Law report: Case Summaries

14 December 1998
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The Independent Culture
THE FOLLOWING notes of judgments were prepared by the reporters of the All England Law Reports.

Maintenance

Joseph v Joseph; Fam Div (Johnson J) 26 Nov 1998.

AN APPLICATION under s 35 of the Matrimonial Causes Act 1973 to vary a deed of maintenance did not abate on the death of the applicant. It would be unjust if the applicant's estate were prevented from seeking a proper adjustment of such a deed by reason of his death.

Lady Joseph appeared in person; Florence Baron QC, Stewart Leech (Gordon Dadds) for the applicant.

Education

Ealing Borough Council v White; CA (Butler-Sloss, Ward, Robert Walker LJJ) 2 Dec 1998.

IN ORDER to stop the relitigation of issues already decided by a Special Educational Needs Tribunal it was not necessary to invoke issue estoppel, since Parliament had provided the tribunal with a statutory power to strike out proceedings under reg 36 of the Special Educational Tribunal Regulations 1995.

John Friel, Deborah Hay (Council Solr) for the appellant; Presiley Baxendale QC, Nicholas Bowen (Teacher Stern Selby) for the respondent.

Housing

Kingston upon Thames Royal London Borough Council v Prince and anor; CA (Roch LJ, Hale J) 2 Dec 1998.

A MINOR could succeed to the actual tenancy held by a deceased secure tenant under the Housing Act 1985. Housing legislation might include an equitable tenancy without catering for it expressly. The modern tendency of the law was to recognise that children were not "non-persons" in the eyes of the law, and, unless the contrary was expressly stated, it could not be assumed that they were omitted from legislation.

Kim Lewison QC, Kelvin Rutledge (Council Solr) for the appellant; James Goudie QC, Zia Nabi (Keppe Shaw) for the respondents.

Practice

Venables v MGN Ltd and anor; CA (Beldam, Otton, Mantell LJJ) 2 Dec 1998.

THE QUALIFICATION or gloss which could be placed on s 92(1) of the Agricultural Holdings Act 1948, i.e. that a notice to quit served under that section had to be left in a manner in which a reasonable person, minded to bring the document to the attention of the person to whom the notice was addressed, would adopt, applied equally to service on a company under s 725 of the Companies Act 1985.

Richard Parkes (John Bowden Trainer & Co) for the plaintiff; Michael Crane QC, Michael Sullivan (Davenport Lyons) for the defendants.

VAT

Elias Gale Racing v Commrs of Customs and Excise; QBD (Crown Office List) (Carnwath J) 2 Dec 1998.

A VAT tribunal had power to make a direction under s 84(5) of the Value Added Tax Act 1984 to increase an assessment to VAT, the only criterion for the exercise of the power being that the tribunal had found that the amount in the assessment was less than it ought to have been. That was sufficient to include any error, whether of law or fact, and was not limited to mathematical errors. The power was, however, likely to be rarely used, and only with adequate notice.

Marion Lonsdale (Salusburys Robinson and Turner, Leicester) for the appellant; Hugo Keith (Solr for C&E) for the Commissioners.

Costs

Hobin v Douglas; CA (Roch, Swinton Thomas and Schiemann LJJ) 3 Dec 1998.

WHERE THERE was an issue as to causation in a personal injury action, a defendant was not required to make a payment into court in order to protect himself in costs, but might make an offer under RSC Ord 22 r 14(1). The court then had to take the offer into account under Ord62 r 9(1). An offer made under Ord 22 r 14(1) should be one which disposed of the proceedings or an issue in the proceedings.

Raymond Machell QC, Mark Turner QC (Lace Mawer) for the appellant; Kenneth Hamer, Toby Riley- Smith (Collins) for the respondent.

Insurance

Re Friends Provident Linked Life Assurance Ltd; Ch Div (Neuberger J) 4 Dec 1998.

THE REFERENCE to "long-term business" in para 1(1) of Sch 2C to the Insurance Companies Act 1982 applied equally to reinsurance business as it did to insurance business where all or part of the risk undertaken by an insurer under a contract which constituted "long-term business" was laid off under the reinsurance contract. An arrangement which was in reality a surrender or cancellation of an insurance policy should not, however, be treated as if it were a transfer of business.

Robin Hollington (Friends Provident Life Office) for the petitioner.

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