Law Report: Case Summaries (CORRECTED)

Click to follow
The Independent Culture
CORRECTION (PUBLISHED 4 APRIL 1994) APPENDED TO THIS ARTICLE

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

Agriculture

Welby v Casswell; QBD (Popplewell J); 8 March 1994.

For the purposes of s 36 of the Agricultural Holdings Act 1986, the words 'principal source of income' had to be construed as meaning that the person seeking succession to a deceased close relative's tenancy derived more than 50 per cent of his income from farm profits. Sums in the farm account that were there as a result of a bank overdraft or outside earnings could not be deemed to form part of the principal source of income even if such monies had been used to support the agricultural holding.

Paul Morgan QC (Burges Salmon, Bristol) for the appellant; Edward Cole (Mills & Reeve, Cambridge) for the respondent.

Appeal

Virgin Group Ltd & anr v De Morgan Group plc & anr; CA (Sir Thomas Bingham MR, Steyn, Rose LJJ); 8 March 1994.

The test for the grant of leave to appeal to the Court of Appeal against the factual decisions of official referees was whether the ground of appeal sought to be argued had a reasonable prospect of success. Leave to appeal on questions of fact should not, however, be granted simply because an appeal on legal grounds was proceeding anyway. Neither should leave be granted unless it appeared that the challenge, if successful, would be likely to affect the official referee's overall decision.

David Hunt QC and Stephen Nathan QC (Denton Hall) for the plaintiffs; Sarah Vaughan Jones (Kennedys) for the first defendant; Michael Kallipetis QC and James Thorn (Reynolds Porter Chamberlain) for the second defendant.

Children

Re G (minors); FD (Wall J); 7 March 1994.

In public law cases under the Children Act 1989, where leave was sought to instruct experts, the court had a duty to exercise control over the evidence adduced before it, bearing in mind that public funds should not be wasted on unnecessary investigation. Generalised orders giving leave for confidential documents to be shown to 'experts' should never be made. In each case the expert or area of expertise should be identified. The court had a duty to inquire into the category of expert evidence a party sought to adduce, its relevance to the issues, whether it could properly be obtained by the joint instruction of one expert by one or more of the parties, and whether it was necessary for experts of the same discipline to be instructed by more than one party.

(By order of the court, the legal representatives involved cannot be named.)

Dogs

Cichon v DPP; QBD (DC) (Balcombe LJ, Schiemann J); 9 March 1994.

The fact that a fighting dog was being sick was no excuse for removing its muzzle in a public place: the defence of necessity did not apply to an offence under section 1(1) of the Dangerous Dogs Act 1991. This was a draconian statute, enacted to protect the public from fighting dogs and to promote their eradication from this island, and it was clear from the structure of the Act that Parliament did not envisage any circumstances in which such a dog could be in a public place without being muzzled. Neither the statute nor the common law permitted the dog's owner to make a value judgement as between the safety of the public and the wellbeing of the dog.

Pamela Rose (H Youngerwood) for the appellant; Roderick James (Paul Gunne & Co, Birmingham) for the respondent.

Jurisdiction

Foxen v Scotsman Publications Ltd & anr; QBD (Drake J); 4 Feb 1994.

Libel proceedings issued in England, by a plaintiff domiciled in Scotland, against a newspaper mainly circulated in Scotland, could not be stayed on the ground that Scotland was the more convenient forum. The Civil Jurisdiction and Judgments Act 1982 (as amended by s 2(5) of the same Act of 1991) which incorporated the 1968 Convention on Jurisdiction and Judgments in Civil and Commercial Matters into English law, removed the jurisdiction of the court to decide the appropriate forum as between different parts of the United Kingdom.

Heather Rogers (Mishcon de Reya) for the plaintiff; Stephen Suttle (Allen & Overy) for the defendants.

Local government

R v Secretary of State for Wales, ex p Gwent County Council; CA (Sir Donald Nicholls V-C, Hirst, Waite LJJ); 9 March 1994.

A sum recoverable by the Secretary of State under s 81(8)(b) of the Education Reform Act 1988 was 'expenditure' within the meaning of s 43(2)(a) of the Local Government Finance Act 1992. When the Secretary of State was proceeding to recover a sum under s 81(8)(b) of the 1988 Act, the amount of revenue support grant 'payable to' the authority for the purposes of s 44 of the 1992 Act was the gross amount, ie the amount payable before the deduction was made under s 81(8)(b).

John Howell QC (M J Perry, Cwmbran) for the council; Richard Drabble (Treasury Solicitor) for the Secretary of State.

Patents

Optical Coating Laboratory Inc v Pilkington PE Ltd; CA (Balcombe, Mann, Saville LJJ); 25 Feb 1994.

A patent action between two major industrial concerns, involving a long trial and raising difficult and important technical issues, was inappropriate for trial in the Patents County Court and should be tried in the High Court.

Michael Fysh QC (Bristows Cook & Carpmael) for the defendants; Nicholas R Pumfrey QC (Bird & Bird) for the plaintiffs.

Tax

Melluish (IoT) v BMI (No 3) & related appeals; ChD (Vinelott J); 27 Jan 1994.

Writing down allowances under s 44(1) of the Finance Act 1971 were available to leasing companies in respect of plant, such as a swimming pool, crematorium equipment and car park lifts, installed on and fixed to land occupied by local authorities under leasing agreements. The plant 'belonged' to the leasing companies by reason of their rights to repossess its component parts on the breach or termination of the leasing agreements.

But central heating systems installed under similar agreements in council houses occupied by tenants did not 'belong' to the leasing companies. The tenants had a legal estate in the land which prevailed over the rights of the leasing companies under their contracts with the local authorities.

James Munby QC and Timothy Brennan (Inland Revenue) for the Crown; Graham Aaronson QC and Paul Morgan QC (Denton Hall Burgin & Warrens) for the taxpayers.

Trade union

Boddington & anr v Lawton & anr; ChD (Sir Donald Nicholls V-C); 4 Feb 1994.

On the true construction of the rules of the Prison Officers' Association, the fact that the association was currently outside the definition of trade union in the Trade Union and Labour Relations Consolidation Act 1992 did not enable a member to bring a claim against a trustee who had applied money, pursuant to the rules, in assisting the defendants in the conduct of their defence to actions, brought by patients of the Moss Side Special Hospital, for damages for trespass, false imprisonment and breach of duty.

Kevin Garnett QC and Theresa Villiers (Lees Lloyd Whitley, Liverpool) for the plaintiffs; Edward Bragiel (Brabner Holden, Liverpool) for the first defendant; John Hendy QC and Jennifer Lemkey (Robin Thompson & Ptrs) for the second defendant.

CORRECTION

In Virgin Group Ltd & anr v De Morgan Group plc, reported in the Independent on 28 March, junior counsel for the second defendant was James Thom.

Comments