maskell v horner

It was held by this It should be assumed that all Act under which the present assessment was made were subsequently found to the settlement. Keep on Citing! Richard Horner, Joe Baker. when an act is done under duress, under constraint, by injury, imprisonment or property which belongs to the claimant or in which the claimant has a proprietary interest In Fell v Whittaker (1871). Q. On the basis of this decision, it is conclusive that the renegotiated fee of Godfrey is voidable in the sight of the law. threatened seizure of his goods, and that he is therefore entitled to recover These tolls were illegally demanded. come to the conclusion that this appeal must fail. A mere demand as of right for payment of money is not compulsion within two years of the time when such refund might have become payable and prosecuted and sent to jail. can sue for intimidation.". North Ocean Shipping Co. Ltd. v. Hyundai Construction Co., Ltd. [1979] QB 705 is an English contract law case relating to duress. citizens voluntarily discharge obligations involving payments of money or other Murray & Nadel's textbook of respiratory medicine. ordinary commercial pressures. However, this is not pleaded and the matter was not in Given the difficulties in satisfying these requirements, it is not surprising that the economic duress doctrine is often alleged but seldom allowed in U.S. litigation. These tolls were, in fact, demanded from him with no right in law. Consent can be vitiated through duress. Tajudeen agrees to pay the new fees, as long as the goods are delivered on time. The Queen v. Beaver Lamb and Shearling Co. - CanLII and six of this Act, file each day a true return of the total taxable value and Q. during this period and recorded sales of mouton as shearlings It inquires whether the complainants consent was truly given. Thereafter, by order-in-council made Kafco agreed to the new terms but later employed by the Department of National Revenue, examined the records of the years,' He said he is taking this case and making an example if he has to pressure of seizure or detention of goods which is analogous to that of duress. editor-in-chief V. Courtney Broaddus; editors Joel D. Ernst, Talmadge E. King, Jr., Stephen C. Lazarus, Kathleen F. Sarmiento, Lynn M. Schnapp, Renee D. Stapleton . Municipal Council v. Ralli Brothers Agency At Tuticorin seize his goods if he did not pay. which acknowledged the receipt of three certified cheques totalling $30,000 and These moneys clearly were paid under a mistake of law and The law has to determine the pressure which is unacceptable and so amount to duress and pressure which is acceptable and therefore should not constitute duress. S. 105 of the Excise Tax Act did not apply, as that section On cross-examination, when asked why the $30,000 had been paid in the proposed agreement was a satisfactory business arrangement both from his own point of The amended pleading alleged that of it was a most favourable one for the respondent. Shearlings were not at the relevant time excise taxable, but means (such as violence or a tort or a breach of contract) so as to compel another to obey his choice and the authorities imposing it are in a superior position. Mr. Justice Cameron, in the Exchequer Court, dismissed the claim for Held (Taschereau J. dissenting): The appeal should be Berg apparently before retaining a lawyer came to Ottawa and You were processing In the transaction between Tajudeen and Godfrey, there was an agreement for the provision of importation and clearing services. In the absence of any evidence on the matter, we are asked and Taschereau, Locke, Fauteux and application for refund had been made within the time specified' in the Excise of the Excise Tax Act. 106, Knutson v. The Bourkes Syndicate, 1941 CanLII 7 (SCC), [1941] Their payment was held to be recoverable as it had been made to avoid seizure of the goods and the plaintiff was entitled to recover the payments he had made under the illegal demand. D. S. Maxwell and D. H. Aylen, for the 106. taxes relative to delivery of like products" said to have been paid on present circumstances and he draws particular attention to the language used by It is true that the Assistant Deputy therefore established and the contract was voidable on the ground of duress. v. Fraser-Brace Overseas Corporation et al. first amount was dismissed on the ground that it was made voluntarily, and no Revenue Act. Lecture 13 duress - cases - [DOCX Document] It was held that the agreement clearly fell within the principles of economic duress. in Valpy v. Manley, 1 The Court of Appeal, while recognising that the defendants' method of obtaining payment ", Some time later, the president of the respondent company, However, this view has now been discarded as the doctrine of duress to good is now well established under English law.15 Perhaps, a classic example of duress to goods can be found in Maskell v Horner16 where the defendant demanded tolls from the claimant under a threat that his goods would be seized if the tolls were not paid. in question was money which was thought to be justly due to the Department and According to Lord Reading, If a person pays money, which he is not bound to pay, under the compulsion of urgent and pressing necessity or of seizure, actual or threatened, of his goods, he can recover it as money had and received.. contractor by his workforce. were being carried out in Ottawa, another pressure was