Court : House of Lords
LORD SCOTT OF FOSCOTE My Lords, 1. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Mance. I agree with it, and for the reasons given by Lord Mance I would allow this appeal and restore the order of Master Miller. LORD RODGER OF EARLSFERRY My Lords, 2. I have had the advantage of reading in draft the speech which is to be delivered by my noble and learned friend, Lord Mance. I agree with it and, for the reasons which he gives, I too would allow the appeal and make the order which he proposes. LORD WALKER OF GESTINGTHORPE My Lords, 3. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Mance. I agree with it, and for the reasons given by Lord Mance I would allow this appeal and restore the order of Master Miller. LORD BROWN OF EATON-UNDER-HEYWOOD My Lords, 4. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Mance. I agree with it, and for the reasons given by...
Tag this Judgment!Court : House of Lords
LORD PHILLIPS OF WORTH MATRAVERS My Lords, Introduction 1. Mr Stojevic is a fraudster. He used the appellant company, (“SandR”) as a vehicle for defrauding banks. The fraud was discovered and both SandR and Mr Stojevic were successfully sued for deceit by the principal victim, Komercni Bank SA (“the Bank”). The respondent, Moore Stephens, were SandR’s auditors. Moore Stephens accept that they owed SandR a duty to exercise reasonable skill and care in carrying out their duties as auditors. For purposes of the present argument they also accept that they were in breach of that duty and that, but for their breach, the fraud that Mr Stojevic was perpetrating through SandR would have ended earlier. In this action SandR seek to recover losses caused to them in consequence of the extension of the period of their fraudulent activity that they submit was caused by Moore Stephens’ breach of duty. Moore Stephens contend that this claim cannot succeed because it...
Tag this Judgment!Court : House of Lords
LORD HOPE OF CRAIGHEAD My Lords, 1. The issue in this case is as to the scope of the words “unable to communicate” in section 30(2)(b) of the Sexual Offences Act 2003. The defendant was charged with intentionally touching the complainant by penetrating her mouth with his penis in circumstances where the touching was sexual, the complainant was unable to refuse because of or for a reason related to a mental disorder and the defendant knew or could reasonably have been expected to know that she had a mental disorder and that because of it or for a reason related to it she would be likely to be unable to refuse. Section 30(2)(b), read together with section 30(2)(a), provides that a complainant is unable to refuse if she is unable to communicate to the defendant a choice whether to agree to the touching, whether because she lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason. 2. The judge allowed the...
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LORD PHILLIPS OF WORTH MATRAVERS My Lords, 1. I have had the advantage of reading in draft the opinions of each of the members of the Committee. I agree for the reasons that are common to all of them that this appeal should be allowed and that the Respondent should be required to promulgate a policy with the features described in the final paragraph of the draft opinion of my noble and learned friend, Lord Hope of Craighead. That opinion also addresses the question of whether acts in this jurisdiction that assist a person to travel to Switzerland for the purpose of there committing suicide fall within the scope of section 2(1) of the Suicide Act 1961 (“the 1961 Act”). Lord Hope approaches that question on the premise that section 2(1) created a new offence that was sui generis and applies to it recent jurisprudence in relation to territorial jurisdiction over criminal offences. On the basis of this and for additional reasons that reflect a purposive approach to the subsecti...
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LORD SCOTT OF FOSCOTE My Lords, 1. The issue for decision in this appeal relates to the basis on which compensation for compulsory purchase should be assessed in a case where the land in question has an unrealised potential for development but where the success of an application for the requisite planning permission is, although probable, not a certainty. More particularly, the issue is whether, in such a case, compensation should be assessed on the basis that planning permission for the development would be granted, or whether the amount that such an assessment would produce should be discounted to reflect the lack of certainty. I have had the advantage of reading in advance the opinions of my noble and learned friends Lord Walker of Gestingthorpe and Lord Collins of Mapesbury and agree with their conclusion that the assessment of compensation should take into account that lack of certainty and that, accordingly, this appeal should be allowed. I want, however, to add just a few words ...
