Law Report: Case Summaries

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

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Gillingham BC v Cock; QBD(DC) (Kennedy LJ, Clarke J); 18 Jan 1993.

A defendant relying on the statutory defence in s 224(5) of the Town and Country Planning Act 1990 to an offence of affixing posters contrary to reg 5 of the Town and Country Planning (Control of Advertisements) Regulations 1989, had to show that he had no knowledge of, or had not consented to, the posters being displayed. If he had acquired such knowledge he could still prove that he had not consented since the words 'knowledge' and 'consent' in the subsection had to be construed disjunctively.

Richard Humphreys (Borough Solicitor) for the council; Heather Williams (Christian Fisher) for the defendant.

Bankruptcy

Re a debtor (no 68 of 1992); ChD (Harman J); 1 Feb 1993.

When hearing an application to annul a bankruptcy order under s 282(1)(a) of the Insolvency Act 1986, the court had no general discretion to proceed on the basis of facts as they were at the time of the hearing, but was restricted to 'grounds existing at the time the order was made'. Where, therefore, a bankcruptcy order had been obtained on the basis of an unpaid judgment debt, the subsequent setting aside of that judgment was not a ground on which the court could annul the bankruptcy order under s 282.

Geoffrey Killen (David Blank Furniss, Manchester) for the bank; the debtor in person.

Child

Re S-W; FD (Booth J); 29 Jan 1993.

In family proceedings, it would be wise for legal advisers to make their clients well aware of the power of the court to make, on its own motion, a wide range orders under the Children Act 1989. For example, the court could not only make any order under s 34 in relation to contact with a child in care, but by s 10(1)(b) it could also make any s 8 order, even though no application for such an order had been made. The court is not constrained by the application before it but will act in accordance with what it finds to be in the child's welfare - its paramount consideration - and with matters under s 1. Accordingly, the mother's appeal against the justices' decision to include in a care order that there be no contact between mother and child was dismissed, even though the mother had no notice of the local authority's intention to oppose further contact.

Helen Matuk (Trevor Cox & Co, York) for the mother; Jonathan Bennett (County Solicitor) for N Yorkshire County Council; Roger McCarthy (Gillings Walker & Keen, York) for the guardian ad litem.

Housing

Taylor v Newham LBC; CA (Sir Thomas Bingham MR, McCowan, Hirst LJJ); 27 Jan 1993.

On an application by a council tenant under s 138(3) of the Housing Act 1985 for an injunction to enforce the sale of a council house under the right-to-buy provisions, the court had no discretion to refuse the injunction on the grounds of hardship, since, once the conditions in s 138(1) were satisfied, the tenant was entitled as of right to an injunction to enforce the landlord's duty to convey the property on the terms agreed or determined.

David Watkinson (Council Solicitor) for the council; David Brook (Kenneth Elliott & Rowe, Romford) for the tenant.

Landlord and tenant

Sheffield CC v Jepson; CA (Ralph Gibson, Leggatt, Hoffmann LJJ); 2 Feb 1993.

In refusing a landlord a possession order against a tenant who was in admitted and deliberate breach of a condition not to keep a dog in her flat, the judge had erred since no evidence had been called which was capable of supporting the exercise of his discretion in the tenant's favour.

A Underwood (City Council) for the landlord; Sylvester Carrott (John Howell & Co, Sheffield) for the tenant.

Ward-Lee v Linehan; CA (Sir Thomas Bingham MR, McCowan, Hirst JJ); 9 Feb 1993.

Where a tenant of business premises issued an originating application in the county court for a new tenancy under Part II of the Landlord and Tenant Act 1954, but the application was not served on the landlord within two months of the date of issue and no application to extend was made within four months of the date of issue, as required by CCR Ord 7,r 20 and Ord 43, r 6(3), the county court nevertheless had jurisdiction on proper grounds being shown (1), to extend the time for service under CCR Ord 13, r 4 and (2), to treat the failure to extend and serve as an irregularity and order the action to proceed under CCR Ord 37, r 5.

Timothy Fancourt (Stephens & Scown, Truro) for the appellant; Ben Patten (Lufflam & Ainsworth, Sutton) for the respondent.

Procedure

Marsh v Marsh; CA (Sir Stephen Brown P, Glidewell, Staughton LJJ); 5 Feb 1993.

Although by r 8.1(2) of the Family Proceedings Rules 1991, CCR Ord 37, r 6 applied to ancillary relief appeals, it was to be read in conjunction with r 8.1(3), which gave the judge hearing the appeal power to exercise his own discretion in substitution for that of the judge below. Therefore, appeals to which r 8.1(3) applied were not be considered on the same basis as appeals to the Court of Appeal.

Nicholas Wall QC and Richard Todd (Donnelly & Elliott, Gosport) for the husband; Brian Coulter (Innes & Co, Portsmouth) for the wife.

Road traffic

Dittah and anor v Phillips; QBD(DC) (Kennedy LJ, Clarke J); 29 Jan 1993.

Under s 46(1)(d) and (e) and s 80(2) of the Local Government (Miscellaneous Provisions) Act 1976, the operator of private vehicle hire business required a licence from the area in which he intended to operate and could operate in that area only vehicles and drivers licensed by the district.

Rupert Massey (Evan Derry Rennie, Birmingham) for the defendants; Timothy Raggatt (CPS) for the prosecution.

DPP v Winstanley; QBD(DC) (Kennedy LJ, Clarke J); 29 Jan 1993.

A police officer, who, having heard representations from a motorist as to whether he wished to supply a specimen of blood or of urine to replace breath specimens and having decided to require a specimen of blood, could, when it became clear that no doctor could be obtained, ask the motorist to provide a specimen of urine.

Jeremy Carter-Manning (CPS) for the prosecution; Barry Myers (White Hecht) for the defendant.

Revenue

Threlfall v Jones (HMIT); Gallagher v Same; ChD (Harman J); 29 Jan 1993.

Payments made in the early stages of a front-loaded finance lease for capital equipment were deductible in computing the tax liability of a trader when they became due. The fundamental principle of law, developed in the cases, that expenditure wholly and exclusively laid out for the purposes of the trade was deductible when it was incurred was not displaced by commercial accounting practice which required such payments to be spread over the life of the asset.

Rex Bretten QC, and Robert J Grierson (Herbert Wilkes & Co, Knowle) for the taxpayer; Launcelot Henderson (Inland Revenue Solicitor) for the Crown.

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