R v HAIGH

As is peculiar to criminal law in most jurisdictions, the necessary component for murder requires evidence beyond a reasonable doubt of the both the act itself (actus reus), and the subjective intention (mens rea) of those accused.

And so, on this occasion the English criminal courts were left with no option other than to reduce a murder sentence to manslaughter, on grounds that there was simply insufficient evidence to adduce deliberate and unlawful killing, as opposed to what could only be construed as a momentary loss of control on the part of the defendant.

Having been born to unloving and dysfunctional parents, the appellant had been later adopted by a well educated and devoted couple when aged only eight years of age, and whose only wish was for her to have a better life than the one she had left behind.

Sadly during her adolescence, the appellant was further diagnosed with an IQ of just 74, a personality disorder, attention deficit and hyperactivity disorder (ADHD) and prolonged depression, for which she was on prescribed medication.

After meeting her former partner at the young age of sixteen, the appellant soon became pregnant, and gave birth to their son Billy two years later; and although the two of them remained together for a further three years, her partner was eventually incarcerated for assaulting her; an act which had followed years of his routine verbal and physical abuse towards her both before, and after, their son’s arrival.

At the point of her indictment before the Central Criminal Court, the appellant was reported to have called the ambulance services complaining that her son had stopped breathing, and yet despite clear instructions to perform emergency cardiopulmonary resuscitation (CPR) at the time of the call, her son was pronounced dead almost five hours later.

After which, it was claimed by court that the appellant had murdered her son by way of asphyxiation, and that there was sufficient medical evidence upon which to sustain the conviction; whereupon the appellant challenged the verdict in the Court of Appeals.

Here, the appellant contended that when reaching summary judgment, the trial court had erroneously accepted circumstantial evidence relating to previous interactions with her son, and which presented her in a poor light,

However, the court referred to R v Penman; in which, the deciding court had held that:

“[W]here it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence.”

R v Penman

Thus, the first aspect of her appeal was denied, while on a second count, the appellant claimed that lack of witness testimony, and only one physical symptom of trauma, prevented the court from establishing beyond a reasonable doubt that she had intended to murder, or at the very least unlawfully kill her son in the moments before his death.

Here, the court was reliant upon the presence of petechial haemorrhaging upon her child’s face, which in most instances was attributable to asphyxial death.

However, there was also theoretical argument that prolonged resuscitation could also prove a contributory factor; yet further circumstantial evidence proposed this as incredible, based upon the appellant’s refusal to perform CPR whilst waiting for the ambulance crew to arrive, and via witness testimony citing visible evidence of the symptoms upon their arrival.

In addition to this, there was further evidence of bleeding from the child’s ears, which according to expert medical testimony, had often been found present when addressing traumatic asphyxiation cases in which young children had become trapped in washing lines.

A fact which only exacerbated the suggestion that the appellant had either strangled or smothered her son whilst alone with him; therefore, the court held that there was sufficient evidence for a jury to determine that the appellant had unlawfully killed her child.

This left only the third count, which was that a murder conviction was unsafe due to the first two factors; and that there was simply no direct evidence to support the contention that the appellant had wilfully and with malice, killed her child, but that instead, the best the court could hope to rely upon was a manslaughter charge; an argument that caused the court to uphold the third ground of appeal, before quashing the murder conviction on grounds that in R v Stacey it had held that:

“[A]n intent to do serious bodily harm may be quickly formed and soon regretted; but so may a less serious intent, simply to stop a child crying by handling him in a way that any responsible adult would realise would cause serious damage or certainly might do so. That would only provide the mental element necessary for manslaughter.”

COMMONWEALTH v. COUCH

While there is a fine line between the deliberation of murder and recklessness of manslaughter, on this occasion the defendant found himself charged with the death of a complete stranger, roughly a year after his unlawful act had transpired.

In a moment of wanton stupidity, the now appellant took it upon himself to fire his pistols towards a public highway in the State of Kentucky; after which, a pregnant woman went into premature labour, due to the shock of hearing the gunfire. 

Following an abortive birth and prolonged illness resulting from the failed delivery, the woman sadly died, whereupon the appellant was indicted for her murder by the State.

Having been heard in the Perry County Circuit Court, the trial judge upheld the complaint against the charge, on grounds that the two incidents were separate and thus insufficient to sustain a conviction for murder, rather at best the appellant was guilty of the unlawful discharge of his weapons in a public place.

