories: Leading Cases
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Betts -v- Stevens – – 1910 – Alverstone CJ, Darling and Bucknill JJ ([1910] 1 KB 1, 26 TLR 5) – Crime – Road Traffic
The defendant, an Automobile Association patrolman was accused of obstructing a police constable in the execution of his duty. The police had set a speed trap, and the defendant had warned approaching vehicles of the trap. At the time they were warned they were thought to have been already speeding, and the police observed this.
Held: Bastable was distinguished on the ground that the action of the patrolman obstructed the police obtaining their timings. The gist of the offence lay in the intention with which the acts complained of were done. If the intention was simply to prevent the commission of crime, no offence was committed. It was otherwise if the intention was to prevent the commission of crime only at a time when there was a danger of detection.
Lord Alverstone said: “In my opinion a man who, finding that a car is breaking the law, warns the driver, so that the speed of the car is slackened, and the police are thereby prevented from ascertaining the speed and so are prevented from obtaining the only evidence upon which, according to our experience, Courts will act with confidence, is obstructing the police in the execution of their duty.”
Darling J said: “The appellant in effect advised the drivers of those cars which were proceeding at an unlawful speed not to go on committing an unlawful act. If that advice were given simply with a view to prevent the continuance of the unlawful act and procure observance of the law, I should say that there would not be an obstruction of the police in the execution of their duty of collecting evidence beyond the point at which the appellant intervened. The gist of the offence to my mind lies in the intention with which the thing is done. In my judgment in Bastable v Little I used these words: ‘In my opinion it is quite easy to distinguish the cases where a warning is given with the object of preventing the commission of a crime from the cases in which the crime is being committed and the warning is given in order that the commission of the crime may be suspended while there is danger of detection.’ I desire to repeat those words.”

Cases Cited:
Bastable -v- Little 1907 ([1907] 1 KB 59) – Distinguished

Cited by:
Green -v- Moore 1982 ([1982] 1 All ER 428)
Director of Public Prosecutions, Regina (on the Application Of) -v- Glendinning Admn 13-10-2005 (Bailii, [2005] EWHC 2333 (Admin))

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Parket v Felgate – Capacity of Testator on Signing

No Comments » Written on July 26th, 2010 by dls
Categories: Leading Cases
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Parker and Another -v- Felgate and Tilly – – 1883 – Sir James Hannen, President ((1883) 8 PD 171) – Wills and Probate
A will was challenged on the basis of alleged lack of capacity. The testatrix had capacity when instructing her solicitor, but suffered from Bright’s disease which affected her kidney, and she fell into a coma before it was prepared. She was roused to execute the will. The doctor said ‘This is your will. Do you wish this lady to sign it?’
Held: Sir James Hannen, President directed the jury: “The law applicable in this case is this. If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make a good will, if executed by the testator, is that he should be able to think thus far, ‘I gave my solicitor instructions to prepare a will making a certain disposition of my property: I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out.’ Now, I have only put into language that which flashes across the mind without being expressed in words. Do you believe that she was so far capable of understanding what was going on? Did she at the time know and recollect all that she had done with Mr Parker? That would be one state of mind. But if you should come to the conclusion that she did not at that time recollect in every detail all that had passed between them, do you think she was in a condition, if each clause of this will had been put to her, and she had been asked, ‘Do you wish to leave So-and-so so much,’ or do you wish to this (as the case might be), she would have been able to answer intelligently ‘Yes’ to each question? That would be another condition of mind. It would not be so strong as trhe first, viz., that in which she recollected all that she had done, but it would be sufficient. There is also a third state of mind which, in my judgment, would be sufficient. A person might no longer have capacity to go over the whole transaction, and take up the thread of business from beginning to end, and think it all over again, but is able to say to himself, ‘I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it;’ it is not, of course, necessary that he should use those words, but if he is capable of that train of thought in my judgment that is sufficient. It is for you to say whether, having regard to the circumstances under which this will was prepared and executed, you accept the view of those who were present at the time, and who have given their evidence, who say that in their judgment she was conscious.” and “If Mr Ponsford [the solicitor] only inserted these clauses because he believed the testatrix would approve of them that would not be sufficient. To make the clauses good there must be either instructions previously given or the will as drawn must be afterwards acknowledged or approved. If you believe that there were such instructions, then the will only expresses her intention and carries out her instructions, and the clauses cannot be rejected.”
Held: What is required at the date of execution is that the testator understands that he is executing a will for which he has previously given instructions. The court pronounced in favour of the will.

Cited by:
Clancy -v- Clancy ChD 31-7-2003 (Times 09-Sep-03, Gazette 02-Oct-03, [2003] WTLR 1097) – Applied
Perera and others -v- Perera and others PC 1901 ([1901] AC 354) – Approved
Thomas -v- Jones 6-3-1928 (Unreported, 06 March 1928) – Applied
In the estate of Wallace, dec’d; Solicitor of the Duchy of Cornwall -v- Batten and Another 1952 ([1952] Times LR 925)
Carr and others -v- Beaven and others ChD 29-10-2008 (Bailii, [2008] EWHC 2582 (Ch))
Perrins -v- Holland and Another ChD 31-7-2009 (Bailii, [2009] EWHC 1945 (Ch))
Perrins -v- Holland and Others; In re Perrins, deceased CA 21-7-2010 (Bailii, [2010] EWCA Civ 840, [2010] WLR (D) 196, WLRD)
Pereira -v- Pereira; Perera -v- Perera PC 1901 ([1901] AC 354, [1901] 70 LJPC 46, [1901] 84 LT 371) – Approved
Battan Singh -v- Amirchand PC 1948 ([1948] AC 161) – Approved
Re Flynn ChD 1982 ([1982] 1 WLR 310) – Applied
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Christie v Leachinsky – Validity of Arrest

No Comments » Written on July 22nd, 2010 by dls
Categories: Leading Cases
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Christie -v- Leachinsky – HL – 25-Mar-47 – Viscount Simon, Lord Thankerton, Lord Macmillan, Lord Simonds, Lord du Parcq ([1947] AC 573, Bailii, [1947] UKHL 2, [1947]1 All ER 567, [1947] 63 TLR 231, (1947) 111 JP 224) – Police – Torts – Other
Police officers appealed against a finding of false imprisonment. The plaintiff had been arrested under the 1921 Act, but this provided no power of arrest (which the appellant knew).
Held: Police officers must give a detained person a reason for his arrest at or within a reasonable time of the arrest. Under ordinary circumstances, the police should tell a person the reason for his arrest at the time they make the arrest. If a person’s liberty is being restrained, he is entitled to know the reason. If the police fail to inform him, the arrest will be held to be unlawful, with the consequence that if the police are assaulted as the suspect resists arrest, he commits no offence, and if he is taken into custody, he will have an action for wrongful imprisonment.
The House summarised a police officer’s powers of arrest at common law: “(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. (5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, e.g., by immediate counter-attack or by running away. There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter.”
Statutes:
Liverpool Corporation Act of 1921

Cases Cited:
Mackalley’s case 1611 ((1611) 9 Co Rep 65 b, (1611) Cro Jac 279, [1611] ER 824)
Entick -v- Carrington KBD 1765 ((1765) 2 Wils 275, (1765) 19 St Tr 1030, Bailii, [1765] EWHC KB J98, Commonlii, [1799] EngR 236, (1799) 2 Wils KB 275, (1799) 95 ER 807)
Samuel -v- Payne 1780 ([1780] 1 Doug. 359)
Williams -v- Dawson 1788 (Unreported 1788)
Hobbs -v- Branscomb 1813 ([1813] 3 Camp 420)
Dumbell -v- Roberts CA 1944 ([1944] 1 All ER 326)
Rex -v- Ford 1817 ((1817) R & R 329)
Hooper -v- Lane 1847 ([1847] 6 HLC 443, [1847] 10 QB 546)
Rex -v- Howarth 1828 ([1828] 1 Moody 207)
Cowles -v- Dunbar 1827 ([1827] 2 Car & P 565)
Beckwith -v- Philby KBD 1827 ([1827] 6 B & C 635)
Walters -v- W H Smith & Son Ltd CA 1914 ([1914] 1 KB 595)

