Law Report: Case summaries

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

Child

Re N (a minor); CA (Balcombe, Mann, Leggatt LJJ); 3 December 1992.

On an application under the Child Abduction and Custody Act 1985 and the Hague Convention on the Civil Aspects of International Child Abduction the court had a statutory duty to apply the convention if the necessary facts were present, and in doing so was concerned not only with the interests of the child but of abducted children generally. Such litigations were neither adversarial nor inquisitorial, but sui generis.

Henry Setright (Ralph Haring & Co) for the father; Robin Spon- Smith (Batchelors) for the mother.

Common land

Re Land at Freshfields; ChD (Warner J); 27 January 1993.

However extensive a meaning one gave to the word 'garden' in s 1(3) of the Common Land (Rectification of Registers) Act 1989, that word could not, as a matter of plain English, be applied to fields of pasture so as to bring them within the definition of 'land ancillary to a dwelling house' for the purposes of s 1(2). Accordingly, the court had no power to order the removal of the land from the register maintained under the Commons Registration Act 1965, notwithstanding that it had been mistakenly registered.

Ann McAllister (Winward Fearon & Co) for the objector.

Costs

L v L; FD (Cazalet J); 29 January 1993.

In taxation proceedings, on an application made pursuant to RSC Ord 62, r 35 for review of a taxation of costs, it was reasonable for the district judge to assess the reasonable rate allowable to a solicitor for legal aid work in the Family Division at the hourly rate of pounds 45 and pounds 30 for a partner and legal executive respectively. The district judge had been right to base his assessment on his general knowledge and experience of rates charged by the average firm and to give limited weight to the Law Society's The Expense of Time Survey on rates, as required by Johnson v Reed Corrugated Cases Ltd (1992) 1 All ER 169.

Kenneth Craig (Baden Barnes Groves & Co) for the applicant.

Insolvency

Re Seagull Manufacturing Co Ltd (in liquidation); CA (Lloyd, Hirst LJJ, Peter Gibson J); 3 February 1993.

The court had jurisdiction under s 133 of the Insolvency Act 1986 to order the public examination of a director of a company in compulsory liquidation regarding the company's affairs notwithstanding that he was absent from the jurisdiction.

Paul Teverson (Rose & Birn) for the director; Nigel Davis QC (Treasury Solicitor) for the Official Receiver.

Residential home

R v Devon CC, Ex p Baker; R v Durham CC, Ex p Broxson; CA (Dillon, Farquharson, Simon Brown LJJ); 21 December 1992.

In exercising its power to close a residential home a county council, although not required to consult each resident individually, was nevertheless under a duty to act fairly by giving clear notice that closure was under consideration, sufficient time to enable the residents to make representations and time for any objections to be considered by the council.

Anthony Bradley and Sile McGuckian (Gill Akaster, Plymouth; Turners, Exeter); John Samuels QC and Roger McCarthy (W A Burkinshaw, Exeter) for Devon CC; Anthony Porten QC and David Blake (RJ Humphries, Durham) for Durham CC.

Crime

R v Sidhu; CA (Crim Div) (Nolan LJ, Owen, Ward JJ); 22 December 1992.

Where a defendant was charged with conspiracy to possess explosives in connection with the Sikh nationalist cause in India, the judge was entitled to admit in evidence a video recording made in Pakistan showing the defendant heavily armed and supporting the cause, as evidence of a continual background of history relevant to the defendant's part in the alleged conspiracy, provided the events in the recording were not too remote in time to carry probative weight.

Paddy O'Connor (Registrar of Criminal Appeals) for the appellant; John Bevan (CPS) for the Crown.

Negligence

Topp v London Country Bus (South West) Ltd; CA (Dillon, Rose LJJ, Peter Gibson J); 29 January 1993.

The defendant owed no duty of care to the plaintiff whose wife was knocked down and killed by an unknown third party who had stolen the defendant's minibus.

Roger Hetherington (Howell- Jones & Partners, Walton-on- Thames) for the plaintiff; Andrew Phillips (Cripps Harries Hall, Tunbridge Wells) for the defendant.

Practice

Advanced Technology Structures Ltd v Cray Valley Products Ltd and anor; Pratt v Same; CA (Glidewell, Leggatt, Hirst LJJ); 21 December 1992.

When Parliament decided that legal aid should not be available to corporations it cannot have been its intention that a corporation should be able to nominate an employee, to whom it had assigned a right of action, to conduct litigation on its behalf with the assistance of legal aid for which he was eligible.

Desmond Wright QC and Karen Troy-Davies (Humphries & Co, Bristol) for Pratt; Roger Toulson QC and Justin Fenwick (Herbert Smith) for the defendants.

Practice Direction: Criminal Justice Act 1987: Crown Court Centres; CA (Crim Div) (Lord Taylor of Gosforth CJ); 16 December 1992.

The following direction was made with regard to the place of trial for cases of serious and complex fraud transferred to the Crown Court under the Criminal Justice Act 1987.

The proposed place of trial specified in the notice of transfer under s 5(1) should be one of the following. Midland and Oxford circuit: Birmingham, Leicester, Northampton, Nottingham, Oxford, Stafford, Wolverhampton; North Eastern circuit: Bradford, Leeds, Newcastle, Sheffield, Teesside; Northern circuit: Liverpool; South Eastern Circuit: Aylesbury, Central Criminal Court, Chelmsford, Guildford, Isleworth,Knightsbridge, Maidstone, Middlesex Guildhall, Norwich, Snaresbrook, Southward, Wood Green; Wales and Chester circuit: Cardiff, Chester, Mold, Swansea, Warrington; Western circuit: Bristol, Exeter, Plymouth, Portsmouth, Southampton, Winchester. The Practice Direction (1990) 1 WLR 1310; (1990) 3 All ER 320 made on 2 Oct 1990 was revoked.

Injunction

National Bank of Sharjah v Dellborg and ors; CA (Lloyd, Ralph Gibson LJJ, Sir Michael Kerr); 9 November 1992.

On an ex parte application for a Mareva injunction the material facts necessary to enable the judge to exercise his discretion properly and fairly should be disclosed in an affidavit. It would usually be convenient to exhibit a few key documents where necessary to explain the case. It would usually be unnecessary to exhibit masses of documents.

First defendant in person; Jonathan Hirst QC and Michael Swainston (Clyde & Co) for the bank.

Revenue

Kirkby v Hughes (Inspector of Taxes); ChD (Ferris J); 21 December 1992.

Income tax under Sch D (trading income) was payable on a profit realised by a builder on the sale of a house of which he claimed to have acquired and improved as his private residence.

The appeal commissioners were entitled to take account the fact that the taxpayer was a builder who had renovated the houses in the past and did not accept that the house was ever intended as his residence.

Alun James (Malkins for Percy Hughes & Roberts) for the taxpayer; Timothy Brennan (Inland Revenue Solicitor) for the Crown.

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