CASE SUMMARIES 19 June 1995

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

Coercion

R v Shortland; CA (Cr Div) (Kennedy LJ, Steel, Hooper JJ) 19 May 1995.

To invoke a defence of marital coercion, the defendant must prove, on the balance of probabilities, that the offence was committed as a result of her will being overborne by her husband's wishes, so that she was forced unwillingly to participate in the offence. Proof of physical force, or of threats of physical force, was not required.

Trevor Wright (Registrar of Criminal Appeals) for the appellant; Simon Privett (CPS) for the Crown.

Plant

Gray (Insp of Taxes) v Seymour's Garden Centre (Horticulture); CA (Nourse, Beldam, Kennedy LJJ) 26 May 1995.

A garden centre was not entitled to capital allowances for expenditure incurred on the construction of "planteria", a special type of greenhouse which controlled its temperature and humidity to keep the plants displayed for sale in the best possible condition. The structure was to be regarded as "premises" in which, rather than "plant" with which, the garden centre business was carried on.

Robin Matthews QC (Badhams Thompson) for the taxpayer; Timothy Brennan (Inland Revenue) for the Crown.

Jurisdiction

BSC Footwear Supplies Ltd v Customs & Excise Commrs; ChD (Robert Walker J) 8 June 1995.

The court had no jurisdiction under s 17(1)(b) of the Customs & Excise Management Act 1979 to determine a "dispute in relation to the value of goods "even though its resolution depended on legal arguments and not on the assessment of factual evidence.

Jonathan Harvie QC (Brecher & Co) for the plaintiff; Rabinder Singh, A Tabachnik (Solicitor, Customs & Excise) for the defendant.

Limitation

Re Farmizer (Products) Ltd; ChD (Blackburne J) 13 June 1995.

The relevant limitation period for claims for wrongful trading under s 214 of the Insolvency Act 1986 was that governed by s 9(1) of the Limitation Act 1980, under which "an action to recover any sum recoverable by virtue of any enactment shall not be brought after the expiration of six years from the date on which the cause of action accrued".

Sarah Harman (Sprecher Grier) for the first respondent; Michael McParland (Penningtons) for the second respondent; Richard de Lacy (Dibb Lupton Broomhead) for the liquidators.

Sentencing

R v Ragg; CA (Cr Div) (Pill LJ, Buckley, Laws JJ) 5 May 1995.

The offence of threatening to kill, although not per se within the definition of "violent offence" in s 31(1) of the Criminal Justice Act 1991, as one likely to cause death or physical injury, might nevertheless attract an extended sentence under s 2(2)(b) of that Act if the prosecution proved the defendant intended such an injury or that such consequence was likely to follow from the threat itself.

Robert Cowley (Registrar of Criminal Appeals) for the appellant.

VAT

Customs & Excise Commrs v Post Office; QBD (Potts J) 26 May 1995.

The question whether errors made by the Post Office in its VAT returns over a number of years had come to the knowledge of the Customs within one year before they made corrective assessments was remitted for reconsideration by the VAT tribunal. The Post Office contended the assessments were out of time under the VAT Act 1983, Sch 7, para 4(5) since the Customs had known of the error for more than a year. But constructive knowledge, in that Customs might have spotted the error sooner, was insufficient: the tribunal must consider when Customs had actual knowledge.

Christopher Vajda (Solicitor, Customs & Excise) for Customs; Robin Barlow (Kingsford Stacey) for the Post Office.

Haringey London Borough Council v Customs & Excise Commrs; QBD (Dyson J); 22 May 1995.

The rebuilding of Alexandra Palace had been done by the local authority partly as a public amenity, in compliance with its duty under the Alexandra Park & Palace Act 1990 to restore the building, but also partly for the purposes of a commercial conference business carried on there. Accordingly, the tax to be refunded under the VAT Act 1983, s 20(1) (now s 33(1) of the 1994 Act) was that proportion referable to non-business use.

David Milne QC, Roger Thomas (Grant Thornton) for Haringey; Kenneth Parker QC (Solicitor, Customs & Excise) for Customs.

Tax

Kelsall (Insp of Taxes) v Stipplechoice Ltd; CA (Sir Thomas Bingham MR, Peter Gibson, Saville LJJ) 17 May 1995.

To make an assessment to corporation tax under s 12(8) of the Income & Corporation Taxes Act 1988, altering the duration of a company's accounting period, which would then entitle the inspector to revise the altered period, it had to appear to the inspector concerned that the beginning or end of the accounting period was uncertain. The test was not an objective one: whether it would appear to a reasonable inspector that either the beginning or the end of the accounting period was uncertain.

Philip Vallance QC, Timothy Brennan (Inland Revenue) for the Crown; Leolin Price QC (Gregory Rowcliffe) for the company.