¹ See Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2007] ECR I-10779 (‘Viking’); Case C-341/05 Laval und Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnads arbetareförbundets avdelning 1, Byggettan and Svenska Elektrikerförbundet [ECR] I-11767 (‘Laval’). There have been numerous commentaries. The most useful (in English at least) are Davies, A, ‘One Step Forward, Two Steps Back? The Viking and Laval Cases in the ECJ’ (2008) 37(2) Industrial Law Journal 126–48CrossRefGoogle Scholar; C Barnard, Employment Rights under the EC Treaty, Free Movement, and the Services Directive, Europa Institute, Mitchell Working Paper Series 5/2008; Reich, N, ‘Free Movement v. Social Rights in an Enlarged Union: The Laval and Viking Cases before the European Court of Justice’ (2008) 9 German Law Journal 125 Google Scholar; Belavusau, U, ‘The Case of Laval in the Context of the Post- Enlargement EC Law Development’ (2008) 9 German Law Journal 2279–308Google Scholar; and Barnard, C, ‘Social Dumping or Dumping Socialism’ (2008) 67 Cambridge Law Journal 262 CrossRefGoogle Scholar.

² The ECJ’s findings in Viking were limited to Art 43 EC. Laval, by contrast, concerned Art 49 EC (free movement of services), as well as Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (the Posting of Workers Directive), OJ 1997 L18/1. So it seems reasonably clear that similar principles would apply under both Arts 43 and 49 EC. However, there are specific directives on services, including the Posting of Workers Directive and Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (the Services Directive), OJ 2006 L376/36, which may affect the analysis under Art 49 EC.

³ There is also EU law precedent in other areas where the ECJ has recognised the primacy of social rights over the prohibition concerning competition rules. See, eg, Case C-67/96 Albany [1999] ECR I-5751, Case C-180/98 Pavlov [2000] ECR I-6497, and Case C-222/98 Van der Woude [2000] ECR I-7129.

⁴ While we generally use the term ‘UK’ when referring to civil litigation in the United Kingdom, the actual position is more complex and nuanced. In the first place, it should be appreciated that the UK is comprised of different parts. Some of those parts have court systems and procedures that are materially different from one another (for example, Scotland on the one hand and England and Wales on the other). Further, some of the legislation cited in this chapter applies in whole to certain parts of the UK, but only in part (and in some cases not at all) to other parts. But the term UK is convenient shorthand to cover the Member State in question for purposes of EU law. That said, most of the analysis that follows is essentially centered on the courts of England and Wales, where we both practise. This convenience is not inappropriate, however, since it seems to us more or less axiomatic that industrial disputes raising Viking and Laval issues will, in all but the most highly localised of cases, end up being litigated in the High Court in London.

⁵ The Court of Appeal of England and Wales made the preliminary reference in Viking. There is also at least one other notable case: Claim No HQ08X00932 British Airline Pilots’ Association v British Airways plc. The case arose out of a decision by British Airways to start up a new passenger air services operation flying direct from Continental Europe to the United States, a possibility that had hitherto been precluded to British Airways due to the various bilateral agreements between certain EU Member States and the United States. British Airways’ pilots voted in favour of industrial action over the operations in Continental Europe, in part it seems due to concerns that the operations there would, over time, lead to a degradation in the terms and conditions of the UK-based pilots. The pilots’ union, the British Airline Pilots’ Association, brought an action in the High Court against British Airways seeking a declaration that the strike would not infringe Art 43 of the EC Treaty. The case eventually settled (on terms that remain confidential). The authors acted for British Airways in the litigation but hope that this circumstance (and the fact that both are independent lawyers who, by the rules of their professional conduct, are in principle obliged to act for both claimants and defendants) does not affect the objectivity or usefulness of what follows here.

⁶ Viking, above n 1, paras 81, 82.

⁷ Viking, above n 1, para 75.

