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Citation
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Judgment date
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| September 2009 |
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Interlocutory challenge to winding‑up petition: affidavits (including expert reports) admissible; cross‑examination of deponent refused.
Company law – winding‑up petition – interlocutory injunction to restrain presentation – interlocutory proceedings permit affidavit (hearsay) evidence; Expert evidence – admissibility of expert affidavits under Order 38 r.36(2); Prior employment of expert affects weight not automatic inadmissibility; Cross‑examination – court ordinarily will not order attendance for cross‑examination in disputed‑debt interlocutory applications absent necessity.
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23 September 2009 |
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Appellant’s lack of counsel and psychiatric history did not render trial unfair; sentencing adjourned to permit rehabilitative treatment arrangements.
Criminal law – Appeal against conviction – Fair trial – Unrepresented defendant with psychiatric history – Whether trial unfair; Evidence – Credibility findings – Magistrate’s assessment of alibi and intoxicated witness upheld; Sentencing – Consideration of psychiatric illness and alcohol dependence – Rehabilitation v imprisonment; Procedure – Adjournment and conditional suspension to permit overseas treatment arrangements.
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21 September 2009 |
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An Erinford injunction restrained winding-up steps pending appeal, subject to an undertaking but without fortification.
Injunction pending appeal (Erinford injunction) – preservation of status quo to prevent appeal becoming nugatory – balancing convenience and potential irreparable harm in winding-up context – solvency evidence – cross-undertaking and fortification (refusal to order security absent sufficient risk of uncompensable loss).
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18 September 2009 |
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Summary judgment refused over disputed casino marker signatures; judgment entered for undisputed $60,000 and unconditional leave to defend granted.
Civil procedure – Order 14 summary judgment – genuineness of document signatures and procedural discrepancies can create triable issues of fact; partial judgment allowed for undisputed items; unconditional leave to defend where restraint order makes conditional terms impossible.
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14 September 2009 |
| July 2009 |
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Failure to ask an unrepresented accused about absent defence witnesses rendered his conviction unsafe and was quashed.
Criminal procedure – unrepresented accused – duty of magistrate under s.59(1) to ask if absent defence witnesses should be summoned – failure may render conviction unsafe. Evidence – non‑production of exhibit (knife) – appellate deference to trial magistrate’s factual findings where supporting evidence exists. Evidence – uncautioned verbal admissions – admissibility concerns but conviction may stand if other evidence proves guilt. Judicial conduct – trial judge questioning – permitted for clarification but must not assist prosecution; no bias found.
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22 July 2009 |
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Summary judgment refused where disputed facts about authority and contract existence required trial; unconditional leave to defend granted.
Order 14/14A – Summary judgment – where substantial disputed facts (authority to bind, receipt of funds) exist summary judgment inappropriate; non est factum/authority issues; trustee and negligence claims require trial; court may decide clear points of law summarily but should not determine disputed factual matrix on affidavit.
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22 July 2009 |
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Applicants may not be arraigned on a fresh indictment more than two months after a retrial order without Court of Appeal leave.
Constitutional right to a trial within a reasonable time; retrial procedure after Court of Appeal quashing convictions; application by analogy of English Court of Appeal Act 1968 section 8(1); requirement of Court of Appeal leave where indictment preferred more than two months after order for retrial; remedies for prosecutorial delay.
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17 July 2009 |
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6 July 2009 |
| June 2009 |
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Applicant's out‑of‑time appeal over remand-credit refused because the sentencing judge had already allowed remand credit.
Criminal procedure – application for leave to appeal out of time – remand-time credit – sentencing calculation and remission (one-third) – court must check record to determine whether remand credit was applied.
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30 June 2009 |
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Court permits preliminary evaluative findings by a Commission, finds procedural shortcomings remedied, and refuses pre‑publication relief.
Commissions of Inquiry – scope of terms of reference – preliminary findings versus findings of guilt; natural justice and Salmon principles – notice, disclosure and opportunity to be heard; legitimate expectation; judicial review pre‑publication; power to identify third parties "in relation to" elected members.
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16 June 2009 |
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Court requires determinate sentence for juvenile detainee, balancing offence seriousness against rehabilitation, imposing 12 years concurrent.
Criminal law — Sentencing — Juvenile originally detained "during Her Majesty's pleasure" — Court must fix determinate sentence — Consideration of youth, prior good character and prison conduct as mitigation — Murder sentence to be substantially greater than attempted murder — Concurrent sentencing and backdating to original sentencing date.
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3 June 2009 |
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Confidential documents need only be disclosed where necessary for the fair disposal of proceedings; limited parts were ordered produced.
Order 24 r.10–12; inspection and production of documents in winding‑up related proceedings — confidentiality v necessity for fair disposal — limited disclosure and redaction permissible; Court may inspect in camera.
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1 June 2009 |
| May 2009 |
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Court granted extension to apply for leave to continue derivative action despite procedural delay, reserving costs.
