Law Report: Case Summaries

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The following notes of judgments were prepared by the reporters of the All England Law Reports.

Company

Barrett v Duckett; CA (Russell, Beldam, Peter Gibson LJJ); 27 July 1994.

When a challenge was made to the right, claimed by a shareholder, to bring a derivative action on behalf of a company, it was the court's duty to decide, as a preliminary issue, whether the plaintiff should be allowed to sue in that capacity. In so deciding, it was not enough for the court to say there was no plain and obvious case for striking out; it was for the shareholder to establish to the court's satisfaction that he should be allowed to sue on behalf of the company.

The shareholder must be bringing the derivative action bona fide for the benefit of the company and in respect of wrongs done to the company for which no other remedy was available.

If the action was being brought for an ulterior purpose, or if another adequate remedy was available, the court would not allow the derivative action to proceed.

Philip Cayford (Harris Rosenblatt & Kramer) for the first defendant; Anthony Mann QC (Ines de Vecchi) for the second and fourth defendants; David Guy (Nathan Silman) for the plaintiff.

Disqualification

Re Manlon Trading Ltd; ChD (Evans-Lombe J); 22 July 1994.

The court's approach to applications to strike out cases brought under the Company Directors Disqualification Act 1986 could not be the same as its approach to striking out ordinary private litigation.

Disqualification cases were sui generis and the rules established in the authorites on ordinary private litigation could only be applied to disqualification cases with considerable modifications.

Edward Bannister QC (Simons Platman & Rechnic) for the respondent; AWH Charles, Guy Newey (Treasury Solicitor) for the Official Receiver.

Discrimination

Barclays Bank plc v Kapur & ors; CA (Balcombe, Rose LJJ, Sir Ralph Gibson); 8 July 1994.

East African Asian employees of the bank, who had taken up employment in the UK on terms that their service in East Africa would not count towards their pension entitlement with the bank, had not been subjected to racial discrimination. The reason for the bank's refusal to credit their East African service for pension purposes was that they had already been compensated for that loss of pension rights.

The industrial tribunal misunderstood the effect of decisions cited by them to the effect that the motive of the discriminator was immaterial, and wrongly concluded that the bank's action was an act of which the effect was racial discrimination.

Michael Beloff QC, Jane McNeill (Lawford & Co, Richmond, Surrey) for the appellants; Nicholas Underhill QC, Patricia Robertson (Lovell White Durrant) for the bank.

Divorce

T v T; FD (Wilson J); 22 July 1994.

Where a wife, applying for financial provision following a divorce, reasonably believed at the outset of litigation that the husband would understate the extent of his financial resources, the fact that she secretly photocopied financial documents kept by him in the home, and scoured the dustbin for other documents, was not conduct which it would be inequitable to disregard.

But her conduct in using force to obtain documents by breaking into the husband's office, intercepting his mail and retaining original documents were all matters which, though they would not be brought into the reckoning of the substantive award, were of relevance in respect of costs.

Martin Pointer (Sears Tooth) for the wife; Nicholas Mostyn (Charles Russell) for the husband.

Vexatious litigant

Re Ewing's applications; CA (Sir Thomas Bingham MR, Stuart-Smith, Leggatt LJJ); 27 July 1994.

Section 42(1) and (1A) of the Supreme Court Act 1981 (as amended) empowered the High Court to make a 'civil proceedings order' against a persistent and vexatious litigant, requiring him to seek the leave of the High Court before instituting or continuing any civil proceedings or making any application in any existing proceedings. If such a person applied to the High Court under s42(3) for leave to institute civil proceedings, including proceedings for judicial review, and leave was refused, the Court of Appeal had no jurisdiction to entertain a renewed application for leave, since s42(4) of the Act provided that 'no appeal shall lie from a decision of the High Court refusing leave required by virtue of this section'.

If in every such case the litigant could simply escape s 42(4) by making a renewed application to the Court of Appeal, that section would be emasculated and the obvious intention of Parliament frustrated. The plain intention of the Act was that jurisdiction to grant or refuse leave was to be entrusted to the High Court and its decision was to be final.

The applicant in person; Ian Burnett (Treasury Solicitor) for the Attorney General.

Education

R v Secretary of State for Education, ex p S; CA (Russell, Beldam, Peter Gibson LJJ); 15 July 1994.

Where, on an appeal to him under s8 of the Education Act 1981, the Secretary of State sought specialist advice from an educational psychologist and inspector of schools seconded to the Department, his failure to disclose the substance of that advice to the parties was not unfair and did not vitiate his decision on the appeal.

Stephen Richards, David Hart (Treasury Solicitor) for the Secretary of State; John Friel (AE Smith & Son, Stroud) for S.

Landlord and tenant

Johnson v Felton; CA (Balcombe, Simon Brown LJJ); 20 July 1994.

A statutory tenancy was not a 'lease' for the purposes of s317 of the Housing Act 1985, since it was not a 'tenancy' within the meaning of s621 of that Act. Accordingly, a county court did not have jurisdiction under s317 to vary the terms of the statutory tenancy.

Patrick Darby (Warren Upton & Garside, Market Drayton) for the applicant; Ivan Woolfenden (Onions & Davies, Market Drayton) for the respondent.

Restraint of trade

Newport Association Football Club Ltd & ors v Football Association of Wales Ltd; ChD (Jacob J); 26 July 1994.

The court had power to grant an interlocutory injunction where the only cause of action was a claim by a trader for a declaration that an arrangement or contract was in unreasonable restraint of trade and was damaging his trade.

Nicholas Stewart QC (Leigh Day & Co) for the plaintiffs; James Goudie QC, Alexander Drysdale Wilson (Loosemores) for the defendant.

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