⁸ Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ 2001 L12/1. The Judgments Regulation was preceded by various other legal texts. First, the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters was concluded on 27 September 1968 between the original founding EU Member States and then amended on multiple occasions to deal with the expansion of the EU. The Lugano Convention on jurisdiction and the enforcement of judgments in civil and commercial matters was then concluded on 16 September 1988. Contracting States include the original 15 EU Member States, Poland, and Iceland, Norway, and Switzerland in their capacity as members of the European Free Trade Area (EFTA).

⁹ And, in similar (though not identical) fashion, to the European Free Trade Area (EFTA) Member States.

¹⁰ The leading academic and practitioner works are Dicey, and Morris, , Conflict of Laws, 13th edn (London, Sweet & Maxwell, 2004)Google Scholar; Briggs, A and Rees, P, Civil Jurisdiction and Judgments, 4th edn (London, LLP Professional Publishing, 2005)Google Scholar; and North, P and Fawcett, J, Cheshire and North’s Private International Law, 13th edn (London, Butterworths, 1999)Google Scholar.

¹¹ See Case C-281/02 Andrew Owusu v NB Jackson, trading as ‘Villa Holidays Bal-Inn Villas’ and Others [2005] ECR I-1383.

¹² See, eg, Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438.

¹³ On the English courts’ power to grant negative declarations, see Messier Dowty Ltd and another v Sabena SA and others [2001] 1 All ER 275 (CA).

¹⁴ See Civil Procedure Rules, r 40.20, which provides that ‘[t]he court may make binding declarations whether or not any other remedy is claimed’.

¹⁵ See Financial Services Authority v Rourke [2002] CP Rep 14 (HC).

¹⁶ Ibid, (Neuberger J): ‘Accordingly, so far as the CPR is concerned, the power to make declarations appears to be unfettered. As between the parties in the section it seems to me that the court can grant a declaration as to their right or as to the existence of facts, or as to a principle of law, where those rights, facts, or principles have been established to the court’s satisfaction … The court has to consider whether, in the circumstances, it is appropriate to make such an order’.

¹⁷ See Zockoll Group Ltd v Mercury Communication Ltd [1998] FSR 354 (CA).

¹⁸ American Cyanamid Co (No 1) v Ethicon Ltd [1975] AC 396 (HL) 406–9.

¹⁹ The principles governing the conduct of without notice applications are very well developed, particularly in the context of asset freezing and similar orders. The applicant is under a strict duty to make full and frank disclosure and this duty includes an obligation specifically to draw to the Court’s attention the nature and extent of any defence or response with the Respondent would put before the Court if they were there. This includes pointing out obvious legal or factual difficulties which militate against the making of an order. Procedurally, the process is also well developed. It is extremely important (and a procedural requirement) that such applications are supported by evidence. If they are made in circumstances where time has not enabled evidence to be prepared, then it must be a term of the Order that those matters which have been represented to the Court at the without notice hearing are subsequently included in an Affidavit or Witness Statement which is lodged at Court. In terms of the form of the Order, it must contain well-recognised undertakings from the Applicant including the undertaking in damages and undertakings to serve all the relevant documents as soon as possible upon the Respondent.

²⁰ Case C-159/02 Gregory Paul Turner v Felix Fareed Ismail Grovit, Harada Ltd and Changepoint SA [2004] ECR I-3565.

²¹ Erich Gasser GmbH v Misat Srl [2004] 1 Lloyd’s Rep 222 (ECJ). See also Arbitration Act 1996, s 44 of which provides:

‘Court powers exercisable in support of arbitral proceedings

1. (1)

   (1) Unless otherwise agreed by the parties, the court has for the purposes of and in relation to arbitral proceedings the same power of making orders about the matters listed below as it has for the purposes of and in relation to legal proceedings.

2. (2)

   (2) Those matters are— … (e) the granting of an interim injunction …

3. (3)

   (3) If the case is one of urgency, the court may, on the application of a party or proposed party to the arbitral proceedings, make such orders as it thinks necessary for the purpose of preserving evidence or assets.

4. (4)

   (4) If the case is not one of urgency, the court shall act only on the application of a party to arbitral proceedings (upon notice to the other parties and to the tribunal) made with the permission of the tribunal or the agreement in writing of the other parties.

