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Citation
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Judgment date
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| January 2009 |
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A non-intended beneficiary cannot sue solicitors for negligent will-drafting; claim struck out for disclosing no cause of action.
Probate/solicitor liability – duty of care to intended beneficiaries; standing of non-intended beneficiaries to sue for negligent will-drafting; strike-out for disclosing no reasonable cause of action; timing/estoppel of strike-out applications.
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5 January 2009 |
| September 2008 |
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A non-beneficiary cannot recover from a solicitor for negligent or fraudulent will-drafting absent a recognized duty or recoverable loss.
Civil procedure – Strike out (Ord.18 r.19): application appropriate before trial to prevent hopeless expensive litigation; Solicitor’s liability – negligence/fraud in will-drafting: duty to intended beneficiaries recognized in limited circumstances (White v Jones) but not to remote non-beneficiaries; Locus standi – non-intended beneficiary cannot recover absent proximate duty and pleaded recoverable loss; Remoteness – speculative future bequests and emotional distress not recoverable.
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19 September 2008 |
| August 2008 |
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Refusal of stay pending appeal where public interest and prejudice to the Inquiry outweighed applicants' concerns.
Civil procedure — stay pending appeal — 'arguable appeal'/'real chance' threshold; balance of prejudice to parties; public interest and statutory time limits for Commissions of Inquiry; risk of irreparable reputational harm and burden of proof for stay applications.
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6 August 2008 |
| July 2008 |
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Respondents must disclose sources of funds under a Mareva-type disclosure order before restraint variation is considered.
* Proceeds of Crime Ordinance s43 – restraint orders – purpose: preserve realisable property for confiscation
* Court power to permit reasonable living and legal expenses under s43(2)(a) but exercise limited by need to avoid unreasonable diminution of assets
* Mareva-type disclosure – court may order disclosure of sources of funds in civil restraint proceedings
* Failure to comply with disclosure requirement justifies refusal to vary restraint order
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31 July 2008 |
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Sentence quashed where magistrate effectively punished unadmitted intent to supply; substituted 14 months for simple possession.
Criminal law – Sentencing – Illegitimate reliance on unadmitted more serious offence (possession with intent to supply) – Courts must not sentence for an offence not admitted; unrepresented accused must be informed; mitigation evidence may be received before sentence.
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29 July 2008 |
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Appointment of broad corruption inquiry upheld; direction allowing recommendation to extend terms of reference struck down as ultra vires.
* Commissions of Inquiry — scope and validity of terms of reference — requirement that subject and scope be sufficiently defined but allowance for reasonable Commission discretion.
* Delegation — distinction between permitting recommendations and unlawfully delegating statutory powers.
* Statutory power — absence of power under Ordinance to extend terms of reference; direction to recommend extension declared ultra vires and severed.
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28 July 2008 |
| June 2008 |
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25 June 2008 |
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Leave granted to seek judicial review of Planning Director’s alleged refusal or delay to consider enforcement proceedings.
Planning law – enforcement powers under s.45 Physical Planning Ordinance – whether Director’s refusal/delay to seek Minister’s consent for enforcement is amenable to judicial review; leave application promptness; standing; adequacy of private law remedies; implied duty to consider and timely exercise discretion.
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25 June 2008 |
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Court orders demolition and removal of structure on plaintiff's leased land, grants injunction, nominal damages and costs.
Land law – lease validity; wrongful interference/trespass – structure built on leased land; remedies – demolition, removal and injunction; court cannot compel executive re-determination of leases or boundaries; nominal damages and costs on ordinary basis.
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17 June 2008 |
| May 2008 |
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The Constitution restates the common-law duty requiring the prosecution to disclose material that may weaken its case or assist the defence.
Criminal law — Right to a fair trial (section 6) — Prosecution’s common-law duty to disclose witness statements and material favourable to the defence — Scope in Magistrates’ Court, summary trials and committals — Disclosure of convictions/adverse disciplinary findings — Limits to speculative fishing expeditions — Public interest immunity notice and court determination.
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13 May 2008 |
| April 2008 |
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A hotel consuming 3,200,000+ kWh in a year qualifies as a “large hotel” for that year, requiring application of the large-hotel tariff.
* Electricity law – tariff interpretation – definition of “large hotel” – annual consumption threshold determines category for that year; no statutory basis for retrospective or interim monthly rate adjustments.