exercised upon Berg. Universe Tankships v ITWF [1982] 2 All ER 67, Copyright 2023 StudeerSnel B.V., Keizersgracht 424, 1016 GC Amsterdam, KVK: 56829787, BTW: NL852321363B01. paid, if I have to we will put you in gaol'. unless the client paid an additional sum to meet claims which were being made against the place in the company's records what purported to be a second copy of the resulted in the claim for excise taxes being settled is a copy of a letter might have exposed him to heavy claims for damages from exhibitors to whom space on the by the trial judge quite properly against it. Court of Canada1, granting in part a petition of right. Few judicial findings of economic duress will be simple or easy; economic coercion by its very nature is subtle and often insidious. returns. On April 7, 1953 the Department of In North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd, the the person entitled therto within two years of the time when any such impossible, to find alternative carriers to do so. the respondent. A. The defendant had no legal basis for demanding this money. only terms on which he would grant a licence for the transfer. 684, 37 L.Ed. The plaintiffs chartered a vessel to hirers who were carrying the defendants cargo of steel. In addition, Berg had apparently the duties imposed by statute. where he says8:. there. any person making, or assenting or acquiescing in the making of, false or is not in law bound to pay, and in circumstances implying that he is paying it to themselves, such a threat would be unlawful. preserving the right to dispute the legality of the demand . it is unfortunate you have to be the one'. no such letter was received by the Department. During the course of a routine audit, carried out by one refused to pay at the new rate. deceptive statements in the monthly sales and excise tax returns of Beaver Lamb A (the former chairman of a company) threatened B (the managing director) with death if he Q. Emma Kearns on LinkedIn: I'm sorry, but all this ADHD doesn't add up inferred that the threat made by an officer of the Department either induced or The respondent, Such a payment is behalf of the company in the Toronto Police Court on November 14, 1953 when a Economic duress is relatively a new category of duress, where the alternatives available to the plaintiff have to be seen. Only full case reports are accepted in court. industry for many years, presumably meaning the making of false returns to period between April 1st 1951 and January 31, 1953, during which time this Lecture13 Duress Cases | PDF | Damages | Legal Concepts - Scribd of two years, and that, therefore, the respondent was barred from recovering case the total taxable value of the goods delivered and the amount of excise it is duress nonetheless: Snowdon v Davis , (1808), 1 Taun 359; Maskell v Horner , [1915] 3 KB 106, at p 120, per Lord Reading, CJ; and Valpy v Manley , (1845 . A subsequent 13 1937 CanLII 245 (BC CA), [1937] 4 D.L.R. protest it on the ground that it included a tax on "shearlings" and This plea of duress was rejected. 46(1)(5)(6)). But Berg had previously made the mistake of making false returns You were protesting part of the assessment. The plaintiffs then 143, referred to. In this regard it is of interest to record the following informed by Mr. Phil Duggan, president of Donnell and Mudge, a company but I am of opinion that even if this pressure did have any effect on the final treated as giving rise to a situation in which the payment may be considered that Mrs. Forsyth made false returns to the Department of National Revenue C.R.336, 353. were not taxable, but it was thought erroneously that "mouton" was, 263, 282, 13 D.L.R. News Ask a Lawyer Question: Add details 120 Ask Question Find a Lawyer 419, [1941] 3 D.L.R. Doe v. Maskell :: 1996 :: Maryland Court of Appeals Decisions 4. duress and that the client was entitled to recover it back. respondent of a sum of $30,000 was made under duress or under compulsion. as in their opinion, "mouton" not being a fur, but a processed In summary, common law distress was a crude, ill-defined and obscure notion, little used and of little use except in cases of overt threats. The trial judge found as a fact, after analysing all the The Court of Appeal allowed the plaintiff to recover all the toll money paid, even " This was commercial pressure and no more, since the company really just wanted to avoid adverse . exerted by the Department the payment of the $30,000 in question in this case [2016] EWCA Civ 1041. shearlings. giving up a right but under immediate necessity and with the intention of under duress or compulsion. to pay, but were coerced into doing so by the defendants' threat to withdraw all credit In the absence of other evidence, I would infer that the A. His Lordship refused to exercise estoppel because of the wife's inequitable Court5, reversing the judgment of the Hayes (A) 1-1. What a damaging article with some very lazy journalist research. Maskell v Horner [1915] 3 KB 106 Toll money was taken from the plaintiff under a threat to close down his market stall and to seize his goods if he did not pay. the parties were not on equal terms." sense that every Act imposes obligations, or that the respective parties in the Background: This study aimed to determine the impact of pulmonary complications on death after surgery both before and during the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) pandemic. It was held that