Law Report: Case Summaries

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

Children

Re A(a minor); CA(Butler-Sloss LJ, Connell J); 3 Feb 1994.

In the light of the statutory framework of the Children Act 1989, where it was specifically contemplated in ss8(1) and 11(4) that a child might have residence with more than one person, the disapproval of the Court of Appeal of joint custody orders in Riley v Riley (1986) 2 FLR 429 was no longer good law. It would still be unusual to make a shared residence order but the decision to do so was always in the discretion of the judge on the special facts of the particular case.

Sheila Stephenson (Bower & Cotton for Standford & Lambert, Newcastle upon Tyne) for the appellant; Pauline Moulder (Richmonds, Newcastle upon Tyne) for the respondent.

Re D(minors); DFD(Wall J); 2 Feb 1994.

In the preparation of children cases, there should be careful co-operative planning between the lawyers for the parties involved. Practitioners should not make unrealistic time estimates for the hearing. They should consider the time taken by the judiciary in reading all the documents before the court, the length of the openings, examination of witnesses, legal submissions, closing speches and delivery of the judgment. If a case seriously overran due to a negligent or incompetent estimation of time, the court should seriously consider sanctions against those responsible.

Crime

R v Hurst; CA(Crim Div)(Beldam LJ, Judge, Ebsworth JJ); 25 Jan 1994.

Urgent consideration should be given to the need for the defence in a criminal trial to disclose particulars of duress if that is to be raised as a defence, to enable the prosecution, on whom rests the burden of disproving duress, to investigate the facts on which it is based.

Richard Akinjide (Registrar of Criminal Appeals) for the appellant; Katie Astaniotis (Customs & Excise Solicitor) for the Crown.

R v Jones and ors; CA(Crim Div)(Evans LJ, Rougier, Douglas Brown JJ); 21 Dec 1993.

Where the victim of an attack by several men at a public house gave evidence identifying his attackers from his own recollection of the attack, but after having seen in the presence of police officers a video recording which showed all four defendants and which was made at the public house on a date subsequent to the attack, his evidence was properly admitted since the video recording was in substance equivalent to a street identification or informal group identification.

Peter Carr; DH Jones, who did not appear below; Peter Haynes (Registrar of Criminal Appeals) for the appellants; David AF Jones (CPS) for the Crown.

Negligence

Marc Rich & Co AG v Bishop Rock Marine Co Ltd; The Nicholas H; CA(Balcombe, Mann, Saville LJJ); 3 Feb 1994.

Whether the nature of the harm sustained by a plaintiff as a result of negligence was physical damage or damage of a purely economic nature, it was necessary to consider the matter not only by enquiring about foreseeability but also by considering the nature of

the relationship between the parties.

Richarf Aikens QC and Jonathan Harvie QC (Norton Rose) for the third defendant; Peter Gross QC (Lovell White Durrant) for the plaintiff.

Noise

Walter Lilly v Westminster City Council; QBD(DC)(Mann LJ, Scott Baker J); 2 Feb 1994.

A notice served under s 60 of the Control of Pollution Act 1974 restricting noise pollution to certain specified hours at a site where works were being carried out only applied to those particular works and not to any subsequent works commenced at a later date.

David Lamming (Masons) for the defendant; Timothy Spencer (City Solicitor) for the council.

Practice

Hong Kong Toy Centre Ltd v Tomy UK Ltd; CHD(Aldous J); 15 Dec 1993.

Where a plaintiff obtained ex parte interlocutory relief, such as an interlocutory injunction or defendant's undertaking on similar terms, pending the hearing of a motion, he was under a particular duty to push proceedings forward and to apply for an early hearing date, without undue delay. He was not entitled to sit back and let things drift.

Save in exceptional circumstances, it was right that inordinate and inexcusable delay in carrying out that duty should be visited with dismissal of the motion.

Richard H Miller (Jacques & Lewis) for the plaintiff; David Young QC(D Martin & Co, Tunbridge Wells) for the defendant.

Rent review

Scottish Amicable Life Assurance Society v Middleton and ors; ChD(Arden J); 7 Feb 1994.

In a rent review clause directing the new rent to be set by reference to 'the best yearly open market rent (at the rate payable following the expiry of any rent free period or periods at concessionary rents which might be granted on a new letting of the demised premises or of comparable premises in the open market on the relevant rent review date) . . . ', the words 'on a new letting' meant 'attributable to' a new letting, and the periods referred to in brackets were fitting-out periods. The reference to rent-free periods or concessionary rents was to be interpreted as limited to such rent- free periods or concessionary rents as a willing lessor would give to reflect the fact that the willing lessee would not be able to make full beneficial use of the demised premises until after completion of his fitting- out works.

Jonathan Gaunt QC (Cameron Markby Hewitt) for the lessor; Paul Morgan QC (Middleton Potts) for the lessees.

Sentence

R v Shewring; CA (Crim Div)(Farquharson LJ, Garland, Cazalet JJ); 1 Feb 1994.

As a result of the Criminal Justice Act 1991 the defendant, who had been convicted of handling stolen goods and sentenced to five years' imprisonment, was not eligible to be considered for parole until had served 30 months of his sentence, whereas one of his seven co-accused, whom the judge put above the defendant in the hierarchy of culpability, had been convicted and sentenced to seven years' imprisonment before the Act was passed and would therefore be eligible for parole after 28 months. In the interests of fairness and justice the court reduced the defendant's sentence to four years.

Notu Hoon (Registrar of Criminal Appeals) for the appellant.

Trade description

Toys 'R' Us v Gloucestershire County Council; QBD(DC)(Kennedy LJ, Scott Baker J); 3 Feb 1994.

To establish an offence under s 20 of the Consumer Protection Act 1987 of giving a consumer an indication which is misleading as to the price at which the goods are available, it must be shown that at the time at which the item was on the shelf with a ticket attached to it those goods were not available at the ticket price. Although a trading standards officer came within the definition in s 20(6) as a person who might wish to be supplied with goods for his own private use, he only had the powers of search and seizure in s 29 which entitled him to ask for a current price list in relation to items subject to a test purchase but which did not allow him to require that a till be closed down and made available for his use.

Duncan Matheson QC and Trevor Burke (Shoosmiths & Harrison) for the defendant; Colman Treacy QC and Barry Berlin (County Solicitor) for the council.

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