Civil procedure – extension of time under Order 3 r.5 – application of Costellow, Mortgage Corporation and Finnegan guidance; Derivative actions – requirement to apply for leave under Order 15 r.12A(2); Delay and prejudice – delay not fatal absent irremediable prejudice; Permissible use of late/unsworn affidavits in exceptional circumstances.
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26 May 2009 |
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Foreign residence alone does not justify security for costs; applicants must show enforcement obstacles or disproportional burden.
Civil procedure – Security for costs – Order 23 r.1 – Foreign plaintiffs – Modern approach (Nasser/Plaskett/Elliott) – foreign residence alone not determinative – applicant must show obstacles to or substantial burden of enforcement in plaintiff’s jurisdiction – court discretion to be exercised to avoid discriminatory restriction on access to courts.
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1 May 2009 |
| April 2009 |
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A stay was properly refused where overlapping claims involved different parties and the Magistrate reasonably balanced duplication risk against respondent prejudice.
Stay of proceedings — concurrent proceedings in different courts — abuse of process and multiplicity — requirement of substantial duplication and party identity — discretion to stay balanced against prejudice, delay and costs; removal/mis-joinder of party — employer’s vicarious liability does not automatically justify striking employee from proceedings.
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23 April 2009 |
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Mareva injunction discharged for material non-disclosure in ex parte application; receiver revoked and documents returned.
Mareva injunction — ex parte applications — duty of full and frank disclosure — material non-disclosure where affidavits rely on unverified or undisclosed sources — publication of ex parte order prejudicing defendants — revocation of receiver and return of documents.
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20 April 2009 |
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Defendant convicted of wounding seeks suspended/non‑custodial sentence based on character, circumstances, and prison overcrowding.
Sentencing — wounding with intent — mitigation: right to trial, prior good character, family responsibilities, victim aggression, prison overcrowding and remand time.
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9 April 2009 |
| March 2009 |
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Civil Procedure
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25 March 2009 |
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Court confined ancillary relief to statutory financial orders (lump sum/maintenance); no general power to order sale or redistribute property.
Divorce — Ancillary relief — Scope of powers under Divorce Law Ordinance — Section 30: lump sums and maintenance orders; no general power to order sale/distribution of property — Section 4 does not import broader Chancery jurisdiction — Procedural requirements: Form 16 and Form E disclosure; waiver of rule 45(2) affidavit.
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23 March 2009 |
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A McKenzie friend may assist only an unrepresented litigant; an instructed lawyer cannot sit alongside retained counsel.
Civil procedure – right to assistance by a McKenzie friend – limited to unrepresented litigants; instructed counsel may not act as McKenzie friend. Administrative law – immigration department’s unexplained refusal of temporary work permit may deprive litigant of chosen counsel. Precedent – McKenzie v McKenzie and Collier v Hicks concern litigants in person; limited authority for a lawyer acting as McKenzie friend where client is represented.
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11 March 2009 |
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The applicants' challenge to the fuel-cost power adjustment fails; the Governor lawfully prescribed it in the tariff regulations.
Electricity law – statutory interpretation of section 32(5) – meaning of 'by order' – regulations as functional equivalent of Governor's order; Tariff of Rates – inclusion of Power Cost Adjustment in Schedule validly prescribed under section 32(1); Variation of tariff – monthly PCA adjustments are charges under an existing tariff, not prohibited variations under section 33(2).
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3 March 2009 |
| February 2009 |
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Default judgment set aside and Mareva freezing order discharged for lack of solid evidence of risk of dissipation.
Civil procedure – Order 19 r.9 – setting aside default judgment – requirement of a bona fide arguable defence with a real prospect of success; Mareva injunction – ex parte applications – duty of full and frank disclosure; urgency and notice; exceptional nature of freezing orders; Commercial law – disputed identity of contracting party (director v company / undisclosed principal) — merits to be determined at trial; Principles for granting Mareva relief – good arguable case for an ascertainable sum and solid evidence of real risk of dissipation (business insolvency or proposed sale not alone sufficient).
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16 February 2009 |
| January 2009 |
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Court stayed local declarations on mortgage possession due to parties’ contractual choice of Florida law and forum.
Forum non conveniens — contractual jurisdiction clause — Article VI selecting Southern District of Florida and US maritime law — stay of local proceedings as Florida is the natural forum to decide validity, interpretation and operation of mortgage; ex parte injunction disclosure obligations and defective pleadings; Article II(C) right to retake vessel without legal process.
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15 January 2009 |
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Court refused the respondent's application to discharge the restraint order, but varied the non‑disclosure order.
Proceeds of Crime Ordinance – restraint orders – s.44(3)(c) discharge for unreasonable delay; non‑disclosure (gag) orders – balancing investigatory efficacy and respondents’ rights; limited variation of gag order to permit witness disclosure and public statement of restrained business account balances; disclosure as precondition to release for living/legal expenses.
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11 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 |