Cited by:
Taylor (A Child Proceeding By his Mother and Litigation Friend C M Taylor) -v- Chief Constable of Thames Valley Police CA 8-7-2004 (Bailii, [2004] EWCA Civ 858, Times 13-Jul-04, [2004] 3 All ER 503, [2004] 1 WLR 3155)
Brazil -v- Chief Constable of Surrey QBD 1983 ([1983] 3 All E R 537, [1983] 1 WLR 1155)
Murray -v- Ministry of Defence HL 25-5-1988 ([1988] 1 WLR 692, Bailii, [1988] UKHL 13, [1988] 2 All ER 521)
Sher and Others -v- Chief Constable of Greater Manchester Police and Others Admn 21-7-2010 (Bailii, [2010] EWHC 1859 (Admin))
Bentley -v- Brudzinski QBD 1982 ((1982) CLR 825, [1982] 75 Cr App R 217)
Cumberbatch -v- Crown Prosecution Service Admn 24-11-2009 (Bailii, [2009] EWHC 3353 (Admin), (2010) 174 JP 149)
WL (Congo) 1 and 2 and Another, Regina (on The Application of) -v- Secretary of State for The Home Department CA 19-2-2010 (Bailii, [2010] EWCA Civ 111)
Abbassy and Another -v- Newman (the Commissioner of Police of the Metropolis) CA 28-7-1989 (Bailii, [1989] EWCA Civ 7, [1990] 1 WLR 385)
Regina -v- Robinson CACD 15-10-1996 (Bailii, [1996] EWCA Crim 1095)
Wilson -v- Chief Constable of Lancashire Constabulary CA 5-11-1996 (Bailii, (2000) 1 Po LR 367, [1996] EWCA Civ 883)
Clarke -v- Chief Constable of North Wales Police CA 7-10-1997 (Bailii, [1997] EWCA Civ 2432)
Regina -v- Chalkley, Brisbane McEwan Jeffries CACD 19-12-1997 (Times 19-Jan-98, Gazette 04-Feb-98, Bailii, [1997] EWCA Crim 3416, [1998] 3 WLR 146)
Regina -v- Cooke CACD 16-1-1998 (Bailii, [1998] EWCA Crim 138)
Regina -v- Kirk CACD 25-6-1999 (Bailii, [1999] EWCA Crim 1783)
Newman (t/a Mantella Publishing) -v- Modern Bookbinders Ltd CA 20-1-2000 (Bailii, [2000] EWCA Civ 2)
Regina -v- Michael Carroll and Abdullah Muhammad Al-Hasan (Formerly Known As Anthony Steele) and Secretary of State for Home Department Admn 16-2-2001 (Bailii, [2001] EWHC Admin 110)
Director of Public Prosecutions -v- Avery QBD 11-10-2001 (Bailii, Times 08-Nov-01, [2001] EWHC Admin 784)
Ashleigh-Nicholson -v- Staffordshire Police and Another CA 23-8-2002 (Bailii, [2002] EWCA Civ 1300)
Regina on the application of Faulkner -v- Secretary of State for the Home Department Admn 1-11-2005 (Bailii, [2005] EWHC 2567 (Admin))
Raissi and Another -v- The Commissioner of Police of the Metropolis QBD 30-11-2007 (Bailii, [2007] EWHC 2842 (QB))
Raissi, Regina (on the Application of) -v- Secretary of State for the Home Department CA 14-2-2008 (Bailii, [2008] EWCA Civ 72, [2008] 3 WLR 375)
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Marper v UK – Retention of DNA samples is Human Rights Breach

No Comments » Written on July 22nd, 2010 by dls
Categories: Leading Cases
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Marper -v – United Kingdom; S -v- United Kingdom – ECHR – 04-Dec-08 – J-P.Costa, President, and Judges C. Rozakis, Sir Nicolas Bratza, P. Lorenzen, F. Tulkens, J. Casadevall, G. Bonello, C. Bîrsan, N. Vajic, A. Kovler, S. Pavlovschi, E. Myjer, D. Jociene, J. Šikuta, M. Villiger, P. Hirvelä and L. Bianku (30562/04, Bailii, [2008] ECHR 1581, Times, (2008) 158 NLJ 1755, (2009) 48 EHRR 50, 25 BHRC 557, [2009] Crim LR 355) – Human Rights – Criminal Practice – Police – Information
(Grand Chamber hearing) The applicants complained that on being arrested on suspicion, samples of their DNA had been taken, but despite being released without charge, the samples had retained on the Police database.
Held: (Unanimous) The retention was unlawful. Though other member states retained some DNA samples in certain conditions, the UK was the only signatory state to permit the systematic and indefinite retention of DNA profiles and cellular samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued. The concept of “private life” is a broad term not susceptible to exhaustive definition. The court had previously recognised the difference between retention of fingerprint images and personal samples of DNA, and “an individual’s concern about the possible future use of private information retained by the authorities is legitimate and relevant to a determination of the issue of whether there has been an interference. Indeed, bearing in mind the rapid pace of developments in the field of genetics and information technology, the Court cannot discount the possibility that in the future the private-life interests bound up with genetic information may be adversely affected in novel ways or in a manner which cannot be anticipated with precision today . . the retention of both cellular samples and DNA profiles discloses an interference with the applicants’ right to respect for their private lives, within the meaning of Article 8 § 1 of the Convention. ” Even as to fingerprints, their retention on the authorities’ records in connection with an identified or identifiable individual may in itself give rise, notwithstanding their objective and irrefutable character, to important private-life concerns. It was therefore necessary to justify their retention. There were legitimate concerns about the retention of cellular samples, where for example. It was used for racial categorisation.
The government figures were misleading. The retention had contributed to detection of crime but not to extent claimed. This was an an indiscriminate and open-ended retention regime. The right of every person under the Convention to be presumed innocent includes the general rule that no suspicion regarding an accused’s innocence may be voiced after his acquittal.
The blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.
“it is as essential, in this context, as in telephone tapping, secret surveillance and covert intelligence-gathering, to have clear, detailed rules governing the scope and application of measures, as well as minimum safeguards concerning, inter alia, duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for its destruction, thus providing sufficient guarantees against the risk of abuse and arbitrariness “
Statutes:
European Convention on Human Rights s. 8 s. 14
Police and Criminal Evidence Act 1984 s. 64(1A)
Data Protection Act 1998
UN Convention on the Rights of the Child of 20 November 1989 s. 40

Cases Cited:
Regina (S) -v- Chief Constable of South Yorkshire; Regina (Marper) -v- Same Admn 22-3-2002 (Times 04-Apr-02, Bailii, [2002] EWHC 478 (Admin), [2002] 1 WLR 3223) – At First Instance
Regina (on the application of S) -v- Chief Constable of South Yorkshire Police, Regina (Marper) -v- Same CA 12-9-2002 (Times 03-Oct-02, Gazette 17-Oct-02, Bailii, [2002] EWCA Civ 1275, [2003] 1 All ER 148, [2002] All ER (D) 62, [2002] NLJR 1483, [2002] 1 WLR 3223, [2002] 40 LS Gaz R 32, [2003] Crim LR 39) – At Court of Appeal
S, Regina (on Application of) -v- South Yorkshire Police; Regina -v- Chief Constable of Yorkshire Police ex parte Marper HL 22-7-2004 (House of Lords, [2004] UKHL 39, Bailii, Times 23-Jul-04, [2004] 1 WLR 2196, [2004] 4 All ER 193, [2004] UKHRR 967) – At House of Lords
Marper -v United Kingdom; S -v- United Kingdom ECHR 16-1-2007 (Bailii, [2007] EHCR 110, 30562/04) – See Also
Marper -v United Kingdom; S -v- United Kingdom ECHR 27-2-2008 (Bailii, [2008] ECHR 178, 30562/04) – See Also
Attorney General’s Reference (No 3 of 1999) (Lynn) HL 15-12-2000 (Gazette 15-Feb-01, House of Lords, Times 15-Dec-00, Bailii, [2000] UKHL 63, [2001] 2 WLR 56, [2001] 2 AC 91)
Regina -v- RC 28-10-2005 ([2005] 3 SCR 99, 2005 SCC 61, Canlii)
South Yorkshire and North Wales Police -v- The Information Commissioner IT 12-10-2005 (Bailii, [2005] UKIT DA_05_0010)
Leander -v- Sweden ECHR 26-3-1987 ([1987] 9 EHRR 433, 9248/81, Bailii, [1987] ECHR 4)
Burghartz -v- Switzerland ECHR 8-4-1994 (Times 08-Apr-94, Bailii, [1994] ECHR 2, 16213/90, ECHR, (1994) 18 EHRR 101, Bailii)
Friedl -v- Austria ECHR 31-1-1995 ((1995) 21 EHRR 83, 15225/89, Bailii, [1995] ECHR 12, ECHR, [1995] ECHR 15225/89, [1995] ECHR 15974/90, (1996) 21 EHRR 1, (1995) 21 EHRR 83, Bailii)
Z -v- Finland ECHR 25-2-1997 (22009/93, (1997) 25 EHRR 371, Bailii, ECHR, , Bailii, [1997] ECHR 10)
Van der Velden -v- The Netherlands ECHR 7-12-2006 ([2006] ECHR 1174, Bailii, 29514/05) – Followed
Amann -v- Switzerland ECHR 16-2-2000 (27798/95, Bailii, (2000) 30 EHRR 843, Bailii, [2000] ECHR 88, ECHR 2000-II)
Sciacca -v- Italy ECHR 11-1-2005 ((2006) 43 EHRR 20, 50774/99, ECHR, Bailii, [2005] ECHR 8, Bailii)
Bensaid -v- The United Kingdom ECHR 6-2-2001 (44599/98, (2001) 33 EHRR 205, (2001) 33 EHRR 10, [2001] ECHR 82, Bailii, [2001] INLR 325, 11 BHRC 297)
Unal Tekeli -v- Turkey ECHR 16-11-2004 (29865/96, ECHR, Bailii, [2004] ECHR 635, Bailii)
YF -v- Turkey ECHR 22-7-2003 (24209/94, Bailii, [2003] ECHR 391, Bailii, (2004) 39 EHRR 34)
Pretty -v- The United Kingdom ECHR 29-4-2002 (2346/02, (2002) 35 EHRR 1, Bailii, [2002] ECHR 423, Bailii)
Peck -v- The United Kingdom ECHR 28-1-2003 (Times 03-Feb-03, 44647/98, (2003) 36 EHRR 41, Bailii, [2003] ECHR 44, [2003] 36 EHRR 719, Bailii)
McVeigh, O’Neill and Evans -v- United Kingdom ECHR 1981 ((1981) 25 DR 15, 8022/77, 8025/77, 8027/77)
Malone -v- The United Kingdom ECHR 2-8-1984 (8691/79, (1984) 7 EHRR 14, Bailii, [1984] ECHR 10, ECHR)
Kinnunen -v- Finland ECHR 15-5-1996 (24950/94, Bailii, [1996] ECHR 104)
Rotaru -v- Romania ECHR 4-5-2000 (Bailii, [2000] ECHR 191, 28341/95, Bailii, [2000] ECHR 192, 2000) 8 BHRC 449)
Coster -v- The United Kingdom ECHR 18-1-2001 (Bailii, [2001] ECHR 44, 24876/94, Bailii, [2001] 33 EHRR 20)
Hasan and Chaush -v- Bulgaria ECHR 26-10-2000 (30985/96, (2002) 34 EHRR 55, Bailii, [2000] ECHR 509, (2002) 34 EHRR 1339, Bailii, [2000] ECHR 511)
PG and JH -v- The United Kingdom ECHR 25-9-2001 (Times 19-Oct-01, 44787/98, Bailii, Bailii, [2001] ECHR 550, [2001] ECHR 44787/98, ECHR 2001 IX)
Connors -v- The United Kingdom ECHR 27-5-2004 (66746/01, [2004] HLR 52, Times 10-Jun-04, Bailii, [2004] ECHR 223, (2004) 40 EHRR 189, Bailii, [2004] 40 EHRR 9)
Evans -v- United Kingdom ECHR 10-4-2007 (Bailii, 6339/05, [2007] ECHR 264 , Times 02-May-07, [2007] 2 FCR 5, [2007] 1 FLR 1990, 46 EHRR 34, [2007] Fam Law 588, (2007) 95 BMLR 107, 22 BHRC 190, (2008) 46 EHRR 34)
Kruslin -v- France ECHR 24-4-1990 (Bailii, [1990] ECHR 10, 11801/85, ECHR, 7/1989/167/223, Bailii, [1990] ECHR 10)
Weber and Saravia -v- Germany ECHR 29-6-2006 ([2006] ECHR 1173, Bailii, 54934/00)
Liberty And Others -v- United Kingdom ECHR 1-7-2008 (58243/00, Bailii, [2008] ECHR 568, Times 11-Jul-08)
The Association For European Integration And Human Rights And Ekimdzhiev -v- Bulgaria ECHR 28-6-2007 (62540/00, Bailii, [2007] ECHR 533)
Dickson and Another -v- United Kingdom ECHR 15-12-2007 (Bailii, [2007] ECHR 1050, Bailii, Times 21-Dec-07)
Rushiti -v- Austria ECHR 21-3-2000 ((2000) 33 EHRR 1331, 28389/95, Bailii, [2000] ECHR 105, Bailii, [2000] ECHR 106, [2000] 33 EHRR 56)