Taken to the Kentucky Court of Appeals, the court reviewed the facts, while reminding the parties that under the terms of his indictment, the court was empowered to convict anywhere between murder, involuntary manslaughter and manslaughter, while also referring to Sparks v. Commonwealth, in which the same court had held that:

“If a man, contrary to law and good order and public security, fires off a pistol in the streets of a town, and death be thereby produced, he must answer criminally for it, whether it be malum in se or merely malum prohibitum; and especially so when he knows, as in this instance, he is violating law.”

Sparks v. Commonwealth

However, in the later Hendrickson v. Commonwealth, the court had contrastingly noted that:

“Forcing a person to do an act which causes his death renders the death the guilty deed of him who compelled the deceased to do the act. And it is not material whether the force were applied to the body or to the mind; but, if it were the latter, it must be shown that there was the apprehension of immediate violence, and well grounded from the circumstances by which the deceased was surrounded; and it need not appear that there was no other way of escape; but it must appear that the step was taken to avoid the threatened danger, and was such as a reasonable man might take.”

Hendrickson v. Commonwealth

And so, in this instance the appeal court held that while the sound of gunfire had unquestionably caused the deceased to commence premature labour, any illness arising from complications associated with the birth could not be construed as a continuance of the shock, therefore the appellant was lawfully entitled to complain against the indictment, thus accordingly the court upheld the trial court judgment in full, while holding that:

“Involuntary manslaughter is the killing of another in doing some unlawful act, but without intent to kill.”

R v LAWRENCE

Reckless driving, while contextually similar to the criminal charge of recklessness, was at the time of this case, still unclear in terms of the mens rea of drivers brought to trial. Unfortunately for the victim’s family, this uncertainty resulted in an acquittal from the offence on grounds of a confused and thereby ineffective, jury.

In 1979, a couple took a visit to their local off-licence in order to purchase some soft drinks for their children. Parking opposite the shop, the mother entered the store, before standing at the kerbside in preparation for crossing back over the road.

Moments after blowing her husband a kiss, the victim stepped into the road, before being struck by one of two motorcycles, dying instantly, while being carried at speed on the front of the driver’s vehicle.

Upon indictment, the defendant was convicted by a majority jury of reckless driving under section 1 of the Road Traffic Act 1972; while there were questions raised at the time around the exact speed at which the motorcycle was travelling, with opinions ranging from 30 -80mph.

This resulted in a lengthy trial that despite an absolute conviction, left the jury seeking clarification as to exactly what reckless driving required, and whether there was a need to appreciate the mindset of the defendant at the time both before, and during, the time of the offence.

Upon appeal, the Court quashed the conviction upon grounds that where uniform agreement could not be found as to how reckless driving existed under the 1972 Act, there could be no established verdict beyond any reasonable doubt.

In response, the regional Chief Constable appealed on behalf of the Crown to the House of Lords, while trying to find agreement as to what section 1 of the Road Traffic Act 1972 truly meant.

Referring to the meaning of recklessness as defined by R v Murphy, the courts recognised that:

“A driver is guilty of driving recklessly if he deliberately disregards the obligation to drive with due care and attention or is indifferent as to whether or not he does so and thereby creates a risk of an accident which a driver driving with due care and attention would not create.”

R v Murphy

However, in cases such as R v Caldwell, the jury were required to consider not only the actus reus (actions) of the accused, but the mens rea (mindset) prior to the act of arson duly charged.

This by convention, had not been something applied during road traffic accidents, therefore the jury in this trial were left confused as to whether an objective evaluation was in itself sufficient, or whether subjective consideration was needed to fully contain the origin of recklessness, as opposed to arguments over which speed the defendant was travelling when the offence occurred.

Though a comprehensive chronology of reckless driving within the road traffic offences, the House held that there needed to be two elements to a conviction of recklessness, namely:

(i) “[T]hat the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property…”

And:

(ii) “[T]hat in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had nonetheless gone on to take it.”

Therefore, it was left to the jury to determine if, as hypothetical road users themselves, they felt that a defendant did knowingly choose to take charge of a vehicle with the intention to cause harm, as opposed to harm being caused by means beyond their control.

This by effect, also rendered the Murphy direction null and void, while paving the way clear for expeditious trials under similar circumstances, while the House reminded the parties that:

“A direction to a jury should be custom built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts.” 

FRAUD

When finding effect through the inception of the Fraud Act 2006, there are three ways fraud can occur: fraud by false representation, failure to disclose information and abuse of position, which we shall look at here and support each one with suitable cases where applicable.

Fraud by False Representation

S.2(1) of the Fraud Act clearly states that a person is guilty of fraud by false representation when it is proven that they did so to (i) cause gain for themselves or another party or (ii) cause or expose another person to loss or a risk of loss (this can be achieved in a number of ways and so oral and written methodology equally apply), as demonstrated in R v Lambie, when a consumer continued to use her credit card, despite exceeding her credit limit and after being asked by the bank to return it.

