Court : House of Lords
LORD HOFFMANN My Lords, The three appeals 1. These three appeals are principally concerned with claims in tort for economic loss caused by intentional acts (a) In OBG Ltd v Allan [2005] QB 762 the defendants were receivers purportedly appointed under a floating charge which is admitted to have been invalid. Acting in good faith, they took control of the claimant company's assets and undertaking. The claimant says that this was not only a trespass to its land and a conversion of its chattels but also the tort of unlawful interference with its contractual relations. It claims that the defendants are liable in damages for the value of the assets and undertaking, including the value of the contractual claims, as at the date of their appointment. Alternatively, it says the defendants are liable for the same damages in conversion. (b) In Douglas v Hello! Ltd the magazine OK! [2006] QB 125 contracted for the exclusive right to publish photographs of a celebrity wedding at which all other pho...
Tag this Judgment!Court : House of Lords
LORD HOFFMANN My Lords, 1. This appeal raises a short point on the construction of a provision of Part IV of the Housing Act 1985, which consolidates the law on secure tenancies originally introduced by Chapter II of Part I of the Housing Act 1980. Mrs Betty Walker was a secure tenant of a house in Birmingham belonging to the local authority. When she died in February 2004, her son Paul was living with her in the house. Section 89 of the 1985 Act provides that where a secure tenant dies and there is a person "qualified to succeed" her, "the tenancy vests by virtue of this section in that person". By section 87, a member of the tenant's family occupying the house at the time of her death is qualified to succeed. But there is a proviso which excludes any succession to a tenant who was herself a "successor" as defined in section 88(1). That definition includes the case (paragraph (b)) in which the tenant "was a joint tenant and has become the sole tenant". In this case, Mrs Betty Walker w...
Tag this Judgment!Court : House of Lords
LORD HOFFMANN My Lords, 1. I have had the privilege of reading in draft the opinion of my noble and learned friend Lord Mance and agree that this appeal should be dismissed. LORD HOPE OF CRAIGHEAD My Lords, 2. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Mance. I agree with it, and for the reasons he gives I too would dismiss the appeal. I wish to add only a few observations of my own on the first issue: was there a contract for the carriage of goods by road within the meaning of article 1 of the Convention on the Contract for the International Carriage of Goods by Road ("CMR"). 3. The reach of article 1 of CMR is very wide. It applies to every contract for the carriage of goods by road, provided it is a contract for reward and the place of taking over the goods and the place designated for delivery, as specified in the contract, are situated in two different countries of which at least one is a contracting country. The place of residenc...
Tag this Judgment!Court : House of Lords
LORD HOFFMANN My Lords, 1. Between 1973 and 1999 a company resident in the United Kingdom which paid a dividend was liable to pay advanced corporation tax ("ACT"). This payment could be set off against its liability for corporation tax on its profits ("mainstream corporation tax" or "MCT"). The recipient of the dividend was entitled to a tax credit for the ACT. If the recipient was a company, the dividend and the tax credit constituted franked investment income and could be distributed to its own shareholders without further payment of ACT. 2. The economic purpose of this system was to ensure that a company's profits were not taxed twice: first as profits earned by the company and then again as dividends received by the shareholders. The payment of tax by the company was partially imputed by means of a tax credit to the shareholders. But the system also had to ensure that credit was given only for tax which had actually been paid. Hence the requirement that ACT be paid at the time of t...
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LORD BINGHAM OF CORNHILL My Lords, 1. These proceedings arise from the deaths of six Iraqi civilians, and the brutal maltreatment of one of them causing his death, in Basra. Each of the deceased was killed (or, in one case, is said to have been killed) and the maltreatment was inflicted by a member or members of the British armed forces. In each case a close relative of the deceased has applied in the High Court in London for an order of judicial review against the Secretary of State for Defence, seeking to challenge his refusal (by a letter of 26 March 2004) to order an independent enquiry into the circumstances of this maltreatment and these deaths, and his rejection of liability to afford the claimants redress for causing them. These six cases have been selected as test cases from a much larger number of claims in order, at this stage, to resolve certain important and far-reaching issues of legal principle. 2. The claimants found their claims in the English court on the Human Rights...