5. (5)

   (5) In any case the court shall act only or to the extent that the arbitral tribunal, and any arbitral or other institution or person vested by the parties with power in that regard, has no power or is unable for the time being to act effectively’.

As to the relationship between s 37 of the Supreme Court Act 1981 and s 44 of the Arbitration Act 1996, see Starlight Shipping Co v Ta Ping Insurance Co Ltd [2007] EWHC 1893.

²² Section 234 reads:

‘Period after which ballot ceases to be effective

1. (1)

   (1) Subject to the following provisions, a ballot ceases to be effective for the purposes of section 233(3)(b) at the end of the period of four weeks beginning with the date of the ballot.

2. (2)

   (2) Where for the whole or part of that period the calling or organising of industrial action is prohibited—

   1. (a)

      (a) by virtue of a court order which subsequently lapses or is discharged, recalled or set aside, or

   2. (b)

      (b) by virtue of an undertaking given to a court by any person from which he is subsequently released or by which he ceases to be bound, the trade union may apply to the court for an order that the period during which the prohibition had effect shall not count towards the period referred to in subsection (1).

3. (3)

   (3) The application must be made forthwith upon the prohibition ceasing to have effect—

   1. (a)

      (a) to the court by virtue of whose decision it ceases to have effect, or

   2. (b)

      (b) where an order lapses or an undertaking ceases to bind without any such decision, to the court by which the order was made or to which the undertaking was given; and no application may be made after the end of the period of eight weeks beginning with the date of the ballot.

4. (4)

   (4) The court shall not make an order if it appears to the court—

   1. (a)

      (a) that the result of the ballot no longer represents the views of the union members concerned, or

   2. (b)

      (b) that an event is likely to occur as a result of which those members would vote against industrial action if another ballot were to be held.

5. (5)

   (5) No appeal lies from the decision of the court to make or refuse an order under this section.

6. (6)

   (6) The period between the making of an application under this section and its determination does not count towards the period referred to in subsection (1). But a ballot shall not by virtue of this subsection (together with any order of the court) be regarded as effective for the purposes of section 233(3)(b) after the end of the period of twelve weeks beginning with the date of the ballot’.

²³ Section 234(2) makes provision for a limited extension, or perhaps more accurately suspension, of the four-week period or part of it. Whilst the opportunity therefore exists for an application to be made which has the effect of extending the period of four weeks allowed under section 234(1)(a), the timing of that application is dictated by the provisions of section 234(3).

²⁴ Viking, above n 1, 33. The relevant cases are Case 36/74 Walrave and Koch [1974] ECR 1405, para 17; Case 13/76 Donà [1976] ECR 1333, para 17; Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR I-2549, para 47; Case C-281/98 Angonese [2000] ECR I-4139, para 31; and Case C-309/99 Wouters and Others [2002] ECR I-1577, para 120.

²⁵ Case C-55/94 Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165, paras 24–27. Other ‘establishment’ cases include C-108/96 Mac Quen and Others [2001] ECR I-837 and C-79/01 Payroll and Others [2002] ECR I-8923. For the definition of ‘services’ see further: Joined Cases C-51/96 and C-191/97 Christelle Deliège v Ligue francophone de judo et disciplines associées ASBL, Ligue belge de judo ASBL, Union européenne de judo and François Pacquée [2000] ECR I-2549; Case C-157/99 Smits and Peerbooms [2001] ECR I-5473; Case C-385/99 VG Müller-Fauré [2003] ECR I-4509; Case C-60/00 Mary Carpenter [2002] ECR I-6279; and Case C-6/01 Anomar [2003] ECR I-8621.

²⁶ Case 205/84 Commission v Germany [1986] ECR 3755.

²⁷ Viking Line Abp v International Transport Workers Federation [2005] 1 CLC 951, paras 83 ff.

²⁸ Cases of non-discriminatory restrictions include Case C-19/92 Kraus v Land Baden-Württemberg [1993] ECR I-1663; Case C-415/93 URBSFA v Bosman [1995] ECR I-4921; Gebhard, above n 25; Case C-275/92 Customs & Excise v Schindler [1994] ECR I-1039; Case C-384/93 Alpine Investments v Minister van Financiën [1995] ECR I-1141; and Case C-398/95 Syndesmos ETTG v Ypourgos Ergasias [1997] ECR I-3091.

