Stein v Blake; CA (Balcombe, Staughton, Waite LJJ); 5 May 1993.
After a bankcruptcy but before a balance of account had been ascertained under s323 of the Insolvency Act 1986, a trustee in bankruptcy may assign to a third party the bankrupt's claims against a person who is entitled to avail himself of the statutory right of set-off. Section 323, like its predecessor, s31 of the Bankruptcy Act 1914, was concerned only with the remedy available and not with the existence of debts. Therefore Farley v Housing & Commercial Developments (1984) BCLC 442 was wrongly decided.
Philip Hoser (Bray Walker) for the appellant; Michael Mark (Maislish & Co) for the respondent.
Sig Bergesen DY & Co v Mobil Shipping & Transportation Co; CA (Balcombe, Staughton LJJ, Sir Roger Parker); 28 April 1993.
A ship designed for the carriage of liquid petroleum gas was not off-hire for 20 days during which cleaning of contaminated tanks took place, since cleaning time was not to be regarded as time lost unless it was shown the time occupied exceeded the time which would have been occupied in normal cleaning. In the absence of negligence, and bearing in mind it was the charterer who decided the nature of the cargo carried, all cleaning must be regarded as normal if carried out with due diligence and proper equipment.
Bernard Rix QC and Duncan Matthews (Sinclair Roche & Temperley) for the owners; Stuart Boyd QC and Jeffrey Gruder (Allen & Overy) for the charterers.
Hare v Schurek; CA(Lloyd, Mann, Steyn LJJ); 13 May 1993.
A consumer credit agreement entered into by a motor vehicle dealer under the Consumer Credit Act 1974 as a one-off or occasional transaction in the course of his business was a 'non-commercial agreement' within s189.
Sile McGuckian (Pictons Wade Gery Farr, Bedford) for the plaintiff; Clive Pithers (Stevensons, Huntingdon) for the defendant.
Middleton v Middleton; FD(Thorpe J); 25 May 1993.
On an application under s 18 of the Legal Aid Act 1988 for an order for the payment by the Legal Aid Board of the costs of a successful unassisted party in ancillary proceedings, the court has power under its inherent power to control its own procedures to grant an extension of time to the applicant to file an affidavit of means and resources in pursuance to Part XIV of the Civil Legal Aid (General) Regulations 1989 (SI no 339).
Mark Everall (David Burrows for Barker Ashton, Bury St Edmunds) for the applicant; Nigel Pitt (Solicitor, Legal Aid Board) for the board.
R v Orgles and anor; CA(Crim Div)(Nolan LJ, Wright, Holland JJ); 19 May 1993.
Where two jurors complained independently of each other that friction amongst the jury as a whole was affecting concentration, the judge erred in making enquiries of those jurors separately and in the absence of the rest of the jury. Where the circumstances giving rise to such an inquiry was internal to the jury, as opposed to an external circumstance affecting only one juror such as illness or an improper approach to a juror, the whole jury should be questioned in open court through their foreman to ascertain their capacity as a body to bring in a true verdict according to the evidence.
Philip Levy; Jeremy Ornstin (Registrar of Criminal Appeals) for the appellants; William J Jones (CPS) for the Crown.
R v Islington LBC, ex p Trail; QBD(Sir Louis Blom-Cooper QC, deputy High Court judge); 27 April 1993.
Where a decision was made, such as that a homeless person was not in priority need within s 59(1)9c) of the Housing Act 1985, the giving of reasons pursuant to s64 was important for two reasons: (a)it was a valuable form of self-discipline for the decision- maker, in ensuring that the decision arrived at was properly articulated; and (b) it was essential for the recipient of the decision, particularly an adverse one, to know why he had lost his application and to be able to assess the potention for challenge or appeal. A letter which simply set out all the categories of s59(1), including 'other special reasons' in sub-para (c), without indicating by reference to which the applicant's case had been considered or identifying what any 'other special reasons' might be, failed to comply with the duty to give reasons under s64.
Sylvester Carrott (Stennett & Stennett) for the applicant; Megan Thomas (Borough Solicitor) for Islington.