CASE SUMMARIES v 3 July 1995

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

Drunken driving

Baldwin v West Yorkshire Police; QB Div Ct (Simon Brown LJ, Curtis J) 5 May 1995.

When considering whether the procedure laid down in s 8(2) of the Road Traffic Act 1988, whereby a motorist suspected of drunken driving was able to substitute for a breath test a sample of blood or urine, had been properly followed, it was not necessary to consider whether the words of Lord Bridge in DPP v Warren [1992] 4 All ER 865 had been used, since the dictum did not have the force of statute but was a guide to lower courts in the interpretation of the statute. Therefore, so long as the option available under the subsection, of giving a specimen of blood or urine to be used instead of the breath test, was given fairly and properly, so that the motorist could make an informed decision, the objects of justice would be met.

John Elvidge (Perfitt & Hardcastle, Huddersfield) for the appellant; Timothy Clayson (CPS) for the respondent.

Practice

Heer v Tutton & anr; Pickles v Holdsworth; Lovell v Porter; CA (Sir Thomas Bingham MR, Peter Gibson, Savill LJJ) 26 May 1995.

Where a plaintiff agreed to extend a defendant's time for serving a defence, whether indefinitely, indefinitely subject to notice, or for a definite period, he was in effect agreeing not to enter judgment in default of defence during the period agreed. Such agreement necessarily imported an undertaking on the defendant's part not to exploit, to the plaintiff's prejudice, any rule which might otherwise penalise the plaintiff for not entering judgment, and thus had the effect of ousting Ord 9, r 10 of the County Court Rules.

John Cherry QC, Simon King (Freeth Cartwright Hunt Dickins, Nottingham), Stuart Brown QC, William Hanbury (Morrish & Co, Leeds), John Cherry QC, Douglas Herbert (Greenwoods, Peterborough) for the appellants; Harvey McGregor QC, Matthew Jackson (Ford & Warren, Leeds), Edwin Glasgow QC, Simon Myerson (Raworths, Harrogate), Roderick Noble (Shoosmiths & Harrison, Northampton) for the respondents.

Sentencing

R v Evans; CA (Cr Div) (Evans LJ, Garland, Connell JJ) 18 May 1995.

The appropriate sentence in cases of dishonesty involving the "ringing" of motor cars, for someone who pleaded guilty to a sophisticated criminal exercise and was a "ringleader", was a sentence between four and five years' imprisonment on conviction. In the case of a "lieutenant" a sentence of three years might be appropriate on a not guilty plea. A plea of guilty attracted an appropriate discount, resulting in 27 months' imprisonment in this case.

Jeremy Lynn (Registrar of Criminal Appeals) for the appellant.

Tax

Cassell v Crutchfield (Insp of Taxes); ChD (Blackburne J) 6 June 1995.

General commissioners of income tax were justified in refusing to permit an accountant, who had been suspended by professional accountancy bodies because of a conviction for a tax-related offence, to address them on behalf of a taxpayer. The Taxes Management Act 1970 provided by s 50(5) that an accountant had a right to represent a taxpayer before the commissioners, but the provision only applied if he was a member of an appropriate accountancy body at the time of the hearing, and in the circumstances the commissioners were entitled not to exercise their discretion to hear him.

The taxpayer in person; Timothy Brennan (Inland Revenue) for the Crown.

Time estimates

R v Stock; CA (Cr Div) (Lord Taylor CJ, Forbes, Mitchell JJ) 6 June 1995.

The court stressed the importance of counsel responding to requests from the Criminal Appeal Office for estimates of the length of time a case might occupy. The requirement applied to counsel for the Crown as well as for the appellant. Counsel were not expected to be precise but it was impossible for the court if counsel did not provide such estimates.

Michael Mansfield QC, Vera Baird (Gabb & Co, Crickhowell) for the appellant; Franz Muller QC (CPS) for the Crown; Michael Austin-Smith (AK Hussain, Wakefield) for West Yorks Police Authority.

Trust

Armitage v Nurse & ors; ChD (Jacob J) 28 June 1995.

An exoneration clause would be construed strictly in favour of the beneficiary and against the trustee. However, a clause which provided that "no trustee shall be liable for any loss or damage . . . to [the] fund . . . unless such loss or damage shall be caused by his own actual fraud" could not encompass honest but wilful or reckless breaches. Accordingly, the clause exonerated the trustees for the breaches alleged.

Bernard Weatherill (Pickering Kenyon) for the plaintiff; Gregory Hill (Hood Vores & Allwood; Greenland Houchen; and Mills & Reeve), variously, for the defendants.

VAT

Customs & Excise Commrs v Jeffs & anr (t/a J&J Joinery); QBD (Ognall J) 7 June 1995.

Supplies of window and door frames and prefabricated conservatories, made to measure for protected buildings, were supplies of goods and services and were therefore not zero-rated. Had the items been regarded as goods supplied with a separate supply of services they would have fallen within the zero-rating provisions of the VAT Act 1983, Sch 5, grp 8A, item 2 (VAT Act 1994, Sch 8, grp 6, item 2).

Melanie Hall (Customs & Excise) for the Crown; William Massey (Williamson & Soden, Birmingham) for the taxpayers.

Customs & Excise Commrs v Windflower Housing Assn; QBD (Ognall J) 16 June 1995.

The entire roof of a grade 2 listed building was "repair or maintenance" although there was also some "alteration" involved. It was necessary completely to replace the roof using modern methods and materials but at the same time the roof was raised by an inch to enable additional accommodation to be put into the attic space. If the work was regarded as "alteration" it would be zero-rated under the VAT Act 1983, Sch 5, grp 8A, item 2 (VAT Act 1994, Sch 8, grp 6, item 2) but since the work was substantially "repair or maintenance" it would be excluded from zero-rating by note 6.

Melanie Hall (Customs & Excise) for the Crown; John Tallon (Rutherfords, Tamworth) for the housing association.

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