Damages in Equity—A Study of Lord Cairns' Act

1975 ◽  
Vol 34 (2) ◽  
pp. 224-252 ◽  
Author(s):  
J. A. Jolowicz
Keyword(s):  
Present Status ◽  
Common Law ◽  
House Of Lords ◽  
Court Of Appeal

When, if ever, may a court award damages to a plaintiff whose case sounds only in equity, not in law? In Hooper v. Rogers an award of damages in respect of a nuisance which had not yet resulted in any relevant damage was upheld by the Court of Appeal. In Wrotham Park Estate Co. Ltd. v. Parkside Homes Ltd. Brightman J. awarded substantial damages for breach of a restrictive covenant to the successors in title of the covenantee against the successors in title of the covenantor. In Wroth v. Tyler damages for the non-performance of a contract for the sale of a house were assessed by reference to the value of the house at the date of the hearing, not the date of breach. In none of these cases could the decisions have been justified on common law principles alone and all are in fact founded upon the Chancery Amendment Act 1858, commonly known as Lord Cairns' Act. Yet in Redland Bricks Ltd. v. Morris, while the Court of Appeal considered that an elaborate discussion of that Act was necessary and, indeed, differed in opinion as to the result of its application to the circumstances of the case, the House of Lords, through Lord Upjohn, dismissed the matter briefly and categorically with the observation that Lord Cairns' Act had nothing whatever to do with the principles of law applicable to the case. The time seems ripe for an examination of the meaning and present status of the Act.

Holgate-Mohammed v Duke [1984] WLR 660 House of Lords: A detective constable, exercising his powers under s2(4) of the CLA 1967, arrested the plaintiff on suspicion that she had stolen jewellery and took her to a police station where she was questioned. She was not charged with an offence and was released from detention within six hours of her arrest. The plaintiff bought an action in the county court against the Chief Constable for damages for wrongful arrest. The judge found that the detective constable had had reasonable grounds to suspect the plaintiff of having committed an arrestable offence and that the period of detention was not excessive but, because the constable had decided not to interview her under caution but to subject her to the greater pressure of arrest and detention so as to induce a confession, there had been a wrongful exercise of the power of arrest. The plaintiff was awarded £1,000 damages. The Court of Appeal allowed an appeal by the Chief Constable. On the plaintiffs appeal: Held that the Wednesbury principles were to be applied in determining, for the purpose of founding an action at common law for false imprisonment, whether the discretion conferred upon a constable by s2(4) of the CLA 1967 to arrest a person without a warrant had been exercised lawfully, namely whether the discretion had been exercised in good faith and whether irrelevant matters had been excluded

2012 ◽  
pp. 366-370
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Police Station ◽  
House Of Lords ◽  
False Imprisonment ◽  
Court Of Appeal

scholarly journals CIVIL LITIGATION NEGLIGENCE AND THE MALAYSIAN ADVOCATE

2013 ◽  
Vol 20 (2) ◽  
Author(s):  
Baharuddeen Abu Bakar
Keyword(s):  
Public Policy ◽  
Common Law ◽  
The Other ◽  
Civil Litigation ◽  
The Public ◽  
Judicial Decisions ◽  
House Of Lords ◽  
The Difference ◽  
Court Of Appeal ◽  
Alternative Sanctions

Civil litigation negligence now stands on a surer footingfollowing cases from Canada, England and elsewhere which lay emphasis on theadversarial system rather than the structure of the profession, and immunityhas now been almost completely abolished by judicial decisions. In Malaysia,the basis of legal professional liability is expected to be re-aligned to beconsistent with the other common law countries that have abolished immunity.The questions that necessitate consideration are therefore acts that wouldconstitute negligence and those that are excusable, the relevant defences, and,of course, the alternative sanctions to civil litigation for this type ofnegligence. The fused nature of the profession in Malaysia, perceived to bemore burdensome to its members, raises the question of the appropriate standardof the duty of skill and care.(For the purposes of this article an ‘advocate’ refers to theMalaysian (and Singaporean) lawyer, who as a member of a ‘true fused’ profession,engages in litigation or ‘contentious business’ as defined in s. 3 of the LegalProfession Act 1976.) {The writer is of the firm view that criminal casesshould be considered separately from civil cases because of the difference inthe law of procedure relating to the preparation of a case for presentation incourt and the public policy considerations peculiar to each type of case asseen in the approach taken by the House of Lords in Arthur J.S. Hall vSimons in which separate judgments were delivered for each type of case.And in Rees v Sinclair [1974] 1 NZLR 180, a civil case, in whichthe New Zealand Court of Appeal did not consider the position in criminalcases.}

