Case Summaries

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

Bankruptcy

R v Lord Chancellor, ex p Lightfoot; CA (Simon Brown, Chadwick LJJ, Rattee J) 23 July 1999.

THE REQUIREMENT under arts 8(1) and 9(b) of the Insolvency Fees Order 1986 that a person wishing to present a debtor's petition for bankruptcy under s 272 of the Insolvency Act 1986 should pay into court a deposit of pounds 250, as security for the fees to be received by the Official Receiver for the performance of his duties on the making of a bankruptcy order, did not have the effect of barring an impecunious debtor from her constitutional right of access to the courts. The mandatory deposit was made not for access to the court, but as a contribution towards the cost of services provided by others for the petitioner's benefit.

Robin Allen QC, Antony White (Karen Ashton) for the applicant; Philip Sales (Treasury Solicitor) for the respondent.

Drug trafficking

Re Piper; CA (Simon Brown, Chadwick LJJ, Rattee J) 23 July 1999.

SECTION 31 (2) of the Drug Trafficking Act 1994 did not require the court in all cases to appoint a receiver with full powers of sale who would immediately realise all a defendant's assets. The court and the receiver were, rather, directed to seek to preserve the present value of the those assets. A balance had to be struck between preserving the worth of the defendant's realisable property against the possibility that he might be convicted and a confiscation order be made against him, and allowing him to continue the ordinary course of his life.

A. Newman, J. Postill (Alistair Meldrum & Co) for the appellant; K. Talbot and I. Pearce (Tarlo Lyons) for the respondent.

Wasted costs

Re a firm of solicitors (wasted costs order no 2 of 1999); CA, Crim Div (Otton LJ, Dyson J, Judge Fawcus QC) 23 July 1999.

A WASTED costs order which did not specify the amount of costs to be paid was invalid, and could not be varied or amended, although it would be open to the court to exercise its powers afresh in accordance with s 19A of the Prosecution of Offences Act 1985. Where, however, that had been done without notice to and in the absence of the solicitors against whom the order was sought, there had been a clear and unequivocal irregularity.

Wilbert Harris (Harry Jagdev & Co) for the solicitors.

Contract

Nella v Nella and anor; Ch D (Lawrence Collins QC sitting as a deputy High Court judge) 23 July 1999.

A CLAIMANT who had engaged in activity preparatory to the setting up of a business but had no customers, no debtors, and had carried out no transactions was not "carrying on" a business in breach of a non-competition clause in a partnership agreement: an essential element of "carrying on" of business was some continuous activity of the trade itself.

David Phillips QC (Alexander Johnson) for the claimant; Jeremy Carey (Roberts McCracken) for the defendants.

Town and country planning

Adur District Council v Secretary of State for the Environment, Transport and the Regions and anor; CA (Peter Gibson, Pill, Chadwick LJJ) 23 July 1999.

WHERE A planning authority had granted temporary planning permission for a change of use subject to a condition that such use would cease by a certain day, the condition died with the termination of the period specified in the permission. An enforcement notice issued by the authority alleging use of the land contrary to the conditions in the permission after the date of expiry of the permission was, therefore, invalid.

John Steel QC, Hugh Richards (Adur District Council Solicitor) for the council; David Elvin (Treasury Solicitor) for the Secretary of State; Anthony Porten QC (Griffiths Smith, Brighton) for Shoreham Port Authority.

Capital gains tax

Palmer v Moloney and anor; CA (Nourse, Aldous, Clarke LJJ) 26 July 1999.

WHEN DETERMINING whether a person's work was sufficient to be termed full-time for the purposes of Sch 6 to the Taxation of Chargeable Gains Act 1992, the facts relating to the person being considered had to be compared with hours worked by other comparable workers required by the company to work full-time. The words "his time" in Sch 6 had to refer to working time.

Michael Sherry (Irwin Mitchell) for the appellant; John Walters QC (Williams Davies Meltzer) for the respondents.