When carrying out a purchase in a Mothercare store, the appellant in the appeal case was accused by the defendant of knowingly encouraging a transaction in the knowledge that the bank had no longer given the respondent authority to continue using the card.

This argument was stringently dismissed, while emphasis was placed squarely upon the intention of the respondent to knowingly defraud the store.

An illustration of fraud by false representation was summed up by Lord Roskill, who explained:

“[I]t is in my view clear that the representation arising from the presentation of a credit card has nothing to do with the respondent’s credit standing at the bank but is a representation of actual authority to make the contract with, in this case, Mothercare on the bank’s behalf that the bank will honour the voucher upon presentation.”

R v Lambie

This ethos was also outlined in Rex v Sullivan, where Humphreys J stressed:

“[T]he facts are such that it is patent that there was only one reason which anybody could suggest for the person alleged to have been defrauded parting with his money, and that is the false pretence, if it was a false pretence.”

Rex v Sullivan

Fraud by Failure to Disclose Information

Subject to s.3 of the Fraud Act, a person dishonestly failing to disclose information when (i) under a legal duty to so and (ii) by intention gains for themselves or another or causes or exposes another to a loss or risk of loss is thus guilty (where proven) of fraud.

As this relates more to those in public body roles or parties to contract, the establishment of guilt falls to the judicial interpretation of civil law and statute as opposed to the collective opinion of a jury.

An example of this R v Padellec in which a man accused of harbouring indecent images on his computer refused to disclose the encryption password as required under s.53 of the Regulation of Investigatory Powers Act 2000.

After being summarily convicted, the appellant appealed under plea in order to reduce his sentence; at which point, Singh J exclaimed:

“The whole point of requiring access is so that it can be seen what was in fact there. We express the hope that in a situation such as arose in this case, and in the context of an offence under the Regulation of Investigatory Powers Act (section 53), there will never again be a basis of plea accepted which is based upon keeping the contents secret and the defendant saying, to his advantage, what was or was not contained.”

R v Padellec

Fraud by Abuse of Position

S.4(1) of the Fraud Act convicts those (again where proven) for gainful abuse of a position held to safeguard and preserve the financial interests of another, while the gain can be both personal or on behalf of third party(s) and such profits must cause (or expose those assigned protection) loss or risk of loss.

Given the nature of the breach, it is typically applied to fiduciary or professional relationships where trust has been given under express conditions; however, it could just as easily apply to family matters depending upon the relationship shared and the declarations made.

As with fraud by failure to disclose information, the judgments are typically free from jury persuasion and will benefit from equitable principles as much as civil laws for guidance.

An example of this was found in R v Conway (Catherine); in which, a domestic care worker abused the trust placed in her by her client by obtaining and then keeping the victim’s debit card, before defrauding her of £27,000 over a period of three years.

Once caught and convicted, the defendant then accused the victim’s family members of conspiring to the fraud before admitting full liability, and when passing sentence, Weir LJ illustrated the gravity of the abuse, when he said:

“This was the calculated and systematic theft over years of a vulnerable lady’s life savings by the very person employed to assist and befriend her at a time in her life when she was at a low ebb and grateful for the help which this appellant cynically pretended to be giving her by buying her a few necessaries using her post office savings card.”

R v Conway (Catherine)

INJUNCTIONS

There are many types of legal injunctions across a number of different fields, and their purpose is one of prevention or denial of an action, or that of proximity to a party or place.

In English contract law, there are mandatory (or negative) and prohibitory injunctions.

In English civil litigation, there are interim (also found in criminal law), anti-suit and freezing injunctions.

Within English family law, there are non-molestation and occupation injunctions (or orders),

Under English tort law, a claimant can apply for either partial or temporary injunctive relief, as well as interim and super-injunctions (depending on the circumstances).

In English equity and trust law, there are also perpetual (or final) injunctions, along with quia timet injunctions.

The aim of this article will be to look at all of the above, while supporting each one with illustrative citations to help underpin their use, starting first with negative injunctions.

Mandatory injunctions

Often sought after the fact, the purpose of this injunction is to force by application, the party that has undertaken an act causing sufferance to the clamant, a liability to reverse the damage caused through new action.

There are however, degrees of limitation to its use, as under certain conditions, the extent of work required to restore the balance may outweigh the priority of the claimant seeking redress.

An example of this is Charrington v Simons & Co Ltd, where after selling a portion of his land, the buyer breached the restrictive covenant by resurfacing an adjoining road, despite inherited limitations as to its operational height.

