Whether Indian court should refuse to execute foreign decree due to practical difficulties?

 It is to the reciprocal advantage of the Courts of all nations to enforce
foreign rights as far as practicable. To this end, broad recognition of
substantive rights should not be defeated by some vague assumed
limitations of the Court. When substantive rights are so bound up in a
foreign remedy, the refusal to adopt the remedy would substantially
deprive parties of their rights. The necessity of maintaining the foreign
rights outweighs the practical difficulties involved in applying the foreign remedy. 

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10106 OF 2016

M/S ALCON ELECTRONICS PVT. LTD
V
CELEM S.A. OF FOS 34320 ROUJAN, FRANCE & ANR. 
Dated:DECEMBER 09, 2016
Citation:(2017) 2 SCC 253

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Whether Indian court can execute foreign decree for interest on costs?

 In re Issue No. 5 — It is the case of the appellant that the claim for
interest on costs is not recognized in the Indian law. It is to be noted that
matters of procedure are to be governed by the lex fori, whereas the
matters of the substance are governed by lex causae. In this case, the
question whether the interest on sum of decree of costs to be executed in
India is a matter of substance as the interest on decree is a substantive
right of the decree holder and does not concern itself with the procedural
law of the forum.
32. The appellant relied upon Section 35 of the CPC which enables Courts in
India to impose litigation costs at the discretion of the Court. However,
there is no provision under the CPC or the Interest Act, 1978 which

permits imposition of interest on litigation costs.

In India, although the interest on costs are not available due to
exclusion of Section 35(3), the same does not mean that Indian Courts
are powerless to execute the decree for interest on costs. Indian Courts
are very much entitled to address the issue for execution of the interest
amount. The right to 8% interest as per the Judgments Act, 1838 of UK
can be recognized and as well as implemented in India.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10106 OF 2016
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 19791 OF 2013
M/S ALCON ELECTRONICS PVT. LTD
V
CELEM S.A. OF FOS 34320 ROUJAN, FRANCE & ANR. 
Dated:DECEMBER 09, 2016
Citation:(2017) 2 SCC253

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When a judgment is considered as judgment on merits?

 

The appellant contends that the order of the English Court is not given
on merits and that it falls under Section 13(c) of the CPC as a result of
which it is not conclusive and therefore inexecutable. We cannot accept
such submission. A judgment can be considered as a judgment passed
on merits when the Court deciding the case gives opportunity to the
parties to the case to put forth their case and after considering the rival
submissions, gives its decision in the form of an order or judgment, it iscertainly an order on merits of the case in the context of interpretation of

Section 13(c) of the CPC.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10106 OF 2016
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 19791 OF 2013
M/S ALCON ELECTRONICS PVT. LTD
V
CELEM S.A. OF FOS 34320 ROUJAN, FRANCE & ANR. 
Dated:DECEMBER 09, 2016
Citation:(2017) 2 SCC253

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UK High Court's Judgment on Modern Perspective of Donatio Mortis Causa

There are three requirements to constitute a valid DMC. They are:

i) Donor contemplates his impending death.
ii) Donor makes a gift which will only take effect if and when his contemplated death occurs. Until then Donor has the right to revoke the gift.
iii) Donor delivers dominion over the subject matter of the gift to Recipient.

As many judges have observed, the doctrine of DMC (Donatio Mortis Causa) in the context of English law is an anomaly. It enables Donor to transfer property upon his death without complying with any of the formalities of section 9 of the Wills Act or section 52 of the Law of Property Act. Thus the doctrine paves the way for all of the abuses which those statutes are intended to prevent.The Lord Chancellor in Jones v Selby and Lord Chelmsford in Cosnahan drew attention to this risk. They stressed the need for the strictest scrutiny of the factual evidence. The Court of Appeal rightly stressed in Birch that the courts must not allow DMC to be used as a device in order to validate ineffective wills.

Neutral Citation Number: [2015] EWCA Civ 581
		Case No: A3/2014/2704

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, CHANCERY DIVISION
MR HOLLANDER QC, SITTING AS A DEPUTY HIGH COURT JUDGE
HC12E03256

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/06/2015

B e f o r e :
LORD JUSTICE JACKSON
LORD JUSTICE PATTEN
and
LORD JUSTICE SALES
____________________
Between:

	KENNETH PAUL KING	Claimant/ Respondent
	- and -
	(1) THE CHILTERN DOG RESCUE (2) REDWINGS HORSE SANCTUARY	Defendants/Appellants

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England and Wales Court of Appeal (Civil Division) Decision on defamation

1. Thus, the judge referred to the frequently cited summary of the law by Sir Anthony Clarke MR in Jeynes v News Magazine Limited [2008] EWCA Civ 130 at paragraph 14, where the Master of the Rolls said:



"14. The legal principles relevant to meaning…may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over elaborate analysis is best avoided. (4) The intention of publisher is irrelevant. (5) The article must be read as a whole and any 'bane and antidote' taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, 'can only emerge as the product of some strained, or forced or utterly unreasonable interpretation…"…(8) It follows that 'it is not enough to say that by some person or another the words might be understood in a defamatory way."

