Case Summaries: 18 January 1999

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

Water

R v Northumbrian Water Ltd, ex p Newcastle and North Tyneside Health Authority; QBD, Crown Office List (Collins J) 15 Dec 1998.

A WATER authority could refuse a request to fluoridate a local water supply pursuant to s 87 of the Water Industry Act 1991. It had to exercise its statutory powers in accordance with its commercial obligations to shareholders, as well as complying with its statutory duties and exercising its discretion within the scope of the statute granting it. It was clear that when the legislation was first enacted in 1985 Parliament had intended no more than to give water companies the power to fluoridate water if they wished, and the re-enactment of the legislation in 1991 following privatisation had not changed that.

Richard Drabble QC, Paul Nicholls (Lockharts) for the applicant; David Pannick QC, Mark Shaw (Cameron McKenna) for the respondent.

Landlord and tenant

Banks and anor v Kokkinos and anor; ChD (Nicholas Strauss QC sitting as a deputy High Court judge) 17 Dec 1998.

TIME WAS of the essence in relation to a landlord's right to apply, in accordance with the provisions of the lease, to the President of the Royal Instution of Chartered Surveyors for the appointment of a surveyor to act as expert in connection with a rent review. There were two conflicting decisions in which the same issue had arisen: Phipps-Faire Ltd v Malbern Construction Ltd [1987] 1 EGLR 129, and Visionhire Ltd v Britel Fund Trustees [1992] 1 EGLR 128, and, applying the general rule that where there were conflicting decisions of courts of co-ordinate jurisdiction the later decision was to be preferred, the decision in Visionhire would be followed.

Wayne Clark (Pinsent Curtis) for the plaintiffs; Edward Cole (Lindley Johnstones) for the defendants.

Town and country planning

Panton and anor v Secretary of State for the Environment, Transport and the Regions and anor; QBD, Crown Office List (Christopher Lockhart- Mummery QC sitting as a deputy High Court judge) 16 Dec 1998.

FOR THE purposes of an application for a certificate of lawful use or development under s 191(1) of the Town and Country Planning Act 1990, a dormant use, ie one which had arisen by way of a material change of use but was inactive, could be an "existing use".

The first applicant in person; Michael Burton QC (Morgan Cole) for the second applicant; Ian Albutt (Treasury Solicitor) for the respondents.

Employment

R v Secretary of State for the Department of Health, ex p C; QBD, Crown Office List (Richards J) 21 Dec 1998.

THE OPERATION by the Department of Health of the consultancy service index, which was a list of persons about whom concerns existed as to their suitability for employment in the field of child care, was not ultra vires. Save to the extent that its common law powers had been removed or restricted by statute, the Crown had the ordinary powers of other persons at common law, and there was no reason why those powers should not include the operation of an otherwise lawful scheme enabling a prospective employer to be put in touch with a previous employer to obtain a reference in respect of a would-be employee.

Allan Davies QC, John Crosfill (Godfrey Davis & Waite, Ramsgate) for C; Neil Garham (Solicitor of the Dept of Health) for the Secretary of State.

Patents

Pifco Ltd v Philips Domestic Appliances and Personal Care BV and anor; ChD (Pumfrey J) 16 Dec 1998.

A PRODUCT or process description was required by RSC Ord 104, r11 as amended to include "full particulars of the product or process alleged to infringe, including if necessary drawings or other illustration", and the criterion by which the adequacy of such a description was to be judged was whether it provided enough information for the court to arrive at a yes/no answer to the disputed questions on the issue of infringement. Where product and process descriptions contained factual inferences, but did not set out the primary facts from which the inferences had been drawn, difficulty could arise.

David Kitchen QC, Richard Meade (Bristows) for the plaintiff; Henry Carr QC, Hugo Cuddigan (Bird & Bird) for the defendants.

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