²⁹ Gebhard, above n 25, para 37.

³⁰ Case C-281/06 Jundt v Finanzamt Offenburg [2007] ECR I-12231, para 61.

³¹ See Case C-49/89 Corsica Ferries France [1989] ECR 4441, para 8, and Case C-169/98 Commission v France [2000] ECR I-1049, para 46.

³² Kraus, above n 28.

³³ Case C-60/00 Mary Carpenter v Secretary of State for the Home Department [2002] ECR I-6279.

³⁴ Case C-190/98 Volker Graf v Filzmoser Maschinenbau GmbH [2000] ECR I-493. See also Joined Cases C-544/03 and C-545/03 Mobistar SA v Commune de Fléron [2005] ECR I-7723 (non-discriminatory rule imposing a tax on transmission pylons, masts and mobile phone antennae in Belgian communes did not contravene Art 49 EC because ‘measures, the only effect of which is to create additional costs in respect of the services in question and which affect in the same way the provision of services between Member States and that within one Member State, do not fall within the scope of Article [49]’); Case C-134/03 Viacom Outdoor Srl v Giotto Immobilier SARL [2005] ECR I-1167 (non-discriminatory rule imposing a tax on bill posting in Genoa in the amount of €226.92 not considered a ‘restriction’); and Case C-453/04 Innoventif Limited [2006] ECR I-4929 (non-discriminatory German rule whereby registration of a branch of a limited company established in another Member State was conditional on the payment of an advance of the cost of publishing the company’s objects was held not to breach Art 43 EC). Similarly, the ECJ has held non-discriminatory rules which are inherent to the structure of the market itself not to constitute restrictions on a fundamental freedom in sporting rules (see Christelle Deliège, above n 25).

³⁵ Professional Contractors Group Ltd and others) v Inland Revenue Commissioners [2001] EWCA Civ 1945, Court of Appeal, [2001] STC 631.

³⁶ Ibid, 39 (Robert Walker LJ).

³⁷ See, eg, International Transport Roth GmbH and Others v Secretary of State for the Home Department [2002] EWCA Civ 158. To reduce the scale of illegal entry into the UK, the government passed legislation penalising those operating ship and aircraft services with a fine (£1,000, raised in 1991 to £2,000) for each passenger conveyed to the UK without proper travel documents. This was challenged inter alia under Art 49 EC but dismissed (and received fairly short shrift from the Court of Appeal).

³⁸ Viking, above n 1, para 90.

³⁹ See generally Deakin, S, ‘Regulatory competition after Laval ’ (2007–08) 10 CYELS 581 Google Scholar.

⁴⁰ Viking, above n 1, para 72.

⁴¹ Ibid, para 81.

⁴² Ibid, para 82.

⁴³ Laval, above n 1, para 107. The ECJ’s wording is far from a model of clarity in this regard, at least in English: ‘However, as regards the specific obligations, linked to signature of the collective agreement for the building sector, which the trade unions seek to impose on undertakings established in other Member States by way of collective action such as that at issue in the case in the main proceedings, the obstacle which that collective action forms cannot be justified with regard to such an objective’.

⁴⁴ Sections 222 to 225 set out certain types of dispute that will fall outside the tort immunity provided by s 219. These include action to enforce trade union membership (s 222), action taken because of dismissal for taking unofficial action (s 223), secondary action (s 224), and pressure to impose union recognition requirement (s 225).

⁴⁵ It should also be noted that the fact that the employee/union activities concerns matters in other Member States does not necessarily preclude the matter from being considered a lawful ‘trade dispute’. Section 244(3) of TULRCA provides that ‘[t]here is a trade dispute even though it relates to matters occurring outside the United Kingdom, so long as the person or persons whose actions in the United Kingdom are said to be in contemplation or furtherance of a trade dispute relating to matters occurring outside the United Kingdom are likely to be affected in respect of one or more of the matters specified in subsection (1) by the outcome of the dispute’. But there is nonetheless a requirement of UK self-interest in the matters occurring abroad.