Cited by:
Wood -v- Commissioner of Police for the Metropolis CA 21-5-2009 (Bailii, [2009] EWCA Civ 414, Times, [2010] 1 WLR 123)
Attorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order HL 17-6-2009 (Bailii, [2009] UKHL 34, [2009] EMLR 23, [2009] 3 WLR 142, HL, Times)
F and Another, Regina (on The Application of) -v- Secretary of State for The Home Department SC 21-4-2010 (Bailii, [2010] UKSC 17, [2010] WLR (D) 98, WLRD, SC, SC Summ)
London Borough of Lewisham -v- D and Others FD 29-3-2010 (Bailii, [2010] EWHC 1239 (Fam))
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Edwards -v- The United Kingdom

No Comments » Written on July 21st, 2010 by dls
Categories: Leading Cases
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Edwards -v- The United Kingdom – ECHR – 14-Mar-02 – I Cabral Barreto, President and Judges Sir Nicolas Bratza, L. Caflisch, P. Kuris, R. Türmen, H. S. Greve and K. Traja (Times 01-Apr-02, 46477/99, (2002) 35 EHRR 487, Bailii, Bailii, [2002] ECHR 303) – Human Rights – Prisons – Damages
The deceased, a young man of mixed race, had been placed in a cell with another prisoner who was known to be violent, racist, and mentally unstable. The staff knew that the panic button was defective. The deceased was murdered by his cell-mate. His family asserted that the prison authorities had failed to protect his Article 2 right to life, and Article 13 right to a remedy. A series of shortcomings had been found in the Prison Service’s management, but no remedy had been offered.
Held: The deceased’s article 2 and 13 rights had been infringed. There had been no inquest, and the enquiry, whilst detailed, had been private and without the ability to compel witnesses to attend. The limits placed on the appellants’ involvement meant that that enquiry could not be seen as a proper opportunity for them to represent their interests. The remedies under the 1976 Act would not provide damages for non-financial loses, and legal aid would not be available.
“The applicants, parents of the deceased, were only able to attend three days of the inquiry when they were themselves giving evidence. They were not represented and were unable to put any questions to witnesses, whether through their own counsel, or, for example, through the Inquiry Panel. They had to wait for the publication of the final version of the Inquiry Report to discover the substance of the evidence about what had occurred. Given their close and personal concern with the subject-matter of the Inquiry, the Court finds that they cannot be regarded as having been involved in the procedure to the extent necessary to safeguard their interests.”
Statutes:
European Convention on Human Rights
Fatal Accidents Act 1976

Cited by:
Regina (Amin) -v- Secretary of State for the Home Department; Regina (Middleton) -v- Coroner for West Somersetshire CA 27-3-2002 (Times 18-Apr-02, Gazette 10-May-02, Bailii, [2002] EWCA Civ 390, [2003] QB 581) – Applied
Khan, Regina (on the Application of) -v- Secretary of State for Health CA 10-10-2003 ([2004] 1 WLR 971, Bailii, [2003] EWCA Civ 1129, Times 15-Oct-03, Gazette 20-Nov-03)
Amin, Regina (on the Application of) -v- Secretary of State for the Home Department HL 16-10-2003 (House of Lords, Bailii, [2003] UKHL 51, Times 17-Oct-03, [2003] 3 WLR 1169, Gazette 20-Nov-03, [2004] 1 AC 653, [2004] UKHRR 75, (2004) 76 BMLR 143, [2003] 4 All ER 1264, [2004] HRLR 3, 15 BHRC 362)
Middleton, Regina (on the Application of) -v- Coroner for the Western District of Somerset HL 11-3-2004 (Bailii, [2004] UKHL 10, Times 12-Mar-04, [2004] 2 AC 182, House of Lords, [2004] 2 WLR 800, [2004] UKHRR 501, [2004] 2 All ER 465, (2004) 79 BMLR 51, [2004] Lloyds Rep Med 288, [2004] 17 BHRC 49, (2004) 168 JPN 479, (2004) 168 JP 329)
Middleton, Regina (on the Application of) -v- Coroner for the Western District of Somerset HL 11-3-2004 (Bailii, [2004] UKHL 10, Times 12-Mar-04, [2004] 2 AC 182, House of Lords, [2004] 2 WLR 800, [2004] UKHRR 501, [2004] 2 All ER 465, (2004) 79 BMLR 51, [2004] Lloyds Rep Med 288, [2004] 17 BHRC 49, (2004) 168 JPN 479, (2004) 168 JP 329)
D, Regina (on the Application of) -v- Secretary of State for the Home Department Admn 28-4-2005 (Bailii, [2005] EWHC 728 (Admin))
Plymouth City Council -v- HM Coroner for the County of Devon and Another Admn 27-5-2005 (Bailii, [2005] EWHC 1014 (Admin), [2005] 2 FCR 428)
Takoushis, Regina (on the Application of) -v- HM Coroner for Inner North London and others CA 30-11-2005 ([2006] 1 WLR 461, Bailii, [2005] EWCA Civ 1440, Times 08-Dec-05)
Regina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) -v- The Secretary of State for Defence CA 21-12-2005 (Bailii, [2005] EWCA Civ 1609, [2007] QB 140, Times 06-Jan-06)
D, Regina (on the Application of) -v- Secretary of State for the Home Department (Inquest Intervening) CA 28-2-2006 (Bailii, [2006] EWCA Civ 143, Times 21-Mar-06, [2006] 3 All ER 946, [2006] HRLR 24)
Van Colle -v- Hertfordshire Police QBD 10-3-2006 (Bailii, [2006] EWHC 360 (QB), Times 28-Mar-06, 2006] 3 All ER 963)
Gentle, Regina (on the Application of) and Another -v- The Prime Minister and Another HL 9-4-2008 (Bailii, [2008] UKHL 20, Times 10-Apr-08, [2008] 2 WLR 879, HL, [2008] 1 AC 153, [2008] UKHRR 822, [2008] HRLR 27, [2008] 3 All ER 1)
Hertfordshire Police -v- Van Colle; Smith -v- Chief Constable of Sussex Police HL 30-7-2008 (Bailii, [2008] UKHL 50, [2008] 3 All ER 977, [2008] 3 WLR 593, Times 01-Aug-08, HL, [2009] PIQR P2, [2008] UKHRR 967, [2008] HRLR 44, [2009] 1 AC 225, [2009] 1 Cr App R 12, [2009] LS Law Medical 1)
JL, Regina (on the Application of) -v- Secretary of State for Justice; Regina (L (A Patient)) -v- Secretary of State for the Home Department HL 26-11-2008 (Bailii, [2008] UKHL 68, HL, Times, [2009] UKHRR 415, [2009] 2 All ER 521, [2009] 1 AC 588, [2009] HRLR 9, [2008] 3 WLR 1325)
Savage -v- South Essex Partnership NHS Foundation Trust (MIND intervening) HL 10-12-2008 (Bailii, [2008] UKHL 74, HL, Times, [2009] HRLR 12, [2009] 1 All ER 1053, [2009] PTSR 469, [2009] UKHRR 480, [2009] 2 WLR 115, (2009) 12 CCL Rep 125, [2009] 1 AC 681, (2009) 105 BMLR 180, [2009] LS Law Medical 40)
Rabone and Another -v- Pennine Care NHS Trust CA 21-6-2010 (Bailii, [2010] EWCA Civ 698, [2010] WLR (D) 152, WLRD)
Edwards -v- The United Kingdom ECHR 3-12-2009 (Bailii, [2009] ECHR 2275, 46477/99) – See Also
Mousa and Others -v- Secretary of State for Defence and Another Admn 16-7-2010 (Bailii, [2010] EWHC 1823 (Admin))
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Sutcliffe – Whole Life Tariff

