Law Report: Case Summaries

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

Assignment

Estates Gazette Ltd v Benjamin Restaurants Ltd; CA(Nourse, Hirst, Saville LJJ); 20 May 1994.

In a licence to assign the lease of business premises in which the assignee covenanted with the landlord to pay the rents reserved by the lease 'at the time and in the manner therein provided for', the covenant was not limited in point of time to the period during which the lease was vested in the assignee but extended to the whole of the term. The assignee was therefore liable to pay rent which had fallen due after further assignment by the assignee.

David Neuberger QC and Edward Deneham (Manches, Oxford) for the appellant; Norman Primost (Peter Gillis & Co) for the respondent.

Children

Re M (Minors: Child abduction); CA (Butler-Sloss, McCowan LJJ, Sir Tasker Watkins); 15 July 1994.

An order requiring the return of a child to the country of its habitual residence, pursuant to the Convention on the Civil Aspects of International Child Abduction 1980, as enacted in the United Kingdom by the Child Abduction and Custody Act 1985, was a final and not an interlocutory order, and any application to set aside or vary it must be to the Court of Appeal and not to the Family Division.

The procedure under the convention was summary in nature and intended to deal expeditiously with the mischief of wrongfully removing children from the jurisdiction of their habitual residence. It was quite different from internal proceedings where the child's welfare was paramount. Indeed, the court should take care not to usurp the functions of the court eventually seised of the matter in the jurisdiction of habitual residence.

For this reason, any undertakings or conditions attached to the return order were designed to protect the child and provide for its immediate necessities in the short term, pending such hearing by the foreign court, and should not have the effect of fettering or delaying the child's return.

Augustus Ullstein QC, Timothy Scott (Reynolds Porter Chamberlain) for the mother; James Munby QC, Indira Ramsahoye (Margaret Bennett & Co, Bloomsbury) for the father.

Crime

R v Thornton; CA(Crim Div)(Beldam LJ, Ognall, Harrison JJ); 23 May 1994.

Where a defendant admitted that he was present at the scene of an offence but denied being involved in it the judge must give the jury the full Turnbull warning of the special need for caution where the defence was one of mistaken identity.

Antony Braithwaite (Registrar of Criminal Appeals) for the appellant; Robin Denny (CPS) for the Crown.

Divorce

Masefield v Alexander (formerly Masefield); CA (Butler-Sloss, Rose LJJ, Sir Tasker Watkins); 22 July 1994.

The court had jurisdiction in matrimonial proceedings to extend the time for a lump- sum payment by the husband to the wife where he was not to blame for the delay. Parliament had decided, in s 31 of the Matrimonial Causes Act 1973, that lump-sum orders were not variable, but time was not of the essence of the order and extension did not vary its substance.

In this case, the wife had not been prejudiced by the delay in paying her pounds 100,000 to buy her own house, and if the provision for sale of the former matrimonial home in default of payment were to be implemented, she would get substantially more than she had originally been awarded, while the husband would lose his home. It would be unfair to ignore blameworthiness and prejudice and indulge the wife's vindictiveness by ordering the house to be sold come what may.

Martin Pointer (Gordon Dadds) for the husband; Lord Meston (Hunt & Hunt & Houghtons, Romford) for the wife.

Injunction

Jaggard v Sawyer & anr; CA (Sir Thomas Bingham MR, Kennedy, Millett LJJ); 18 July 1994.

The court had jurisdiction to award damages instead of granting an injunction to restrain continuing acts of trespass or breach of covenant if, inter alia, it would be oppressive to the defendant to grant an injunction. In considering oppression, the court should not slide into application of a general balance of convenience test; but oppression had to be judged as at the date the court was asked to grant an injunction, and the court could not ignore the reality with which it was then confronted. The fact that the plaintiff could at any early stage have sought interlocutory relief was relevant, as was also the fact that the defendant could have sought a declaration of right, but those considerations were not decisive. However, it would weigh against a finding of oppression if the defendant had acted in blatant and calculated disregard of the plaintiff's rights.

Mark Treneer (Milne & Lyall, Bridport) for the appellant; Jeremy Griggs (Clarke Wilmott & Clarke, Crewkerne) for the respondents; Richard Drabble (Treasury Solicitor) as amicus curiae.

Insurance

Diggens & anr v Sun Alliance and London Insurance plc; CA (Nourse, Evans LJJ, Sir Roger Parker); 29 July 1994.

The right given to an insurer to avoid the policy in the case of a fraudulent claim, or to refuse liability for that particular claim whilst leaving the contract otherwise intact, gave him a unique benefit so far as English law was concerned. He was under a contractual liability to pay the amount of a proper claim, but he was free to avoid even that liability if the claim was dishonestly exaggerated or otherwise tainted with fraud. Unless any resulting special damage had occurred in a particular case, he received that benefit even though the fraud or attempted fraud had not caused him to suffer any loss.

The rule was underpinned by considerations of justice and sound business policy, but if the insurer relied upon it, the same considerations meant that he should be required to plead the allegation of fraud with proper particularity and to prove those allegations to the necessary high standard of proof.

In this case, the defendant insurers failed to prove allegations that a building subsidence insurance claim by the plaintiff was fraudulent, and their counterclaim for repayment of sums already paid, on the ground of mistake, also failed.

The plaintiff in person; Patrick Twigg QC, Jeremy Stuart- Smith (Davies Arnold Cooper) for the defendants.

Set-off

Aectra Refining and Marketing Inc v Exmar NV; CA (Hirst, Hoffmann LJJ); 22 July 1994.

A cross-claim for a liquidated debt constituted a valid legal set-off notwithstanding that disputed issues as to quantum were raised by the defence. However, it was of the essence of independent set-off in English law that the defendant should be entitled to have the merits of his cross-claim tried by the court in which he had been impleaded. If, therefore, the defendant was faced with a procedural bar to having his claim determined, for example, because he had agreed to the jurisdiction of another tribunal, he could not assert an independent set-off.

Angus Glennie QC, Karen Maxwell (Lawrence Graham) for the appellant; Richard Southern (Middleton Potts) for the respondent.

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