IMPLIED TERMS: THE JOURNEY OF THE MAN ON THE CLAPHAM OMNIBUS

2011 ◽  
Vol 70 (3) ◽  
pp. 607-622 ◽  
Author(s):  
John McCaughran
Keyword(s):  
Attorney General ◽  
Privy Council ◽  
The Law ◽  
Court Of Appeal

This article is about the implication of terms into contracts based upon the presumed intention of the parties. It is particularly concerned with the decision of the Judicial Committee of the Privy Council in Attorney General of Belize v. Belize Telecom Limited,1 a number of recent Court of Appeal decisions thereafter, and whether there has been any change in the law. Before getting to Belize, it is necessary to consider, as briefly as possible, what went before.

scholarly journals Joint bank accounts and survivorship

2018 ◽  
Vol 47 (3) ◽  
pp. 162-166
Author(s):  
Keith Stanton
Keyword(s):  
Great Majority ◽  
Privy Council ◽  
The Bahamas ◽  
Bank Account ◽  
Bank Accounts ◽  
The Law ◽  
Court Of Appeal

Who is beneficially entitled to the money deposited in a joint bank account? In the great majority of cases, it is clear that the money is jointly owned and will pass on the death of one of the account holders to the survivor. However, things are not always simple and the law then has to decide as to the ownership of the money in a dispute between the surviving account holder and the estate of the deceased. The decision of the Judicial Committee of the Privy Council in Whitlock v Moree, a case on appeal from the Court of Appeal of the Bahamas is the latest decision on this topic.

The Licensee's Period of Grace: Bellotti Reconsidered

1996 ◽  
Vol 55 (2) ◽  
pp. 229-240
Author(s):  
Tamara Kerbel
Keyword(s):  
Privy Council ◽  
Railway Company ◽  
Short Notice ◽  
Appeal Decision ◽  
The Law ◽  
Canadian Pacific Railway ◽  
Court Of Appeal

At present the law fails to provide an adequate balance between the interests of licensor and licensee when a licensor revokes a licence but gives an unreasonably short notice. The prevailing orthodoxy has followed the Court of Appeal decision in Minister of Health v. Bellotti. This article will argue that the consequences of this decision have proved disastrous for both licensors and licensees. In direct conflict with Bellotti is the Privy Council authority of Canadian Pacific Railway Company v. The King.

Thomas and Hilaire v. Baptiste and the Attorney-General of Trinidad and Tobago

2000 ◽  
Vol 49 (2) ◽  
pp. 463-466
Author(s):  
Margaret Demerieux
Keyword(s):  
Trinidad And Tobago ◽  
Attorney General ◽  
Fundamental Rights ◽  
Bill Of Rights ◽  
Fundamental Issue ◽  
Privy Council ◽  
Legal Regime ◽  
The Law

The extent to which it is appropriate to interpret constitutional provisions and in particular fundamental rights in accordance with the law and understanding current at the time of their promulgation, is a fundamental issue in any legal regime into which a Bill of Rights is introduced. This is well illustrated in a recent decision by the Judicial Committee of the Privy Council.

Act of State as a Defence Against a British Subject

1968 ◽  
Vol 26 (1) ◽  
pp. 102-130 ◽  
Author(s):  
J. G. Collier
Keyword(s):  
Constitutional Law ◽  
Attorney General ◽  
Recent Case ◽  
Correct Interpretation ◽  
House Of Lords ◽  
Difference Of Opinion ◽  
The Law ◽  
Court Of Appeal

The law surrounding the doctrine of act of state is perhaps one of the most confusing parts of constitutional law, for both its meaning and application are susceptible of several different interpretations. In particular the rule that act of state can be no defence against an action by a British subject, or, to put it more precisely, that there can be no act of state between the Crown and a British subject is one whose limits are not entirely clear. The recent case of Naim Nissan v. Attorney-General has brought the matter to the fore in what is thought to be a novel situation, wherein the question arose whether act of state can be a defence to an action by a British subject if the act has been executed by the Crown outside the Crown's dominions. The case gave rise to a difference of opinion between the judge at first instance and the Court of Appeal, and now that leave to appeal has been granted to the House of Lords, there arises an opportunity to examine act of state in several of its aspects.In this discussion it will be argued that the law as it appears now to stand is not necessarily a correct interpretation of the precedents, and that if it is, occasion now presents itself for a fresh formulation of the rules upon a more logical and up-to-date basis.It is first proposed to explain what is meant by the term “act of state” in this context, to try to establish its relationship with the prerogative, and to examine two aspects of it, that is (i) where a claimant is attempting to use an act of state as the foundation of his action, and (ii) where the Crown is attempting to defeat an action by an individual by the plea of act of state.

scholarly journals Extending The Scope Of Proprietary Remedies To Recovery Of Pure Profits From Successful Investment Of Bribes: The Endgame In Lister V Stubbs

2015 ◽  
Author(s):  
Aiman Nariman Mohd Sulaiman ◽  
Mohsin Hingun
Keyword(s):  
Hong Kong ◽  
Supreme Court ◽  
Common Law ◽  
Attorney General ◽  
Fiduciary Duty ◽  
Privy Council ◽  
Fiduciary Duties ◽  
The Supreme Court ◽  
Court Of Appeal ◽  
Harsh Reality

For more than a century Lister v Stubbs (1890) 45 Ch D 1 stood as authoritative Court of Appeal judgment denying the recovery of profits acquired from the successful investment of gains obtained in breach of fiduciary duties. The rule was rationalized on the basis that while the claimant was entitled to the proceeds so unlawfully obtained, he lacked any form of proprietary title to the profits accumulated by the defaulting fiduciary. The harsh reality of the rule produced an unfair outcome to the claimant and the Privy Council refused to apply it in Attorney-General for Hong Kong v Reid [1994] 1 AC 324. The rule also fell out of favour in other leading commonwealth jurisdictions and recently the English courts at all levels had the opportunity to reassess its relevance when the Supreme Court in FHR European Ventures LLP and others v Cedar Capital Partners LLC [2014] 4 All ER 79 consigned it to oblivion. The objective of this paper is to analyse the merits and the deficiencies of the rule and show how the judges of the English courts were prepared to act on policy ground, in comity with other common law jurisdictions in upholding justice in a borderless world. Keywords: breach of Fiduciary duty; Accounts of profits; Proprietary interests; Recovery of pure profits.