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28 April 2008 |
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Bank breached the merchant agreement by effecting a chargeback for an unauthorised offline transaction.
Merchant agreements – authorisation and floor limits; interpretation against drafting bank where signature form left blank; chargebacks – requirement of proper authorisation; Visa pre‑compliance concerns; offline/manual "force sale" transaction validity.
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27 April 2008 |
| March 2008 |
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Second appeals are limited to points of law alone; bail pending appeal denied where no right to appeal exists.
Court of Appeal Ordinance s.18(1) – Second appeals limited to points of law alone; second appeal only from Supreme Court judgment; bail pending appeal depends on existence and prospects of lawful appeal; no clear power to refuse filing of plainly unarguable appeal.
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26 March 2008 |
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Court orders respondent to pay $90 per child weekly after finding he failed to provide proper maintenance.
Domestic Proceedings Ordinance – section 3(b) maintenance for children – liability for non-biological child treated as family – assessment of periodical payments by reference to parties’ incomes, earning capacity and children’s needs – disclosure of income and savings – assessment and payment of arrears – custody/access consideration under section 10.
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17 March 2008 |
| February 2008 |
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22 February 2008 |
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Bail pending a second appeal depends on existence of a right of appeal; s18(1) confines second appeals to points of law alone.
Court of Appeal — Second appeal from Supreme Court — Section 18(1) limited to a "point of law alone"; mixed fact-and-law grounds not permitted; second appeal confined to issues decided by Supreme Court; bail pending appeal depends on existence and prospects of an arguable right of appeal; power to refuse filing unclear.
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19 February 2008 |
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Whether insurer-indemnity interest runs from service on the insured and how interim payments are allocated between heads of damages.
* Insurance — indemnity for insured’s liability — insurer takes on insured’s liability including interest accruing from date writ served on insured.
* Interest — determination of date from which interest on general damages runs where insurer indemnifies insured.
* Allocation — interim payments should be applied first to interest on special damages, then to interest on general damages, before reducing principal.
* Application of Bristow v Judd as guidance on allocation of interim payments to differing interest-bearing heads.
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4 February 2008 |
| January 2008 |
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Ex parte injunction discharged for inadequate disclosure; contempt dismissed for lack of personal service; file statement of claim within ten days.
Civil procedure – interlocutory ex parte injunction – duty of full and frank disclosure – Mareva/Piller principles; Contempt – committal/sequestration – personal service or clear knowledge of order required; Rule 45/Order 29; Failure to prosecute – statement of claim not filed – strike out.
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18 January 2008 |
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Court struck employer from false imprisonment claim, allowed defamation claim but removed conspiracy allegation, ordered address disclosure and deletion of scandalous affidavit passage.
* Civil procedure – Order 18 r19 – striking out pleadings: court’s limited role under r19(1)(a) (no evidence admissible) and broader scope under r19(1)(b)/(d).; * False imprisonment – liability of person reporting to police; whether reporting versus actively procuring arrest distinguishes liability. ; * Defamation – abuse of process: conspiracy allegation cannot be combined with ordinary defamation to sidestep special defences (Lonhro v Fayed).; * Pleadings – sufficiency of counterclaim and need for particulars. ; * Affidavits – deletion of scandalous, irrelevant imputations. ; * Security for costs – discretion where plaintiffs reside abroad; disclosure of address and assets required.
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14 January 2008 |
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A contractual Florida venue and law clause justified staying local proceedings where the plaintiff failed to show strong cause not to stay.
* Private international law – forum-selection clauses – discretion to grant stay where disputes contractually referred to foreign forum; burden on plaintiff to show strong cause not to stay. * Choice of law – where contract prescribes foreign governing law, foreign courts are generally better placed to determine and apply that law. * Procedure – non-conforming writs are irregular but may be rendered academic where a stay is appropriate.
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2 January 2008 |
| December 2007 |
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Handling-stolen-goods conviction quashed for lack of proof of knowledge; assisting illegal entry conviction and two-year sentence upheld.
* Criminal law – handling stolen goods – requirement of subjective knowledge/belief that goods are stolen; conviction unsafe where no evidence of guilty knowledge.
* Immigration law – assisting illegal entry – conviction may be upheld where evidence of facilitating illegal arrival is overwhelming.
* Evidence – accomplice testimony – judge must warn himself of inherent dangers; sentencing accomplices before testimony does not mandate recusal if credibility is properly assessed.