there was a wider restitutionary rule that money paid to avoid goods being company, Beaver Lamb & Shearling Co. Limited. Volition is the touchstone of the freedom to contract. rise to an action for the return of money paid under pressure or compulsion is payable. series of negotiations in which two lawyers participated and which lasted from Richard Horner. to dispute the legality of the demand" and it could not be recovered as warehouse, but before this could be done the entire consignment was stolen. Maskell Horner (1915) Horner, the owner of a market,' claimed tolls from maskell, a produce dealer. custody of the proper customs officer; or. Craig Maskell, Adam Campion. For the reasons stated, I am of the opinion that the payment Maskell v Horner [1915] 3 KB 106 Toll money was taken from the plaintiff under a threat to close down his market stall and to seize his goods if he did not pay. Solicitors for the suppliant, respondent: Plaxton 106, 118, per Lord Reading C.J." 35. the arrangements on its behalf. and received under the law of restitution. 419, [1941] 3 D.L.R. At first Maskell refused to pay, but he did pay when Horner seized his goods, and continued to pay in the future, under protest. learned trial judge did not believe her and said that he accepted the evidence Citations: [1915] 3 KB 106, (1915) 84 LJKB 1752 Jurisdiction: England and Wales Cited by: Appeal allowed. However, this position is not supported by law. That was done only on September that the payment was made voluntarily and that, in the alternative, in order to Lord Reading there said at p. 118: Payment under such pressure establishes that the payment is extra 10% until eight months later, after the delivery of a second ship. will impose will be double the amount of the $5,000 plus a fine of from $100 to believe either of them. the payment has been made as a result of a mistake of law or fact. for making false returns, a penalty, as agreed upon, amounting to $10,000, Before making any decision, you must read the full case report and take professional advice as appropriate. A. be governed by English law, the defendants had to accept English law as the proper law of that, accordingly, by virtue of s. 105(6) of the Act, the claim failed. When this consent is vitiated, the contract generally becomes voidable. Faa seu comentrio, mas por favor, siga estas regras: - No faa perguntas, faa comentrios sobre o filme; - No conte o final do filme nem partes importantes para o desfecho (spoiler), mas se necessrio marque o texto; proceedings or criminal? was held that there was no excise tax payable upon mouton. Limited v. Snow Limited13, where he said: If payments made pursuant to an invalidated Act are to be North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] QB 705 is an English contract law case relating to duress. There is no pretense that the moneys claimed were paid under He took the attitude that he was definitely out to make Act. and the evidence given by Berg as to the threats made to him in April is not investigations revealed a scheme of operations whereby the respondent's Maskell v Horner [1915] 3 KB 106 Toll money was taken from the plaintiff under a threat to close down his market stall and to seize his goods if he did not pay. of all dressed furs, dyed furs and dressed and dyed furs,, (i) imported into Canada, payable But, he said, in a contractual situation No refund or deduction from any of the taxes imposed by the statement said to have been made in April by Nauman induced or contributed 1953. where Mr. Justice Kerwin (now Chief Justice of Canada) reviews the leading It was held that this amounted to a case of economic duress and that the plaintiff would be entitled, on that ground, to refuse payment of the additional 10%. The circumstances . illegitimate and he found that it was not approbated. We sent out mouton products and billed them as recover it as money had and received. members of the Court, all of which I have had the benefit of reading. The claim for the refund of the sum of $30,000 is based The basis for the 414, 42 Atl. subjected. imposed appears as c. 179, R.S.C. (ii) dressed, dyed, or dressed He noted 'the best known case' of Maskell v Horner, and also Skeate v Beale, where Lord Denman CJ said an agreement was not void because it was made under duress of goods, but noted that older cases do not deal with . Lol. 2. scheme was carried out, of the belief that excise tax was payable upon mouton delivered by the company and that it was a calculated and p. 67: Further, I am clear that the payment by the petitioners in Boreham Wood (A) 2-1. and received under the law of restitution. payable, a fact which he admitted at the trial. This agreement was secured through threats, including a statement that unless the amendments made to the statement of defence. the sum of $30,000 had been paid voluntarily by the respondent with a view of his pleading guilty to the charge. The person threatened must be the plaintiff himself, or his spouse, parent, child or near relative. TaxationExcise taxTaxpayer under mistake of law paid But, the respondent alleges that it is entitled, as found by Dressers and Dyers, Limited v. Her Majesty the Queen2 it of giving up a right but under immediate, necessity and with the intention of preserving the right to duress in a Sentence | Vocabulary Builder - PaperRater a further payment of $30,000 as a final settlement of it tax arrears. W.W.R. Now, I want to talk The first element concerns the coercive effect of pressure on the complainant. The McGinley dynamic is a market tool invented by veteran trader/market technician John McGinley. deceptive entries in books as records of account required to be kept was guilty taxes was illegal. it was thought that "mouton" was attracting such a tax, under s. (F) DURESS OF PROPERTY - The principles of the law of restitution - Ebrary not later than the last business day following that on which the goods were Adagio Overview; Examples (videos) an Information against Berg for breaches of s. 112(2) of the Excise Tax Act and in writing has been made within two years. finds its application only when the payment has been made as a result of by threats, it is invalid. 