When the applying the mandatory injunction, the previous judge set conditions upon its use that allowed the respondent to effectively trespass on his land when restoring the road to its intended level, which was a decision causing further angst toward the appellant and was overturned to ironically set the injunction back into its proper effect.

This was clarified by Russell LJ, who explained:

“…[T]he judge, in adopting the course which he did, travelled beyond the bounds within which discretion may be judicially exercised; for in effect he sought to force upon a reluctant plaintiff something very like a settlement involving operations by the defendant on the plaintiff’s land which must lead to greatly increased harm to his business as a condition or term of his obtaining a mandatory injunction should the works not prove a satisfactory solution.”

Charrington v Simons & Co Ltd

Prohibitory injunctions

While compelling in their purpose, prohibitory injunctions serve to prevent through inaction, and are often used to control the events that either surround a contractual relationship, or follow when the arrangement is dissolved.

Typical scenarios range from former employees prevented from occupying similar positions within a particular radius, or from using their skills to benefit another in a competing field, through to sportsmen unable to play for specific rival teams for a determined period.

The caveat within these restrictions is one of a right to live; and so any prohibitory injunction granted must not deny those relevant, the opportunity to work and live, inclusive to the terms afforded others in a similar position.

An example of this is Jaggard v Sawyer, where damages in lieu were awarded to avoid the imposition of an injunction after completion of a second property upon land that contained restrictive covenants designed to deny such acts.

While the defendants argued that attempts were made to explain their intentions, and that due care was shown during the building process, the appellants refused to accept damages and moved instead to enforce an injunction that by now, was pointless and highly oppressive to the owners and potential tenants of the new house.

This point was made clear by Sir Thomas Bingham MR, who noted:

“It was suggested that an injunction restraining trespass on the plaintiffs roadway would not be oppressive since the occupiers of No. 5A could use the other half of the roadway outside the plaintiffs house, but this would seem to me unworkable in practice, a recipe for endless dispute and a remedy which would yield nothing of value to the plaintiff.”

Jaggard v Sawyer

Interim injunctions

Found in at least three areas of law, these are often used to deny certain actions for a specific period and most often issued pre-trial in order to preserve order while the parties prepare themselves for the hearing without interruption.

That said, it is important that those seeking one are able to rely upon a substantive cause of action, as was explained by Lord Diplock in The Siskina, when he said:

“A right to obtain an [interim] injunction is not a case of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the [claimant] for the enforcement of which the defendant is amenable to the jurisdiction of the court. The right to obtain an [interim] injunction is merely ancillary and incidental to the pre-existing cause of action.”

The Siskina

It is also not uncommon for the High Courts to issue interim injunctions when criminal matters call, while this position was made clear when in Attorney-General v Chaudry, Lord Denning MR expounded:

“There are many statutes which provide penalties for breach of them; penalties which are enforceable by means of a fine or even imprisonment but this has never stood in the way of the High Court gaining an injunction. Many a time people have found it profitable to pay a fine and go on breaking the law. In all such cases the High Court has been ready to grant an injunction…”

Attorney-General v Chaudry

Within tort there is legislative security offered through the Protection from Harassment Act 1997 which explains within s.3, that those seeking relief can apply for injunctions carrying criminal sanctions for non-compliance.

This is seen in celebrity and media related cases, including AM v News Group Newspapers Ltd, where an emergency interim injunction was ordered against a number of leading newspapers, after their photographers descended upon the home of a landlord that inadvertently let one of his properties out to a suspected terrorist; an act which then attracted unwanted and stressful press attention around the claimant’s private residence.

The grounds for this restriction were outlined by Tugendhat J, who commented:

“Measures to ensure that respect is given to person’s home and family and family are required by ECHR Art 8 and Human Rights Act 1998 s.6. In so far as the order that I make prohibits disclosure of information, it is with a view to preventing interference with that right by intrusion or harassment, not preventing disclosure of information which is sensitive for any other reason.”

AM v News Group Newspapers Ltd

Freezing injunctions

Also known as a Mareva Injunction, this order is issued in relation to assets involved in a civil claim.

The injunction will typically apply only to the value argued, and it prevents access by one party that might otherwise seek to remove or sell them for profit.

While used to secure their presence during pre-trial and proceedings, the order cannot override the effects of liquidation, and those seeking claim may find themselves denied of success when judgment is made.

An example of the strict criteria surrounding freezing injunctions (particularly without notice) was expressed by Neuberger J in Thane Investments Ltd v Tomlinson (No1), where he remarked:

“…[T]he duty of a person seeking an order, and in particular an order which can have as substantial an effect as a freezing order, in the absence of the Defendant against whom it is sought, is strict and important. An order against a person in his absence, particularly when it is a freezing order, which is a very serious infringement of his rights and liberties, can only be justified on appropriately clear and strong facts and risks. It should only be granted in circumstances which provide maximum protection for the person against whom the order is to be made. The courts have frequently emphasised the importance of compliance with the various requirements of the Rules relating to the obtaining of without notice orders.”

