Mr. Justice Browne's Judgment in the Anisminic Case

1969 ◽  
Vol 27 (2) ◽  
pp. 230-250
Author(s):  
H. W. R. Wade
Keyword(s):  
Extensive Review ◽  
House Of Lords ◽  
Court Of Appeal ◽  
Made In

ALL those—and they will be many—concerned with the case of Anisminic Ltd. v. Foreign Compensation Commission [1968] 2 Q.B. 862 (C.A.), [1969] 2 W.L.R. 163 (H.L.) will have noticed the references made in the Court of Appeal and in the House of Lords to the judgment delivered by Browne J. at first instance. This judgment is of particular interest and importance, not only because it was upheld by the House of Lords after being reversed by the Court of Appeal, but also because it made an extensive review and analysis of the authorities, which the higher courts to some extent adopted and incorporated by reference. Unfortunately this valuable judgment has not been reported, presumably because it ran to some 40,000 words in length.

scholarly journals Culpability, Kingston and the Law Commission

2010 ◽  
Vol 74 (5) ◽  
pp. 434-471 ◽  
Author(s):  
Cath Crosby
Keyword(s):  
Justice System ◽  
Criminal Liability ◽  
Character Theory ◽  
Criminal Offence ◽  
Pragmatic Approach ◽  
House Of Lords ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission ◽  
Do So

This article considers the basis upon which a person should be held to be criminally liable, and to do so, it is necessary to examine the leading theories of character and choice that underpin the State holding a person to be culpable of a criminal offence, i.e. the link between culpability and fault. The case of R v Kingston1 is used to examine the application of these leading theories and it is observed that choice theorists would not excuse such a defendant from criminal liability even though his capacity to make a choice to refrain from law breaking was made extremely difficult by external factors beyond his control. Only character theory could possibly offer exculpation in such circumstances on the basis that the defendant acted ‘out of character’ and his deed did not deserve the full censure and punishment of the criminal law. The Court of Appeal in R v Kingston would have been prepared to excuse, but the House of Lords, and most recently the Law Commission have adopted a pragmatic approach to the involuntarily intoxicated offender. This case serves as a reminder that while justice is the aim of the criminal justice system, it is not an absolute standard.

Transforming the Law on Psychiatric Lesions

2021 ◽  
Vol 2021 (2) ◽  
pp. 253-271
Author(s):  
Emile Zitzke
Keyword(s):  
Supreme Court ◽  
Expert Witnesses ◽  
The Supreme Court ◽  
Psychological Harm ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Delict ◽  
Court Of Appeal ◽  
Made In

In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.

Febrile Convulsions, by J. Gordon Millichap, M.D., M.R.C.P. New York: The Macmillan Company, 1968, 239 pp., $7.95

PEDIATRICS ◽  
1968 ◽  
Vol 42 (2) ◽  
pp. 381-382
Author(s):  
Randolph K. Byers
Keyword(s):  
New York ◽  
Relevant Literature ◽  
Febrile Seizures ◽  
Cerebral Injury ◽  
Extensive Review ◽  
Cerebral Disease ◽  
Febrile Convulsions ◽  
The Individual ◽  
The Brain ◽  
Made In

This rather modest-looking monograph deals not only with the large experiences of the author in relation to febrile seizures, but also presents an extensive review of the modern relevant literature (266 references in the bibliography). The most useful point made in the book, it seems to me, is that febrile convulsions are just that: i.e., convulsions coinciding with fever, the result of illness not directly involving the brain or its meninges. Such a seizure may be an isolated occurrence in the life of the individual, or it may recur a few times with fever; it may be the first sign of idiopathic chronic epilepsy, or it may be evidence of more or less apparent cerebral injury of a static sort; or, it may be the presenting symptom heralding progressive cerebral disease.

Psychiatric injury in breach of a relationship

Legal Studies ◽  
2007 ◽  
Vol 27 (1) ◽  
pp. 26-50 ◽  
Author(s):  
Peter Handford
Keyword(s):  
House Of Lords ◽  
The Usa ◽  
Damage Law ◽  
The Relationship ◽  
Court Of Appeal ◽  
Special Category

The distinction between primary and secondary victims confirmed by Page v Smith has caused major problems in English psychiatric damage law. The House of Lords has suggested that the search for principle has been called off, and that the only sensible strategy is to say ‘thus far and no farther’. This paper suggests that one way forward is to recognise that it is not only persons who are physically proximate to an ‘accident’ who should be put in a special category: any case in which there is some sort of pre-existing relationship between claimant and defendant should be regarded as different from the standard secondary victim scenario. The relationship concept, first recognised in the USA and now adopted by the Court of Appeal, can be found in embryo form in the early cases.

