Case Summaries: 21 June 1999

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

Company

Re Lomax Leisure Ltd; Ch D (Neuberger J) 22 Apr 1999.

WHERE A tenant was a company in administration, or one in respect of which an administration petition had been presented, it was open to the landlord to forfeit the lease by peacable re-entry. His right of re-entry did not constitute a security over the company's property.

Jane Giret (Tibber Beauchamp-Ward) for the landlord; George Bompas QC, Peter Shaw (Penningtons) for the petitioning creditor.

Re Wilmott Trading Ltd (No 2); Henry v Environment Agency; Ch D (Neuberger J) 8 June 1999.

WHERE A company had been dissolved, a waste management licence vested in that company ceased to exist, and did not vest in the Crown as bona vacantia pursuant to s 654 of the Companies Act 1985.

Roger Kaye QC, Stephen Moverley Smith (Solr for the Environment Agency) for the agency; Michael Driscoll QC (Treasury Solr) for the Crown.

Practice

Maltez v Lewis and anor; Ch D (Neuberger J) 27 Apr 1999.

AN APPLICATION for a direction under the Civil Procedure Rules, r 12 that defendants be debarred from instructing leading and/or senior counsel was refused, since the well established and fundamental right of a party to be represented by counsel or solicitors of his choice had been neither cut down nor removed by the new rules.

Ralph Wehrle of Briffa & Co for the claimant; Peter Sheridan QC (Anthony Bernstein & Co) for the defendants.

Pensions

Law Debenture Trust Corp plc v Malley and anor; Ch D (Rimer J) 7 May 1999.

A FINDING by the Pensions Ombudsman of maladministration on the part of trustees of a pension scheme was a determination or a direction within the terms of s 151(4) of the Pension Schemes Act 1993 and could thus be challenged by way of appeal.

Sarah Asplin (John Yolland) for the Ombudsman; Paul Newman (Addleshaw Booth & Co, Manchester) for the trustees.

Magistrates' court

R v Nottingham Magistrates' Court, ex p Davidson; QBD, Div Ct (Lord Bingham CJ, Ognall J) 12 May 1999.

IT WOULD be valuable if a precedent were to be drafted so that a bench of magistrates considering a case which had been adjourned for pre-sentence reports by a different bench would be apprised of the previous bench's view as to whether the appropriate sentencing court was the magistrates' court or the Crown Court. Such a precedent should include an indication that the possibility of committal for sentence to the Crown Court always remained open.

Ian Wise (Bhattia & Sons, Not- tingham) for the applicant; Julie Warburton (CPS, Nottingham) for the Crown.

Child

Re J (a child); Fam D (Holman J) 28 May 1999.

WHEN DECIDING where a child was "ordinarily resident" for the purposes of s 31(8) of the Children Act 1989, s 105(6), which affected the determination of "ordinary residence", was not intended to have the effect that the clock stopped for all purposes when the child was first accommodated.

Rodger Hayward Smith QC, Jacqueline Humphreys (North Yorkshire County Council) for Yorkshire; James Munby QC (Wiltshire County Council) for Wiltshire.

Bank

Banco Santander SA v Bayfern Ltd and ors; QBD, Comm Ct (Langley J) 9 June 1999.

THE RISK of fraud on the part of the beneficiary of a confirmed deferred payment letter of credit was to be borne by the confirming bank, and not the issuing bank, where the fraud was known to the confirming bank before the maturity date.

Mark Hapgood QC, Roger Masefield (Stephenson Harwood) for the plaintiff; Mark Howard QC, Helen Davies (Norton Rose) for the third defendant.

Harassment

DPP v Moseley and ors; QBD, Div Ct (Roch LJ, Collins J) 9 June 1999.

CIRCUMSTANCES IN which the pursuit of a course of conduct amounting to harassment in breach of a High Court injunction could be held to be reasonable within the terms of s 1(3)(c) of the Protection from Harassment Act 1997 were impossible to envisage: it could not be right for a person to ignore the terms of an injunction because he believed his conduct was reasonable.

Neil Addison (CPS) for the DPP; Keir Starmer (Mary Cuneen, Liberty) for S and M; Jeremy Chipperfield (Keran & Co, Chesterfield) for W.

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