Thane Investments Ltd v Tomlinson (No1)

Non-Molestation injunctions

Designed to provide victim protection within intimate or blood-related relationships, this injunction can be sought by the party involved, or under s.60 of the Family Law Act 1996 where a third party can seek the court’s issue if those suffering are too afraid to request it.

The purpose of this order is in the name, inasmuch as denial of physical access when used to molest, harass or threaten the claimant to the point of legal intervention through verbal abuse and unwarranted use of that person’s private property.

The importance of this order was outlined by Wall J in G v F (Non-Molestation Order: Jurisdiction), where after the original court failed to grant protection to a single mother, it was overturned and expeditiously supported through the words:

“Part IV of the Family Law Act 1996 is designed to provide swift and accessible protective remedies to persons of both sexes who are the victims of domestic violence, provided they fall within the criteria laid down by section 62. It would, I think, be most unfortunate if section 62(3) was narrowly construed so as to exclude borderline cases where swift and effective protection for the victims of domestic violence is required.”

G v F (Non-Molestation Order: Jurisdiction)

Occupation injunctions

Sometimes issued in conjunction with a non-molestation injunction, the occupation injunction confers power upon the court to prevent those in question from occupying a property.

This can be used in both domestic abuse cases and also civil disputes surrounding property ownership or residency.

As this injunction runs risk of serious restriction to individual rights, the circumstances surrounding its use must be fully evaluated to avoid counter claims by the affected party.

This strict yet delicate approach was underlined by Lady Justice Black in Dolan v Corby, where she stressed:

“…[I]t must be recognised that an order requiring a respondent to vacate the family home and overriding his property rights is a grave or draconian order and one which would only be justified in exceptional circumstances, but exceptional circumstances can take many forms and are not confined to violent behaviour on the part of the respondent or the threat of violence and the important thing is for the judge to identify and weigh up all the relevant features of the case whatever their nature.”

Dolan v Corby

Super injunctions

Falling under the umbrella of interim injunctions, a super injunction reveals greater, yet highly focussed powers when preventing actions of third parties.

Typically used to deny publication of potentially damaging material, this order can be issued without notice, and not only denies public access, but anonymises the applicants identities, making it an effective tool for public figures and corporate entities alike.

The validity of this injunction was well explained by The Master of the Rolls in JIH v News Group Newspapers Ltd, where it was outlined:

“…[T]he claimant’s case as to why there is a need for restraints on publication of aspects of the proceedings themselves which can normally be published is simple and cogent. If the media could publish the name of the claimant and the substance of the information which he is seeking to exclude from the public domain (i.e. what would normally be information of absolutely central significance in any story about the case who is seeking what), then the whole purpose of the injunction would be undermined, and the claimant’s private life may be unlawfully exposed.”

JIH v News Group Newspapers Ltd

Perpetual (or final) injunctions

Unlike interim injunctions, these orders are issued at point of judgment, and therefore remain in effect for an unlimited period.

An example of this is Law Society v Kordowski, in which a website designed to allow members of the public free expression of their disdain following direct experience with named solicitors, was challenged upon numerous litigious grounds.

This case was one of a number of individual matters, and when moving to award final and indefinite removal of the site and future publications, Tugendhat J iterated that such injunctions were imperative when:

“The procedural remedy of representative proceedings, coupled with an injunction, may be the best that the law can offer at present to protect the public from the unjustifiable dissemination of false information about the suppliers of goods and services. It is also the means by which the court may protect its limited resources in time and judiciary from having to deal with large numbers of claims by different claimants against the same individual on the same or similar facts.”

Law Society v Kordowski

Quia Timet injunctions

In much the same as mandatory injunctions serve to ‘undo’ the damage done, quia timet injunctions are anticipatory, in that their purpose is the prevention of potential future harm, that while proactive in design, relies upon compelling evidence to provoke court dispensation.

The importance of overwhelming argument was made clear by Lord Dunedin in Attorney-General for Canada v Ritchie Contracting & Supply Co Ltd, when he outlined:

“Any restraint upon that at the instance of the other party must consist of an injunction of the quia timet order. But no one can obtain a quia timet order by merely saying ” Timeo ” ; he must aver and prove that what is going on is calculated to infringe his rights.”

