Law Report: Case Summaries

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

Administration

Powdrill & anr v Watson & anr; CA (Dillon, Leggatt, Henry LJJ); 22 February 1994.

The employees' contracts of employment were adopted by the administrators of Paramount Airways Ltd in the course of the carrying on by them of their functions as administrators of the company within s 19(5) of the Insolvency Act 1986, since all the facts, including the fact that the administrators had taken advantage of the services of the employees, pointed to adoption; and a mere assertion, in letters to the employees, that they were not adopting the contracts had no legal effect.

Michael Crystal QC and Mark Phillips (Wilde Sapte) for the administrators; Robin Potts QC and Richard Snowden (Burrough & Co, Cardiff) for the employees.

Arbitration

Arnold & ors v National Westminster Bank plc; CA (Glidewell, Simon Brown, Peter Gibson LJJ); 9 March 1994.

Section 22 of the Arbitration act 1979, which empowered the High Court to remit a matter referred to it for reconsideration by the arbitrator, did not apply where there had been a change in the law effected by a subsequent authoritative decision which showed the arbitrator had made an error of law.

James Munby QC (Freshfields) for the plaintiffs; Hazel Williamson QC (Stephenson Harwood) for the defendant.

Jury

R v Wilkinson & anr; CA (Cr Div) (Hirst LJ, Tudor Evans, Laws JJ); 18 February 1994.

In a fairly complicated case involving issues of law and fact and three defendants, where it must have been apparent that the summing up would end about halfway through Friday and there was thus a risk that the jury would not reach their verdicts within a reasonable time on Friday evening, the judge should have warned the jury either at the beginning of his summing up, or at the latest on Thursday evening, that they might need to stay in a hotel over Friday night or that the case might be adjourned over the weekend so they could retire on Monday morning.

Frank Gillibrand (who did not appear below) (Registrar of Criminal Appeals) for the appellant; Peter J Stage (CPS) for the Crown.

Local government

R v Commissioner for Local Administration, ex p Blakey; QBD (Popplewell J); 7 March 1994.

A commissioner for local administration did not need to conduct a balancing exercise between a councillor's personal interest and his duty towards his constituents when deciding whether he had acted with apparent impropriety in not declaring his personal interest before discussing and voting on proposed bypass routes, since dispensations in the National Code of Local Government Conduct conclusively covered the matter.

Barry Payton (Godlove Pearlman, Leeds) for the applicant; Jeremy Sullivan QC and Charles Lewis (Pulvers, Watford) for the respondent.

Road Traffic

R v Johnson; CA (Cr Div) (Russell LJ, Smith, Dyson JJ); 17 February 1994.

The offence of fraudulently using a vehicle excise licence contrary to s 26(1)(c) of the Vehicles Excise Act 1971 could only be committed where the vehicle was being or had been used on a public road while displaying the offending licence; a future intention to use the vehicle with the licence was not enough.

Tristan Chaize (Registrar of Criminal Appeals) for the appellant; John Hobb (CPS) for the Crown.

Shipping

Prekookeanska Plovidba v Felstar Shipping Corp and Sotromar Srl; The Carnival; The Danilovgrad; CA (Russell, Farquharson, Hirst LJJ); 3 March 1994.

The first defendant's vessel, C, was proceeding past the plaintiff's vessel, D, when negligent navigation caused D to surge against the side of the berth, to which it had not been properly moored, and where a home-made fender penetrated D's plating, flooding the hold and damaging the cargo. The inherent probabilities on the facts led to the conclusion that C's pilot had been negligent in proceeding before first ascertaining whether D was properly moored. The shipowners were entitled to expect fenders to provide protection and not cause damage. The second defendants had not provided a safe berth and liability for the damages awarded to the plaintiff should be apportioned between the two defendants, in the proportions fixed by the judge.

Nigel Teare QC and Luke Parsons (Lloyd & Co) for the first defendant; Belinda Bucknall QC and Catherine Burgin (Ingledew Botterell, Newcastle upon Tyne) for the plaintiff; Christopher Handcock (Ince & Co) the second defendant.

Sentencing

R v Mansell; CA (Cr Div) (Lord Taylor of Gosforth CJ, Auld, Mitchell JJ); 10 February 1994.

It was impossible to give any guidance as to the length of sentence appropriate, under ss 2(2)(b) and 33(3) of the Criminal Justice Act 1991, for a defendant who had been convicted of a violent or sexual offence, since each case turned on its own facts and the judge had to try to balance the sentence appropriate for the offender against the need to protect the public while ensuring that the totality of the sentence was not out of all proportion to the nature of the offence. Robert K Atherton (Registrar of Criminal Appeals) for the appellant.

Tax

R v Inland Revenue Commissioners, ex p Matrix Securities Ltd; HL (Lord Templeman, Lord Griffiths, Lord Jauncey, Lord Browne- Wilkinson, Lord Mustill); 17 February 1994.

The withdrawal by the Revenue of clearance given for a tax avoidance scheme by a local inspector was not unfair nor an abuse of power. The scheme was intended to make use of capital allowances available on the purchase of buildings in an enterprise zone under the Capital Allowances Act 1990. The sponsors of the scheme, when seeking clearance from the inspector, had misled the inspector as to the price to be paid for the building and had sought clearance without indicating that the scheme involved put options which they knew would in all likelihood have prevented the Financial Institutions Division of the Revenue from clearing the scheme had they been approached.

David Goldberg QC, David Pannick QC and John Walters (Theodore Goddard) for Matrix Securities; Lord Lester QC and Charles Flint (Inland Revenue Solicitors) for the Crown.

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