Court : House of Lords
Decided on : Apr-09-2008
LORD HOFFMANN My Lords, 1. This appeal arises out of the insolvent liquidation of the HIH group of Australian insurance companies. On 15 March 2001 four of them presented winding up petitions to the Supreme Court of New South Wales. Some of their assets - mostly reinsurance claims on policies taken out in London - were situated in England. To realise and protect these assets, provisional liquidators were appointed in England. In Australia, the court has made winding up orders and appointed liquidators. The Australian judge has sent a letter of request to the High Court in London, asking that the provisional liquidators be directed, after payment of their expenses, to remit the assets to the Australian liquidators for distribution. The question in this appeal is whether the English court can and should accede to that request. The alternative is a separate liquidation and distribution of the English assets in accordance with the Insolvency Act 1986. 2. The English and Australian laws of ...
Tag this Judgment!Court : House of Lords
Decided on : Jul-30-2008
LORD BINGHAM OF CORNHILL My Lords, 1. In these two appeals, heard together, there is a common underlying problem: if the police are alerted to a threat that D may kill or inflict violence on V, and the police take no action to prevent that occurrence, and D does kill or inflict violence on V, may V or his relatives obtain civil redress against the police, and if so, how and in what circumstances? 2. The two appeals arise on different facts and in a different way: (1) In the first (Van Colle) case the threat was made by a man known in the case as Daniel Brougham against Giles Van Colle (“Giles”) and culminated in the murder of Giles by Brougham. In the second (Smith) case, the threat was made against the respondent (Stephen Paul Smith) by his former partner (Gareth Jeffrey) and culminated in the infliction of serious injury on Mr Smith by Jeffrey. (2) In the Van Colle case the claimants are Giles’ parents, suing on behalf of his estate and on their own behalf. In the S...
Tag this Judgment!Court : House of Lords
Decided on : May-21-2008
LORD BINGHAM OF CORNHILL My Lords, 1. The Criminal Division of the Court of Appeal (Lord Phillips of Worth Matravers CJ, McCombe and Gross JJ: [2006] EWCA Crim 707) certified the following point of law of general public importance as involved in its decision now under appeal: “If a defendant is charged with an offence not specified in section 31(3) of the Immigration and Asylum Act 1999, to what extent is he entitled to rely on the protections afforded by article 31 of the 1951 United Nations Convention Relating to the Status of Refugees?” Differently expressed, the question is whether, to the extent that the protection given to a defendant by section 31(3) of the 1999 Act does not match that which the United Kingdom is bound in international law to give by article 31 of the Refugee Convention, our domestic law gives a defendant any remedy. The formulation of the question clearly assumes that the offence charged against the defendant is not within the scope of section 31(3)...
Tag this Judgment!Court : House of Lords
Decided on : Oct-22-2008
LORD HOPE OF CRAIGHEAD My Lords, 1. The fair-minded and informed observer is a relative newcomer among the select group of personalities who inhabit our legal village and are available to be called upon when a problem arises that needs to be solved objectively. Like the reasonable man whose attributes have been explored so often in the context of the law of negligence, the fair-minded observer is a creature of fiction. Gender-neutral (as this is a case where the complainer and the person complained about are both women, I shall avoid using the word “he”), she has attributes which many of us might struggle to attain to. 2. The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not be confused with that of the person who has brought ...
Tag this Judgment!Court : House of Lords
Decided on : Dec-10-2008
LORD HOFFMANN My Lords, 1. The State of Missouri alleges that on 13 February 1997 the appellant Ralston Wellington committed two murders in Kansas City. According to the evidence submitted on behalf of the prosecutor, the appellant was a Jamaican drug dealer carrying on a substantial business in Jamaica, the United States and the United Kingdom. While he was staying with a woman in Kansas City, a member of her family took about US$70,000 from his room. The appellant made the woman drive him and two other Jamaicans to the house where the thief had been staying. They entered with guns firing, killed two of the occupants (one of them a pregnant young woman) and injured another. The victims do not appear to have been concerned in the theft and the money was afterwards returned by the thief. 2. The appellant is charged with murder in the first degree, defined in section 565.020 of the Revised Statutes of Missouri as knowingly causing the death of another person after deliberation upon the m...