* Fair trial – disclosure – late provision of witness statements may be cured by recall and opportunity to cross-examine.
* Right to self-representation – court not required to pre-assess competence absent signs of incapacity.
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14 December 2007 |
| November 2007 |
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Claim against second defendant struck out for disclosing no reasonable cause of action under Order 18 r19(1)(a).
Order 18 r19(1)(a) — striking out pleadings that disclose no reasonable cause of action; application decided on pleadings alone, no evidence admissible; joinder requires pleaded basis; costs follow event, certification for two counsel.
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23 November 2007 |
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Court granted stay to compel arbitration, rejecting arguments that illegality or ambiguity invalidated the arbitration clause.
* Arbitration — stay of proceedings under Arbitration Ordinance s.5 — parties bound to arbitration unless sufficient reason shown to the contrary.
* Severability — illegality of main contract does not necessarily invalidate arbitration clause; common-law separability applies.
* Contract law — alleged illegal employment terms in an annex held descriptive and not voiding the contract.
* Interpretation — 'waiving all other jurisdiction' construed as agreement to arbitrate, not ouster of court; reference to arbitration 'executed in Jamaica' concerns seat, not governing law.
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19 November 2007 |
| July 2007 |
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Court can order defendant's costs, but only for positive reasons; application for costs dismissed.
Criminal procedure — Power to order defendant’s costs — Interpretation of Supreme Court Ordinance s.3(1) importing English Divisional Court jurisdiction — Assimilation to English practice under Criminal Procedure Ordinance s.7 “so far as circumstances admit” — Local test: costs only where positive reasons exist (oppressive or baseless prosecution, unfair disadvantage, disclosure failures, culpable delay) — Application dismissed where prosecution acted reasonably.
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7 July 2007 |
| June 2007 |
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Court sets principles for inter partes taxation: hourly rates by experience, disallowing non-fee-earner work and requiring proportionality.
Costs — Taxation inter partes — No brief fees except for visiting overseas counsel — Hourly rates determined by experience and nature of work — Non-fee-earner tasks, file-reading on change of carriage and ordinary legal research not recoverable — Travel time at half rate — Aggregate proportionality check required.
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26 June 2007 |
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Property Law
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7 June 2007 |
| May 2007 |
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Costs clause construed as limited to third‑party claims; defendant awarded 80% costs and caution stayed pending appeal.
Contractual indemnity – construction of costs clause; contractual costs v. judicial discretion; reduction of costs for abandoned issues; stay of removal of caution pending appeal where specific performance sought.
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23 May 2007 |
| February 2007 |
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An exclusive right to purchase was an option; buyer failed to exercise it by required payment and unmet conditions.
Contract interpretation – whether agreement constituted an option or immediate sale; clause making time of the essence; meaning of “payment” and whether attorney’s undertaking/local usage can constitute payment; incorporation and effect of Conditions Precedent; refusal of specific performance where option not validly exercised.
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22 February 2007 |
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A deficient trade mark application lacking precise services and proprietor details must be refused; substituting applicant identity is impermissible.
Trade marks — sufficiency of specification and local trading particulars; Registrar’s quasi‑judicial duty to refuse defective applications; advertisement requirements under s.9; correction/amendment limits — substitution of applicant identity; assignment prior to registration invalid; capacity of strata corporations to own trade marks for internal services; effect of class reclassification on earlier filings.
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2 February 2007 |
| December 2006 |
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Whether the Crown may appeal a suspended sentence by case stated within fourteen days and when suspension raises a point of law.
• Criminal procedure – Magistrates Court Ordinance ss.162–163 – construction of timing and procedural requirements for appeals by way of case stated; applicability to the Crown. • Administrative law – jurisdiction – when Supreme Court may order Magistrate to state a case. • Sentencing – suspended sentences – meaning and proof of ‘exceptional circumstances’; when suspension may be challengeable as a point of law.
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6 December 2006 |
| October 2006 |
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Ministerial planning decisions quashed for unlawful delegation and jurisdictional/procedural errors; remitted for lawful reconsideration.
Administrative law – ouster clauses – s.87 Physical Planning Ordinance; nullity and jurisdictional error; judicial review available where decision is ultra vires or breaches natural justice; delegation of ministerial functions requires written gubernatorial authorisation under the Constitution; mode of appeal (public inquiry v written representations): material considerations and improper considerations; relief: quashing and remittal.
