CASE SUMMARIES v 30 October 1995

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

Copyright

Cala Homes (South) Ltd & ors v Alfred McAlpine Homes East Ltd; ChD (Laddie J) 20 Oct 1995.

A plaintiff had the right to pursue a claim for additional damages under s 97(2) of the Copyright, Designs & Patents Act 1988 even if he had elected an account of profits as the primary mechanism for obtaining financial remedies for the infringement of his copyright.

Martin Howe (Frere Cholmeley Bischoff) for the plaintiffs; Geoffrey Hobbs QC, Denise McFarland (Edward Lewis) for the defendant.

Jurisdiction

R v Lambeth LBC, ex p Thompson; QBD (Collins J) 12 Oct 1995.

The High Court could not entertain an application for judicial review brought by a council employee who had been dismissed. That there might be irregularities in the procedures followed by the council in rescinding the decision of its appeals committee, which had allowed the employee's appeal, was not a matter of public law but one of private law for an industrial tribunal to deal with.

Ashitey Ollennu (Stockwell & Clapham Law Centre) for the employee; Anthony Bradley (Lambeth Legal Services) for the council.

Practice

Thermawear Ltd v Linton & anr; ChD (Lightman J) 11 Oct 1995.

The requirement of a pre- trial review in cases estimated to last more than 10 days, as laid down in Practice Direction (Civil Litigation Case Management) [1995] 1 All ER 385, applied irrespective of the date when the case was set down for trial. There appeared to be a prevalent misconception that it applied only to cases set down for trial after the direction was given. The duty to apply for a pre-trial review rested on both parties, though primarily on plaintiffs.

Robin Potts QC, Michael Todd (Walker Morris, Leeds) for the plaintiff; Leslie Kosmin QC, Derrick Dale (Barlow Lyde & Gilbert) for the second defendant.

Sentencing

R v Basid; CA (Cr Div) (Beldam LJ, Scott Baker, Stuart White JJ) 6 Oct 1995.

The court had no power under s 9(1) of the Criminal Justice Act 1982, as amended by the Criminal Justice Act 1991, to make an order of detention in default of payment of a fine or confiscation order in respect of a young offender under the age of 18, because s 19 was limited to persons under 21 but not less than 18.

Paul Keleher (Registrar of Criminal Appeals) for the appellant.

Trade union

London Underground Ltd v National Union of Railwaymen, Maritime and Transport Staff; CA (Butler-Sloss, Millett, Ward LJJ) 29 Sept 1995.

A trade union was not deprived of its statutory immunity from suit arising out of industrial action, as conferred by ss 219 to 235 of the Trade Union and Labour Relations (Consolidation) Act 1992 as amended by the Trade Union Reform and Employment Rights Act 1992, where it induced employees to join a strike without first balloting them, if those employees had joined the union after a ballot had taken place authorising the strike. Section 226(1) of the 1992 Act, under which the union was not protected unless the industrial action had the support of a ballot, applied where the majority of the union's members who had voted in the ballot had agreed to take part.

John Hand QC, Oliver Segal, Melanie Tether (Pattinson & Brewer) for the union; Jeffrey Burke QC, Roy Lemon (Frances Low) for the employer.

VAT

Customs & Excise Commrs v McMaster Stores (Scotland) Ltd; Ct of Sess (Lord President Hope, Lord Allanbridge, Lord Johnston) 26 May 1995.

The fact that a company was in receivership did not preclude recovery of VAT overpaid in error under s 80 of the VAT Act 1994. The specific defence available to Customs & Excise under s 80(3), that recovery might be refused if repayment would unjustly enrich the taxpayer, was not applied. Although any VAT recovered would not be returned wholly to the persons who had paid the tax to the company, but would be available to be distributed among all the company's creditors, the company and its shareholders would receive no benefit.

J.R. Campbell (Shepherd & Wedderburn WS) for Customs & Excise; J.E. Drummond- Young QC, Colin Tyre (Dorman Jeffrey & Co) for the company.

CORRECTIONS: In R v Green (Case Summaries, 9 October) counsel for the appellant was Alastair Edie. In R v Home Secretary, ex p Singh (Law Report, 17 October) solicitors for the applicant were Moody & Woolley of Derby.