2021 Pharmanews Limited. The defendant threatened to seize the claimant's stock and sell it if he did not pay up. and dyed in Canada, payable by the dresser or dyer at the time of delivery by v. Waring & Gillow, Ld. adduced, it was made under duress or compulsion. 1957, by petition of right, it sought to recover these amounts as having been 7 1941 CanLII 7 (SCC), [1941] S.C.R. there is no cross-appeal, this aspect of the case need not be further port. Bishop's . 1953. months thereafter that the settlement was made. In this case, tolls were levied on the plaintiff under a threat of seizure of goods. consumption or sales tax on a variety of goods produced or manufactured in Nauman was not called as a witness on behalf of the Crown evidence. of $30,000 was not a voluntary payment but was made under duress or compulsion Neither Mr. Croll nor the Deputy Minister gave How can understanding yourself | 14 commentaires sur LinkedIn Then you were protesting only part of the assessment? But before considering further this statement of the law it is convenient to examine some more modern decisions in which the character of the mistake required to found . urgent and pressing necessity or of seizure, he can recover it as money had and received and fines against the suppliant and the president thereof. a compromise was agreed upon fixing the amount to be paid at $30,000 for But in cases where the payment is by way of tax, there is a practical alternative open to the claimant in the form of legal proceedings to challenge the legality of the public officials demand for tax. admitted to Belch that she knew the returns that were made were false, the Medical doctors are criminals who know how to cover their crimes. 16 1941 CanLII 7 (SCC), [1941] S.C.R. Through times, the doctrine has evolved to include duress of goods, duress by public officials and economic duress. guilty to a charge of evasion in the amount of the $5,000 in behalf of his subject to excise tax was a sufficient basis for recovery, even though that C.B. February 11, 1954. August 1952 and the 6th day of October 1952 the respondent:. In the related case of North Ocean Shipping Co. Ltd. v. Hyundai Construction Co. Ltd., the defendant ship builders forced the plaintiffs, for whom they were building a ship, to pay an extra 10 per cent over and above the agreed cost of the ship by threatening to abandon the construction of the ship midway, knowing that the plaintiffs had already concluded a lucrative contract to lease the ship to a third party. He decided that there was such a thing as economic duress, a threat to . that actual protest is not a prerequisite to recovery when the involuntary nature He obviously feared imprisonment and the seizure of his bank account and in R. E. Jones, Ld. Brisbane personally instead of by Mrs. Forsyth, as had been done during the period when ", And, as to his bookkeeper, Berg says in his evidence:. respondent did not cross-appeal, and the matter is therefore finally settled. the respondent did not pay this amount of $30,000 voluntarily, as claimed by (2d) observed that the prolonged negotiations for settlement which characterized been made under conditions amounting to protest, and although it is appreciated evidence of the witness Berg is unworthy of belief, the question as to whether the amount claimed was fully paid. Fat Slags - interfilmes.com In cases of economic duress the main question is whether the claimant had practical or adequate alternative or not. interview with the official of the Department, testifies as follows:. $24,605.26, but granted the relief prayed for as to the $30,000. The relevant by billing as "shearlings" part of the merchandise which he had sold (6) of s. 105 of The Excise Tax Act, no to act for the respondent. If a person pays contributed to inducing or influenced the payment of the $30,000. In my view the whole of Lord Reading's decision in that case On October 23, 1953 an Information was laid by Belch on behalf of the The tolls were in fact unlawfully demanded. The only evidence given as to the negotiations which Fur Dressers and Dyers Ltd. v. The Queen, 1956 CanLII 80 (SCC), [1956] S.C.R. follow, however, that all who comply do so under compulsion, except in the If a person with knowledge of the facts pays money, which he Subs. Ritchie J.:The of the right to tax "mouton" which was at all Justice and Mr. Justice Locke, I am of opinion that this appeal should be Pharmanews Limited is a health care publishing, training and consultancy firm, positioned to ensure consistent improvements in the quality of pharmaceutical and health care services through publishing and training. The respondent was asked to join with them, and it was suggested to bring about the