Tag this Judgment!Court : House of Lords
LORD BINGHAM OF CORNHILL My Lords, 1. The issue in this appeal is whether a care home (such as that run by Southern Cross Healthcare Ltd), when providing accommodation and care to a resident (such as Mrs YL, the appellant), pursuant to arrangements made with a local authority (such as Birmingham City Council) under sections 21 and 26 of the National Assistance Act 1948, is performing "functions of a public nature" for the purposes of section 6(3)(b) of the Human Rights Act 1998 and is thus in that respect a "public authority" obliged to act compatibly with Convention rights under section 6(1) of that Act. 2. For reasons more fully given by my noble and learned friend Baroness Hale of Richmond, with whose opinion I wholly agree, I would answer that question in the affirmative. Despite the contrary opinions of my noble and learned friends, and of the Court of Appeal in R (Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366, [2002] 2 All ER 936, I venture to think that the answer t...
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LORD HOFFMANN My Lords, 1. Jaymarke Estates Ltd ("Estates") was incorporated in Scotland in 1991 but remained dormant until towards the end of 1994, when it was used by its two shareholders and directors, Mr Shaw and Mr Wilson, to carry out a property development near Aberdeen. In early 1996, shortly before the development was completed, the directors fell out with each other and Mr Wilson resigned. Mr Shaw, who held 70% of the issued share capital, continued as sole director. In November 1997 Mr Wilson, who held the remaining 30%, presented a petition under section 459 of the Companies Act 1985, claiming that the company's affairs had been conducted in a manner unfairly prejudicial to the interests of a part of its members, namely, himself. 2. After a nine day hearing the sheriff at Aberdeen declared herself satisfied that the petition was well founded. The unfairly prejudicial conduct upon which she relied was (a) an irrecoverable loan of 88,125 to a company of which Mr Shaw's son wa...
Tag this Judgment!Court : House of Lords
LORD HOFFMANN My Lords, 1. These two appeals are test cases brought before the House for a ruling on the effect of the presumption in section 31(1) of the Highways Act 1980: "Where a way over any land… has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it." 2. The main issue in both appeals is over the nature of the evidence which will be sufficient to demonstrate that there was no intention to dedicate. Although the point can be put in a variety of ways, it seems to me to turn in the end on the meaning of the word "intention". The respondent landowners say that intention is a state of mind, with all the subjectivity which that implies. In principle, the owner himself is the person best qualified to give evidence about his own state of mind. Such evidence could be confirm...
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LORD HOFFMANN My Lords, 1. I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Scott of Foscote and gratefully adopt his statement of the facts and issues. 2. The Environment Agency puts its case in two ways. First, it says that National Grid Gas plc ("National Grid") is an appropriate person against whom a remediation notice may be served under section 78E of the Environmental Protection Act 1990. Section 78F(2) defines an appropriate person as one who "caused or knowingly permitted the substances…by reason of which the contaminated land in question is such land to be in, on or under that land." But National Grid did not cause or knowingly permit any substances to be in, on or under the land. That was done by the East Midlands Gas Board or its predecessor gas undertakers many years before National Grid came into existence. There is nothing in the Act to say that an appropriate person shall be deemed to include some other pe...
Tag this Judgment!Court : House of Lords
LORD BINGHAM OF CORNHILL My Lords, 1. Section 139 of the Mental Health Act 1983 is entitled "Protection for acts done in pursuance of this Act". At the time relevant to this appeal subsections (1) and (2) provided: "(1) No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act, or in, or in pursuance of anything done in, the discharge of functions conferred by any other enactment on the authority having jurisdiction under Part VII of this Act, unless the act was done in bad faith or without reasonable care. (2) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any su...
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