CASE SUMMARIES: 15 June 1998

THE FOLLOWING notes of judgments were prepared by the reporters of the All England Law Reports.

Disciplinary proceedings

Balamoody v United Kingdom Central Council for Nursing Midwifery and Health Visiting; QBD (Div Ct) (Pill LJ, Maurice Kay J) 10 June 1998.

THE NURSES, Midwifes and Health Visitors (Professional Conduct) Rules 1993 were couched in such a form as to embrace all criminal convictions, whether committed in the course of nursing or otherwise, and whether of the utmost gravity or triviality. Therefore, although criminal convictions did not did not amount to misconduct per se, where there were criminal convictions that would almost inevitably amount to misconduct. Accordingly, where a professional person had infringed important statutory requirements in the course of duties of a senior and supervisory kind so as to attract a criminal sanction, a professional body and the court was bound to view those infringements with grave concern.

Mr Balamoody appeared in person; Robert Lawson (Ward Hadaway) for the UKCC.

Magistrates' courts

Baxter v Chief Constable of the West Midlands Police; QBD (Div Ct) (Schiemann LJ, Brian Smedley J) 6 May 1998.

THERE WAS no section in any act which expressly provided that an applicant for bail needed to be personally present in court at the hearing of the application. Indeed, s 122 of the Magistrates' Courts Act 1980, which provided that an absent party who was legally represented should be deemed not to be absent, pointed to the fact that it was possible for a magistrates' court to proceed by advocate and not in person in certain circumstances, although the normal practice was that an accused would appear in person.

Amjad Nawaz (Challinors Lyon Clark, West Bromwich) for the appellant; David Travers (CPS) for the Chief Constable.

VAT

Allied Carpets Group Ltd v Commrs of Customs & Excise; QBD (Keene J) 7 May 1998.

THE COST of holiday vouchers given to customers under a promotion scheme organisted by a third party was not available to reduce the taxpayer's liability for value added tax. While the vouchers fell within the definition of "trading stamps", and would have been excluded from VAT by the Value Added Tax (Treatment of Transactions) Order 1973, the additional requirement that they should have been delivered to the customer by the retailer was not satisfied because the vouchers were delivered to the customers by a third party.

David Milne QC, Elizabeth Wilson (Garretts, Reading) for the taxpayer; Phillipa Whipple (Solicitor, C & E) for the Crown.

Res judicata

Wain v F Sherwood & Sons Transport Ltd; CA (Butler-Sloss, Thorpe, Chadwick LJJ) 4 June 1998.

A NON-ACTIONABLE adviser error, which had given rise to a failure to advance a plaintiff's complete claim in earlier proceedings, was not capable of constituting a special or exceptional circumstance so as to justify the refusal by a court to apply the principle in Henderson v Henderson (1843) 3 Hare 100, since the potential for injustice to a plaintiff who had no alternative remedy could not outweigh the public interest in preventing abuse of process, misuse of court time and potential unfairness or injustice involved in a defendant's facing another action based on the same incident, on which the principle in Henderson was based.

Julian Field (Peter Rickson & Ptners) for the appellant; Neville Spencer- Lewis (Woolley & Weston, Welwyn Garden City) for the respondent.

Double tax relief

Memec plc v Inland Revenue Commrs; CA (Peter Gibson, Henry LJJ, Sir Christopher Staughton) 9 June 1998.

A UK company and a German holding company were organised under German law as a "silent partnership". The UK company was the silent partner entitled to a share of the German company's profits. Double tax relief would have been allowed for German trade tax paid by subsidiaries of the German company if the UK company received a dividend, but it could not be said either that a dividend was paid directly to the UK company by the trading subsidiaries or by the holding company to the UK company as a silent partner.

Robert Venables QC, Julian Ghosh, Amanda Hardy (Finers) for the taxpayer; Launcelot Henderson QC (IR Solicitor) for the Crown.