1. It is clear from paragraphs 33 and 34 of his judgment, that in determining whether the words were capable of being defamatory of the claimant, the judge had regard to the inferential defamatory meaning he considered the words complained of were capable of bearing. I think he was right to do so. It was accepted that read literally, the Press Release simply meant the claimant had made the text public. But in order to determine whether the relevant words were capable of bearing a defamatory meaning of the claimant, the judge had to consider what (defamatory) inferences or implications the ordinary reasonable reader could draw from them. As Lord Reid said in Lewis v Daily Telegraph [1964] AC 234 at p.258 "… [M]ore often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning."


2. In this respect of course, since the court is putting itself in the shoes of the notional ordinary reader, it must allow for "a certain amount of loose-thinking": per Lord Reid in Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at p.1245, or, as Lord Devlin put it in Lewis at p.257 the fact that a laymen reads in an implication much more freely than a lawyer. It is also important to bear in mind that such a person would normally read (or hear) the relevant words once and would therefore get a broad impression of what is said; and that the layman would not engage in the sort of minute analysis (textual or legal) that a lawyer would.
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Dingemans J.
[2013] EWHC 3355 (QB)


		Royal Courts of Justice Strand, London, WC2A 2LL
		20th February 2015

B e f o r e :
LORD JUSTICE McCOMBE
LADY JUSTICE SHARP
and
MR JUSTICE MITTING
____________________
Between:


	Paul Elliott	Appellant
	- and -
	Richard Rufus (in bankruptcy)	Respondent

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UK High court allows paternity test for DNA disease analysis

Spencer v Anderson (Paternity Testing) [2016] EWHC 851 (Fam) – read judgment

A fascinating case in the Family Division throws up a number of facts that some may find surprising. One is that this is the first time the courts in this country have been asked to direct post-mortem scientific testing to establish paternity. The other is that DNA is not covered by the Human Tissue Act, because genetic material does not contain human cells. One might wonder why the statute doesn’t, given that DNA is the instruction manual that makes the  human tissue that it covers – but maybe updating the 2004 law to cover genetic material would create more difficulties than it was designed to resolve.

The facts can be briefly stated. The applicant had been made aware of his possible relationship to S, who had died of bowel cancer some years before. When S had presented with the disease, it turned out that there was a family history of such cancer. The hospital treating him therefore took a blood sample and extracted DNA from it to test for high-risk genes. If the applicant was the son of the deceased he would have a 50% risk of inherited predisposition to bowel cancer. This risk would be mitigated by biannual colonoscopies.

The applicant – who had been made aware made aware of the possibility that S might have been his father – therefore sought the consent of the deceased’s next of kin for testing of this DNA sample. S’s mother (one of the respondents in this case) refused.

1. Weighing these matters up with appropriate caution, and seeking to strike a fair balance between the competing private and public interests, I have reached the conclusion that scientific testing should take place to seek to establish the paternity of Mr Spencer by using the stored DNA sample of the late Mr Anderson. These are my reasons:


(1) If the application for a declaration of parentage had appeared to be speculative or opportunistic, the request for scientific testing would probably not have succeeded. However, the overall evidence here raises the real possibility that Mr Anderson was Mr Spencer's father, he having undeniably been in a relationship with Mr Spencer's mother at the time of conception.

(2) It is common ground between the parties that there is a significant medical issue that turns on the possibility of a biological relationship between Mr Anderson and Mr Spencer. It is of course possible for Mr Spencer to be tested periodically by colonoscopy, but that is only a partial solution because he is surely entitled to know the reason why he should undergo those procedures, or to be relieved of the need to do so. As recently as February 2015, Mrs Anderson regarded it as "essential" that Mr Spencer's paternity should be established. It does not now lie easily in her mouth to say the opposite.

