Editorial Committee of the Cambridge Law Journal

Recognition of the Talaq: A PostscriptAuthor(s): David PearlSource: The Cambridge Law Journal, Vol. 43, No. 2 (Nov., 1984), pp. 248-250Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4506647 .

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248 The Cambridge Law Journal [1984]

the plaintiffs' product as an attempt to cash in upon consumer

familiarity with the plaintiffs' product as a means of enhancing the

defendants' sales of their own produce. Jeremy Phillips.

248 The Cambridge Law Journal [1984]

the plaintiffs' product as an attempt to cash in upon consumer

familiarity with the plaintiffs' product as a means of enhancing the

defendants' sales of their own produce. Jeremy Phillips.

recognition of the talaq: a POSTSCRIPT

In the previous issue of this Journal ([1984] C.L.J. 49-54) the writer

commented on a number of recent cases concerning the recognition of the talaq; the Muslim Law procedure available to the man to

divorce his wife. Particular attention was drawn to the three

immigration cases decided together by Taylor J. ([1984] 2 W.L.R.

36). It will be recalled that these cases concerned the particular

problem of "transnational divorces," namely those situations where a

talaq is pronounced in the U.K. and certain formal procedures are

then taken in Pakistan. Two of these cases, those of Ghulam Fatima, and of Shafeena Bi, were appealed against and were heard together

by the Court of Appeal: R. v. Secretary of State for the Home

Department, ex parte Fatima, R. v. Secretary of State for the Home

Department, ex parte Bi [1984] 3 W.L.R. 659. The Court of Appeal

upheld Taylor J.'s judgment. Two questions were before the court.

First, did the relevant "proceedings" by means of which the divorces

were obtained take place wholly in Pakistan so as to be overseas

divorces within section 2(a) of the Recognition of Divorces and Legal

Separations Act 1971? Secondly, if the "proceedings" took place

partly in England and partly in Pakistan, were the divorces

nonetheless capable of satisfying the conditions of section 2(a) of the

Act? As to the first question, the court had no doubts. "We find it

difficult to see how one can properly isolate the first essential stage in

the chain of events that has to take place before a talaq divorce is

effective under Pakistani law (Le. the pronouncement of the talaq) from the other steps and say that it does not itself form part of the

relevant 'proceedings' "

(per Slade L.J. at p. 665). Turning to the

second question, namely the "transnational divorce," the court said that the judge was right in deciding that the requirement in section

2(a) that the overseas divorce must have been obtained by means of

proceedings in a country outside the British Isles means that the

entirety of the relevant proceedings must have taken place in the

overseas country. One hopes that this decision will now bring to an

end confusion over at least one aspect of the general problem of talaq in this country.

As to whether the so-called bare talaq (the classical form of talaq whereby the words are pronounced three times) fails within the

description of "proceedings," the Court of Appeal expressed no

opinion. However, a differently constituted Court of Appeal in

recognition of the talaq: a POSTSCRIPT

In the previous issue of this Journal ([1984] C.L.J. 49-54) the writer

commented on a number of recent cases concerning the recognition of the talaq; the Muslim Law procedure available to the man to

divorce his wife. Particular attention was drawn to the three

immigration cases decided together by Taylor J. ([1984] 2 W.L.R.

36). It will be recalled that these cases concerned the particular

problem of "transnational divorces," namely those situations where a

talaq is pronounced in the U.K. and certain formal procedures are

then taken in Pakistan. Two of these cases, those of Ghulam Fatima, and of Shafeena Bi, were appealed against and were heard together

by the Court of Appeal: R. v. Secretary of State for the Home

Department, ex parte Fatima, R. v. Secretary of State for the Home

Department, ex parte Bi [1984] 3 W.L.R. 659. The Court of Appeal

upheld Taylor J.'s judgment. Two questions were before the court.

First, did the relevant "proceedings" by means of which the divorces

were obtained take place wholly in Pakistan so as to be overseas

divorces within section 2(a) of the Recognition of Divorces and Legal

Separations Act 1971? Secondly, if the "proceedings" took place

partly in England and partly in Pakistan, were the divorces

nonetheless capable of satisfying the conditions of section 2(a) of the

Act? As to the first question, the court had no doubts. "We find it

difficult to see how one can properly isolate the first essential stage in

the chain of events that has to take place before a talaq divorce is

effective under Pakistani law (Le. the pronouncement of the talaq) from the other steps and say that it does not itself form part of the

relevant 'proceedings' "

(per Slade L.J. at p. 665). Turning to the

second question, namely the "transnational divorce," the court said that the judge was right in deciding that the requirement in section

2(a) that the overseas divorce must have been obtained by means of

proceedings in a country outside the British Isles means that the

entirety of the relevant proceedings must have taken place in the

overseas country. One hopes that this decision will now bring to an

end confusion over at least one aspect of the general problem of talaq in this country.

As to whether the so-called bare talaq (the classical form of talaq whereby the words are pronounced three times) fails within the

description of "proceedings," the Court of Appeal expressed no

opinion. However, a differently constituted Court of Appeal in

This content downloaded from 194.29.185.230 on Sat, 14 Jun 2014 10:24:10 AMAll use subject to JSTOR Terms and Conditions

This content downloaded from 194.29.185.230 on Sat, 14 Jun 2014 10:24:10 AMAll use subject to JSTOR Terms and Conditions

250 The Cambridge Law Journal [1984]

court to reallocate the property as in Brett v. Brett. There is

substantial evidence that many Muslim wives in this country are

vulnerable, and it is hoped that an early opportunity will be taken to

bring the matter to the attention of Parliament. Another job for the

Law Commission?