Attorney-General for Canada v Ritchie Contracting & Supply Co Ltd,

In closing, it must be noted that this is by no means an exhaustive list of injunctions; however it is hopefully detailed enough to provide a sound knowledge base when an understanding of their differences and relevance within case law is a priority.

It may also pay to consider that in many instances there will always be degrees of overlap, as nothing in life is ever straightforward, while it is only through the investigative efforts of the judges that the attributable criteria can emerge.

ESTOPPEL

Estoppel‘ is a legal source of remedy often used in connection to land or property related matters, but is readily used in numerous fields of dispute.

The concept behind this intervening doctrine is one that prevents a miscarriage of justice where through discourse and action, a party is found to suffer at the expense of another’s profit.

Because this approach often falls outside of common law rules, it frequently requires equity to redress the balance in favour of a fair and reasoned settlement where proven as fact, while to date, there are distinct and overlapping forms of estoppel and so the list below (while no means definitive) aims to cover the more familiar (and unfamiliar) versions used within domestic and international law.

Promissory Estoppel (or Equitable Estoppel)

Founded within contract law, this form of estoppel relies upon the promise of one party to another that is later revoked and proven detrimental to the promisee.

Naturally circumspect of the rules of contract, the essence remains equitably valid, and was best witnessed in Central London Properties v High Trees Ltd, where Denning J remarked:

“The logical consequence, no doubt, is that a promise to accept a smaller sum in discharge of a larger sum, if acted upon, is binding notwithstanding the absence of consideration.”

Central London Properties v High Trees Ltd

Proprietary Estoppel

As founded and used most in property law, there are three main elements to qualifying action in proprietary estoppel; namely (i) that the landowner leads the claimant to believe he will accumulate some proprietary right, (ii) the claimant acts to his own detriment in reliance of the aforementioned right, and (iii) those actions are demonstrably in reliance of the expected right, where otherwise different choices might have been made.

This was explained by Lord Scott of Foscote in Cobbe v  Yeoman’s Row Management Ltd, who said:

“An estoppel bars the object of it from asserting some fact or facts, or, sometimes, something that is a mixture of fact and law, that stands in the way of some right by the person entitled to the benefit of the estoppel. The estoppel becomes a proprietary estoppel – a sub-species of a promissory estoppel – if the right claimed is a proprietary right, usually a right to or over land but, in principle, equally available in relation to chattels or choses in action.”

Cobbe v  Yeoman’s Row Management Ltd

Estoppel within Public Law

This is often used where a member of a public body has issued assurances that (i) an action can be undertaken by  member of the public, or (ii) that the specific body will exercise its power to the benefit of the person enquiring.

Where either fact has been proven correct, the designated department or authority is held liable to follow through on that action where reasonable, and in line with public interest, as discussed in Southend-on-Sea Corporation v Hodgson (Wickford ) Ltd, although the applicable claim was never upheld after it was stressed by Lord Parker CJ  that:

“[I]t seems to me quite idle to say that a local authority has in fact been able to exercise its discretion and issue an enforcement notice if by reason of estoppel it is prevented from proving and showing that it is a valid enforcement notice in that amongst other things planning permission was required.”

Corporation v Hodgson (Wickford ) Ltd

Estoppel by (unjust) Conduct

This phrase is largely self-explanatory, but can be best surmised as visibly manipulative or unreasonable behaviour by one party toward another; for example when securing an annulment, as was explored in Miles v Chilton, where the groom falsely induced his fiancée into a marriage that was by all accounts, illegal, as the bride-to-be was in fact still married to her previous husband, despite his misleading her that the annulment had succeeded.

The destructiveness of this self-created dilemma was explained by Dr. Lushington, who despite awarding in favour of the claimant, warned that:

“[H]ere the averment of marriage is made by the party having an opposite interest, and we well know that every one is bound by his admission of a fact that operates against him.”

Miles v Chilton

Estoppel by Per rem Judicatam (or issue estoppel)

This is another family law approach, which translates that a judicial decision to grant nullity cannot be overturned after the fact, except in circumstances where the annulment is proven invalid, after which any party aside from the divorcing couple, can challenge the direction of the court.

This form of estoppel can also be found in criminal law cases, as was seen in Hunter v Chief Constable of the West Midlands Police and Others, where Lord Diplock commented that:

“The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.”

Hunter v Chief Constable of the West Midlands Police and Others

Estoppel through Acquiescence (or Laches or Silence)

As used in a number of fields, there are requisites that the party claiming estoppel has had their hand forced into complying with matters that they had in fact not been properly consulted upon, as was argued in Spiro v Lintern, where a husband was held to agree to the sale of his co-owned property, despite not having consented to his wife’s putting it up for sale, and the purchaser proving able to enforce the contract in his name through her individual representation.

