Law report: Case Summaries

24 May 1999

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

Insolvency

Raja v Rubin and anor; CA (Hirst, Peter Gibson, Clarke LJJ) 19 Mar 1999.

ALTHOUGH THE Insolvency Act 1986 contained no provision for the variation of an individual voluntary agreement (IVA) between a debtor and his creditors once it had been approved, and there was no machinery or scope under the Act for a further creditors' meeting to vary the IVA, creditors interested in the IVA could none the less agree with the debtor a variation which amounted to an informal arrangement.

Victor Joffe, Timothy Collingwood (Bowling & Co) for the appellant; Edward Bailey (Edwin Coe) for the first respondent; David Halpern (Ralph Davis) for the second respondent.

Discovery

Bourns Inc v Raychem Corp and ors; CA (Sir Stephen Brown P, Swinton Thomas, Aldous LJJ) 30 Mar 1999.

WHERE DOCUMENTS which were relevant to an issue and which should therefore be disclosed in the interests of justice were disclosed for the purposes of taxation, an implied undertaking arose so that they could only be used for the purposes of those proceeedings. Where privilege was waived with respect to the documents because they were not disclosed as a result of a court order, that privilege was not waived generally, but only for the purpose of the taxation proceedings.

Michael Silverleaf QC (Linklaters & Paines) for the respondent; Michael Bloch QC (Clifford Chance) for the appellant.

Trustee

Wight and anor v Olswang and anor; CA (Peter Gibson, Potter LJJ, Blofeld J) 29 Apr 1999.

IF A professional trustee wished to exclude liability for breaches of trust or negligence the settlement should contain clear and unambiguous words to that effect, since the court would be astute not to construe an exemption clause beyond its natural meaning. A clause which was limited on its face to exempting a trustee from liability for loss or damage accruing only from the trustee concurring or failing to concur in the exercise of an absolute and uncontrolled discretion or power was not sufficient to exempt paid trustees from breaches of trust and duty.

Charles Turnbull (Hecht & Co) for the plaintiffs; Alan Steinfeld QC, Teresa Peacocke (Barlow Lyde & Gilbert) for the first defendant; the second defendant played no part in the appeal.

Contract

Jose Aldao SA v United Distil-lers and anor; CA (Morritt, May LJJ) 23 Apr 1999.

WHERE AN agreement whereby the plaintiff was appointed sole distributor of the defendant's goods in a particular country contained a clause which provided that the defendant would sell the goods exclusively to the plaintiff "for the purpose of resale for consumption" in that country, the words "resale for consumption" should be read as meaning "retail sale". The agreement accordingly included the right of the plaintiff to sell the goods to operators of duty-free shops, and the defendant was not entitled to sell the goods directly to such shops.

Sue Prevezer (Finers) for the plaintiff; Richard Field QC (Herbert Smith) for the defendant.

Housing

R v Hammersmith and Fulham London Borough Council, ex p Quigley; QBD, Crown Office List (Ognall J) 20 Apr 1999.

WHERE A secure tenant of a local authority property had fled the country leaving his children in the property, the local authority should have considered, in making the decision whether to issue a notice to quit on the tenant's partner who had moved into the property to care for the children, the fact that she could have applied for a transfer of the tenancy under s 15 of the Children Act 1989.

Stephen Knafler (Clare & Co) for the applicant; Clare Roberts (London Borough of Hammersmith and Fulham) for the authority.

Arbitration

Laker Airways Inc v FLS Aerospace Ltd and anor; FLS Aerospace Ltd v Laker Airways Inc; QBD Comm Ct (Rix J) 20 Apr 1999.

THE COURT would not remove a barrister who had been appointed as an arbitrator by one party to the arbitration on the ground that that party had instructed another barrister from the same chambers. A conflict of interest only arose as an impediment when the same person (or what was regarded in law as the same person) undertook conflicting duties to different clients or put himself in a position where his duty to his client conflicted with his own self-interest.

Michael Sullivan (Watson Farley & Williams) for the first respondent; George Leggatt QC for the General Council of the Bar of England and Wales.

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