Treasure trove: a lawyer's view

Antiquity ◽  
1982 ◽  
Vol 56 (218) ◽  
pp. 199-202 ◽  
Author(s):  
Charles Sparrow
Keyword(s):  
Attorney General ◽  
Treasure Trove ◽  
The Law ◽  
Court Of Appeal

Mr Hammond's recent note on treasure trove examined the decision of Mr Justice Dillon in the case of Attorney-General of the Duchy of Lancaster v. G. E. Overton (Farms) Ltd [1981] Ch. 333 (hereafter Overton). That decision has been affirmed by the Court of Appeal [1982] 2 WLR 397. It is therefore now settled, first, that the law of treasure trove does not apply to any metal other than gold and silver and, secondly, that a treasure trove object must contain a 'substantial' amount of gold or silver.

8. Filling the gaps

Contract Law ◽  
2019 ◽  
pp. 207-239
Author(s):  
TT Arvind
Keyword(s):  
Common Law ◽  
Attorney General ◽  
Good Faith ◽  
Privy Council ◽  
The Law

This chapter focuses on contracts which leave some issues unaddressed and the law of implied terms used by the courts to deal with such situations. It first explains the nature of implied terms and the process of implication that requires the court to strike a difficult balance, along with the tests for implication. It then considers terms implied in law, paying attention to implication by statute and at common law, before discussing terms implied in fact. More specifically, it explores the test of business efficacy, obviousness, and the officious bystander, and the approach used based on Lord Hoffmann’s judgment in the Privy Council in Attorney General of Belize v Belize Telecom. The chapter also analyses implication by custom, along with good faith and cooperation as requirements for parties to a contract.

Her Majesty's Attorney General - v - Akhter & Ors.

2021 ◽  
Vol 2 (1) ◽  
Author(s):  
Thomas Francis
Keyword(s):  
Attorney General ◽  
Spousal Support ◽  
Public Consultation ◽  
Civil Marriage ◽  
The Status ◽  
The Law ◽  
Court Of Appeal ◽  
Ancillary Relief ◽  
Law Commission

This brief considers the February 2020 judgment of the Court of Appeal of England & Wales in Akhter - v - Khan, an appeal brought by the Attorney General against the decision at first-instance to grant the petitioner wife, Akhter, a decree nisi, or provisional decree of divorce. The decision of the Court of Appeal was against the backdrop of the Law Commission holding a public consultation into the status at law of certain 'religious-only' marriages (including Islamic weddings) and whether, absent a contemporaneous or succeeding civil marriage, they are to be regarded as void (entitling petitioners to ancillary relief, such as spousal support) or 'non-marriages'.

scholarly journals Equality and Singapore’s First Constitutional Challenges to the Criminalization of Male Homosexual Conduct

2015 ◽  
Vol 16 (1-2) ◽  
pp. 150-185
Author(s):  
Jack Tsen-Ta Lee
Keyword(s):  
Attorney General ◽  
Penal Code ◽  
Equal Protection ◽  
High Court ◽  
Male Homosexual ◽  
Rational Relation ◽  
Homosexual Conduct ◽  
The Law ◽  
The Republic ◽  
Court Of Appeal

In 2013, in Lim Meng Suang and Kenneth Chee Mun-Leon v Attorney-General1 and Tan Eng Hong v Attorney-General,2 the High Court of Singapore delivered the first judgments in the jurisdiction considering the constitutionality of section 377A of the Penal Code, which criminalizes acts of ‘gross indecency’ between two men, whether they occur in public or private. The Court ruled that the provision was not inconsistent with the guarantees of equality before the law and equal protection of the law stated in Article 12(1) of the Constitution of the Republic of Singapore. The result was upheld in 2014 by the Court of Appeal in Lim Meng Suang and another v Attorney-General3 with slight differences in the reasoning. This article examines the courts’ analysis of equality law, and submits in particular that the courts ought to re-evaluate whether they should apply a presumption of constitutionality, refuse to assess the legitimacy of the object of the impugned provision, and rely on a standard of mere reasonableness or lack of arbitrariness when determining if a rational relation exists between the provision’s object and the differentia underlying a classification used in the provision.

8. Filling the gaps

Contract Law ◽  
2017 ◽  
Author(s):  
TT Arvind
Keyword(s):  
Common Law ◽  
Attorney General ◽  
Good Faith ◽  
Privy Council ◽  
The Law

This chapter focuses on contracts which leave some issues unaddressed and the law of implied terms used by the courts to deal with such situations. It first explains the nature of implied terms and the process of implication that requires the court to strike a difficult balance, along with the tests for implication. It then considers terms implied in law, paying attention to implication by statute and at common law, before discussing terms implied in fact. More specifically, it explores the test of business efficacy, obviousness and the officious bystander, and the approach used based on Lord Hoffmann's judgment in the Privy Council in Attorney General of Belize v Belize Telecom. The chapter also analyzes implication by custom, along with good faith and cooperation as requirements for parties to a contract.

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