No Comments » Written on July 17th, 2010 by dls
Categories: Leading Cases

Coonan (Formerly Sutcliffe), Regina -v- – QBD – 16-Jul-10 – Mittings J (Bailii, [2010] EWHC 1741 (QB)) – Criminal Sentencing
The respondent had been convicted of thirteen murders and 8 attempted murders. He had claimed to be acting in response to a divine voice heard when he worked in a graveyard. He was diagnosed a paranoid schizophrenic. The murders had created a climate of terror over many months over a wide area and he was assessed to be very dangerous. The judge had recommended a tariff of thirty years imprisonment, but none had been set.
Held: A whole life tariff was imposed and early release provision should not apply. Mittings J said: “My task is to assess, by reference to the factors set out in Schedule 21 and the recommendations of the trial Judge and the Lord Chief Justice, what the minimum term should be. Having done so, if I conclude that the appropriate term is a whole life term, I must not set such a term unless I am of the opinion that the Home Secretary would have set a whole life tariff under his practice before December 2002.”
Though it was not possible to discern clear policy from the 28 whole life tariffs set by the HS between 1996 and 2002, it was quite clear that this case came right at the top: “Only Rosemary West and Dennis Neilsen approach the number of victims murdered. Even they did not reach the total number of the Respondent’s victims. The conduct of Brady towards his three victims and of Ireland towards his five victims included greater sadism than that demonstrated by the Respondent. Childs, a contract killer with six victims, may have been more ruthless. But none of them could reasonably have been regarded by the Home Secretary as more deserving of retribution than the Respondent. In my opinion, it is more likely than not that if the Home Secretary had set a tariff for the Respondent, it would have been a whole life tariff. On that premise, I am not forbidden by paragraph 8(b) of Schedule 22 to set a whole life term.”
Statutes:
Criminal Justice Act 2003 s. 269
Crime (Sentences) Act 1977 s. 28(5)-(8)

Cases Cited:
Pitchfork, Regina -v- CACD 14-5-2009 (Bailii, [2009] EWCA Crim 963)
Caines, Regina -v-; Regina -v- Roberts CACD 23-11-2006 (Bailii, [2006] EWCA Crim 2915, Times 07-Dec-06, [2007] 2 All ER 584, [2007] 1 WLR 1109co)

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Lyons v Gulliver – Nuisance in queue

No Comments » Written on July 15th, 2010 by dls
Categories: Leading Cases
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Lyons Son & Co -v- Gulliver – CA – 1914 – Cozens-Hardy MR, Swinfen-Eady LJ ([1914] 1 Ch 631, 83 LJ Ch 281) – Nuisance
The defendants operated the Palladium theatre. People wanting to attend queued either along the footpath or along the roadway itself in front of the premises from which the plaintiff neighbour carried on its business as lace merchants and wholesale drapers. At trial, the judge had that the people in the queue were marshalled so as to form a stationary crowd standing on the pavement or in the road by the kerbstone in front of the plaintiff’s premises, sometimes as many as five deep. In consequence “pedestrians going from or to the plaintiff’s premises had, at the time when the queue was there, to make their way through the crowd forming the queue or go around by the end so as to get inside the queue; and vehicles were prevented, and necessarily prevented, or hindered, from access to the side of the pavement immediately in front of the plaintiff’s premises”.
Held: The obstruction was actionable as a private nuisance by the neighbour, and could be restrained by a private injunction. Queuing such as was found constituted “a serious nuisance and annoyance, by which the plaintiffs are specially affected”. That the police had failed to clear the obstruction by regulating the queues was not a defence. Nor was it arguable that potential customers could elbow their way through the crowd, or politely ask them to make way.
The court specifically said that their decision did not mean that a “queue is at all times in all places and under all circumstances necessarily a nuisance”.

Cases Cited:
Smith -v- Wilson 1905 ((1903) 2 IR 45)

Cited by:
Vanderpant -v- Mayfair Hotel Co 1930 ([1930] 1 Ch 138)
Colour Quest Ltd and others -v- Total Downstream UK Plc and others (Rev 1) ComC 20-3-2009 (Bailii, [2009] EWHC 540 (Comm), [2009] 1 CLC 186, [2009] 2 Lloyd’s Rep 1)
D Pride & Partners (A Firm) and Others -v- Institute for Animal Health and Others QBD 31-3-2009 (Bailii, [2009] EWHC 685 (QB))

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Handyside -v- The United Kingdom – Freedom of Speech

No Comments » Written on July 14th, 2010 by dls
Categories: Leading Cases
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Handyside -v- The United Kingdom – ECHR – 07-Dec-76 – (5493/72, (1976) 1 EHRR 737, Bailii, [1976] ECHR 5, ECHR, , Bailii) – Human Rights – Media
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to teach school children about sex, including recommending the use of pornography.
Held: Freedom of expression, as protected by Art 10(1), is one of the essential foundations of a democratic society. Freedom of speech was not applicable only to inoffensive material, but also extends to protect activity in the nature of protests which others may find shocking, disturbing, or offensive: “Such are the demands of that pluralism, tolerance and broad-mindedness without which there is no democratic society.”
The right to freedom of expression includes the right to “offend, shock and disturb.”
However: “it is not possible to find in the domestic law of the various contracting states a uniform European conception of morals. The views taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, state authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them.”
Statutes:
European Convention on Human Rights s. 1 s. 10
Obscene Publications Act 1959
Obscene Publications Act 1964

