CASE SUMMARIES v 8 July 1996

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

Arbitration

Philip Alexander Securities & Futures Ltd v Bamberger; QBD Comm Ct (Waller J) 8 May 1996.

Where an arbitration clause discriminated on the basis of nationality without objective justification it was unenforceable under EC law. Therefore the clause, contained in agreements made between an English company dealing in futures and options and its German customers, did not entitle the English company to an injunction of the German customers' foreign proceedings. However, although some German courts had already given judgment, the English courts were not bound to recognise the German judgments obtained in disregard of the arbitration provision.

Stephen Morris, Sara Masters (D.J. Freeman) for the plaintiffs; David Anderson, Helen Davies (Treasury Solicitor) as Amicus Curiae.

Company law

Secretary of State for Trade and Industry v Davies; CA (Neill, Hobhouse, Millett LJJ) 24 May 1996.

In deciding whether to grant leave for proceedings against a director under s 6 of the Company Directors' Disqualification Act 1986 to be commenced out of time, the inadequacy of the reasons for the delay was merely one of the conditions to be taken into account and was not by itself a free- standing or threshold test.

Michael Briggs QC, Paul Girolami (Peters & Peters) for the appellant; A.W.H. Charles, Richard Gillis (Treasury Solicitor) for the Secretary of State.

European law

O'Flynn v Chief Adjudication Officer (Case C-237/94) ECJ; 23 May 1996.

The imposition of a territorial condition, on the grant of a payment under the Social Fund (Maternity and Funeral Expenses) (General) Regulations 1987 (SI 481) to cover the costs incurred by a claimant on the occasion of a death in the family, that the burial or cremation should take place within the United Kingdom, constituted indirect discrimination against a migrant worker in respect of social and tax advantages contrary to art 7(2) of Regulation (EEC) 1612/68.

Injunction

Ketchum International plc v Group Public Relations Holdings Ltd; CA (Stuart- Smith, Peter Gibson, Ward LJJ) 24 May 1996.

The Court of Appeal's power to grant an injunction in exercise of its original jurisdiction was not limited to cases concerned with the preservation of a fund or property but was based on the wider principle that justice required the court to be able to ensure that its judgments were not rendered valueless by an unjustifiable disposal of assets. There was no reason why the considerations applicable to the grant of a Mareva injunction should not be applied. The test would be "Does the appellant have a good arguable appeal?" The court had concurrent original jurisdiction similar to that exercised where a stay of execution was sought and the matter did not have to be raised by way of appeal.

George Leggatt (Clifford Chance) for the applicant; Romie Tager QC, James Ayliffe (Lewis Silkin) for the respondent.

Practice

Collett v Bromsgrove DC; QB Div Ct (Auld LJ, Sachs J) 22 May 1996.

Where the High Court had dismissed an application to amend a case stated, but had not dismissed the appeal by way of case stated itself, an applicant did not need leave from the High Court to withdraw the appeal in order to ask the justices to vary or rescind their order under s142 of the Magistrates' Courts Act 1980, as there was no express statutory provision to deprive the applicant of his right to withdraw or abandon his appeal.

Richard A. Furniss (Morton Fisher, Bromsgrove) for the appellant; John Greaves (AI Burton Borough Solicitor) for Bromgrove DC.

Tax

McKnight (HMIT) v Sheppard; Ch D (Lightman J) 14 May 1996.

Fines imposed by disciplinary procedures of the Stock Exchange and legal expenses incurred in defending charges of breach of Stock Exchange rules were not deductible from trading income by a stockbroker. While the expenditure was incurred solely to save the taxpayer's business, it was not an incident or part of the cost of carrying on his business.

Timothy Brennan (Inland Revenue); Hugh McKay (Dunderdale Wignall, Manchester) for the taxpayer.

Templeton (HMIT) v Jacobs; ChD (Jonathan Parker J) 22 May 1996.

The cost of converting the loft space in a taxpayer's house to an office, paid for by his prospective employer before he became employed, was a taxable benefit within s 154 of the Income and Corporation Taxes Act 1988. Though the benefit was derived from a contract made, between the employer and the builder, before the taxpayer became an employee, he received no benefit until the work was done, by which time he was an employee.

Timothy Brennan (Inland Revenue); Patrick Way (Nabarro Nathanson) for the taxpayer.

CORRECTION: In Vitol SA v Norelf Ltd (Law Report, 28 June) Jeremy Cooke QC and Andrew Wales (instructed by Clyde & Co) appeared for Norelf, Andrew Popplewell QC and Helen Davies (Holman Fenwick & Willan) for Vitol.

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