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13 October 2006 |
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Directors who procured security for their own benefit were not acting bona fide; they were ordered to contribute limited sums.
Company law – resulting trust – advance for specified business purpose – substantial achievement of purpose negates resulting trust; Company law – insolvent trading and s.167(2) – company continued to trade when unable to pay debts and directors knew or ought to have known; Directors’ duties – when company is insolvent or on verge of insolvency, directors must act bona fide in company’s interests and have regard to creditors as a body; Security and preferences – debenture and collateral chattel mortgage granted to directors invalid against Liquidator where granted for directors’ own benefit and not bona fide for company; Contributories – assessment and limitation of director contribution; Exceptional relief where director excluded from management and information.
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1 October 2006 |
| September 2006 |
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A valid buy-sell notice under a shareholders’ agreement is enforceable despite internal shareholder agreements and bracketed drafting.
Shareholders’ agreements – Buy-Sell clause – validity and enforceability – square-bracketed drafting not exclusionary; deeds of adherence bind corporate shareholder and its members; internal shareholder agreements cannot defeat rights under a separate shareholders’ agreement; derivative claim – leave to continue – prima facie threshold.
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4 September 2006 |
| August 2006 |
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Section 17 empowers the Attorney General to take over and discontinue prosecutions; such decisions are reviewable only for illegality, bad faith or unreasonableness.
Constitutional law — section 17 Attorney General — power to institute, take over and discontinue prosecutions; limits on judicial review (unlawful, bad faith, Wednesbury); alleged conflict of interest; effect of applicant’s refusal to supply prosecuting file; waiver by mistaken court statement.
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11 August 2006 |
| July 2006 |
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Contract Law
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26 July 2006 |
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Court apportioned liability 75/25, awarded costs to the plaintiff, and ordered insurer to indemnify insured for coverage-related costs.
* Civil procedure – Costs – general rule that costs follow the event but court’s broad discretionary apportionment; use of broad-brush approach.
* Allocation of liability – apportionment of fault 75/25 between defendants and corresponding costs consequences.
* Insurance coverage – insurer ordered to indemnify insured for costs on coverage issue; insurer to pay significant portion of plaintiff’s and insured’s costs.
* Costs of parties joined solely for coverage – plaintiff’s costs of pursuing third/fourth defendants awarded against insurer.
* Pre-judgment interest – awarded at 6% per annum for three years on vehicle damage award.
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20 July 2006 |
| June 2006 |
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Appeal against burglary convictions dismissed; sentences reduced to 15 months each due to misapprehension about prior convictions.
Criminal law – Burglary – sufficiency of evidence as to trespass and unlawful taking – credibility assessments – appellate restraint on overturning trial findings; sentencing – appeal against sentence allowed where magistrate misapprehended prior conviction history.
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1 June 2006 |
| May 2006 |
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Acting Governor authorised the Commissioner of Police to apply for a magistrates’ court to state a special case under section 162(2).
* Criminal/procedural law – Written authority under proviso to section 162(2) Magistrate’s Court Ordinance – Governor’s authorisation for Commissioner of Police to apply for court to state a special case.
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4 May 2006 |
| April 2006 |
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Appellate court will not overturn reasonable magistrate findings on identification and alibi; appeal dismissed.
* Criminal law – Identification – Application of Turnbull guidelines – prior acquaintance, lighting, duration and contemporaneous statements relevant to reliability of recognition.
* Criminal law – Alibi – Crown’s burden to negative reasonable doubt – appellate review of magistrate’s rejection of alibi.
* Appeal – Review standard – limited to whether magistrate’s conclusions were reasonably open to him (Wednesbury-style), not a rehearing.
* Evidence – Credibility – trial tribunal's assessments based on demeanour are entitled to deference absent clear unreasonableness.
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29 April 2006 |
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Appellate court upholds convictions: Turnbull applied correctly, alibi disproved, and magistrate’s credibility findings were reasonable.
Criminal law – Identification evidence – Application of Turnbull guidelines; Alibi – burden and disproving alibi; Appellate review – Wednesbury-type assessment of magistrate’s factual findings; Weight of demeanour evidence.
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12 April 2006 |
| December 2005 |
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Solicitor liable only for negligent advice inducing an unnecessary appeal; otherwise litigation conduct met professional standard.