Cited by:
John Benjamin Mildred Vanderpool and Sidney Gumbs -v- The Hon Minister of Information and Broadcasting and The Attorney General for Anguilla PC 14-2-2001 (Bailii, PC, PC, [2001] 1 WLR 1040, [2001] UKPC 8)
Redmond-Bate -v- Director of Public Prosecutions Admn 23-7-1999 (Times 28-Jul-99, Bailii, Bailii, [1999] EWHC Admin 732, [2000] HRLR 249, [1999] EWHC Admin 733, [1999] Crim LR 998, (1999) 7 BHRC 375, (1999) 163 JP 789, CO/188/99)
Percy -v- Director of Public Prosecutions QBD 21-12-2001 (Times 21-Jan-02, [2001] EWHC Admin 1125)
Goldstein, Rimmington -v- Regina CACD 28-11-2003 ([2003] EWCA Crim 3450, Bailii, Times 17-Dec-03, [2004] 1 WLR 2878, [2004] 1 Cr App R 388, [2004] 2 All ER 589, [2004] Crim LR 303)
Nilsen, Regina (on the Application of) -v- Governor of HMP Full Sutton and Another Admn 19-12-2003 (Bailii, [2003] EWHC 3160 (Admin), Times 02-Jan-04)
Evans -v- Amicus Healthcare Ltd & others CA 25-6-2004 (Bailii, [2004] EWCA Civ 727, Times 30-Jun-04, [2004] Fam Law 647, [2004] 2 FLR 766, [2004] 2 FCR 530, [2004] 3 All ER 1025, (2004) 78 BMLR 181, [2005] Fam 1, [2004] 3 WLR 681)
A -v- Secretary of State for the Home Department, and X -v- Secretary of State for the Home Department HL 16-12-2004 (House of Lords, [2004] UKHL 56, Bailii, Times 17-Dec-04, [2005] 2 WLR 87, [2005] 2 AC 68)
Dow Jones & Co Inc -v- Jameel (Youssef) CA 3-2-2005 (Bailii, [2005] EWCA Civ 75, Times 14-Feb-05, [2005] EMLR 16, [2005] QB 946, [2005] 2 WLR 1614, [2005] EMLR 353)
Interfact Ltd and Another -v- Liverpool City Council Admn 23-5-2005 (Bailii, [2005] EWHC 995 (Admin), Times 31-May-05)
Axon, Regina (on the Application of) -v- Secretary of State for Health and Another Admn 23-1-2006 (Bailii, [2006] EWHC 37 (Admin), Times 23-Jan-06, [2006] 2 WLR 1130)
Laporte, Regina (on the application of ) -v- Chief Constable of Gloucestershire HL 13-12-2006 (Bailii, [2006] UKHL 55, Times 14-Dec-06, [2007] 2 WLR 46, [2007] 2 All ER 529, [2007] 2 AC 105, (2006) 22 BHRC 38)
Mersey Care NHS Trust -v- Ackroyd CA 21-2-2007 (Bailii, [2007] EWCA Civ 101, 94 BMLR 84, [2008] EMLR 1, [2007] HRLR 19)
Financial Times Ltd and Others -v- The United Kingdom ECHR 15-12-2009 (821/03, Bailii, [2009] ECHR 2065, Times)
Regina -v- Shayler HL 21-3-2002 (Times 22-Mar-02, House of Lords, Bailii, Gazette 25-Apr-02, [2002] UKHL 11, [2003] 1 AC 247, [2002] 2 WLR 754, [2002] ACD 58, [2002] HRLR 33, [2002] 2 All ER 477, [2002] UKHRR 603)
David Wilson -v- Procurator Fiscal, Glasgow HCJ 2-9-2005 (ScotC, Bailii, [2005] ScotHC HCJAC_97)
Dehal -v- Crown Prosecution Service Admn 27-9-2005 (Bailii, [2005] EWHC 2154 (Admin))
Axon, Regina (on the Application of) -v- Secretary of State for Health and Another Admn 23-1-2006 (Bailii, [2006] EWHC 37 (Admin), Times 23-Jan-06, [2006] 2 WLR 1130)
Laporte, Regina (on the application of ) -v- Chief Constable of Gloucestershire HL 13-12-2006 (Bailii, [2006] UKHL 55, Times 14-Dec-06, [2007] 2 WLR 46, [2007] 2 All ER 529, [2007] 2 AC 105, (2006) 22 BHRC 38)
Norris -v- United States of America and others; (Goldshield Group plc intervening) Admn 25-1-2007 (Bailii, [2007] EWHC 71 (Admin), Times 07-Feb-07, [2007] 1 WLR 1730, [2007] 2 All ER 29)
Moss & Coleman Solicitors -v- Kordowski Nom 1-2-2007 (Bailii, [2007] DRS 4198)
Connolly -v- Director of Public Prosecutions Admn 15-2-2007 (Bailii, [2007] EWHC 237 (Admin))
Mersey Care NHS Trust -v- Ackroyd CA 21-2-2007 (Bailii, [2007] EWCA Civ 101, 94 BMLR 84, [2008] EMLR 1, [2007] HRLR 19)
Bysermaw Properties Ltd -v- Revenue & Customs SCIT 8-11-2007 (Bailii, [2007] UKSPC SPC00644)
AG (Eritrea) -v- Secretary of State for the Home Department CA 20-11-2007 (Bailii, [2007] EWCA Civ 1285, [2008] 2 All ER 28)
Ofulue and Another -v- Bossert CA 29-1-2008 (Bailii, [2008] EWCA Civ 7, [2008] HRLR 20, [2008] 3 WLR 1253, [2008] UKHRR 447, [2009] Ch 1, [2008] NPC 8)
In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-6-2008 (Bailii, [2008] UKHL 38, Times 23-Jun-08, HL, [2008] UKHRR 1181, [2008] Fam Law 977, [2008] 2 FCR 366, [2009] 1 AC 173, [2008] NI 310, [2008] 24 BHRC 650, [2008] 2 FLR 1084, [2008] HRLR 37, [2008] 3 WLR 76)
Gillies -v- Procurator Fiscal, Elgin HCJ 1-10-2008 (Bailii, [2008] ScotHC HCJAC_55, 2008 GWD 31-476, 2008 SCCR 887, 2008 SCL 1316, 2008 SLT 978, 2009 JC 25, [2008] HCJAC 55)
Donaldson, Re Judicial Review CANI 3-4-2009 (Bailii, [2009] NICA 25)
Child X (Residence & Contact- Rights of Media Attendance) (Rev 2) FD 14-7-2009 (Bailii, [2009] EWHC 1728 (Fam), Times, [2009] Fam Law 930, [2009] EMLR 26)
SRM Global Master Fund Lp and Others -v- Her Majesty’s Treasury CA 28-7-2009 (Bailii, [2009] EWCA Civ 788)
Novartis Pharmaceuticals UK Ltd and Others v Stop Huntingdon Animal Cruelty (‘SHAC’) and Others QBD 30-10-2009 (Bailii, [2009] EWHC 2716 (QB))
Bayer Cropscience Ltd and Another -v- Stop Huntingdon Cruelty (‘SHAC’) and Others QBD 22-12-2009 (Bailii, [2009] EWHC 3289 (QB))
Gaunt -v- OFCOM and Liberty QBD 13-7-2010 (Bailii, [2010] EWHC 1756 (QB))
Whaley, Friend -v- The Lord Advocate for Judicial Review of the Protection of Wild Mammals (Scotland) Act 2002 SCS 20-6-2003 (ScotC, Bailii, [2003] ScotCS 178)
Norwood -v- Director of Public Prosecutions Admn 3-7-2003 (Bailii, [2003] EWHC 1564 (Admin), Times 30-Jul-03)
PS, Regina (on the Application of) -v- Responsible Medical Officer, Dr G and others Admn 10-10-2003 (Bailii, [2003] EWHC 2335 (Admin), [2004] 1 MHLR 1)
Adams, Murray, Holman-Baird, Plummer, The Fife Hunt Colin Campbell John Gilmour, the Chairman and Master thereof the Buccleuch Hunt Supports Club and others -v- Scottish Ministers OHCS 28-5-2004 (ScotC, Bailii, [2004] ScotCS 127, [2004] SC 665)
Pabari -v- Secretary of State for Work and Pensions-And-Nilesh Pabari CA 10-11-2004 (Bailii, [2004] EWCA Civ 1480, [2005] 1 All ER 287)
McLellan -v- Bracknell Forest Borough Council; Reigate Borough Council -v- Benfield and Another CA 16-10-2001 (Gazette 29-Nov-01, Times 03-Dec-01, Bailii, [2001] EWCA Civ 1510, [2002] QB 1129, [2002] LGR 191)
Regina -v- Perrin CACD 22-3-2002 ([2002] EWCA Crim 747, Bailii)
Adams and others SCS 31-7-2002 (Bailii, [2002] ScotCS 344)
N, Regina (On the Application of) -v- M and Others Admn 24-9-2002 (Bailii, [2002] EWHC 1911 (Admin))
Hadiova -v- Secretary of State for the Home Department CA 9-5-2003 (Bailii, [2003] EWCA Civ 701)

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re T (a Minor) (Wardship: Medical Treatment

No Comments » Written on July 13th, 2010 by dls
Categories: Leading Cases
Tags: ,

In Re T (A Minor) (Wardship: Medical Treatment) – CA – 24-Oct-96 – Waite LJ, Butler-Sloss LJ, Roch LJ (Times 28-Oct-96, Gazette 13-Nov-96, [1997] 1 FLR 502, [1997] 1 WLR 242, Bailii, [1997] 8 Med LR 166, (1997) 35 BMLR 63, [1997] 1 All ER 906, [1997] 2 FCR 363) – Children – Health
A baby boy who was 18 months old, suffered from a life-threatening liver defect. His parents were health-care professionals experienced in the care of sick children. The unanimous medical view was that as soon as donor liver became available the baby should undergo surgery. The prospects of success were good whilst without transplantation the expectation of life was just over 2 weeks. The baby at the age of 3 weeks had undergone surgery which had caused much pain and distress and been unsuccessful. The parents refused to consider a liver transplant but this was ordered.
Held: A loving parents’ decision not to treat a child who suffered from a life threatening disease stood, and was not to be interfered with as their assessment of what was in the child’s best interests. The court must consider the paramount welfare of the child and not whether the parents might be unreasonable. There was a presumption in favour of prolonging life, but that was not the sole objective and to require that at the expense of other considerations might not be in a child’s best interests. The facts were unusual. This case involved a devoted caring mother who was well informed with major invasive surgery. It was not in the best interests of the child to order a course of treatment with which she did not agree and the child’s welfare required that future treatment be left for the parents to decide.
Butler-Sloss LJ discussed the existing case law and said “All these cases depend on their own facts and render generalisations – tempting though they may be to the legal or social analyst – wholly out of place. It can only be said safely that there is a scale, at one end of which lies the clear case where parental opposition to medical intervention is prompted by scruple or dogma of a kind which is patently irreconcilable with principles of child health and welfare widely accepted by the generality of mankind; and that at the other end lie highly problematic cases where there is genuine scope for a difference of view between parent and judge. In both situations it is the duty of the judge to allow the court’s own opinion to prevail in the perceived paramount interests of the child concerned, but in cases at the latter end of the scale, there must be a likelihood (though never of course a certainty) that the greater the scope for genuine debate between one view and another the stronger will be the inclination of the court to be influenced by a reflection that in the last analysis the best interests of every child include an expectation that difficult decisions affecting the length and quality of its life will be taken for it by the parent to whom its care has been entrusted by nature.” Butler Sloss: “The first argument of Mr Francis that the court should not interfere with the reasonable decision of a parent is not one that we are able to entertain even if we wish to do so. His suggestion that the decision of this mother came within that band of reasonable decisions within which a court would not interfere would import into this jurisdiction the test applied in adoption to the refusal of a parent to consent to adoption. It is wholly inapposite to the welfare test and is incompatible with the decision in In Re Z.”

Cases Cited:
Camden London Borough Council -v- R (A Minor) (Blood Transfusion); in Re R (A Minor)(Blood Transfusion) FD 8-6-1993 (Times 08-Jun-93, Independent 09-Jun-93, [1993] 2 FLR 757)
Re O (A minor) (Medical Treatment) FD 12-4-1993 (Ind Summary 12-Apr-93, [1993] 2 FLR 149)

Cited by:
A & D -v- B & E FD 13-6-2003 ([2003] EWHC 1376 (Fam))
In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-9-2000 (Times 10-Oct-00, Bailii, [2000] EWCA Civ 254, [2001] 1 FLR 267, [2000] 4 All ER 961, [2001] Fam 147, [2001] 2 WLR 480, [2001] 9 BHRC 261, [2000] 3 FCR 577, [2001] Fam Law 18, (2001) 57 BMLR 1, [2000] Lloyd’s Rep Med 425, [2001] UKHRR 1)
B (A Child); Re C (Welfare of Child: Immunisation) CA 30-7-2003 (Bailii, [2003] EWCA Civ 1148, [2003] 73 BMLR 152, [2003] 2 FLR 1095, [2003] 2 FCR 156)
LA -v- SB and Others CA 12-7-2010 (Bailii, [2010] EWCA Civ 1744) – Approved

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Bulmer v Bollinger – Interpretation of European Legislation

No Comments » Written on July 12th, 2010 by dls
Categories: Leading Cases
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Bulmer (HP) Ltd -v- Bollinger SA – CA – 1974 – Lord Denning MR ([1974] 1 Ch 401, [1974] 3 WLR 202, [1974] 2 All ER 1226) – European – Constitutional – Intellectual Property
The plaintiff complained that the respondent had described its drink ‘Babycham’ as a champagne perry, which it said was a misuse of the appellation ‘champagne’.
Held: The court considered the effect of European legislation on the law of England and Wales. Lord Denning MR said: “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.” Community instruments are not expressed against the background of English canons of construction and should not be so construed.

