Case Summaries: 19 July 1999

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

Magistrates' court

R v Medway Youth Court, ex p A; QBD, Div Ct (Auld LJ, Hughes J) 10 June 1999.

WHERE JUSTICES were sitting as a youth court they could make a secure training order for 12 months under s 1 of the Criminal Justice and Public Order Act 1994, since the well-established provisions in ss 31 and 133 of the Magistrates' Courts Act 1980, which limited them to imposing a sentence of six months' detention for a single offence, were explicitly couched in terms of imprisonment and did not apply to secure training orders.

Richard Barton (Stephens & Son, Chatham) for the applicant; Andrew Brierley (CPS) for the respondents.

Crime

R v Emmett; CA, Crim Div (Rose LJ, Wright, Kay JJ) 18 June 1999.

ALTHOUGH R v Brown [1993] 2 All ER 75 was not authority in all circumstances for the proposition that consent did not form a basis for a defence in cases of sado-masochistic prac-tices, nevertheless when the realistic risk was of more than transient injury the issue of consent became immaterial.

Timothy Spencer (Registrar of Criminal Appeals) for the appellant; John Farmer (CPS) for the Crown.

Injunction

Hammersmith and Fulham London Borough Council v Creska Ltd; Ch D (Jacob J) 18 June 1999.

THE COURT'S jurisdiction to refuse to grant an injunction where there had been a violation of a right and instead to grant damages was good in principle for both negative and positive obligations. That was not to say, however, that the court would lightly disregard obligations entered into freely under a contract.

John Cherryman QC, John L Davies (W.J. Churchill-Coleman) for the landlord; Kim Lewison QC (Solr to Hammersmith and Fulham Council) for the council.

Solicitor

Re a Solicitor; Ch D (Jonathan Parker J) 18 June 1999.

THE PRIMARY purpose of the Law Society's jurisdiction to intervene in a solicitor's practice under s 35 of and Pt I of Sch I to the Solicitors Act 1974 was the protection of the public against the activities of a dishonest or incompetent solicitor. It was not therefore necessary to show ongoing dishonesty at the date when a notice of intervention was served.

Timothy Dutton QC (Wright Son & Pepper) for the Law Society; Ian McCulloch, Nigel Brockley (Straw & Pearce, Loughborough) for the solicitor.

Privilege

Breeze v John Stacey & Sons Ltd; CA (Peter Gibson, Judge, Clarke LJJ) 21 June 1999.

WHERE A party to litigation saw another party's documents without privilege being claimed for them, he was fully entitled, in the absence of fraud or obvious mistake, to assume that privilege had been waived.

Richard Davies QC (Vizards) for the appellant; Nigel Baker QC, Desmond Bloom-Davis (Antony Gorley & Co, Newbury) for the respondent.

Negligence

FNCB Ltd v Barnet Devanney & Co Ltd; CA (Morritt, Sedley LJJ, Lindsay J) 1 July 1999.

WHERE BROKERS had arranged insurance in the joint names of the owner of a property and the mortgagee, and the law was unclear as to the rights of the innocent mortgagee when the insurers repudiated the policy because of the owner's actions, the reasonable broker should and would have sought the inclusion of a mortgagee protection clause.

Peter Gross QC, Geraldine Clark (Stewarts) for the bank; Roger Ter Haar, Andrew Phillips (Hextall Erskine & Co) for the brokers.

European Community

Optident Ltd and anor v Secretary of State for Trade and Industry and another; CA (Morritt, Sedley LJJ, Lindsay J) 1 July 1999.

NOTWITHSTANDING THAT that a product supplied to dentists for bleaching teeth had been assigned a "CE mark" in Germany as a "medical device" under the terms of Council Directive (EEC) 93/42 on medical devices, the product was in fact a "cosmetic product" within the meaning of Council Directive (EEC) 76/769 and accordingly, since it contained a significantly higher concentration of peroxide than was permitted under that Directive, it could not lawfully be marketed in the United Kingdom.

Stephen Auld QC (Pinsent Cutis, Birmingham) for the plaintiffs; Christopher Vajda QC, George Peretz (Treasury Solicitor) for the defendants.