It is also applied in cases where a secondary party to a contract or notice, fails to challenge it within a reasonable period; after which, estoppel of acquiescence can be used to deter any claim to the contrary, as was used in Kammins v Zenith Investments, where Lord Diplock again explained:

“[T]he party estopped by acquiescence must, at the time of his active or passive encouragement, know of the existence of his legal right and of the other party’s mistaken belief in his own inconsistent legal right. It is not enough that he should know of the facts which give rise to his legal right. He must know that he is entitled to the legal right to which those facts give rise.”

Kammins v Zenith Investments

And in the U.S case Georgia v South Carolina, where it was held that:

“South Carolina has established sovereignty over the islands by prescription and acquiescence, as evidenced by its grant of the islands in 1813, and its taxation, policing and patrolling of the property. Georgia cannot avoid this evidence’s effect by contending that it had no reasonable notice of South Carolina’s actions. Inaction alone may constitute acquiescence when it continues for a sufficiently long period.”

Georgia v South Carolina

Estoppel through Encouragement

Similar to acquiescence, this form of estoppel was discussed in Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd,  where Oliver J defined it in the following passage:

“The fact is that acquiescence or encouragement may take a variety of forms. It may take the form of standing by in silence whilst one party unwittingly infringes another’s legal rights. It may take the form of passive or active encouragement of expenditure or alteration of legal position upon the footing of some unilateral or shared legal or factual supposition. Or it may, for example, take the form of stimulating, or not objecting to, some change of legal position on the faith of a unilateral or a shared assumption as to the future conduct of one or other party.”

Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd

Estoppel by Convention

Often used in contract law, this principle comes into effect when two parties have relied upon an assumed true statement of fact, only to learn otherwise after the actions undertaken have been shown as unreasonable or unlawful.

Any wrongful decision to then undo the damage is by definition, estopped on those grounds, as was discussed in Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd, where Denning LJ  concluded that:

“When the parties to a contract are both under a common mistake as to the meaning or effect of it – and thereafter embark on a course of dealing on the footing of that mistake – thereby replacing the original terms of the contract by a conventional basis on which they both conduct their affairs, then the original contract is replaced by the conventional basis.”

Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd

Estoppel by Representation (or Pais)

Again found in many contractual matters, this doctrine is bought into effect when a party that has agreed to a change in the terms of the relationship (often supported by a promise of trusted representation of their own) later chooses to renege on that statement, despite the other party altering their position to accommodate that express arrangement.

This was found in Royal Bank of Scotland v Luwum, where Lord Justice Rimer outlined that:

“[T]he clear sense of the arrangement was that Mr Le Page was making a representation or promise to Mr Luwum that the Bank would hold its hand on enforcing its rights for three months, and Mr Luwum changed his position in reliance upon that by borrowing £260 from friends and family in order to make a payment to the credit of the account, which was the very purpose of the arrangement that was made. In my judgment those circumstances had the consequence of estopping the Bank from reneging on its promise and starting the proceedings it did before the expiry of the three-month period.”

Royal Bank of Scotland v Luwum

Estoppel by Deed (or Agreement)

This doctrine is applied when two parties agree to contract with each other for intended gain or purpose, in the knowledge that the terms of the contract (or in these instances deeds) are based upon fraudulent fact, and nothing more.

It is suggested that the motivation for such covenants is one of singular gain on the pretence that should the truth out, those facts will remain unchallenged. It is this kind of clandestine deception that was explored in Prime Sight Ltd v Lavarello, where Lord Toulson JSC mused:

“If a written agreement contains an acknowledgement of a fact which both parties at the time of the agreement know to be untrue, does the law enable on of them to rely on that acknowledgement so as to estop the other from controverting the agreed statement in an action brought on the agreement?”

Prime Sight Ltd v Lavarello

Estoppel by Contract

Again, the terms of the contract can themselves prevent enforcement between disputing parties, as was discussed in Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd, where it was said:

“Where parties express an agreement…in a contractual document neither can subsequently deny the existence of the facts and matters upon which they have agreed, at least so far as concerns those aspects of their relationship to which the agreement was directed. The contract itself gives rise to an estoppel…”

Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd

In closing, it must be iterated that the doctrine of estoppel exists as a rule of evidence and not a cause of action, therefore any idea that this principle can and should be wielded as a defence or prosecution, falls outside the intended design and usurps its undiluted use.

PROXIMITY

When we discuss legal proximity there is frequently divided opinion as to what is meant and in what context the term can be applied.

By definition, tort cases almost always rely upon proximity when establishing the claimant-defendant relationship, the relative distance between the two parties, and finally any subsequent obligatory considerations shared.