Figure 4.14: the two issues as set out by Lord Bridge—issue 2 As can be seen, a number of matters needing to be clarified arise from the mere identification of two issues. Note that Bridge gives the two issues a short-hand label: (1) the common law issue; and (2) the statutory issue. However, students often read and re-read without appreciating how to move from lack of understanding towards understanding. They do not notice how words can be clarified by an appreciation of the intertextual links and which words or phrases could be clarified by recourse to textbooks in the area. Again the two issues are found in a paragraph of Lord Bridge’s judgment. Reading carefully paragraphs in the immediate vicinity can assist in understanding. The responsibility of the reader is to read with understanding, therefore stopping to clarify points along the way. It is useful here to ensure that the procedural history of this case is understood. This will enable the student to obtain an appreciation of the differences in opinion by the various judges who have considered the case before its arrival in the House of Lords. Lord Bridge discusses the procedural history and it is set out in the headnote. The case was won by the plaintiffs (the buyers) in the trial court (the High Court) and the defendants (the sellers) appealed to the Court of Appeal, where

2012 ◽  
pp. 99-99
Keyword(s):  
Common Law ◽  
Trial Court ◽  
High Court ◽  
House Of Lords ◽  
History Of ◽  
The Common ◽  
Short Hand ◽  
Court Of Appeal ◽  
The Way

• Lord Bridge felt no doubts about the decision of the Court of Appeal over statute. • Lord Bridge refers to an earlier point in para 15 that it is wise to ‘refrain from interference’ in matters of legitimate judicial difference (see Appendix 1, p 313, para 15). • ‘If I were making the original decision, I should conclude without hesitation that it would not be fair or reasonable to allow the appellants to rely on the contractual limitation of their liability.’ • Appeal dismissed. A quick review of the paragraphs begins to show the patterns of argument delivery. Re-reading the paragraphs looking at the statutory diagrams (Figures 4.16 and 4.17, above) allows the argument to be reviewed whilst looking at the entire provision. The paragraph approach has also allowed the common law issue and the statutory issue to be isolated. Reviewing Figure 4.12, above, dealing with the facts, issues and procedural history enables the appreciation of the differences between the reasoning in the Court of Appeal and the House of Lords, although both courts reached the same decision. It should be possible at this stage to identify the precise rationale behind the court’s view of the common law issue and the statutory issue. In relation to the statutory issue, it should be possible to pinpoint precisely the statutory areas of relevance and how the court dealt with the issue. A summary of this information has been put into diagrammatic form in Figure 4.18, below. As proficiency is developed, it is possible to read carefully and move straight away to a diagrammatic representation, although, ultimately, a brief conventional textual note should be made to supplement the diagram. Brief, of course, as you will have seen, does not mean easy or simple!

2012 ◽  
pp. 112-113
Keyword(s):  
Common Law ◽  
Diagrammatic Representation ◽  
House Of Lords ◽  
The Common ◽  
Court Of Appeal

scholarly journals CIVIL LITIGATION NEGLIGENCE AND THE MALAYSIAN ADVOCATE

2012 ◽  
Vol 20 (1) ◽  
Author(s):  
Baharuddeen Abu Bakar
Keyword(s):  
Common Law ◽  
Civil Litigation ◽  
Criminal Cases ◽  
The Public ◽  
Adversarial System ◽  
Judicial Decisions ◽  
House Of Lords ◽  
The Difference ◽  
Court Of Appeal ◽  
Alternative Sanctions

Civil litigation negligence now stands on a surer footing following cases from Canada, England and elsewhere which lay emphasis on the adversarial system rather than the structure of the profession, and immunity has now been almost completely abolished by judicial decisions. In Malaysia, the basis of legal professional liability is expected to be re-aligned to be consistent with the other common law countries that have abolished immunity. The questions that necessitate consideration are therefore acts that would constitute negligence and those that are excusable, the relevant defences, and, of course, the alternative sanctions to civil litigation for this type of negligence. The fused nature of the profession in Malaysia, perceived to be more burdensome to its members, raises the question of the appropriate standard of the duty of skill and care.(For the purposes of this article an ‘advocate’ refers to the Malaysian (and Singaporean) lawyer, who as a member of a ‘true fused’ profession, engages in litigation or ‘contentious business’ as defined in s. 3 of the Legal Profession Act 1976.) {The writer is of the firm view that criminal cases should be considered separately from civil cases because of the difference in the law of procedure relating to the preparation of a case for presentation in court and the public policy considerations peculiar to each type of case as seen in the approach taken by the House of Lords in Arthur J.S. Hall v Simons in which separate judgments were delivered for each type of case. And in Rees v Sinclair [1974] 1 NZLR 180, a civil case, in which the New Zealand Court of Appeal did not consider the position in criminal cases.} 

scholarly journals Ignorance of the Law as a Defence to Rape: The Destruction of a Maxim