(3) Although it is possible that the late Mr Anderson (like the alleged father in Jaggi) might have refused to consent to testing during his lifetime, there is no particular reason to regard that as likely. Whether or not he would have welcomed the possibility that he was a father, it may not do justice to his memory to assume that he would have withheld his support from a young man who might have inherited a serious medical condition from him.

(4) The information, in the form of the DNA sample, is readily available and does not require physically intrusive investigations. In particular, it does not require exhumation, as to which particular considerations would undoubtedly arise.

(5) There is no objection on behalf of the hospital, which might be seen as being a nominal representative of the public interest in this case.

(6) The interests of third parties, and in particular those of Mrs Anderson to the extent that they may be engaged, are, with all respect, of lesser significance. There is no indication of any real risk of harm and the establishment of the truth carries greater weight than the question of whether it is palatable.

2. I accordingly find that Mr Spencer's interest in knowing his biological parentage, the questions raised by the medical history, and the marked advantages of scientific testing as a means of resolving both issues, collectively carry more weight in the particular circumstances of this case than the counter-indicators to testing that undoubtedly exist. It is in the interests of justice that testing should take place, and it is a proper exercise of the court's inherent jurisdiction to secure this outcome.
   Case No: PR15P00702
   Neutral Citation Number: [2016] EWHC 851 (Fam)
   IN THE HIGH COURT OF JUSTICE
   FAMILY DIVISION
   15 April 2016
   Before:
   THE HONOURABLE MR JUSTICE PETER JACKSON
   Sitting at Manchester Civil Justice Centre
   - - - - - - - - - - - - - - - - - - - -

   Between : David Spencer -and- Carol Spencer -and- Darren Hall -and- Valerie Anderson (Personal Representative of the Estate of William Brian Anderson Deceased)

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Judgment of US District court on motion for a Negative Inference Based upon Plaintiff’s Alleged Deletion of Emails

As noted
above in the context of the Defendants’ motion in limine seeking a negative inference regarding
the alleged destruction of evidence, the parties have not provided any basis beyond mere
speculation to conclude that evidence was in fact destroyed by Mr. Accurso. Mr. Land’s
speculation on such issues would not be any help to the fact finder in this case. Mr. Land will
also not be permitted to offer his opinion that Mr. Accurso’s solicitation of business constituted
tortious interference or was otherwise legally improper.

The court denied the defendants' motion because the defendants did not provide any evidence that "there was actual suppression or destruction of evidence, let alone that [the plaintiff] was responsible for the suppression or destruction of this evidence, that this evidence cannot be obtained from other sources or that [the plaintiff] acted with the intent to deprive the Defendants of access to the information." The court’s denial was without prejudice and with an acknowledgment that the defendants could raise it again at trial, depending upon the actual evidence admitted.

This case is significant because it recognizes that the new Rules require evidence of actual destruction or suppression by one of the parties with the intent to deceive the other party of access.

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PETER ACCURSO, : CIVIL ACTION
Plaintiff, :
v. :
INFRA-RED SERVICES, INC., et al., : NO. 13-7509
Defendants. :
MEMORANDUM
PRATTER, J. MARCH 11, 2016

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Judgment of Supreme Court Of Queensland on interpretation of will

