Law Report: Case Summaries

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

Children

Re C(a minor) - CA (Balcombe, Kennedy LJJ), 5 July 1993.

It was a matter for concern that no judge had been available in the High Court to hear an application for the continuation of an interim care order made under s 38 of the Children Act 1989 when its initial eight-week period expired. A system had been devised in the family proceedings courts and magistrates' courts reflecting the 28-day rhythm of interim care orders. The court was aware of the shortage of judges but it was desirable that a similar system be devised for the High Court.

Caroline Reid (Howard Thomas Petrou, Norwood) for the first respondent; Gillian Higson-Smith (Borough Solicitor) for Lambeth LBC; Corinna Schiffer (Murrays, Walworth) for the second respondent; Nigel Cox (Meaby & Co) for the third respondent; Martha Cover (Dundons) for the guardian ad litem.

Re S - CA (Lloyd, Butler-Sloss, Roch LJJ), 14 July 1993.

On an application for a stay under s 5 of the Family Law Act 1986, there was nothing illogical in granting a stay of a father's application for residence or contact while refusing a stay of his application for a parental responsibility order.

David Mendes da Costa (Amphlett Lissimore) for the father; George Harkus (Metson Cross & Co) for the mother.

Company

Midrome Ltd v Shaw - CA (Sir Thomas Bingham MR, Steyn, Hoffmann LJJ), 5 July 1993.

The words 'that jurisdiction' in r7.47(2) of the Insolvency Rules 1986 referred to the court's winding up jurisdiction and not merely to its jurisdiction to review, rescind or vary a winding up order mentioned in r7.47(1). Accordingly, where a decision was made by a county court judge or a registrar of the High Court to wind up a company and there was an appeal to a High Court judge, any further appeal to the Court of Appeal required leave.

Nigel Ley (Watson & Co, Keston) for the appellant; Daniel Serota QC (Wallace & Partners) for the respondent.

Costs

Fozal v Gofur - CA (Sir Thomas Bingham MR, Peter Gibson LJ, Sir Francis Purchas), 21 June 1993.

Under s 51(6) of the Supreme Court Act 1981, as amended by s 4 of the Courts and Legal Services Act 1990, the court could not make a wasted costs order against counsel in respect of anything done prior to 1 October 1991 when the amendment came into force. The court did not have jurisdiction to make such an order against counsel before that date.

Justin Shale (Neves, Luton) for the applicant; Simon Monty (Raphael Teff & Co); Christopher Johnston (Austin Allen & Co, Luton); David Hodge (Reynolds Porter Chamberlain) for the respondents.

Landlord and Tenant

Taylor v Courage Ltd - CA (Dillon, Stuart-Smith, Evans LJJ), 29 June 1993.

In relation to the question whether premises were used for a business which comprised a restaurant within s 43(1)(d)(i) of the Landlord and Tenant Act 1954, it was not necessary for the restaurant in a public house to be confined to an area to which other customers were excluded.

Jonathan Brock (Charles Russell, Cheltenham) for the tenant; Edward Cole (Osborne Clarke, Bristol) for the landlord.

Limitation

Broadley v Guy Chapman & Co - CA (Balcombe, Leggatt, Hoffmann LJJ), 2 July 1993.

In a medical negligence action, the knowledge of possible negligence required by a plaintiff was not detailed knowledge sufficient to enable the plaintiff's advisers to draft a statement of claim, for that conflicted with the final words of s 14(1) of the Limitation Act 1980. Time began to run when a plaintiff could be said to have known with the help of medical advice reasonably obtainable that the injury complained of had been caused by some conduct or failure on the part of the person performing the operation.

Rodger Bell QC (Leigh Day & Co) for the appellant; Justin Fenwick QC and Sue Carr (Pinsent & Co) for the respondent.

Planning

Staley v Secretary of State for the Environment - CA (Sir Thomas Bingham MR, Mann, Peter Gibson LJJ), 28 June 1993.

An application to the High Court under s 288 of the Town and Country Planning Act 1990 was not an appropriate method to challenge an order for costs made by an inspector at a planning inquiry, since such an order was not a ministerial action.

The appellant in person; Christopher Katkowski (Treasury Solicitor) for the Secretary of State.

Practice

Fielding v Rigby - CA (Sir Thomas Bingham MR, Mann, Peter Gibson LJJ), 28 June 1993.

The service of a writ after the plaintiff had died, but before his widow and personal representative had been substituted as plaintiff, did not render the proceedings a nullity but was an irregularity within RSC Ord 2, r 1.

Dominic Nolan (Dibb Lupton Broomhead, Manchester) for the appellant; Philip Butler (Kennedys for Fieldings, Bolton) for the respondent.

Revenue

Gallagher v Jones (HMIT) - Threlfall v Same, CA (Sir Thomas Bingham MR, Nolan LJ, Sir Christopher Slade), 30 June 1993.

Payments under contracts for finance leases of equipment (here, narrowboats for hire) had to be taken into account for tax purposes according to accepted principles of commercial accountancy. The accepted principle, if the greater part of the rental payments over the 21-year period were payable in the early stages of the lease, was that payments were to be spread over a number of years to reflect the true position. There was no fundamental principle of law requiring or enabling intial payments to be deducted in the first year when they were incurred.

Ian Glick QC and Launcelot Henderson (Inland Revenue Solicitor) for the Crown; Rex Bretten QC and Robert J Grierson (Herbert Wilkes, Birmingham) for the taxpayers.