2012 ◽  
Vol 76 (4) ◽  
pp. 336-347
Author(s):  
Kenneth J. Arenson
Keyword(s):  
Common Law ◽  
Mens Rea ◽  
Sexual Offences ◽  
The Poor ◽  
House Of Lords ◽  
Long Line ◽  
The Common ◽  
The Law ◽  
Sexual Offences Act 2003 ◽  
Court Of Appeal

In DPP v Morgan, the House of Lords correctly concluded that an accused who entertained a genuine belief that a woman was consenting to carnal knowledge of her person could not be convicted of the common law crime of rape as such a belief and the requisite mens rea to convict were mutually exclusive of one another. Though England and Wales have resiled from this position by virtue of the Sexual Offences Act 2003, s. 1(b), which allows for conviction upon proof that the accused did not reasonably believe that the complainant was consenting, the Morgan principle has retained its vitality at common law as well as under the various statutory crimes of rape that exist throughout Australia, most notably the provisions of s. 38 of the Crimes Act 1958 (Vic). Despite a long line of Victorian Court of Appeal decisions which have reaffirmed the Morgan principle, the court has construed s. 37AA(b)(ii) of the Act as leaving open the possibility of an acquittal despite the fact that the accused acted with an awareness that one or more factors that are statutorily deemed as negating consent under s. 36(a)–(g) of the Act were operating at the time of his or her sexual penetration; specifically, the court held that the foregoing factors do not necessarily preclude a jury from finding that the accused acted in the genuine belief that the complainant was consenting. This article endeavours to explain how the accused could be aware of such circumstances at the time of penetration, yet still entertain such a belief. The article ultimately concludes that such an anomaly can only be explained through a combination of the poor drafting of s. 37AA(b)(ii) and the court's apparent refusal to follow the longstanding precept that ignorance of the law is never a defence to a crime, ostensibly prompted by its adherence to the cardinal precept that legislation is not to be construed as superfluous.

Restrictive covenants, use of land, and the restraint of trade doctrine

2021 ◽  
Vol 72 (1) ◽  
pp. 132-140
Author(s):  
David Capper
Keyword(s):  
Northern Ireland ◽  
Common Law ◽  
Commercial Activity ◽  
Restrictive Covenants ◽  
House Of Lords ◽  
The Supreme Court ◽  
The Common ◽  
Article 5 ◽  
Court Of Appeal ◽  
Restraint Of Trade

The common law doctrine of restraint of trade has a well-established presence in relation to contracts of employment and contracts for the sale of a business. Beyond those specific areas it reared its head from time to time, but the legal test for its applicability was not a model of clarity. Where the covenantor ceded a pre-existing freedom to engage in commercial activity, the decision of the House of Lords in Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd [1968] AC 269 brought it within the doctrine, but the recent decision of the Supreme Court in Peninsula Securities Ltd v Dunnes Stores (Bangor) Ltd [2020] UKSC 36, on appeal from the Northern Ireland Court of Appeal [2018] NICA 7, has discarded that test in favour of one based on the structure of a trading society. Peninsula Securities was a case concerned with the applicability of the restraint of trade doctrine to covenants affecting the ability of a landowner and its successors in title to use the land in a way that potentially competed with the business of an adjoining occupier. The decision that the restraint of trade doctrine was not engaged in these circumstances was set against the power of the Lands Tribunal to modify or extinguish covenants affecting land under article 5 of the Property (NI) Order 1978.  

NO COMMON LAW ACTION FOR UNFAIR DISMISSAL

2001 ◽  
Vol 60 (3) ◽  
pp. 441-492
Author(s):  
V.K. Sims
Keyword(s):  
Common Law ◽  
Maximum Amount ◽  
Mutual Trust ◽  
House Of Lords ◽  
Unfair Dismissal ◽  
The Law ◽  
Court Of Appeal

In view of the restrictions inherent in the law on unfair dismissal, in relation to both the parameters of making a claim and the maximum amount of damages, it is not surprising that in Johnson v. Unisys Ltd. [2001] 2 W.L.R. 1076 the House of Lords was confronted with an attempt to circumvent the statutory system. Mr. Johnson was summarily dismissed in circumstances which were held to amount to an unfair dismissal, and received the maximum amount of damages. Unfortunately for Mr. Johnson, who had been diagnosed with a stress-related illness before, he suffered a mental breakdown, and has since been unable to find employment. He claimed that the manner of his dismissal amounted to a breach of the implied duty of mutual trust and confidence; this argument was rejected by the judge at first instance, the Court of Appeal ([1999] I.C.R. 809) and, on different grounds, the House of Lords.