Cited by:
Pickstone -v- Freemans Plc HL 30-6-1988 ([1989] AC 66, [1988] 2 All ER 803, Hamlyn, [1988] 3 WLR 265, Bailii, [1988] UKHL 2) – Mentioned
Attridge Law (A Firm of Solicitors) -v- Coleman and Law EAT 20-12-2006 (Bailii, [2006] UKEAT 0417_06_2012, Times 12-Jan-07, EATn, UKEAT/0417/06)
Regina -v- Her Majesty’s Treasury, Ex parte William Oliver Smedley CA 19-12-1984 ([1985] 1 QB 657, Bailii, [1984] EWCA Civ 7)
James Buchanan & Company Ltd. -v- Babco Forwarding and Shipping (UK) Ltd CA 2-12-1976 (Bailii, [1976] EWCA Civ 9, [1977] QB 208)
Vehicle Inspectorate -v- Bruce Cook Road Planing Ltd and Another Admn 18-2-1998 (Times 23-Mar-98, Bailii, [1998] EWHC Admin 205)
Vodafone -v- Revenue and Customs SCIT 24-5-2005 (Bailii, [2005] UKSPC SPC00479)
Vehicle and Operator Services Agency -v- Jones (Nell) Admn 5-10-2005 (Times 13-Oct-05, Bailii, [2005] EWHC 2278 (Admin))

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Edwards v Bairstow – Appeal on Facts or Law

No Comments » Written on July 12th, 2010 by dls
Categories: Leading Cases
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Edwards (Inspector of Taxes) -v- Bairstow – HL – 25-Jul-55 – Lord Radcliffe, Viscount Simonds ([1956] AC 14, [1955] 3 All ER 48, [1955] 36 Tax Cas 207, Bailii, [1955] UKHL 3) – Taxes Management – Judicial Review – Litigation Practice
The House was asked whether a particular transaction was “an adventure in the nature of trade”.
Held. Although the House accepted that this was “an inference of fact”, they held that on the primary facts as found by the Commissioners “the true and only reasonable conclusion” contradicted that decision. The House set principles for establishing that decisions of a commissioner were ones of law, and were reviewable by an appellate court. Whether facts as found or admitted fall on one side or the other of some conceptual line drawn by the law is a question of fact. ‘Perversity’ in a decision means that “the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination.”
Viscount Simonds said: “For it is universally conceded that, although it is a pure finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think, fairly summarized by saying that the court should take that course if it appears that the commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained.”
Lord Radcliffe criticised the tendency of courts to treat questions as “pure questions of fact”, so as to exclude review: “As I see it, the reason why the courts do not interfere with the Commissioners’ findings or determinations when they really do involve nothing but questions of fact is not any supposed advantage in the Commissioners of greater experience in the matters of business or any other matters. The reason is simply that by the system that has been set up the Commissioners are the first tribunal to try an appeal, and in the interest of the efficient administration of justice their decisions can only be upset on appeal if they have been positively wrong in law. The Court is not a second opinion where there is a reasonable ground for the first. But there is no reason to make a mystery about the subjects that Commissioners deal with or to invite the courts to impose any exceptional restraint on themselves because they are dealing with cases that arise out of facts found by the Commissioners. Their duty is no more than to examine those facts with a decent respect for the tribunal appealed from and if they think that the only reasonable conclusion on the facts found is inconsistent with the determination come to, to say so without more ado.” and “I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three …” As to the commissioners findings of fact: “Their duty is no more than to examine those facts with a decent respect for the tribunal appealed from and if they think that the only reasonable conclusion on the facts found is inconsistent with the determination come to, to say so without more ado.”

Cited by:
Rowland -v- Boyle (Inspector of Taxes) ChD 11-4-2003 (Times 23-Apr-03)
Camas Plc -v- HM Inspector of Taxes ChD 7-7-2003 (Bailii, [2003] EWHC 1600 (Ch), Times 18-Jul-03, Gazette 18-Sep-03, [2003] STC 968)
Moyna -v- Secretary of State for Work and Pensions (formerly against the Social Security Commissioner) HL 31-7-2003 (Bailii, [2003] UKHL 44, House of Lords, Times 11-Aug-03, [2003] 1 WLR 1929)
New Angel Court Ltd -v- Adam (Inspector of Taxes) ChD 25-7-2003 (Times 08-Aug-03, [2003] EWHC 1876 (Ch), Bailii, Gazette 02-Oct-03)
Biogen Plc -v- Medeva Plc HL 31-10-1996 (Times 01-Nov-96, [1997] RPC 1, Bailii, [1996] UKHL 18, (1997) 38 BMLR 149)
Office of Fair Trading and others -v- IBA Health Limited CA 19-2-2004 (Bailii, [2004] EWCA Civ 142, Times 25-Feb-04, Gazette 18-Mar-04, [2004] 4 All ER 1103, [2004] ICR 1364)
Clark -v- Oxfordshire Health Authority CA 18-12-1997 (Gazette 28-May-98, Bailii, [1997] EWCA Civ 3035, [1998] IRLR 125)
Regina -v- Medical Appeal Tribunal ex parte Gilmore; Re Gilmore’s Application CA 25-2-1957 ([1957] 1 QB 574, [1957] 1 All ER 796, Bailii, [1957] EWCA Civ 1, [1957] 2 WLR 498)
Arnold (Inspector of Taxes) -v- G Con Ltd ChD 4-3-2005 (Times 14-Mar-05)
Sony Computer Entertainment Europe Ltd -v- Customs and Excise ChD 27-7-2005 (Bailii, [2005] EWHC 1644 (Ch), [2003] ECR II-418)
Templeton (Inspector of Taxes) -v- Transform Shop Office and Bar Fitters Ltd ChD 15-7-2005 (Times 20-Sep-05, [2005] EWHC 1558 (Ch))
Wisdom -v- Chamberlain (Inspector of Taxes) CA 8-11-1968 ([1969] 1 All ER 332, [1969] 1 WLR 275, [1969] 45 Tax Cas 92, [1969] 47 ATC 358, [1968] TR 345)
Matthews and others -v- Kent and Medway Towns and Fire Authority and others HL 1-3-2006 (Bailii, [2006] UKHL 8, [2006] ICR 365, [2006] 2 All ER 171, [2006] IRLR 367)
Yuen -v- The Royal Hong Kong Golf Club PC 28-7-1997 (Bailii, [1997] UKPC 40)
Lee Ting Sang -v- Chung Chi-Keung PC 8-3-1990 ([1990] ICR 409, [1990] 2 AC 374, Bailii, [1990] UKPC 1)
Arnold (Inspector of Taxes) -v- G Con Ltd CA 12-5-2006 (Times 09-Jun-06)
Regina -v- Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd HL 1993 ([1993] 1 WLR 23)
H, Regina -v- (Interlocutory application: Disclosure) HL 28-2-2007 (Times 02-Mar-07, Bailii, [2007] UKHL 7)
Gaines-Cooper -v- HM Revenue and Customs ChD 13-11-2007 (Bailii, [2007] EWHC 2617 (Ch))
HM Revenue & Customs -v- Weight Watchers (Uk) Ltd ChD 21-1-2008 (Bailii, [2008] EWHC 53 (Ch))
David McKnight (Inspector of Taxes) -v- Brian Stephen Sheppard HL 18-6-1999 (Times 18-Jun-99, Gazette 07-Jul-99, House of Lords, Bailii, [1999] UKHL 6, [1999] 1 WLR 1333, [1999] 3 All ER 491)
D’Souza -v- Director of Public Prosecutions HL 15-10-1992 (Bailii, [1992] UKHL 10, [1992] 4 All ER 545, [1992] 1 WLR 1073)
Sugar -v- British Broadcasting Corporation and Another HL 11-2-2009 (Bailii, [2009] UKHL 9, HL, Times, [2009] 1 WLR 430)
Gerrard -v- Staffordshire Potteries Ltd CA 2-11-1994 (Bailii, [1994] EWCA Civ 31, [1995] PIQR 169, [1995] ICR 502)
Revenue and Customs -v- Smallwood and Another CA 8-7-2010 (Bailii, [2010] EWCA Civ 778, [2010] WLR (D) 177, WLRD)

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Unilever v Procter & Gamble – No threat in WP Discussions

No Comments » Written on July 11th, 2010 by dls
Categories: Leading Cases
Tags: ,

