CASE SUMMARIES 11 December 1995

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

Conflict

Macmillan Inc v Bishopsgate Investment Trust plc & anr; CA (Staughton, Auld, Aldous LJJ) 2 Nov 1995.

Where, in a case involving a foreign element, an issue arose as to who had title to shares in a company, that issue was to be decided by the domestic law of the place where the shares were situated (the lex situs), which in the ordinary way was the place where the company was incorporated.

David Oliver QC, Murrary Rosen QC (Herbert Smith) for the plaintiff; Charles Aldous QC, Robert Hildyard QC (Freshfields) for the second defendant; William Blair QC (Watson Farley Williams) for the third defendant; Simon Mortimore QC, William Trower (Clifford Chance) for the fifth defendant.

Contract

Tabor v Ginns; CA (Neill, Auld LJJ, Sir Iain Glidewell) 22 Nov 1995.

If the clear intention of parties in entering into a second agreement was to create immediate rights and obligations that were wholly inconsistent with the continuance of other rights and obligations under an earlier agreement, the second, even though still executory, might have the effect of rescinding the earlier. But, where the second agreement provided for its "perfection" or performance at a later date and subject to certain conditions, the parties might well have intended to keep the earlier agreement alive, albeit in suspense until the second agreement was perfected or performed. The test was similar to that to be applied in cases of accord and satisfaction, namely whether it was the promise itself, or the performance of the promise, which was intended to have the effect of discharging the original claim.

Jill M. Gibson (Holmes & Hills, Braintree) for the appellant; Witold Pawlak (Tolhurst & Fisher, Southend on Sea) for the respondent.

Drink-driving

Hague v DPP; QB Div Ct (Simon Brown LJ, Scott Baker J) 6 Nov 1995.

Where a police officer operating an intoximeter genuinely but mistakenly believed it was malfunctioning, the breath sample, showing a reading of 68mg in 100ml of breath, was admissible in evidence if the motorist had failed to give an alternative specimen when lawfully given the opportunity to do so under s 7(3) of the Road Traffic Act 1988, since that would have been the position if circumstances had been such that the s 8(2) procedure had been appropriate and the court did not believe Parliament required an opposite result for s 7(3).

Christopher Spratt (Mundy Coutts-Wood, Sheffield) for the appellant; Andrew Hatton (CPS) for the respondent.

Extradition

Re Paloka; QB Div Ct (Simon Brown LJ, Scott Baker J) 6 Nov 1995.

In extradition proceedings under s 2 of the Extradition Act 1989, a stipendiary magistrate was entitled to commit an applicant to custody in the absence of a statement from the requesting country to indicate whether the offence was time-barred, since the committal hearing was not the appropriate moment to ventilate the issue of limitation. The magistrate had only to decide whether the conduct alleged constituted an extradition crime and the applicant's remedy for any limitation claim was to issue a writ of habeas corpus.

Campaspe Lloyd-Jacob (Hallinan Blackburn Gittings & Nott) for the applicant; John Hardy (CPS) for the respondent.

Practice

International Bulk Shipping and Services Ltd & anr v President of India & anr; CA (Evans, Peter Gibson LJJ, Sir Iain Glidewell) 23 Nov 1995.

Where proceedings had been issued in the name of a company which had already been dissolved, its trustee in bankruptcy was unable, after expiry of the limitation period, to have his own name added or substituted as a plaintiff under RSC Ord 15, r 6, because the proceedings were a nullity and the rule clearly contemplated an existing action in which the addition or substitution might be made. Nor could the trustee apply to "correct" the name of the plaintiff to his own name, under Ord 20, r 5, since that rule was directed to mistakes as to the name of a plaintiff, not as to the identity or description of the person suing.

Muir Hunter QC, Anthony Zacaroli (Hill Taylor Dickinson) for the appellants; Angus Glennie QC, Clare Reffin (De Mello Kamath) for the respondents.

Slade v Adco Ltd; CA (Neill, Auld LJJ, Sir Iain Glidewell) 30 Nov 1995.

On an application to strike out proceedings for want of prosecution, the onus was on the person asserting prejudice or a substantial risk to a fair trial to show it had been caused by inordinate and inexcusable delay since the issue of the writ. A mere assertion was not enough. But the individual judge should be left to assess the prejudice and the risk and the adequacy of evidence in the particular circumstances of the case, and in such matters the Court of Appeal should be slow to interfere with the judge's exercise of discretion.

Peter Grobel (Winters, Huntingdon) for the plaintiff; John Greenborn (Birkett Westthorpe & Long, Ipswich) for the defendant.

Tax

Glaxo Group Ltd v Inland Revenue Commrs; ChD (Robert Walker J) 9 Nov 1995.

The Board of Inland Revenue could adjust open assessments over many years to give effect to a transfer pricing direction made under the Income & Corporation Taxes Act 1988, s 770. The court refused to make declarations sought by Glaxo that a direction made in relation to years for which assessments remained open could not be taken into account and considered on appeal against those assessments.

John Gardiner QC, Jonathan Peacock (Slaughter & May) for Glaxo; Ian Glick QC, Michael Furness (Inland Revenue) for the Crown.

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