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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 I also agree with the comments of my noble and learned friend Lord Walker of Gestingthorpe. For the reasons that Lord Neuberger gives I would allow the appeal and make the order that he proposes. I gratefully adopt his description of the factual background and his analysis of the issues that were before the courts below. 2. This is, as Mummery LJ observed in the Court of Appeal [2008] Bus LR 1123, para 34, an extremely unusual case. One of its most striking features is Matthew Fisher’s extraordinary delay in making his claim for a share of the musical copyright. In para 82 of his judgment Mummery LJ described the fact that Mr Fisher had waited for 38 years, with knowledge and without reasonable excuse, as unconscionable behaviour. Another, which is really a product of the first, is the fact that his claim is...
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LORD PHILLIPS OF WORTH MATRAVERS My Lords, 1. I have had the benefit of reading in draft the opinions of my noble and learned friends Lord Mance and Lord Collins of Mapesbury. I agree with their conclusion that this appeal should be allowed and the reasons that each gives for that conclusion, for those reasons are in harmony. I propose to explain shortly why I agree with their reasoning. 2. Essentially the result of this appeal is dictated by the agreed fact that the reinsurance contract that is the subject of the appeal is governed by English law and by the well established principle, not challenged in this case, that under English law a contract of reinsurance in relation to property is a contract under which the reinsurers insure the property that is the subject of the primary insurance; it is not simply a contract under which the reinsurers agree to indemnify the insurers in relation to any liability that they may incur under the primary insurance - British Dominions General Insur...
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LORD HOPE OF CRAIGHEAD My Lords, 1. I have had the privilege of reading in draft the opinion which has been prepared by my noble and learned friend Baroness Hale of Richmond, to which my noble and learned friend Lord Neuberger of Abbotsbury has contributed. I agree with it, and for the reasons they have given I would allow both appeals. 2. As Baroness Hale explains, both cases concern the duties of local housing authorities towards homeless people under Part VII of the Housing Act 1996. The question which lies at the heart of the Birmingham case is whether it is a lawful discharge of the housing authority’s duty under section 193(2) of the Act to leave a family in accommodation which requires them to be treated as homeless under section 175(3) because it is accommodation which it is not reasonable to expect them to continue to occupy. In the Manchester case it is how the provisions of Part VII are to be applied to a woman who flees domestic violence and is provided with a place i...
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LORD HOPE OF CRAIGHEAD My Lords, 1. I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond. I am grateful to her for setting out the background to this case, and for the way she has identified the issues that are before us. I agree with her and with my noble and learned friend Lord Rodger of Earlsferry, whose opinion I have also had the advantage of reading, that the Court of Appeal applied the right test and that this appeal should be dismissed. 2. The definition of “disability” lies at the heart of the Disability Discrimination Act 1995. So a proper understanding of what it means is essential if all those who are disabled, as that term is defined in the Act, are to be brought within its protection. Parliament went to considerable lengths to define this expression. First, there is the general test laid down in section 1(1), which provides: “Subject to the provisions of Schedule 1, a person has a disability fo...
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LORD HOPE OF CRAIGHEAD My Lords, 1. I have had the privilege of reading in draft the opinion of my noble and learned friend, Lord Hoffmann. Like my noble and learned friend, Lord Walker of Gestingthorpe, whose opinion I have also had the privilege of reading, I agree with all his reasoning and I share Lord Walker’s admiration for the way it has been expressed. For the reasons they give I would allow the appeal. 2. I agree that Persimmon’s argument that the House should take account of the pre-contractual negotiations raises an important issue. Every so often the rule that prior negotiations are inadmissible comes under scrutiny. That is as it should be. One of the strengths of the common law is that it can take a fresh look at itself so that it can keep pace with changing circumstances. But for the reasons that have been set out by Lord Hoffmann I think that the arguments for retaining the rule have lost none of their force since Prenn v Simmonds [1971] 1 WLR 1381 demonstra...
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