Tag this Judgment!Court : House of Lords
Decided on : Jan-23-2008
LORD HOPE OF CRAIGHEAD My Lords, 1. I am grateful to my noble and learned friend, Lord Walker of Gestingthorpe, for his comprehensive description of the legislative and factual background to these appeals and his analysis of the competing arguments, and to my noble and learned friend, Lord Neuberger of Abbotsbury, for his further examination of the issues that are before us in this case. I agree with both of them that the Commissioners’ appeal should be dismissed in relation to Mr Fleming’s claim. I agree with Lord Neuberger, for the reasons he gives, that the Commissioner’s appeal in relation to Cond Nast’s claim should also be dismissed. 2. As Lord Walker has explained, claims for overpayment of output tax and previously unclaimed deduction of input tax are provided for by section 80 of the Value Added Tax Act 1994 and regulation 29 of the Value Added Tax Regulations 1995 (SI 1995/2518). As originally enacted, section 80 provided that no amount paid by way of ...
Tag this Judgment!Court : House of Lords
Decided on : Oct-29-2008
LORD HOFFMANN My Lords, 1. At common law a lease is a contract between landlord and tenant which, if the landlord himself has or acquires an estate in the land, vests a leasehold estate in the tenant. The lease will ordinarily contain covenants to be performed by the tenant during the term of the lease and (in the absence of express contrary provision) these covenants mean what they say. A tenant who has covenanted to pay the rent during the term is liable to pay the rent during the term, whether or not he has assigned the leasehold estate to someone else. 2. This rule was changed by section 5(2) of the Landlord and Tenant (Covenants) Act 1995, which provides that if a tenant assigns the demised premises, he is released from his covenants. But the change applies only to tenancies granted after the Act came into force on 1 January 1996. The common law continues to apply to earlier tenancies, but subject to restrictions contained in sections 17 to 20. For present purposes, the relevant r...
Tag this Judgment!Court : House of Lords
Decided on : Dec-10-2008
LORD SCOTT OF FOSCOTE My Lords, 1. I have had the advantage of reading in draft the opinions on this appeal of my noble and learned friends Lord Rodger of Earlsferry and Baroness Hale of Richmond and am in full agreement that, for the reasons they give, this appeal should be dismissed. There are two matters, however, on which I want to add a few words of my own. In doing so I gratefully adopt and need not repeat Baroness Hale’s outline of the facts and of the relevant legislative background to the issues. 2. The first matter on which I want to comment is the locus standi of the respondent, the adult daughter of Mrs Savage, the deceased, to have instituted the action that has led to this appeal. Following Mrs Savage’s self-inflicted death, an inquest was held into the causes and circumstances of her death. The inquest was held in public, the investigation by the coroner into the circumstances and causes of the death was a full one - no one has suggested that it was in any re...
Tag this Judgment!Court : House of Lords
Decided on : Jul-30-2008
LORD HOFFMANN My Lords, 1. For the reasons given by Patten J and Collins LJ, as well as those of my noble and learned friends Lord Walker of Gestingthorpe and Lord Neuberger of Abbotsbury, I would allow this appeal. LORD SCOTT OF FOSCOTE My Lords, 2. This appeal raises a very short point of construction of section 18(2) of the Capital Allowances Act 1990. Since my opinion on the point differs from that of a majority of your Lordships it will suffice for me to explain the reasons for my dissent quite shortly. I am enabled to do so because I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Walker of Gestingthorpe and Lord Neuberger of Abbotsbury, who, with my noble and learned friend Lord Hoffmann, constitute the majority, and can gratefully adopt their description of the facts and relevant statutory background. 3. The issue is whether the warehouse in which the respondent, Maco, stores the stock that it purchases from its Austrian parent, Maye...
Tag this Judgment!Court : House of Lords
Decided on : Oct-22-2008
LORD HOPE OF CRAIGHEAD My Lords, 1. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Neuberger of Abbotsbury. I agree with it, and for the reasons he gives I would dismiss the appeal. I also agree with the additional observations by my noble and learned friend Lord Walker of Gestingthorpe. LORD RODGER OF EARLSFERRY My Lords, 2. I have had the advantage of considering the speech to be delivered by my noble and learned friend, Lord Neuberger of Abbotsbury in draft. I agree with it and, for the reasons he gives, I too would dismiss the appeal. I also agree with the additional observations of my noble and learned friend, Lord Walker of Gestingthorpe. LORD WALKER OF GESTINGTHORPE My Lords, 3. I have had the great advantage of reading in draft the opinion of my noble and learned friend Lord Neuberger of Abbotsbury. I agree with it and for the reasons given by Lord Neuberger I would dismiss this appeal. I venture to add only two brief comments, bot...
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