⁴⁶ See Meade v London Borough of Haringey [1979] ICR 494.

⁴⁷ One interesting historical footnote here is that the employer and own worker restriction under UK employment legislation was aimed in particular at the International Transport Workers’ Federation policy at issue in Viking of industrial action aimed generally at ships operating under flags of convenience. See Green Paper, Trade Union Immunities, Cmd 8128 (1981).

⁴⁸ Mercury Communications v Scott Garner [1984] ICR 74 (CA) 101E–F.

⁴⁹ Interestingly, the original requirement in s 29 of the Trade Union and Labour Relations Act 1974 was that the dispute should merely be ‘connected with’ the matters in question. This was repealed by s 18(2)(c) of the Employment Act 1982, substituting the words ‘wholly or mainly’, which is now reflected in s 244 of TULRCA. The latter was part of a political move to reduce the power of trade unions between 1979 and 1990. It is also worth noting that, in over 12 years of Labour government in the UK, the position has not changed in this regard. See generally Davies, P and Freedland, M, Labour Legislation and Public Policy (Oxford, Clarendon Press, 1993) ch 9 Google Scholar.

⁵⁰ UCL NHS Trust v UNISON [1999] ICR 204 (CA) 216 A–B.

⁵¹ Viking, above n 1, paras 81, 82.

⁵² Case 6/64 Costa v ENEL [1964] ECR 585.

⁵³ Viking, above n 1, para 89.

⁵⁴ Viking, above n 1, para 90.

⁵⁵ See Barnard, C, Employment Rights under the EC Treaty, Free Movement, and the Services Directive, Europa Institute, Mitchell Working Paper Series 5/2008, Section 4 Google Scholar.

⁵⁶ Art 1(6) provides: ‘This Directive does not affect labour law, that is any legal or contractual provision concerning employment conditions, working conditions, including health and safety at work and the relationship between employers and workers, which Member States apply in accordance with national law which respects Community law. Equally, this Directive does not affect the social security legislation of the Member States’.

⁵⁷ Art 1(7) provides: ‘This Directive does not affect the exercise of fundamental rights as recognised in the Member States and by Community law. Nor does it affect the right to negotiate, conclude and enforce collective agreements and to take industrial action in accordance with national law and practices which respect Community law’.

⁵⁸ Laval, above n 1, para 104.

⁵⁹ Ibid.

⁶⁰ Ibid, para 105.

⁶¹ For example, the European Social Charter, signed at Turin on 18 October 1961 (to which express reference is made in Art 136 EC) and Convention No 87 of the International Labour Organisation concerning Freedom of Association and Protection of the Right to Organise of 9 July 1948.

⁶² For example, the Community Charter of the Fundamental Social Rights of Workers, adopted at the meeting of the European Council held in Strasbourg on 9 December 1989 (also referred to in Art 136 EC), and the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000 (OJ 2000 C364/1).

⁶³ See the joined cases of Schmidt and Dahlström v Sweden (App no 5589/72) (1979–80) 1 EHRR 632 and UNISON v UK (App no 53574/99) [2002] IRLR 497 (ECtHR).

⁶⁴ Ministry of Justice v Prison Officers Association [2008] IRLR 380, [2008] EWHC 239 (QB), [2008] ICR 702, paras 59–61.

⁶⁵ See, eg, BA v Laker Airways [1985] AC 58.

⁶⁶ The UK signed and ratified the original European Social Charter (1961). It signed, but did not ratify, the Amending Protocol in 1991, and has neither signed nor ratified the Revised European Social Charter of 1996. Further, the UK sought and obtained the agreement of Member States to a protocol in relation to the Charter on Fundamental Rights, which, in essence, seeks to prevent the Charter being interpreted in a way that creates rights additional to those already provided for in UK law. Arguably, however, all this does is state that the Charter will not impact on UK law except where EU law is being implemented in the UK, which seemed obvious enough from its terms anyway, meaning that the issue was political, not legal.

