Case Summaries; 3 May 1999

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

Wasted costs

Re Merc Property Ltd; Ch D (Lindsay J) 25 Mar 1999.

IT WAS undesirable that a wasted costs application should be heard by a judge other than the judge who had heard the substantive matter and had made the order to show cause why a wasted costs order should not be made. The process was a summary process and an application should therefore be brought on quickly, and, moreover, regard should be had to proportionality since it was undesirable that more time and costs should be spent on hearing the wasted costs application than on the substantive matter.

Christopher Boardman (Collyer-Bristow) for the applicant; Sandra Corbett (Woodroffes) for the respondent.

Limitation of action

Cia de Seguros Imperio (a body corporate) v Heath (REBX) Ltd (Formerly C.E. Heath & Co (North America) Ltd) and ors; QBD, Comm Ct (Langley J) 30 Mar 1999.

THERE WAS no distinction in point of limitation between an action for damages at common law and its counterpart in equity based on the same facts, and, accordingly, where liability was exclusively equitable because there was no contractual relationship between the parties, the court acted by analogy with the statute of limitations.

Julian Flaux QC, Adam Fenton (Barlow Lyde & Gilbert) for the plaintiffs; Peter Gross QC, Philip Edey (Freshfields) for the defendants.

Town and country planning

Skerritts of Nottingham Ltd v Secretary of State for the Environment Transport and the Regions and anor; QBD, Crown Office List (George Bartlett QC as a deputy High Court judge) 22 Mar 1999.

IN DETERMINING whether a structure separated by some distance from a listed building was within the curtilage of the listed building, it would amount to an error of law to fail to have regard to the concept of curtilage as a small area about the building. Whilst considerations of function, history, ownership and physical layout were all material and could in most cases be determinative of the question, unless the decision maker also bore in mind the essential concept of size, he could come to the wrong conclusion in a case where there was substantial physical separation.

Christopher Katkowski (Actons, Nottingham) for the appellant; John Hobson (Treasury Solicitor) for the respondents.

Practice

Paragon Finance plc (formerly known as National Home Loans Corp plc) v Hare and ord; Ch D (Moore-Bick J) 17 Mar 1999.

THE FUNDAMENTAL principle underlying the court's inherent jurisdiction to control abuse of its process was that it would not allow a party to pursue litigation in circumstances where it would be unjust for him to do so, whether because he had already had an opportunity to put his case and ought not to be allowed to undermine the decision by raising new arguments which he could have put forward on the first occasion, or because the issue he sought to raise had already been decided, if not directly between himself and the other party, then between the other party and other litigants whose interests he shared. In order for proceedings to amount to an abuse of process, identity of the parties and the issues was not necessary, although there was a greater likelihood of abuse where either of those was present.

Christopher Parker (Hamlin Slowe) for the plaintiff; Mark Cannon (Reynolds Porter Chamberlain) for the defendants.

Nuisance

SFI Group plc (formerly Surrey Free Inns) v Gosport Borough Council; CA (Stuart-Smith, Potter, Brooke LJJ) 29 Mar 1999.

A COURT which was considering the validity of enforcement of noise abatement notices which had been served under s 79(1)(g) of the Environmental Protection Act 1990 was required to consider the situation at the time of service of the notices and not at the time of determination of the appeal. The opposite construction would allow the person on whom the notice had been served to defer abating the nuisance until the very last moment before an appeal to the magistrates' court. That would be a highly undesirable result, and one unlikely to have been contemplated by Parliament.

Timothy Straker QC (Fynn & Partners) for the appellant; David Holgate QC, M. Gibney (Moore & Blatch) for the council.