Law Report: Case Summaries

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

Contempt

Villiers v Villiers; CA (Sir Thomas Bingham, MR, Hoffmann, Henry LJJ); 22 November 1993.

For the purposes of s 14(1) of the Contempt of Court Act 1981, which provides that a term of imprisonment for contempt of court 'shall not on any occasion exceed two years', the 'occasion' was the occasion on which an order for committal was made and the contemnor left court to go to prison. Accordingly, where a judge imposed a sentence of 18 months' imprisonment for contempt and also activated an earlier suspended sentence of 12 months' imprisonment for contempt, the total sentence of two years was wrong.

The appellant in person; James Munby QC (Official Solicitor) as amicus curiae.

European court

BPL Group plc v Commissioners of Customs and Excise; CA (Butler-Sloss, Stuart- Smith LJJ; Sir Tasker Watkins); 17 November 1993.

On appeal from the judge's refusal to refer the case to the European Court of Justice, in the light of the requirement in art 177 of the Treaty of Rome that the request for a ruling by a national court was to be made by the court which itself would make the decision, remitted the matter to the High Court to another judge, indicating that the guidelines for a reference were met, in the expectation that a reference would then be made.

David Milne QC (Simmons & Simmons) for the appellant; Paul Lasok (Customs & Excise Solicitor) for the respondent.

Guarantee

Duchess Theatre Co Ltd v Lord and ors; CA (Balcombe, Stuart-Smith, Peter Gibson LJJ); 3 December 1993.

It would be an unwarranted extension of the principle in Henderson v Henderson (1843) 3 Hare 100 to apply the requirement that a party would not be permitted to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest but was not brought forward, to a demand for payment under a guarantee which had not been called in at the date of the original judgment.

Terence Cullen QC and Anthony Trace (Holman Fenwick Willan) for the appellants; Michael Crystal QC, Richard Adkins and Susan Prevezer (Freshfields) for the respondents.

Insolvency

Chohan v Saggar and anor: CA (Nourse, Balcombe, Waite LJJ); 19 November 1993.

Since the object of ss 423 and 425 of the Insolvency Act 1986 was to remedy the avoidance of debts, the word 'and' between paragraphs (a) and (b) of s 423(2) must be read conjunctively and not disjunctively. Any order made under that subsection must seek, so far as practicable, both to restore the position to what it would have been if the transaction had not been entered into and to protect the interests of the vicitms of it. It was not a power to restore the position generally, but in such a way as to protect the victims' interest, namely, by restoring assets to the debtor to make them available for execution by the victims.

Sir William Goodhart QC and David Perry (Singh & Choudry) for the plaintiff; Peter Ralls (Lass Salt Garvin) for the first defendant; Richard Ritchie (Kenwright & Cox) for the building society.

Re Port (a bankrupt) No 516; Port v Auger; ChD (Harman J); 25 November 1993.

An 'ordinary application' within the meaning of rule 7(2) of the Insolvency Rules 1986(SI no 1925), namely any application other than an 'originating application' which was defined as an application which was 'not in pending proceedings', was not a pleading which could be struck out under RSC Ord 18, r 19 and the court could only use its inherent jurisdiction to strike it out if it had no basis at all.

Geoffrey Vos QC (Wilde Sapte) for the trustee in bankruptcy; Alan Newman QC and David Wilby (Coates & Co, Leeds) for the respondent.

Limitation

Ward v Foss; Heathcote v Foss; CA (Sir Thomas Bingham MR, Simon Brown, Hobhouse LJJ); 19 November 1993.

The fact that a cause of action was inequitable in the sense that it produced over-compensation in a way recognised by Parliament to have required statutory curtailment did not mean that it was necessarily not 'equitable' within s 33 of the Limitation Act 1980 to disapply the limitation period and allow the action to proceed. Section 33 did not ask whether the claim itself was equitable, but rather, whether having regard to various specified matters, it was equitable to allow it to proceed.

Bernard Livesey QC and Philip Head (Browne Jacobson, Nottingham) for the appellant; Leslie Joseph QC (Tallents Godfrey & Co, Newark) for the respondents.

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