Unilever plc -v- Procter & Gamble Company – CA – 04-Nov-99 – Robert Walker LJ, Simon Brown LJ, Justice Wilson (Times 04-Nov-99, Gazette 17-Nov-99, [1999] I P&T 171, [2000] 1 WLR 2436, [2000] FSR 344, [2000] RPC 344, Bailii, [1999] EWCA Civ 3027, (2000) 23(1) IPD 23001, [2001] 1 All ER 783) – Intellectual Property – Litigation Practice
The defendant’s negotiators had asserted in an expressly “without prejudice” meeting, that the plaintiff was infringing its patent and they threatened to bring an action for infringement. The plaintiff sought to bring a threat action under section 70 relying on the statements. The judge held the statement inadmissible.
Held. The plaintiff’s appeal failed. Where there had been protracted discussions and negotiations between the parties on a without prejudice basis, it would be quite wrong to take words spoken during such meetings as constituting any threat of infringement proceedings or challenge to a patent so as to found an action for damages. The policy represented by the first statutory threats provision (section 32 of the 1833 Act) was to stop patentees who were (in Pope’s words about Addison) “willing to wound but afraid to strike” from holding the sword of Damocles above another’s head. The modern cases show that the protection of admissions against interest is the most important practical effect of the rule, but to dissect out identifiable admissions and withhold protection from the rest of without prejudice communications (except for a special reason) would not only create huge practical difficulties but would be contrary to the underlying objective of giving protection to the parties to speak freely and to compromise, admitting certain facts. Parties cannot speak freely at a without prejudice meeting if they must constantly monitor every sentence, with lawyers or patent agents sitting at their shoulders as minders.
Robert Walker LJ said that admissions against interest should be protected under the without prejudice rule, “In those circumstances I consider that this court should, in determining this appeal, give effect to the principles stated in the modern cases, especially Cutts v Head, Rush & Tompkins and Muller. Whatever difficulties there are in a complete reconciliation of these cases, they make clear that the without prejudice rule is founded partly in public policy and partly in the agreement of the parties. They show that the protection of admissions against interest is the most important practical effect of the rule. But to dissect out identifiable admissions and withhold protection from the rest of without prejudice communications (except for a special reason) would not only create huge practical difficulties but would be contrary to the underlying objective of giving protection to the parties in the words of Lord Griffiths in Rush & Tompkins at page 1300:
‘To speak freely about all issues in the litigation both factual and legal when seeking compromise and, for the purposes of establishing a basis of compromise, admitting certain facts.’
The parties cannot speak freely at a without prejudice meeting if they must constantly monitor every sentence, with lawyers or patent agents sitting at their shoulders as minders.” and “Apart from any concluded contract or estoppel, one party may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other ‘unambiguous impropriety’ (the expression used by Hoffman LJ in Forster v Friedland…)…but this court has, in Forster v Friedland and Fazil Alizadeh v Nikbin…warned that the exception should be applied only in the clearest cases of abuse of a privileged occasion.”
Statutes:
Patents Act 1977 s. 70 Patents, Designs and Trade Marks Act 1883 s. 32
Cases Cited:
Unilever Plc -v- The Procter and Gamble Company PatC 24-2-1999 (Times 18-Mar-99, Bailii, [1999] EWHC Patents 250, [1999] FSR 849) – Appeal from
Rush & Tomkins Ltd -v- Greater London Council HL 3-11-1988 ([1989] AC 1280, [1988] 3 WLR 939, Bailii, [1988] 3 All ER 737, [1988] UKHL 7)
Forster -v- Friedland CA 10-11-1992 (Unreported, 10 November 1992, Ttranscript No 1052 of 1992)
Unilever Plc -v- The Procter and Gamble Company PatC 24-2-1999 (Times 18-Mar-99, Bailii, [1999] EWHC Patents 250, [1999] FSR 849) – See Also

Cited by:
L’Oreal (Uk) Limited & Another -v- Johnson & Johnson & Another ChD 7-3-2000 (Bailii, [2000] EWHC Ch 129, [2000] FSR 686)
Berry Trade Ltd and Another -v- Moussavi and others CA 22-5-2003 (Bailii, [2003] EWCA Civ 715, Times 03-Jun-03, Gazette 17-Jul-03)
Prudential Insurance Company of America -v- Prudential Assurance Company Ltd CA 31-7-2003 (Bailii, [2003] EWCA Civ 1154)
Savings & Investment Bank Ltd (In Liquidation) -v- Fincken CA 14-11-2003 (Bailii, [2003] EWCA Civ 1630, Times 25-Nov-03, Gazette 15-Jan-04, [2004] 1 WLR 667, [2004] 1 All ER 1125)
Reed Executive Plc, Reed Solutions Plc -v- Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs.Com Ltd CA 14-7-2004 ([2004] EWCA (Civ) 887, Bailii, Times 16-Jul-04, [2005] FSR 3, [2004] 1 WLR 3026, [2004] 4 All ER 942, [2005] CP Rep 4, (2004) 27(7) IPD 27067, [2004] 4 Costs LR 662, (2005) 81 BMLR 108, [2004] 3 Costs LR 393)
Wilkinson -v- West Coast Capital and others ChD 22-7-2005 (Bailii, [2005] EWHC 1606 (Ch))
Cintec International Ltd -v- John Humphries Parkes (T/A Dell Explosives) and Another ChD 2-10-2003 (Bailii, [2003] EWHC 2328 (Ch))
Bradford & Bingley Plc -v- Rashid CA 22-7-2005 (Bailii, [2005] EWCA Civ 1080)
Hall and Another -v- Pertemps Group Ltd and Another ChD 21-11-2005 (Times 23-Dec-05, [2005] ADR LR 11/01)
Bradford & Bingley Plc -v- Rashid HL 12-7-2006 (Bailii, [2006] UKHL 37, Times 14-Jul-06, [2006] 1 WLR 2066, [2006] 4 All ER 705, [2006] 29 EG 132, [2006] 2 All ER (Comm) 951)
Brown -v- Rice and Another ChD 14-3-2007 (Bailii, [2007] EWHC 625 (Ch))
BNP Paribas -v- A Mezzotero EAT 30-3-2004 (UKEAT/0218/04/RN, Bailii, [2004] UKEAT 0218_04_3003, UKEAT/0218/04, [2004] IRLR 508, EATn)
Ofulue and Another -v- Bossert HL 11-3-2009 (Bailii, [2009] UKHL 16, Times, HL, [2009] 2 WLR 749, [2009] 2 All ER 223, [2009] 11 EG 119, [2009] NPC 40, [2009] 1 WLR 718, [2009] 2 Cr App R 2, [2009] 1 AC 990)
Williams v Hull ChD 19-11-2009 (Bailii, [2009] EWHC 2844 (Ch))
Oceanbulk Shipping & Trading Sa v TMT Asia Ltd CA 15-2-2010 (Bailii, [2010] EWCA Civ 79, Times)
Brodie -v- Ward (T/A First Steps Nursery) EAT 7-2-2007 (Bailii, [2007] UKEAT 0526_07_0702)
Best Buy Co Inc and Another -v- Worldwide Sales Corp. Espana Sl ChD 8-7-2010 (Bailii, [2010] EWHC 1666 (Ch))

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Rush & Tomkins v GLC – Without Prejudice Negotiations

No Comments » Written on July 10th, 2010 by dls
Categories: Leading Cases
Tags:

Rush & Tomkins Ltd -v- Greater London Council – HL – 03-Nov-88 – Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Griffiths, Lord Oliver of Aylmerton, Lord Goff of Chieveley ([1989] AC 1280, [1988] 3 WLR 939, Bailii, [1988] 3 All ER 737, [1988] UKHL 7) – Evidence – Litigation Practice – Construction
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the agreement so that it could pursue its own action. The council said that the document was covered by the without prejudice rule.
Held. When looking at without prejudice negotiations to decide on admissibility, it would be wrong to isolate admissions before admitting the rest. That would not allow the parties to speak freely about all issues in the litigation both factual and legal when seeking compromise and, for the purpose of establishing a basis of compromise, admitting certain facts. The rule applies “to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence.”

Cases Cited:
Cutts -v- Head and Another CA 7-12-1983 ([1984] Ch 290, Bailii, [1983] EWCA Civ 8, [1984] 2 WLR 349, [1984] 1 All ER 597)
Waldridge -v- Kennison 1794 ((1794) 1 Esp 142)
Tomlin -v- Standard Telephones and Cables Ltd CA 1969 ([1969] 1 WLR 1378, [1969] 3 All ER 201)
In Re Daintrey, Ex Parte Holt QBD 1893 ([1893] 2 QB 116)
Walker -v- Wilsher CA 1889 ((1889) 23 QBD 335)
Kitcat -v- Sharp 1882 ((1882) 48 LT 64)
Teign Valley Mining Co. Ltd, -v- Woodcock 22-7-1899 (Times 22-Jul-99)
Rabin -v- Mendoza & Co CA 1954 ([1954] 1 WLR 271)
Stretton -v- Stubbs Ltd CA 28-2-1905 (Times 28-Feb-05)
O’Rourke -v- Darbishire HL 1920 ([1920] AC 581)

Cited by:
Unilever plc -v- Procter and Gamble Company CA 4-11-1999 (Times 04-Nov-99, Gazette 17-Nov-99, [1999] I P&T 171, [2000] 1 WLR 2436, [2000] FSR 344, [2000] RPC 344, Bailii, [1999] EWCA Civ 3027, (2000) 23(1) IPD 23001, [2001] 1 All ER 783)
Berry Trade Ltd and Another -v- Moussavi and others CA 22-5-2003 (Bailii, [2003] EWCA Civ 715, Times 03-Jun-03, Gazette 17-Jul-03)
Savings & Investment Bank Ltd (In Liquidation) -v- Fincken CA 14-11-2003 (Bailii, [2003] EWCA Civ 1630, Times 25-Nov-03, Gazette 15-Jan-04, [2004] 1 WLR 667, [2004] 1 All ER 1125)
Hall and Another -v- Pertemps Group Ltd and Another ChD 21-11-2005 (Times 23-Dec-05, [2005] ADR LR 11/01)
Buckinghamshire County Council -v- Moran CA 13-2-1989 ([1990] 1 Ch 623, Bailii, [1989] EWCA Civ 11, [1990] Ch 632, [1989] 2 All ER 255)
Ofulue and Another -v- Bossert CA 29-1-2008 (Bailii, [2008] EWCA Civ 7)
Brown -v- Rice and Another ChD 14-3-2007 (Bailii, [2007] EWHC 625 (Ch))
Ofulue and Another -v- Bossert HL 11-3-2009 (Bailii, [2009] UKHL 16, Times, HL, [2009] 2 WLR 749, [2009] 2 All ER 223, [2009] 11 EG 119, [2009] NPC 40, [2009] 1 WLR 718, [2009] 2 Cr App R 2, [2009] 1 AC 990)
Brunel University and Another -v- Webster and Vaseghi CA 22-5-2007 (Bailii, [2007] EWCA Civ 482, [2007] IRLR 592)
Best Buy Co Inc and Another -v- Worldwide Sales Corp. Espana Sl ChD 8-7-2010 (Bailii, [2010] EWHC 1666 (Ch))

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Dedman v British Building – meaning of Practicable

