Case Summaries

5 July 1999
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The Independent Online
THE FOLLOWING notes of judgments were prepared by the reporters of the All England Law Reports.

Insolvency

Re a Debtor (No 544/SD/98); Ch D (Jacob J) 10 June 1999.

THE COURT would normally set aside a statutory demand pursuant to r 6.5(4) of the Insolvency Rules 1986 where a debtor claimed to have a counterclaim which equalled or exceeded the amount of the debt specified in the statutory demand, if in its opinion there was a genuine triable issue. Where there was a delayed cross claim the court should, in exercising its discretion, take account of that delay.

Charles Purle QC, Lawrence Jones (Gower Freeman & Goldberg) for the debtor; Lexa Hilliard (Lloyd's) for the respondent.

Town and country planning

Jelson Ltd v Derby City Council; Ch D (David Mackie QC as a deputy High Court judge) 11 June 1999.

A CLAUSE in an agreement under s 106 of the Town and Country Planning Act 1990 between a developer and a planning authority which obliged the developer to transfer an "affordable housing" site to a housing association to be nominated by the authority was of no legal effect, since there was no signature on behalf of the housing association as required by s 2 of the Law of Property (Miscellaneous Provisions) Act 1989.

Pascal Bates (Kingsford Stacey Blackwell) for the developer; James Howlett (Director of Corporate Services, Derby City Council) for the council.

Crime

R v Ugorji; CA, Crim Div (Tuckey LJ, Gage J, Judge Rivlin QC) 11 June 1999.

WHERE A witness only gave evidence as a result of being treated as hostile, the jury should be remined of that fact in clear terms and of the weight to be attached to the evidence, even in a case where the standard hostile witness direction was inappropriate.

Mohammed Latif (Registrar of Criminal Appeals) for the appellant; Paul Spencer (CPS) for the Crown.

Expert witness

Rollinson v Kimberley Clark Ltd; CA (Peter Gibson, Judge LJJ) 14 June 1999.

WHEN A trial date was fairly imminent a solicitor should not seek to instruct an expert witness without checking his availability for the trial, and if there was no reasonable prospect of securing his attendance for another year he should instruct another expert.

Peter Morton (Thompsons, Newcastle-upon Tyne) for the claimant; John Benson (Hill Dickinson, Liverpool) for the defendant.

Disclosure

R v W Justices, ex p J and anor; QBD, Div Ct (Auld LJ, Hughes J) 16 June 1999.

SOMETHING SHORT of outright provision of copies of audio and video surveillance tapes which were exhibited to an undercover police officer's witness statement might be justified where considerations of fairness in the public interest as well as that of the defence were involved, provided that a defendant's right to a fair trial was not prejudiced.

Duncan Matheson QC, Kim Hollis (Linskills, Liverpool) for J; Duncan Matheson, Darren Samat (Linskills, Liverpool) for S; Rick Holland (CPS) for the Crown.

Trade mark

Torbay Council v Singh; QBD, Div Ct (Auld LJ, Hughes J) 16 June 1999.

A TRADER charged with unauthorised used of a trade mark contrary to s 92(1)(b) of the Trade Marks Act 1994 could not avail himself of the statutory defence in s 92(5), namely that he believed on resonable grounds that the use of the sign in the manner in which it was used was not an infringement of the registered trade mark, on the basis that he believed on reasonable grounds that there was no registered trade mark to infringe. If he did not know of or doubted the existence of a registered trade mark which he was in danger of infringing, he could obtain a definitive answer by checking the register.

Martin Meeke (Chief Executive, Torbay Council) for the council; the defendant did not appear.

Negligence

Dent v National Farmers Union and associated actions; Ch D (Evans-Lombe J) 17 June 1999.

WHERE THE NFU had given incompetent advice as to the procedure to be followed in the pursuit of claims for compensation against the European Council and Commission resulting from inability to obtain milk quota when the regime was introduced on 1 April 1984, it was potentially liable to its members in contract, and to its members and non-members in tort.

John Randall QC, Lance Ashworth (Wragge & Co, Birmingham) for the claimants; Stuart Isaacs QC, James Ramsden (Taylor Joynson Garrett) for the NFU.

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