Law Report: Case Summaries

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

Employment Barclays Bank plc v O'Brien & ors; CA (Glidewell, Peter Gibson, Henry LJJ); 30 June 1994.

Where there was a contractual retirement age applicable to all or nearly all employees holding the same or a similar position, there was a presumption that the contractual retiring age, for the purposes of s 64(1)(b) of the Employment Protection (Consolidation) Act 1978, was the normal retiring age for the group. However, if the contractual retiring age was abandoned and employees retired at a variety of higher ages, there would be no normal retiring age and the statutory alternative of 65 would apply.

Jane McNeill (Lawford & Co, Richmond) for the appellant; Nicholas Underhill QC (Lovell White Durrant) for the respondent.

Health and safety Moualem v Carlisle City Council; QB Div Ct (McCowan LJ, Buxton J); 27 June 1994.

Section 4 of the Health and Safety at Work Act 1974 did enable a local authority to prosecute a person in control of non-domestic premises, in this case a playcentre, since lawful visitors and children attending the centre and using the equipment were within the ambit of s 4(1)(b) as persons using 'plant'. Moreover, the wording of the Act's preamble, which spoke of protecting others from risk to health and safety through the activities of persons at work, could not be read into the words of s 4 to impose limitations on that section.

Charles R Garside QC, Colin Green (Fruhman Davies & Co) for the appellant; Benet Hytner QC, Eric Goldrein (Carlisle CC) for the respondent.

Mental health R v Warlingham Park Hospital Managers, ex p B; CA (Sir Thomas Bingham MR, Staughton, Kennedy LJJ); 17 June 1994.

In s 20(3) of the Mental Health Act 1984, the words 'within the period of 2 months' applied to the examination of the patient by the responsible medical officer and the furnishing by him to the managers of the hospital where the patient was detained of a report that the conditions in s 20(4) of the Act were satisfied. They did not, however, apply to the managers' obligation to inform the patient.

Richard Gordon QC, Craig Barlow (Scott-Moncrieff & Harbour, Brighton) for the applicant; Robert Francis QC, Christopher Johnston (Capsticks) for the respondent.

Planning

JL Engineering & anr v Secretary of State for the Environment & anr; CA (Glidewell, Peter Gibson, Henry LJJ); 16 June 1994.

Where an industrial storage use of land ceased and subsequently there was a change to agricultural use, a later change back to industrial storage use was a material change of use within the meaning of s 55(1) of the Town & Country Planning Act 1990 and so required planning permission.

Gerald Moriarty QC, Robert Fookes (Albinson Napier & Co, Warrington) for the appellants; Stephen Richards (Treasury Solicitor) for the respondents.

Shares

National Westminster Bank plc v Inland Revenue Commrs; Barclays Bank plc v same; HL (Lord Templeman, Lord Jauncey of Tullichettle, Lord Slynn of Hadley, Lord Lloyd of Berwick and Lord Woolf); 23 June 1994.

The whole process consisting of application for shares, pursuant to a business application scheme (BES), the allotment of shares to the applicant, and their registration in the company's register, constituted the 'issue' of the shares, and the issue was not complete until such registration. The Finance Act 1993 withdrew BES relief in cases where an investor took a loan for the purposes of an investment in BES shares issue on or after 16 March 1994. Accordingly, where shares were allotted before that date, but registered in the company's register after it, the relief would be lost if loans offered by a bank sponsoring the scheme were taken up.

Sidney Kentridge QC, Robin Potts QC, Kevin Prosser (Lovell White Durrant) for the banks; Anthony Grabiner QC, Launcelot Henderson (Inland Revenue) for the Crown.

Sentencing

R v Montgomery; CA (Cr Dv) (Roch LJ, Potter, Smith JJ); 1 July 1994.

An immediate custodial sentence was the only appropriate way to impose upon a person who interfered with the administration of justice, unless the circumstances were wholly exceptional. Interference with, or threats made to, jurors were usually visited with higher sentences than the case of a witness who refused to give evidence. The principal matters affecting sentence were: (1) the gravity of the offence being tried; (2) the effect upon the trial; (3) the contemnor's reasons for failing to give evidence; (4) whether or not the contempt was aggravated by impertinent defiance of the judge, rather than a simple and stubborn refusal to answer; (5) the scale of the sentences in similar cases, albeit that each case turned on its facts; (6) the antecedents, personal circumstances, and characteristics of the contemnor; (7) whether or not a special deterrent was needed. It was best to leave sentence in such a case to the end of the trial or at least the end of the prosecutor's case.

James Adkin (Registrar of Criminal Appeals) for the appellant; (William Boyce (Treasury Solicitor) as amicus curiae.

Tax

R v Inland Revenue Commrs, ex p Barker & anr; QBD (Latham J); 22 June 1994.

If a tax assessment was amended as a result of events occurring after the assessment was made (here, application of the closing provisions on cessation of trading) and the final amount could not have been known when the assessment was originally made, interest on overdue tax was payable from the date when it would have started to run under the original assessment, not at some later date reflecting the occurrence of the event causing the increased assessment. In any event, judicial review was not the appropriate remedy in disputes as to interest on unpaid tax. Proceedings should be brought by summons or the matter raised as a defence to a claim by the Revenue. Kevin Prosser, Rupert Baldry (Howes Percival, Northampton) for the taxpayers; Timothy Brennan (Inland Revenue) for the Crown.

Wardship

Re B; CA (Butler-Sloss, Kennedy, Hobhouse LJJ); 20 May 1994.

The court in the exercise of its wardship jurisdiction had no alternative but to release anyone arrested under a 'seek and find' order as soon as he appeared before the court, unless contempt could be proved.

Jeremy Posnansky QC, Katharine Davidson (Batchelors) for the father; Rodger Hayward-Smith QC, Delyth Evans (Powell Spencer & Ptrs) for the mother; Peter Jackson (Official Solicitor).

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