Professional negligence – solicitor’s duty of care – objective standard of reasonably competent practitioner – scope includes advising on merits, costs and tactical risks; Pleading and litigation strategy – Quistclose/proprietary claim, s.167 companies claim, parent company/director liability – speculative claims may be pursued if properly advised; Causation – negligent encouragement to appeal caused recoverable further fees; Costs – apportionment where partial negligence found.
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15 December 2005 |
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Appeal rejected on excess‑of‑sentence grounds; court issued drug sentencing guidelines and suspended the 7‑month sentence for two years.
Criminal law – Sentencing – Appeal against sentence – manifestly excessive test; drug offences – cannabis possession – sentencing guidelines for small and significant quantities, class A offences, and supply/importation; relevance of previous convictions and guilty plea discounts; suspended sentence as exceptional relief.
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5 December 2005 |
| November 2005 |
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A management company not vicariously liable for misappropriations by its employee acting as company director absent supervision or bad faith.
* Company law – nominated director – distinction between personal fiduciary duties owed as director and duties owed as employee – nominators not vicariously liable absent interference, bad faith or instruction
* Vicarious liability – scope when employee acts as company director – acts in capacity of director not ordinarily treated as acts of employer
* Contract – implication of term to supervise corporate management services – requirements and limits on implying supervisory duty
* Relief – strike out under Order 18 R19 / inherent jurisdiction where claim has no real prospect of success
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15 November 2005 |
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Court imposed two-year suspended sentence for theft committed with co-accused’s assault, consecutive to an existing 18-month sentence.
Criminal law – Sentencing – Theft committed in company with co-accused’s assault – custody threshold met due to antecedents and role – application of Raynsford principles – two-year custodial sentence suspended for two years, consecutive to existing sentence – SER unnecessary when defendant already serving custody.
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11 November 2005 |
| September 2005 |
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A non‑party with a legitimate interest may inspect affidavits filed in chambers, subject to limited disclosure restrictions.
* Civil procedure – inspection of documents filed in chambers – open justice vs. confidentiality – court’s inherent jurisdiction to permit non‑party access to affidavits; limited disclosure and confidentiality undertakings.
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20 September 2005 |
| May 2005 |
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A senior attorney was suspended for six months for dishonestly misrepresenting an ex parte order as granting a stay.
Professional misconduct; disciplinary proceedings — dishonesty in communications about court orders; breach of Code (Rule 5(ii)) — deliberate misrepresentation of ex parte order; failure to correct misstatement; suspension and costs ordered.
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31 May 2005 |
| April 2005 |
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Registrar lacked jurisdiction to vary a judge’s interlocutory injunction; original injunction reinstated pending clarified order.
• Civil procedure – Jurisdiction of Registrar – Order 32 r.11 excludes Registrar from granting or varying injunctions made by a judge.
• Interim/interlocutory injunctions – validity and specificity of terms, necessity for clear undertaking as to damages and penal notice.
• Procedure – opposed ex parte hearings on short notice; need for inter partes hearing where defendant attends but files no evidence.
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11 April 2005 |
| March 2005 |
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Court refused arbitration stay and adjournment, finding no bona fide dispute and arbitration clause limited to interpretation.
Companies law – winding up for inability to pay debts – statutory demand and failure to pay; Arbitration – scope of clause limited to ‘interpretation’ disputes; bona fide dispute requirement for stay; Arbitration Ordinance s.5 readiness and willingness to arbitrate; foreign injunctions and respect for local court processes.
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2 March 2005 |
| February 2005 |
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Court granted ex parte production order under s.33(1) for bank ATM records and surveillance images and authorized police seizure.
Proceeds of Crime Ordinance 1998 s.33(1) – Production order for bank ATM transactional reports and surveillance imagery – ex parte application – reasonable grounds to suspect benefit from criminal conduct – material likely of substantial value – privilege and public interest – police authorized to seize and retain originals/copies.
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11 February 2005 |
| June 2004 |
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Court held section 30(1) permits considering the husband’s interest in the former matrimonial home when ordering a gross lump sum.
Divorce Ordinance s.30(1) – assessment of husband’s ability to pay a gross lump sum; consideration of all assets including interest in former matrimonial home; court may require gross payment despite lack of statutory power to order property transfers; quantum fixed where wife undertakes to transfer interest; costs awarded to successful appellant.
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24 June 2004 |