⁶⁷ See, eg, Customs and Excise Commrs v Schindler & Schindler, above n 28.

⁶⁸ Case C-212/97 Centros Ltd v Erhvervs-og Selskabsstyrelsen [1999] ECR I-1459.

⁶⁹ Alpine Investments BV, above n 28.

⁷⁰ See, eg, U v W [1998] Fam 29 (Freedom to receive in vitro fertility services under EU law).

⁷¹ Most notably in Case C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others [1991] ECR I-4685 (right to distribute leaflets about abortion services in other countries in Ireland, where abortion was (and is) generally prohibited).

⁷² See Case 66/82 Fromançais v Forma [1983] ECR 395, para 6 (‘it is necessary to establish, in the first place, whether the means it employs to achieve its aim correspond to the importance of the aim and, in the second place, whether they are necessary for its achievement’); Case 15/83 Denkavit Nederland BV v Hoofdproduktschap voor Akkerbouwprodukten [1984] ECR 2171, para 25 (‘by virtue of that principle, according to well-established case-law of the court, measures … must not exceed what is appropriate and necessary to attain the objective pursued’); and Case 56/86 SA Société pour l’exportation des sucres v Office belge de l’économie et de l’agriculture (OBEA) [1987] ECR 1423, para 28 (‘in order to determine whether a provision of community law is in conformity with the principle of proportionality it is necessary to verify whether the means which it employs are appropriate to achieve the objective pursued and whether or not they go beyond what is necessary to achieve it’).

⁷³ Ibid.

⁷⁴ Case C-265/95 Commission v France [1997] ECR I-6959.

⁷⁵ Case C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich [2003] ECR I-5659.

⁷⁶ See, eg, Búrca, G de, ‘The Principle of Proportionality and its Application in EC Law’ (1993) 13 Yearbook of European Law 105 CrossRefGoogle Scholar.

⁷⁷ Viking, above n 1, para 87.

⁷⁸ See generally Reich, N, ‘Horizontal liability in EC Law—“Hybridization” of remedies for compensation in case of breaches of EC rights’ (2007) 44(3) Common Market Law Review 705 Google Scholar.

⁷⁹ Case 158/80 Rewe Handelsgesellschaft Nord v Hza Kiel [1981] ECR 1805, para 44.

⁸⁰ See Case 36/76 REWE Zentralfinanz [1976] ECR 1989, para 5.

⁸¹ Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte Factortame Ltd and others [1996] ECR I-1029.

⁸² Case 43/75 Defrenne v Sabena [1976] ECR 455.

⁸³ See Case C-453/99 Courage Ltd v Bernard Crehan and Bernard Crehan v Courage Ltd and Others [2001] ECR I-6297. The ECJ held that for the purposes of Art 81(1) EC (the competition provision on anticompetitive agreements) an individual could claim damages for loss caused to him by an agreement liable to restrict or distort competition. The same must be true of Art 82 EC.

⁸⁴ See Defrenne, above n 82, para 31; Courage Ltd, above n 83, paras 26–7.

⁸⁵ Ibid.

⁸⁶ Joined Cases C-46/93 and C-48/93, Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte Factortame Ltd and others [1996] ECR I-1029, paras 50–51.

⁸⁷ Brasserie du Pêcheur SA and ex parte Factortame Ltd, above n 82, paras 37 ff. See also Factortame (No 5) [2000] 1 AC 524 (HL) (Lord Clyde).

⁸⁸ Case 5/94 R v Ministry of Agriculture, Farms and Fisheries, ex parte Hedley Lomas [1996] ECR I-2553.

⁸⁹ See, eg, Garden Cottage Foods v MMB [1982] 3 WLR 514(HL).

⁹⁰ Vodafone 2 v Commissioners of HM Revenue and Customs [2008] EWHC 1569, para 70. The decision was overturned on appeal in Vodafone 2 v Commissioners of HM Revenue and Customs [2009] EWCA Civ 446. However, the Court of Appeal objected more to the application of the above-mentioned principles rather than their existence. Indeed, both the appellant and respondent agreed on the applicable principles (see paras 37–8).