Law Report: Case Summaries

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

Care

Re RD (a minor) - FD (Ewbank J), 17 Feb 1993.

In care proceedings the protection of the child is the decisive factor when the court is deciding whether to make a supervision or a care order. Moreover, the lifting of safeguards surrounding children had to be done by the courts. Where children from the father's former marriage suffered non-accidental injuries and a baby had been killed while in his care, it was proper to make a care order to protect the child of his present relationship, notwithstanding the local authority's view that a supervision order was adequate since the child was thriving and a care order would undermine co-operation with the social services.

Jane Hoyal (County Solicitor) for Cambridge County Council; Ian Peddie QC (Palmer Wheeldon, Cambridge) for the guardian ad litem; Wendy Fawcett (Copleys, St Ives) for the parents.

Legal aid

Graham Cole-Williams (formerly Frank) v LPH Equipment Ltd - CA (Glidewell, Butler-Sloss LJJ), 12 Feb 1993.

An 'unless order' for costs against the legal aid fund under s18 of the Legal Aid Act 1988, which would take effect after a given period of time unless in the meantime the Legal Aid Board made representations why an order should not be made, did not contravene reg 138 of the Civil Legal Aid (General) Regulations 1989 which applied to county court proceedings and appeals from county courts.

Stephen Murray (Edwin Coe for Willans, Cheltenham) for the plaintiff; Sue Carr (Eldridge & Co, Oxford) for the defendant.

Crime

R v Jiminez-Paez - CA (Crim Div) (Russell LJ, Morland, Mantell JJ), 23 Feb 1993.

Where it was sought to call a consular official as a witness in a criminal trial and the witness was unwilling because of diplomatic etiquette to give evidence, the fact that the witness might, by virtue of diplomatic status, be immune to the process, did not render her 'outside the UK' for the purposes of s23(2)(b)(i) of the Criminal Justice Act 1988. The subsection contained two quite separate requirements, the first being of a territorial nature requiring physical presence outside the UK and the second concerning the practicability of securing attendance.

John Traversi (Registrar of Criminal Appeals) for the appellant; Richard Hone (Customs & Excise Solicitor) for the Crown.

R v Shorrock - CA (Crim Div) (Simon Brown LJ, Popplewell, Rattee JJ), 18 Feb 1993.

In order to make out an offence of public nuisance against a farmer whose land was used for an acid house party it was not necessary to show that he actually knew that the nuisance caused would be the consequence of the activities carried out on his land; he could be convicted if it could be shown that he either knew or ought to have known that there would be a real risk of nuisance.

Arthur Stuttard (Registrar of Criminal Appeals) for the appellant; Peter Openshaw QC (CPS) for the Crown.

Employment

Cole and others v George Bennett Bryson & Co Ltd - PC (Lord Templeman, Lord Bridge of Harwich, Lord Oliver of Aylmerton, Lord Jauncey of Tullichettle and Lord Woolf), 22 Feb 1993.

Where a pension scheme provided that the amount of pension should be calculated according to the length of service and the retirement rate of pay of the employee, which should be the average weekly rate for the last year of employment or for the last three years prior to retirement, whichever was the greater, the total figure from which the average weekly rate was to be calculated was the total amount of pay or earnings of all kinds which the worker had received as remuneration for his work.

Fenton Ramahoye SC and Justin Simon, both of the Antigua and Barbuda Bar (Simons Muirhead & Burton) for the employees; James Guthrie (Philip Conway Thomas) for the employer.

Negligence

Martine v South East Kent Health Authority - CA (Dillon, Leggatt, Hirst LJJ), 25 Feb 1993.

The health authority owed no duty of care to the plaintiff, the registered proprietor of a nursing home, when applying to a justice of the peace for an order under s30 of the Registered Homes Act 1984 cancelling the plaintiff's registration on the ground that there would be serious risk to the life, health or well-being of the patients.

Roger Ellis (Nabarro Nathanson) for the plaintiff; CH Beaumont (Stilwell & Harby, Hythe) for the defendant.

Practice

Goymer v Lombard North Central Wheelease Ltd - CA (Dillon, Leggatt, Hirst LJJ), 23 Feb 1993.

Although an application to strike out a statement of claim and to dismiss the action should be made as soon as practicable, the lateness of the application is not fatal to its success since RSC Ord 18, r19 expressly states that the order may be made 'at any stage of the proceedings'.

Alan Newman QC and Paul Epstein (Minet Pering) for the plaintiff; Michael Brindle QC (Wilde Sapte) for the defendant.

Revenue

Gray (HMIT) v Matheson - ChD (Vinelott J), 21 Jan 1993.

Where a taxpayer made an agreement under the Taxes Management Act 1970, s54, with a tax inspector, which would normally be final and conclusive, the Revenue was not bound by the agreement if it was based on misleading information and, if it appeared that profits had not been declared, an additional assessment could be raised on the taxpayer.

Alan Moses QC (Inland Revenue Solicitor) for the Crown; John Tallon (Dunham Brindley & Linn, Tamworth) for the taxpayer.

Value added tax

Customs and Excise Commissioners v McClean Homes Midland Ltd - QBD (Brooke J), 16 Feb 1993.

It was question of fact for the VAT tribunal to decide whether built-in wardrobes installed in new houses as part of the building were 'fitted furniture' for the purposes of the Value Added Tax (Special Provisions) Order 1981, art 8(2). The tribunal's decision that the wardrobes in question were not fitted furniture was not unreasonable and accordingly the taxpayer was permitted to credit for input tax in respect of the materials used in their construction.

Stephen Richards (Customs & Excise Solicitor) for the Crown; Andrew Park QC and Roderick Cordara (J Philips) for the taxpayer.

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