states that if such a requirement existed any disadvantage, provided it was ‘clear and obvious and more than de minimis’ may be small. The message is very clear that Morgan is something of an aberration on this point, proceeding from an unwarranted reliance on a single appeal from India (Poosathurai) and, at an appropriate point, the House of Lords will override it. As Nourse LJ states (at p 399): ‘Although in CIBC Mortgages plc, judicial courtesy no doubt prevented Lord Browne-Wilkinson from saying so, my strong impression is that he thought its introduction into cases of presumed undue influence was no more appropriate than into cases of actual undue influence.’ A further uncertainty arising out of the decision in Morgan is that Lord Scarman does not make it clear which class of undue influence he was dealing with. Subsequently, the Court of Appeal in Bank of Credit & Commerce International SA v Aboody, adopted a threefold classification, namely: • Class 1 Actual undue influence. • Class 2A Presumed undue influence arising out of recognised relationships such as solicitor and client, etc. • Class 2B Presumed undue influence not based on a recognised relationship, but in which there is a relationship of trust and confidence. Lord Scarman at no point indicates which of the relevant categories the respondent in Morgan fell into. Vicarious undue influence

1995 ◽  
pp. 431-431
Keyword(s):  
Undue Influence ◽  
House Of Lords ◽  
Class 1 ◽  
Relationship Of ◽  
Court Of Appeal ◽  
Commerce International

afterwards, the company's chairman agreed to the company being taken over by another company. The merchant bankers informed the appellant of the proposed take-over and told him that a public announcement would be made shortly but that until then the information was sensitive and highly confidential. The appellant promptly purchased 6,000 shares in the company and, following the announcement of the take over, made a substantial profit. He was charged with two offences of dealing in the securities of a company as a prohibited person, contrary to s1(3) and (4)(a) of the Company Securities (Insider Dealing) Act 1985 (subsequently replaced by Criminal Justice Act 1993, Pt V). The trial judge directed the jury to acquit the appellant on the ground that there was no evidence that he had 'obtained' the information, for the purposes of s1(3), since it had been given to him unsolicited. The Attorney General then referred to the Court of Appeal for its opinion the question of the meaning of 'obtained' in s1(3) of the 1985 Act. The Court of Appeal held that a person obtained information for the purposes of s1(3) and (4)(a) of the 1985 Act, even if he came by it without any positive action on his part. On the appellant's application the Court of Appeal referred the point to the House of Lords. where-(a)

2012 ◽  
pp. 185-188
Keyword(s):  
Criminal Justice ◽  
Attorney General ◽  
Trial Judge ◽  
Public Announcement ◽  
House Of Lords ◽  
Positive Action ◽  
Insider Dealing ◽  
A Company ◽  
Court Of Appeal

Surprisingly, there are no official authoritative series of law reports in England to equate with the Queen’s Printers copy of an Act of Parliament. The Stationery Office is responsible for publishing revenue, immigration and social security law cases. However, traditionally, law reports remain in the hands of private publishers. Today, there are numerous, often competitive, private publishers. Although there are no official series of law reports, the courts do respect some reports more than others. A long established, conventional rule is that a law report, if it is to be accepted by the relevant court as an authority, must be prepared by and published under the name of a fully qualified barrister. The greater accuracy of modern reporting, and the vetting by judges, necessitates longer delays before the cases are published. Also, the Law Reports only cover 7% of the cases in the higher courts in any given year. Interesting issues are: (a) who selects which cases to report? (b) how are they selected? Editors select the cases for inclusion in the series of law reports. These are highly trained lawyers, well acquainted with precedent and the likely importance of cases. During the past 150 years publishers of law reports have been generalists or specialists. Some law reports are annotated, particularly for the use of practitioners, others left without annotations, introductions, etc. In addition to reported cases, the Supreme Court Library contains thousands of files of unreported cases. In 1940, the Lord Chancellor’s Department prepared a report: The Report of the Law Reporting Committee. The Committee considered that, after editors had made their choices, ‘What remains is less likely to be a treasure house than a rubbish heap in which a jewel will rarely, if ever, be discovered’ (p 20). (Note the poetic language that forcefully carries the point.) Of course, today, there is a vast range of electronic retrieval systems for accessing details of thousands of unreported cases. This has caused its own problems and there was a legitimate concern that courts would be inundated with cases that did not really contain any new law, but which had been retrieved from electronic sources. In the case of Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 AC 192, the House of Lords took the step of forbidding the citation of unreported cases of the civil division of the Court of Appeal without special leave. The rule remains, however, that to be an accepted version that can be quoted in court the report must have been prepared and published by a barrister. When law students read law reports they must ask: (a) is this report the most authoritative version available? (b) are there fuller versions? (c) if unreported, does this case add to the law? Figure 4.2, below, sets out the types of reports available for the law student to consult.

2012 ◽  
pp. 78-79
Keyword(s):  
Law Students ◽  
Retrieval Systems ◽  
House Of Lords ◽  
The Supreme Court ◽  
Legitimate Concern ◽  
The Law ◽  
Law Student ◽  
Law Reports ◽  
Court Of Appeal ◽  
Vast Range
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