David Pearl.

250 The Cambridge Law Journal [1984]

court to reallocate the property as in Brett v. Brett. There is

substantial evidence that many Muslim wives in this country are

vulnerable, and it is hoped that an early opportunity will be taken to

bring the matter to the attention of Parliament. Another job for the

Law Commission?

David Pearl.

SECONDARY ACTION AND ECONOMIC TORTS

The decisions of the House of Lords and Court of Appeal in

Dimbleby & Sons Ltd. v, National Union of Journalists [1984] 1

W.L.R. 427 (H.L.) and 67 (C.A.) raise many troublesome and

debatable points. Three of these are discussed here, namely: (i) the cause of action in tort; (ii) the scope of section 29(l)(a) of the Trade Union and Labour Relations Act 1974; and (iii) "lifting the corporate veil" under section 17 of the Employment Act 1980.

The National Union of Journalists was in dispute with T.B.F. Ltd. T.B.F.'s newspapers were printed by its associated company, T.B.F.P. Ltd., using non-union labour. The plaintiffs, Dimbleby and Sons Ltd., had contracts with certain advertisers and an oral contract

with T.B.F.P. To prosecute its dispute with T.B.F., the N.UJ. instructed its members at Dimbleby not to supply copy for use by the

advertisers and T.B.F.P. The N.U.J. thereby committed at least four torts: (i) directly procuring breach by Dimbleby's employees of their

contracts of employment; indirectly (Le. by the unlawful means of

(i)) procuring breaches of or interference with (ii) the commercial contracts with the advertisers and (iii) the Dimbleby/T.B.F.P. contract; and finally (iv) interference with Dimbleby's trade or business by the unlawful means of (i). The plaintiffs' writ it seems

complained only of (i)-(iii). In the House of Lords an interesting point concerning (iii)

emerged. Perhaps the oral contract between Dimbleby and T.B.F.P. was merely a unilateral one, entitling Dimbleby (the offeree) to claim from T.B.F.P. (the offeror) the agreed remuneration for work

performed (either completely or pro tanto). Lord Diplock left this

possibility unexplored, and the issue remains whether such a contract could form the basis of the third cause of action. Three points can be made concerning this. First, an extended concept of "interference" could embrace conduct which impedes or even prevents performance by the offeree, even where the primary obligations of the offeror under a unilateral contract have yet to arise. Secondly, once the offeree has partly performed, a contract exists in the sense that the offeror cannot thereafter revoke the offer: Errington v. Errington [1952] 1 K.B. 290 and Daulia Ltd. v. Four Millbank Nominees Ltd.

[1978] Ch. 231. Thirdly, once an offeree has begun to perform (but

SECONDARY ACTION AND ECONOMIC TORTS

The decisions of the House of Lords and Court of Appeal in

Dimbleby & Sons Ltd. v, National Union of Journalists [1984] 1

W.L.R. 427 (H.L.) and 67 (C.A.) raise many troublesome and

debatable points. Three of these are discussed here, namely: (i) the cause of action in tort; (ii) the scope of section 29(l)(a) of the Trade Union and Labour Relations Act 1974; and (iii) "lifting the corporate veil" under section 17 of the Employment Act 1980.

The National Union of Journalists was in dispute with T.B.F. Ltd. T.B.F.'s newspapers were printed by its associated company, T.B.F.P. Ltd., using non-union labour. The plaintiffs, Dimbleby and Sons Ltd., had contracts with certain advertisers and an oral contract

with T.B.F.P. To prosecute its dispute with T.B.F., the N.UJ. instructed its members at Dimbleby not to supply copy for use by the

advertisers and T.B.F.P. The N.U.J. thereby committed at least four torts: (i) directly procuring breach by Dimbleby's employees of their

contracts of employment; indirectly (Le. by the unlawful means of

(i)) procuring breaches of or interference with (ii) the commercial contracts with the advertisers and (iii) the Dimbleby/T.B.F.P. contract; and finally (iv) interference with Dimbleby's trade or business by the unlawful means of (i). The plaintiffs' writ it seems

complained only of (i)-(iii). In the House of Lords an interesting point concerning (iii)

emerged. Perhaps the oral contract between Dimbleby and T.B.F.P. was merely a unilateral one, entitling Dimbleby (the offeree) to claim from T.B.F.P. (the offeror) the agreed remuneration for work

performed (either completely or pro tanto). Lord Diplock left this

possibility unexplored, and the issue remains whether such a contract could form the basis of the third cause of action. Three points can be made concerning this. First, an extended concept of "interference" could embrace conduct which impedes or even prevents performance by the offeree, even where the primary obligations of the offeror under a unilateral contract have yet to arise. Secondly, once the offeree has partly performed, a contract exists in the sense that the offeror cannot thereafter revoke the offer: Errington v. Errington [1952] 1 K.B. 290 and Daulia Ltd. v. Four Millbank Nominees Ltd.

[1978] Ch. 231. Thirdly, once an offeree has begun to perform (but

This content downloaded from 194.29.185.230 on Sat, 14 Jun 2014 10:24:10 AMAll use subject to JSTOR Terms and Conditions