Though for the sake of clarity, let us begin with the Oxford Dictionary definition of proximity:

Noun [mass noun] nearness in space, time or relationship

Origin: Late 15th century from the French ‘proximité and Latin proximatas, proximus (meaning nearest).

While this explanation appears relatively straightforward, the complexities of human interaction often magnify the context of its use, insomuch as subjective opinion will almost always complicate matters, and leave final judgments in degrees of contention.

This is largely due to a collective inability to agree precisely where proximity fits, and how it connects with other strands of legal principle.

Early illustrative proof of the need for exactness would undoubtedly be the speech given by Lord Pearce in Hedley Byrne Co Ltd v Heller and Partners, which reads:

“[P]roximity will not be established unless at least the following conditions are satisfied….the plaintiff must be (i) the person directly intended by the maker of the statement to act upon the statement (ii) in a specific transaction of which the maker knows and (iii) for the purpose for which the statement is made. Exceptionally conditions (i) and (iii) may be relaxed provided the plaintiff is a person of whose actual existence (if not name) the maker knows, to whom he knows the statement will be communicated, and who it is likely with a high degree of certainty will act upon the statement in a specific transaction of which the maker knows.”

Hedley Byrne Co Ltd v Heller and Partners

Or the even earlier words of Lord Atkin’s ‘neighbour’ speech in Donoghue v Stevenson:

“[S]uch close and direct relations that that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act.”

Donoghue v Stevenson

While a simpler definition would be that:

“The claimant must be in an established relationship with the defendant and able to prove that any existing duty of care applied to them, whether through action, inaction or words”

Neil Egan-Ronayne (Legal Consultant)

Whichever phrase suits best, the typical contexts for proximity can range from customer and seller to diner and chef; in fact, the list of possible scenarios could quickly prove lengthy, yet despite changes in issue the essence of proximity remains essentially undiluted.

That said, the general context of proximity deviated when through the course of accident and tragedy, the witnesses to those sudden and unforeseen events began to claim that the distress and trauma of such emotionally crippling scenes commanded financial assistance from the courts through damages.

In those instances, the fluid definition of proximity was echoed  by Lord Wilberforce in McLoughlin v O’Brian, who said:

“Where the relationship between the person killed or physically injured and the person who suffers nervous shock is close and intimate, not only is there the requisite proximity in that respect, but it is readily defensible on grounds of policy to allow recovery.”

McLoughlin v O’Brien

Taken further, the emergence of ‘secondarynervous shock forced the principle of proximity into new territory, by allowing those indirectly receiving terrible news to seek a claim for award under the umbrella of proximation (albeit subject to specific criteria), as defined by Lord  Oliver in Alcock v Chief Constable of South Yorkshire Police, who remarked:

“What remains in issue is whether the defendant owed any duty in tort to the plaintiffs to avoid causing the type of injury which each plaintiff complains. In essence this involves answering the twin questions of (a) whether injury of this sort to each particular plaintiff was a foreseeable consequence of the acts or omissions constituting the breach of duty to the primary victim and (b) whether there existed between the defendant and each plaintiff that degree of directness or proximity necessary to establish liability.”

Alcock v Chief Constable of South Yorkshire Police

Here, we see a variance in application of the principle of proximity and one demonstrating a generosity of scope over that regulated within everyday examples of arms-length dealings, and whether this broadening stemmed from the degree of harm or was simply the choice of the courts to extend empathy toward genuine loss, is not easily traceable; however, there are now notable differences.

Contrastingly, in the United States the ‘dangerous proximity test‘ is one used to determine criminal liability at federal and state levels, with the two key principles being that the defendant was dangerously close to completing the crime, or so close as to a result that the danger was great.

The test itself, was first laid down in 1901, and later adopted by a Judge Learned Hand, who said:

“(P)reparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to compete it renders the crime so probable that the act will be a misdemeanour, although there is still a locus poenitentiae, in the need of a further exertion of the will to complete the crime.”

Judge Learned Hand

While under the Turkish laws of contract, the ‘principle of proximity‘ comes into effect where non-specification of parties applicable laws during cross-border transactions leaves the courts with the option to default to the nearest jurisdiction, with the effect of establishing implied and express contractual terms, as was explained by Dr. Gülin Güngor in 2008.

So as before, proximity is regularly used to help establish liability, reduce conflict and this time bring levity to matters that might otherwise become bogged down in their own rhetoric.

With this flexible principle proving it an inarguable necessity, it leaves one pondering if proximity is far from a fair weather friend to law and jurisprudence, but rather an overlooked principle deserving to play a broader role in future legal disputes?

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