The principles of construction governing the approach to be taken by the court on an
application such as this are of long-standing. The object is to discover the testator’s
intention through examination of the words used in the will.2 To do so, regard is had to
the rules of construction traditionally applied by the courts and the aids to construction
contained in s 33C of the Succession Act 1981 (Qld).3
[4] At the heart of this interpretative exercise is the consideration of the usual meaning of the
language used in the testamentary provision in question, and this is to be done in light of
the will read as a whole.4
If the meaning of the provision is clear, the will shall be given
that construction.5 However, in determining what a testator meant by the words used in
the will, the court may receive evidence under the “armchair rule” so as to place itself in
the position of the testator at the time when the will was made. In this way, the court can
take account of the material circumstances which were known (or ought to have been
known) by the testator at the time when he or she used the words contained in the will.
The rationale for the rule is to be found in the proposition that “the meaning of words
varies according to the circumstances of and concerning which they are used”6
and,
because of that, the court is often assisted by establishing the context in which the
testamentary intentions were expressed. Importantly, such a rule applies where those
intentions appear, on a plain reading of the will, to be clear as well as in circumstances
where s 33C of the Act applies.Section 33C applies where the language used in the will, or part of it, is: (1) meaningless;
(2) ambiguous on the face of the will; or (3) ambiguous in the light of surrounding
circumstances. The provision does not prevent the admission of evidence that would
otherwise be admissible in a proceeding to interpret a will,8
but it makes clear that the
court may have regard to extrinsic evidence to help in the interpretation of language which
may be characterised in one of the three ways to which I have just referred. Where the
language is meaningless or ambiguous on the face of the will, such extrinsic evidence can
include evidence of the testator’s intention but, where the language is considered to be
ambiguous in the light of surrounding circumstances, evidence of the testator’s intention
is not admissible to establish any of those circumstances.
[6] The court is bound to construe the will “as trained legal minds would do”.9 That, however,
is not to say that the will must be construed in a strictly technical or legalistic sense; its
As to which, see Smith at 32-33, [24]-[25] per Atkinson J.
9 Ralph v Carrick (1879) 11 Ch D 873 at 878 per Cotton LJ; cited with approval by Isaacs J in Fell at 273.4
construction should be “sensitive to the factual context of ordinary life and
circumstances”.10 Further, the court should lean towards a construction which preserves,
rather than destroys, its effect.11 If the will shows that the testator must necessarily have
intended that an interest be given but there are no words in the will which expressly have
that effect, the court is to “supply the defect by implication, and thus to mould the
language of the testator, so as to carry into effect, as far as possible, the intention which
it is of opinion that the testator has on the whole will, sufficiently declared”.
12 But, as to
this, the court will not give effect to any intention which is “not expressed or plainly
implied”13 in the language of the will; there is no room for “gratuitous, groundless,
fanciful implication”.14 On the other hand, if the contents of a will show that a word has
been “undesignedly omitted or undesignedly inserted, and demonstrate what addition by
construction or what rejection by construction will fulfil the intention with which the
document was written, the addition or rejection will by construction be made”.15
Background
SUPREME COURT OF QUEENSLAND
CITATION: Suthers & Anor v Suthers & Ors [2015] QSC 285
PARTIES: ANDREA SUTHERS and ANTHONY DAVID
SUTHERS (as executors of the Will of JESSIE ANNIE
SUTHERS)
(applicants)
v
ANDREA SUTHERS and ANTHONY DAVID
SUTHERS and RODERICK JOHN SUTHERS
(as beneficiaries under the Will of JESSIE ANNIE
SUTHERS)
(respondents)
FILE NO/S: SC 7638 of 2015
DIVISION: Trial Division
PROCEEDING: Application
ORIGINATING
COURT:
Supreme Court at Brisbane
DELIVERED ON: 14 October 2015
DELIVERED AT: Brisbane

JUDGE: Burns J
Read full judgment here; Click here

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UK Supreme court Judgment on vicarious liability of prison authorities for torts of prisoners

The fact that the prison service, and the operators of contracted-out prisons,
are under a statutory duty to provide prisoners with useful work, is not incompatible
with the imposition of vicarious liability. The legislation does not itself exclude the
imposition of vicarious liability. Nor is it argued that any distinct point arises under
section 2(1)(a) of the Crown Proceedings Act 1947, in terms of which the Crown is
subject to all those liabilities in tort to which, if it were a private person of full age
and capacity, it would be subject in respect of torts committed by its servants or
agents. Authorities concerned with compulsory pilotage are not in point: the prison
service is not required to provide particular types of employment, or to allocate 
particular prisoners to particular activities. In practice, prisoners can be allocated to
a variety of workplaces both inside and outside prisons, having regard to the relevant
risks. More particularly, the prison service is not compelled to employ prisoners in
the kitchen, and has a meaningful power of selection in respect of the prisoners it
chooses to employ there. It appears from the evidence that the prison service takes
particular care when selecting prisoners who are suitable to work in the kitchen,
having regard to the risks involved in that setting. A restricted pool from which to
select a workforce was a feature of the Christian Brothers case, and is not
uncommon even in ordinary cases of employment: an employer can only select from
those who apply for appointment, and may often have a small pool from which to
choose.
Hilary Term
[2016] UKSC 10
On appeal from: [2014] EWCA Civ 132
JUDGMENT
Cox (Respondent) v Ministry of Justice (Appellant)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Dyson
Lord Reed
Lord Toulson
JUDGMENT GIVEN ON
2 March 2016

LORD REED: (with whom Lord Neuberger, Lady Hale, Lord Dyson and
Lord Toulson agree)

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When architects are liable to pay damages for their professional negligence?