CASE NOTE George Mitchell (Chesterhall) Ltd v Finney Lock Seeds [1983] 2 All ER 737–4 4 COURT HOUSE OF LORDS JUDGES Lords Diplock, Scarman, Roskill, Bridge of Harlow, Brightman DATE 23, 24 May and 30 June 1983 FACTS The respondents purchased 301b seeds from the appellants for £201.60 in December 1973. The invoice contained a standard limitation clause stating that the only liability of the appellants was replacement of the seeds or a refund of the cost of the seeds. All other liability was excluded. The respondent’s crop failed. The wrong seed and seed of an inferior quality had been delivered due to the negligence of the appellant’s sister company. ARGUMENT The respondents argued that the limitation clause did not apply: (1) at common law, because the wrong seed was delivered and it was not of merchantable quality; (2) under statutory provisions, because the clause was not fair and reasonable under s 55 of the Sale of Goods Act 1979; the limitation clause in the contract was unenforceable at law according to s 55(4). PROCEDURAL HISTORY Trial Parker J: The limitation clause was not operative at common law because of the negligence in delivering the wrong seed. Court of Appeal On appeal by Finney Lock Seeds: Denning, Kerr, Oliver LJJ. Kerr and Oliver LJJ held the limitation clause could not be relied upon because: (1) on its true construction the condition did not apply at common law because loss due to the negligence of sister company and the seed was wholly different than delivery of the wrong seed (Kerr and Oliver LJJ); (2) also, applying s 55 it would not be fair and reasonable (Note: comment by drafter of case note: Having said the clause did not apply at common law to negligence there was of course no relevance in dealing with the statutory issue which is only operative if the clause is deemed to apply at common law!); (3) Denning LJ held, in the minority, that the limitation clause could apply at common law. However, it was not a fair and reasonable clause under s 55 of the Sale of Goods Act 1979.

2012 ◽  
pp. 115-115
Keyword(s):  
Common Law ◽  
Case Note ◽  
House Of Lords ◽  
The Cost ◽  
Court Of Appeal

they are called the appellants, and again lost. They then appealed to the House of Lords, where they also lost. There was a lot of money at stake: the difference between the £201.60 that the seeds cost as awarded by the Court of Appeal or the £90,000+ that the trial judge awarded. Consider, for a moment, what you have read and what you know so far. Does it seem fair to you that George Mitchell won? If so, why? If not, why not? So far we have considered: (a) Procedural history. (b) Facts. (c) The operative rules of law: • It is known that both common law rules and statutory rules are relevant to the case. • Further, it is known that if the common law rules are found to apply in the seller’s favour he still has to jump the hurdle presented by the statutory rules. • Recall, if there is a clash between common law rules and statutory rules, the statutory rules prevail. (d) A verbatim account of the two issues in the case (however, these are probably not fully comprehended yet, despite Figures 4.13 and 4.14, above!): • It is clear that Lord Bridge will argue through each of the issues. • If the appellants succeed in issue 1 they may still fail overall if they fail over issue 2. (Can you understand why? The answer is in the first sentence of text setting out ‘the second issue’. See Figure 4.14, above.) • Logically, one would expect Lord Bridge to commence with the arguments over issue 1, the common law issue, as this is the gateway to an argument over issue 2 which will only take place if issue 1 is decided in the appellant’s favour (and this is contentious limitation clause what he does). (e) Understanding the clause. This is set out in Figure 4.15, below. Until all of these matters are linked and understood it is not possible to fully comprehend the reasoning in the case. Now take time to consolidate the information we have so far and return to the judgment of Lord Bridge, concentrating on his arguments concerning issue 1 (Appendix 1, p 310, para 3). 4.5.2.5 Stage 4: breaking into Lord Bridge’s speech You will have already read Lord Bridge’s speech by now. It is also now appreciated that the arguments in this case are quite complex and the initial method of breaking into the text for understanding is to look at each paragraph. Paragraphs are intended to convey a new idea. So each paragraph represents an idea or a cluster of ideas. Careful ordering of paragraphs is essential in a piece of writing if a sense of progression is to be maintained. Therefore when reading for understanding a précis of each paragraph begins the process of understanding.

2012 ◽  
pp. 100-100
Keyword(s):  
Common Law ◽  
Text Setting ◽  
Trial Judge ◽  
House Of Lords ◽  
Stage 4 ◽  
The Common ◽  
The Difference ◽  
Court Of Appeal ◽  
Initial Method
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