No Comments » Written on July 6th, 2010 by dls
Categories: Leading Cases
Tags: ,

Dedman -v- British Building and Engineering Appliances – CA – 1973 – Lord Denning MR, Scarman LJ ([1973] IRLR 379, [1974] 1 All ER 520, [1974] ICR 53, [1974] 1 WLR 171) – Employment
The claimant sought to bring his claim under a provision which required a complaint to the industrial tribunal to be made within four weeks of the dismissal unless the employment tribunal was satisfied that this was not “practicable”. He did not meet the limit.
Held. Time limits in all statutory tribunals are jurisdictional in nature, though Lord Denning gave examples of time limits which did not go as to jurisdiction. Where there was an immediate dismissal with salary in lieu of notice, the effective date of termination was the date of the dismissal and not the expiry of the period in respect of which the salary in lieu was paid. Where a Claimant instructs solicitors and does so with full knowledge of the facts giving rise to his complaint and through their default the originating application is not presented in time the Tribunal will normally consider that it was reasonably practicable for the claim to have been presented within the time limit.
Lord Denning MR said: “Ignorance of his rights – or ignorance of the time limit – is not just cause or excuse, unless it appears that he or his advisers could not reasonably have been expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and they must take the consequences . . It is difficult to find a set of words in which to express the liberal interpretation which the English Court has given to the escape clause. The principal thing is to emphasise as the statute does `the circumstances’. What is practicable `in the circumstances’? If in the circumstances the man knew or was put on enquiry as to his rights and as to the time limit, then it was `practicable’ for him to have presented his complaint within the four weeks and he ought to have done so. But if he did not know and there was nothing to put him on enquiry then it was `not practicable’ and he should be excused . . the time limit is so strict that it goes to the jurisdiction of the tribunal to hear the complaint. By that I mean that, if the complaint is presented to the tribunal just one day late, the tribunal has no jurisdiction to consider it. Even if the employer is ready to waive it and says to the tribunal: “I do not want to take advantage of this man. I will not take any point that he is a day late”; nevertheless the tribunal cannot hear the case. It has no power to extend the time: see Westward Circuits Ltd v Read [1973] ICR 301 and Rogers v Bodfari (Transport) Ltd. [1973] ICR 325”
Scarman LJ said: “On the point of construction of “the escape clause” I agree with Lord Denning MR. The word “practicable” is an ordinary English word of great flexibility: it takes its meaning from its context. But, whenever used, it is a call for the exercise of common sense, a warning that sound judgment will be impossible without compromise. Sometimes the context contemplates a situation rarely to be achieved, though much to be desired: the word then indicates one must be satisfied with less than perfection: see, for example, its use in s 5 of the Matrimonial Proceedings and Property Act 1970. Sometimes, as is submitted in the present case, what the context requires may have been possible, but may not for some reason have been “practicable”. Whatever its context, the quality of the word is that there are circumstances in which we must be content with less than 100 per cent: and it calls for judgment to determine how much less.”

Cited by:
Sally Harper -v- Virgin Net Limited CA 10-3-2004 (Bailii, [2004] EWCA Civ 271, Times 16-Mar-04, Gazette 08-Apr-04)
Alchemy Estates Ltd -v- Astor and Another ChD 5-11-2008 (Bailii, [2008] EWHC 2675 (Ch), Times)
Tuntum Housing Association -v- Aryeetey EAT 12-10-2007 (Bailii, [2007] UKEAT 0070_07_1210)
Kirklees Metropolitan Council -v- Radecki CA 8-4-2009 (Bailii, [2009] EWCA Civ 298)
Robert Cort & Son Ltd -v- Charman EAT 1981 ([1981] ICR 816) – Applied
The Royal Bank of Scotland Plc -v- Theobald EAT 10-1-2007 (Bailii, [2007] UKEAT 0444_06_1001)
Regina -v- Chief Constable of South Wales and Another Ex Parte Merrick QBD 17-2-1994 (Independent 01-Apr-94, Times 17-Feb-94, [1994] 1 WLR 663) – Approved
North Somerset District Council -v- Honda Motor Europe Ltd and Others QBD 2-7-2010 (Bailii, [2010] EWHC 1505 (QB))
Regina -v- Immigration Appeal Tribunal Ex Parte S QBD 25-2-1998 (Times 25-Feb-98, Bailii, [1998] EWHC Admin 154)
Marks and Spencer Plc -v- S Williams Ryan EAT 17-8-2004 (UKEAT/0145/04, Bailii, [2004] UKEAT 0145_04_1009, EATn)
E, Regina (on the Application of) -v- Bristol City Council Admn 13-1-2005 (Bailii, [2005] EWHC 74 (Admin))
London Borough of Waltham Forest, Regina (On the Application of) -v- Waltham Forest Magistrates’ Court and Yem Yom Ventures Limited Admn 4-11-2008 (Bailii, [2008] EWHC 3579 (Admin))

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R v SSHD ex P Jeyeanthan – Consequence of Compliance failures

No Comments » Written on July 5th, 2010 by dls
Categories: Leading Cases
Tags: ,

Regina -v- Secretary of State for the Home Department Ex Parte Jeyeanthan; Ravichandran -v- Secretary of State for the Home Department – CA – 21-May-99 – Lord Woolf MR (Times 26-May-99, Bailii, [2000] 1 WLR 354, [1999] EWCA Civ 1465, [1999] 3 All ER 231) – Immigration – Administrative
The court looked at the effect of a failure to follow a procedure set down by statute, the failure by the Secretary of State to use the correct form when applying for leave to appeal from the Special Adjudicator to the Tribunal. The difference was in the absence of a statement of truth.
Held. The court must look at what was the intended effect of non-compliance, not just whether the requirement was expressed to be mandatory. The court discussed the conventional distinction between directory and mandatory requirements. The position is complex and the legislation should be judged as to what were intended to be the consequences of the non-compliance. This is assessed on a consideration of the language of the legislation against the factual circumstances of the non-compliance. Procedural requirements are designed to further the interests of justice and any consequence which would achieve a result contrary to those interests should be treated with considerable caution: “Because of what can be the very undesirable consequences of a procedural requirement which is made so fundamental that any departure from the requirement makes everything that happens thereafter irreversibly a nullity it is to be hoped that provisions intended to have this effect will be few and far between.”
The starting point is that where the word “shall” is used “the requirement is never intended to be optional”.
Statutes:
Asylum (Appeals) Procedure Rules 1993 (1993 No 1661) s. 13
Cases Cited:
Daljit Singh Sekhon, Shangara Singh, Satnam Singh, Gurdev Singh Dhnoay, Richard Michael Knights, Kevin Maguire, Kevin McFaul -v- Regina CACD 16-12-2002 (Times 27-Dec-02, [2003] 1 Cr App R 575, [2003] 1 WLR 1655, Bailii, [2002] EWCA Crim 2954) – Cited in
Regina -v- Immigration Appeal Tribunal, ex Parte Jeyeanthan Admn 3-4-1998 (Times 23-Apr-98, Bailii, [1998] EWHC Admin 395) – Appeal from
London and Clydeside Estates -v- Aberdeen District Council HL 8-11-1979 ([1980] SC (HL) 1, [1980] 1 WLR 182, Bailii, [1979] UKHL 7) – Applied

Cited by:
Regina (Saad and Others) -v- Secretary of State for the Home Department CA 19-12-2001 (Times 07-Jan-02)
Rydqvist v Secretary of State for Work and Pensions CA 24-6-2002 (Times 08-Jul-02)
Daljit Singh Sekhon, Shangara Singh, Satnam Singh, Gurdev Singh Dhnoay, Richard Michael Knights, Kevin Maguire, Kevin McFaul -v- Regina CACD 16-12-2002 (Times 27-Dec-02, [2003] 1 Cr App R 575, [2003] 1 WLR 1655, Bailii, [2002] EWCA Crim 2954)
Habib Ullah & Others, Naim Ahmed -v- Martin Donald Pagel, Andrew Scallan, Anthony Paul Kennedy CA 12-12-2002 (Times 20-Jan-03, Bailii, [2002] EWCA Civ 1793)
Hollins -v- Russell; Tichband -v- Hurdman; Dunn -v- Ward; Pratt -v- Bull; Worth -v- McKenna etc CA 22-5-2003 (Bailii, [2003] EWCA Civ 718, Times 10-Jun-03, Gazette 17-Jul-03, [2003] 1 WLR 2487)
Seal -v- Chief Constable of South Wales Police CA 19-5-2005 (Bailii, [2005] EWCA Civ 586, [2005] 1 WLR 3183)
Soneji and Bullen, Regina -v- HL 21-7-2005 (Bailii, [2005] UKHL 49, House of Lords, Times 22-Jul-05, [2005] 3 WLR 303, [2006] 1 AC 340, [2006] 1 Cr App R(S) 79, [2006] Crim LR 167, [2005] 4 All ER 321, [2006] 2 Cr App R 20)
Garbutt and Another -v- Edwards and Another CA 27-10-2005 (Bailii, [2005] EWCA Civ 1206, Times 03-Nov-05, [2006] 1 WLR 2907, [2006] CP Rep 8, [2006] 1 All ER 553, [2006] 1 Costs LR 143, [2005] NPC 122)
Bentham, Regina (on the Application of) -v- HM Prison Wandsworth Admn 7-2-2006 (Bailii, [2006] EWHC 121 (Admin))
Attorney General’s Reference No. 3 of 1999 HL 14-12-2000 (Bailii, [2000] UKHL 71, [2001] 2 AC 91, [2001] 1 All ER 577, [2001] Crim LR 394, [2001] HRLR 16, [2001] 2 WLR 56, [2001] 1 Cr App R 34, [2000] Po LR 386)
North Somerset District Council -v- Honda Motor Europe Ltd and Others QBD 2-7-2010 (Bailii, [2010] EWHC 1505 (QB))

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