Regarding the duty of an architect Windeyer J said in Voli v Inglewood Shire Council
(1963) 110 CLR 74 at 84:
An architect undertaking any work in the way of his profession accepts the
ordinary liabilities of any man who follows a skilled calling. He is bound to
exercise due care, skill and diligence. He is not required to have an
extraordinary degree of skill or the highest professional attainments. But he
must bring to the task he undertakes the competence and skill that is usual
among architects practising their profession. And he must use due care. If he
fails in these matters and the person who employed him thereby suffers
damage, he is liable to that person. This liability can be said to arise either
from a breach of his contract or in tort.22
[52] I have considered sections 9, 10, 11 and 12 of the Civil Liability Act 2003. These
sections provide:-
9 General principles
(1) A person does not breach a duty to take precautions against a risk of
harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the
person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of
the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken
precautions against a risk of harm, the court is to consider the
following (among other relevant things)—
(a) the probability that the harm would occur if care were not
taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
10 Other principles
In a proceeding relating to liability for breach of duty happening on or
after 2 December 2002—
(a) the burden of taking precautions to avoid a risk of harm
includes the burden of taking precautions to avoid similar
risks of harm for which the person may be responsible; and
(b) the fact that a risk of harm could have been avoided by doing
something in a different way does not of itself give rise to or
affect liability for the way in which the thing was done; and
(c) the subsequent taking of action that would (had the action
been taken earlier) have avoided a risk of harm does not of
itself give rise to or affect liability in relation to the risk and
does not of itself constitute an admission of liability in
connection with the risk.
11 General principles
(1) A decision that a breach of duty caused particular harm comprises the
following elements—23
(a) the breach of duty was a necessary condition of the
occurrence of the harm (factual causation);
(b) it is appropriate for the scope of the liability of the person in
breach to extend to the harm so caused (scope of liability).
(2) In deciding in an exceptional case, in accordance with established
principles, whether a breach of duty—being a breach of duty that is
established but which can not be established as satisfying subsection
(1)(a)—should be accepted as satisfying subsection (1)(a), the court is
to consider (among other relevant things) whether or not and why
responsibility for the harm should be imposed on the party in breach.
(3) If it is relevant to deciding factual causation to decide what the person
who suffered harm would have done if the person who was in breach
of the duty had not been so in breach—
(a) the matter is to be decided subjectively in the light of all
relevant circumstances, subject to paragraph (b); and
(b) any statement made by the person after suffering the harm
about what he or she would have done is inadmissible except
to the extent (if any) that the statement is against his or her
interest.
(4) For the purpose of deciding the scope of liability, the court is to
consider (among other relevant things) whether or not and why
responsibility for the harm should be imposed on the party who was
in breach of the duty.
12 Onus of proof
In deciding liability for breach of a duty, the plaintiff always bears the
onus of proving, on the balance of probabilities, any fact relevant to
the issue of causation.
[53] As I accept the evidence of Mr Fyfe I conclude that the school cannot be refused relief
against the architect. Not only has there been a breach of the contract of retainer there
has also been a breach of the duty of care and this has caused the school’s loss.
[54] I find the architect breached the duty of care owed to the school because the risk of
harm to the school by not following Mr Fyfe’s instructions was foreseeable. That is
because by not following the instructions the school would receive a basketball court
that was not full-size and the school could elect, as it did, to remedy the deficiency at a 24
substantial cost to it. In that way the risk was not insignificant and in the
circumstances a reasonable person in the position of the architect would have taken
precautions by designing the basketball court as instructed.
[55] I find it was obvious harm would occur if the instructions were not followed. Further,
the seriousness of the harm would be significant, or it could require substantial
expenditure to rectify the omission.
[56] I find the burden of taking precautions to avoid the risk of harm was minor as the
architect could have designed the required size at the same time as the balance of the
design.
[57] I do not consider the social utility of the omission of the instructions has any bearing
on deciding whether a reasonable person would have taken precautions against the risk
of harm.
[58] I find the breach of duty by the architect caused the school’s loss. I find the breach of
duty was a necessary condition of the occurrence of the harm and it is appropriate for
the scope of the liability of the architect to extend to the harm so caused.
[59] I find if the architect had not been in breach of the duty of care there would not have
been any action for the school to take as a full-size basketball court would have been
designed and built.25
[60] I find there is no good reason not to impose responsibility for the school’s loss on the
architect.
[61] I find the school has satisfied the onus of proof on the balance of probabilities that the
architect’s breach of duty caused the school’s loss.
DISTRICT COURT OF QUEENSLAND
CITATION: Christian Education Ministries – Qld Ltd v Thomson Adsett
Pty Ltd [2015] QDC 292
PARTIES: CHRISTIAN EDUCATION MINISTRIES – QLD LTD
ACN 125 183 637
(plaintiff)
v
THOMSON ADSETT PTY LTD ACN 105 314 654
(defendant)
FILE NO/S: BD 5120/2011
DIVISION: Civil
PROCEEDING: Trial
ORIGINATING
COURT:
District Court at Brisbane
DELIVERED ON: 26 November 2015
DELIVERED AT: Brisbane
HEARING DATE: 18, 19 and 20 November 2015
JUDGE: Samios DCJ

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Whether Passive smoking in prison is breach of human rights of prisoner?

