Case Summaries: 1 February 1999

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The following notes of judgments were prepared by the reporters of the All England Law Reports.

Magistrates' court

R v Clerk to the Bradford Justices, ex p Sykes and anor; QBD, Div Ct (Buxton LJ, Collins J); 14 Jan 1999.

THERE WAS no duty on a magistrates' clerk or a magistrate to make inquiries to satisfy himself that the issue of a summons would not be vexatious before issuing that summons. The question whether the issue of a summons was an abuse of process should be raised at the hearing of that summons.

Sukhbir S Bassra (Bassra, Bradford) for the applicants; Timothy Spencer (CPS Yorkshire Area, Bradford) for the prosecution.

Company

Official Receiver v Keam and anor; Ch D (Jonathan Parker J) 14 Jan 1999.

ON THE true construction of s 16(1) of the Company Directors Disqualification Act 1986, there was no reason in principle why a person intending to apply for the making of a disqualification order could name only one company as the lead company.

Matthew Collings (Payne Hickes Beach) for the first respondent; Jonathan Crow (Burstows, Brighton) for the Official Receiver.

Stamp duty

M & G Securities v IRC; Schroder Unit Trusts Ltd v IRC; Ch D (Park J) 21 Jan 1999.

THE REFERENCE in s 54(4)(b) of the Finance Act 1946 to "a proportionate part of the trust property" being realised was a reference to the realisation by the unit holders of their units, that realisation taking the form of the unit holders exchanging their units, which were undivided shares in the entire fund of underlying investments and cash, for specific investments and cash sums.

Christopher McCall QC (Rowe & Maw) for M & G Securities; Kevin Prosser QC (Eversheds) for Schroder; Launcelot Henderson QC, Christopher Tidmarsh (IR Solr) for the Revenue.

Extension of time

Southwark London Borough Council v Nejad and ors; CA (Roch, Waller LJJ) 21 Jan 1999.

WHEN APPROACHING the question of extending time, the court should not adopt a mechanistic approach, but should balance all the relevant factors. The explanation or lack thereof given for the delay or a lack of frankness were factors which the court was entitled to take into account in exercising its discretion, as was prejudice to the opposing party, but were not necessarily any more determinative than any other factor.

Donald Broatch (C D A Jones & Co) for the appellants; William McCormick (Leon Kaye Collin & Gittens) for the respondent.

Insolvency

Re a Debtor (No 17 of 1998); Ch D (John Jarvis QC sitting as a deputy High Court judge) 26 Jan 1999.

IN DETERMINING whether there had been mutual dealings as required for an insolvency set-off under s 323(1) of the Insolvency Act 1986, the correct test was to decide whether the transaction was an ordinary business dealing. The words "became due" in s 323(3) referred to the time when the obligation was created, not to the time when the sums due under that obligation were paid.

Lucy Frazer (Burstows) for the trustee in bankruptcy; Martin Farber (Andersons) for the debtor.

Employment

Bolwell v Redcliffe Homes Ltd and anor; CA (Simon Brown LJ, Wilson J) 20 Jan 1999.

AN EMPLOYEE could not consent to a transfer of his employment without his knowledge. That would run counter to the principle that an individual's contractual position could not be altered by two other parties without that having been communicated to him, particularly with regard to an issue as important as the identity of his employer.

David Wurtzel (Simcox Associates, Bath) for the plaintiff; Michael Roach (Swain & Co, Cardiff) for the first defendant; Milwyn Jarman (Palser Grossman, Cardiff) for the second defendant).

Practice

Woodford & Ackroyd (a firm) v Burgess; CA (Stuart-Smith, Schie-mann, Clarke LJJ) 20 Jan 1999.

THE INHERENT jurisdiction of a High Court judge was wide enough to enable him to rule on the admissibility of evidence on a pre-trial review, although there might be cases where it would be inopportune to exercise the power prior to trial because the trial judge would be the best person to decide on admissibility. There was no distinction between a pre-trial review and a summons for directions.

David Matthias (Andrew Isaacs Practice, Bournemouth) for the appellant; Ann Ralphs (Blake Lapthorn, Fareham) for the respondent.

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