Law Report: Case Summaries

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

Civil Procedure

Roythorne & Co v Goose; CA (Neill, Ralph Gibson, Steyn LJJ). 23 July 1992.

The merits of a claim were clearly relevant where an application was made to remove a stay of proceedings. Moreover, the test for assessing those merits was not that for striking out a claim under RSC Ord 18, or for giving leave to defend, but the case had to carry some degree of conviction. If it was apparent that a claim, because of an accumulation of improbabilities, had no prospect of success, then a stay should not be removed even if the circumstances would otherwise justify it.

Philip Marshall (Sharpe Pritchard) for the appellant; Michael Patchett-Joyce (Mills & Reeve, Norwich) for the respondent.

Children

Re C (a minor) (Care orders); FD (Ewbank J); 30 July 1992.

When granting a care order to a local authority, the Family Proceedings Court had no power to add any direction to the order. A decision by the justices to add a direction that the guardian ad litem should continue to be involved, in order to assess the success of the local authority's rehabilitation programme for the child, thus enabling the court to continue its power of review, constituted a fetter on the local authority's responsibilities towards the child, and ran contrary to the principles set out in A v Liverpool City Council (1982) AC 363. The direction would therefore be deleted.

Roger McCarthy (D P Clephan, Maidstone) for the local authority; Martin O'Dwyer (Daniel & Edwards, Ramsgate) for the guardian ad litem; Pierre Janusz (Girlings, Margate) for the mother.

Criminal Procedure.

R v Newham Justices, ex p C; QBD (Div Ct) (McCowan LJ, Popplewell J); 21 July 1992.

A stay of prosecution on the ground of delay should only be granted in exceptional circumstances, even where the delay was unjustifiable, and still more rarely in the absence of any fault on the part of the complainant or prosecution, and never where it was due merely to the complexity of the case or had been contributed to by the defendant's actions. No stay should be granted unless the defendant showed on the balance of probabilities that, owing to the delay, he would suffer serious prejudice to the extent that no fair trial could be heard, bearing in mind the judges power to regulate the admissibility of evidence and the trial process itself. The question was entirely one of fact, to be decided in the circumstances of the case.

William McCormick (Wiseman & Lee) for the applicant; Jeremy Carter-Manning (CPS, East London) for the Crown.

Highways

Lincolnshire County Council v Brewis & ors; QBD (Henry J); 2 July 1992.

An application by a highway authority, under s 116(1) of the Highways Act 1980, for an order to stop up and divert part of a public highway, was to be treated as a 'complaint' for the purposes of s 64(1) of the Magistrates' Courts Act 1980, so that the justices hearing the application were entitled to order the highway authority to pay the costs of any objectors who, because they used the highway or would otherwise be aggrieved by the proposed order, were entitled to be heard at the hearing.

Leigh Sagar (Iliffes, Chesham) for the council; Karl H Scholz (Pearson & Starling, King's Lynn) for the objectors.

Housing

R v Bexley LBC, ex p B (a minor); R v Oldham MBC, ex p G (a minor); CA (Ralph Gibson, Nolan, Scott LJJ); 6 August 1992.

A dependent child aged four or five years was not competent to make an application to a local housing authority, under Part III of the Housing Act 1985, and the authority was under no duty to rehouse that child, after an application by the child's parents for permanent housing had been refused on the ground that they were intentionally homeless. At what age or in what circumstances a child was a competent applicant was a question of fact to be determined case by case. The Court of Appeal's decision in R v Tower Hamlets LBC, ex p Rahman & ex p Begum (the Independent, 28 August 1992) had no bearing on this case.

David Watkinson (Norton & Co, Tottenham) for B; George Warr (Oldham Law Centre) for G; Brenda Morris (L J Birch, Bexleyheath) for Bexley; Timothy Straker (Neville D Phillips, Oldham) for Oldham.

Patents

Mentor Corporation & anr v Hollister Inc; CA (Lloyd, Stuart- Smith, Scott LJJ); 30 July 1992.

Whether the specification of a patent disclosed the invention clearly and completely enough for it to be performed by a person skilled in the art, as provided by s 72(1) of the Patents Act 1977, was a question of fact and degree. It was impossible to lay down any precise rule. In each case it depended on the nature of the invention as to whether the steps needed to perform the invention were ordinary steps of trial and error which a skilled person would realise would be necessary to produce a practical result. On the one hand, he should be able to perform the invention without any further inventive steps on his part; on the other hand, it was not necessary that he should be able to perform the invention without any trial or experiment at all, particularly where the subject matter was new or especially delicate.

Simon Thorley QC (Lovell White Durrant) for the defendant; Christopher Floyd QC and Heather Lawrence (Bird & Bird) for the plaintiff.

Sentencing

R v Secretary of State for the Home Department, ex p S; QBD (Henry J); 16 July 1992.

The policy of the Home Secretary, announced in the House of Commons on 23 July 1985 (Hansard, 6th series, vol 83, col 465-6) according to which prisoners serving a life sentence who were transferred to mental hospital, under ss 47 or 49 of the Mental Health Act 1983, would henceforth be discharged by way of licence under s 61 of the Criminal Justice Act 1967, thus remaining under supervision and subject to recall, rather than by way of conditional or absolute discharge under sections 42(2) or 74(2) of the 1983 Act, had been adopted for legitimate reasons and did not unlawfully fetter the Home Secretary's discretion.

Edward Fitzgerald (Lucy Scott- Moncrieff, Brighton) for the applicant; Stephen Richards (Treasury Solicitor) for the Home Secretary.

VAT

Commissioners of Customs & Excise v Steptoe; CA (Lord Donaldson MR, Nolan, Scott LJJ); 27 July 1992.

An 'insufficiency of funds' could not constitute a reasonable excuse, under s 33(2)(a) of the Finance Act 1985, for late payment of VAT. However, the underlying reason for the insufficiency of funds might be taken into account and that reason might amount to a reasonable excuse even though the insufficiency of funds was the direct cause of default. The VAT tribunal's finding that late payment by the taxpayer's only customer had caused an insufficiency of funds was capable of being a reasonable excuse.

Nigel Pleming (Customs & Excise Solicitors) for the Crown; Mr Steptoe in person.

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