Smith, R (on the application of v Secretary of State for Justice and G4S UK Ltd  [2014] EWCA Civ 380 – read judgment

This case raises the question of whether it is a breach of a non-smoking prisoner’s Convention right to respect for his private life and to equality of access to such rights (ECHR Articles 8 and 14) to compel him to share a cell with a smoker.

The appellant, a convicted sex offender serving a long sentence, was required between 21st and 28th March 2012 to share a cell with a fellow prisoner who was a smoker. It was known to the prison authorities that the appellant was a non-smoker, and the requirement to share with a smoker was contrary to his wishes. The sharing complained of ended when the appellant was transferred to another prison on 28th March 2012.

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Whether Police is liable for negligence to victim of domestic violence?

Michael and others (Appellants) v The Chief Constable of South Wales Police and another (Respondents) [2015] UKSC 2– read judgment

The Supreme Court has rejected a challenge to the long-standing rule that the police owe no duty of care in negligence in the context of protecting victims from potential future crimes.

Background

The background facts to the case are shocking. On 5 August 2009, at 2.29am, Ms Michael dialled 999 from her mobile phone. She told the call handler at the Gwent Police call centre that her ex-boyfriend was aggressive; he had just turned up at her house; he had found her with another man; he had bitten her ear really hard; he then drove the other man home with Ms Michael’s car but, before doing so, told her that he would return to hit her; that he was going to be back “any minute literally” and, according to the recorded transcript of the conversation, that her ex-boyfriend had told her “I’m going to drop him home and (inaudible) [fucking kill you]”.

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Whether DNA sample taken for criminal purposes can be used for paternity test?

X & Anor v Z (Children) & Anor [2015] EWCA Civ 34 – read judgment

The Court of Appeal has ruled that it would not be lawful for DNA originally collected by the police to be used by a local authority for the purposes of a paternity test. 

Factual and legal background

X’s wife had been found murdered.  The police took DNA from the crime scene.  Some of the DNA belonged to X’s wife and some was found to be X’s.  X was tried and convicted of his wife’s murder.

X’s wife had young children and they were taken into the care of the local authority.  During the care proceedings X asserted that he was the biological father of the children and said he wanted to have contact with them.  He refused to take a DNA test to prove his alleged paternity.  The local authority asked the police to make the DNA from the crime scene available so that it could be used in a paternity test.  The police, with the support of the Home Secretary, refused on the grounds that they did not believe that it would be lawful to do so.

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Bank should repay undisclosed conversion charges

Supreme Court of Canada:While maintaining a class action taken against a bank which failed to disclose the conversion charges in its cardholder agreement, applicable on transactions/purchases made by the credit card and charge card holders in foreign currencies, the Court has condemned the Bank to reimburse the conversion charges collected from all cardholders. The Court said that Quebec’s Consumer Protection Act (“CPA”) imposes various rules on the content and disclosure of charges and fees in contracts extending variable credit. The evidence was clear that from 1993 to 2003 there was no reference in the Bank's cardholder agreement to the conversion charge because an “exchange rate determined by the Bank” could not be understood as including such a charge. There was no obligation for cardholders to pay the conversion charges as those payments by cardholders were made in error

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Whether child sex abuse expert's testimony is admissible in evidence?

People v. Diaz

20 N.Y.3d 569

New York Court of Appeals

Decided on: March 26, 2013

Prior False Claims Made By Complainant Held To Be Admissible

Summary: Defendant was charged with course of sexual conduct against a child. At trial, the People presented expert testimony of a psychologist with expertise in the field of child sexual abuse. Defense counsel objected, arguing that the testimony was supposed to be about alleged victims not about an alleged suspect The court overruled Defense counsel’s objection and held that it was a legitimate part of a general discussion of child sexual abuse. Defense sought to call Martinez, the complainant’s younger brother’s biological father to testify that the complainant had also made the same false allegations against him prior to the present allegations. The trial court denied the request.

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