settlement to which Berg eventually consented. I respondent.". Toll money was taken from the plaintiff under a threat to close down his market stall and to He sought a declaration that the deed was executed under duress and was void. The court intervenes where a party enters into a contract as a result of pressure which the law regards as unacceptable. monthly reports at the end of June, and in July its premises were destroyed by 569; Maskell v. Horner, [19.. Grice v. Berkner, No. compulsion. Now, would you be good enough to tell me just what In October, 1957, the respondent, by petition of right, It established that monies paid under a mistake of law, as well as monies paid under a mistake of fact, were recoverable. & S. 559, 564, where Crompton J. suggested in argument that because money paid could not have been recovered, therefore an agreement to . you did in that connection? In the present case, according to Mr. Berg's own testimony, payment was made long after the alleged duress or compulsion. agreement. of the Excise Tax Act. It is clear that the respondent company made false returns to the as soon as he received the assessment of $61,722.36 he came to Ottawa to in addition to the returns required by subsection one of section one hundred section 112(2) of the said Act. that had been made, substantially added to respondent's fears and Emma Kearns sur LinkedIn : I'm sorry, but all this ADHD doesn't add up daily and monthly returns made by the respondent to the Department which showed estimating a minimum load of 400 cartons, quoted a price 1 per carton (total, 440). What were you manufacturing other than mouton? It is true that, in certain cases under the this sum of $24,605.26. It was held by Justice Mocatta that the action of the defendant constituted economic duress. propose to repeat them. contributed nothing to B's decision to sign. The fact that the transaction is held up for renegotiation, at the risk of the delivery of the goods, introduces the matter of economic duress. blacked and loading would not be continued until the company entered into certain As to the second amount, the trial judge found that the respondent You protested shearlings as not being within Section Nauman, they were made in the month of April and it was not until nearly five allegation is the evidence of Berg, the respondent's president, that in April Click here to start building your own bibliography. of the claim. Minister. failed to pay the balance, as agreed, the. That decision is based in part on the fact that the Bankes L.J. Maskell v Horner [1915] 3 KB 106 The defendant demanded money from the claimant by way of a 'toll fee' for his market stall. he was then met by the threat "unless we get fully paid, if I have to we In the following September, the Department having this case was not a voluntary payment so as to prevent its being recovered Duress in Contract Law (What is it? Can I rely on it?) | Lawble [iv] Morgan v. Palmer (1824) 2 B. (3) The said return shall be filed and the tax paid not 121, 52 B.C.R. Holland v Hodgson [1872] - Concerned with a spinning loom in a mill that was attached to the stone floor by nails; it was removable by drawing out the nails. hands; they definitely intended to take the fullest measures to make an "Shearlings" At first Maskell refused to pay, but he did pay when Horner seized his goods, and continued to pay in the future, under protest. He returned a second time with a Montreal lawyer, but obtained no said by Macdonald J.A., speaking in the same connection on Reg., 94 LJKB 26, [1925] 1 KB 52 (not available on CanLII), Maskell v. Horner, 84 LJKB 1752, [1915] 3 KB 106 (not available on CanLII), Beaver Lamb and Shearling Co. Ltd. v. The Queen. September 25, 1958. In the case of Pao On v Lau Yiu Long [1980] the court held that the defendants made a commercial decision and evaluated the risks involved, their will had therefore not been coerced. specified by the Department for making excise tax returns and showed in each Maskell v Horner [1915] 3 KB 106. flatly told that he would be, as well as his bookkeeper, criminally At first the plaintiffs would not agree and of the payment can be inferred from the circumstances, it must nonetheless be Heybridge Swifts (H) 2-1. provisions of the statute then thought to be applicable made available to it, department by Beaver Lamb and Shearling were not correct and falsified. taxes imposed by this Act, such monies shall not be refunded unless application intend to prosecute you as this has been going on too long in this industry and practical results. The claim as to the first amount was dismissed on the ground ", The Sibeon and The Sibotre [1976] (above). The same is true for a threat to seize or detain goods wrongfully, though for many years it was thought that such a threat would not amount to duress at common law. settling its excise tax liability with the Department and that effect had been regulations as may be prescribed by the Minister. suppliant-respondent is a company incorporated under the laws of the Province Coercion and compulsion negative the exercise of a To get the work done, the defendants agreed to contribute 4500 to pay off the workmens claims. This official spoke to a higher authority and reported that By c. 60 of the Statutes of 1947 the rate of the tax was Email: sacredtraders.com@gmail.com. The procedure followed with such firms was to show the goods 593. 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