Law Report: Case Summaries

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

Agency

Kingscroft Insurance Co Ltd & ors v H S Weavers (Underwriting) Agencies Ltd - Ch D (Harman J), 10 July 1992.

Where the underwriting agent of an insurance company, being contractually entitled to retain premiums collected for his principal and to be kept in funds in order to pay his principal's liabilities, had placed such premiums on deposit in a bank account in the principal's name, those deposits were the property of the principal, not the agent.

The relationship between the principal and the agent was not analogous to that between banker and customer. The premium did not amount to loans by the principal to the agent, but was received with a right to the agent to deal with it as he thought fit, not of course to apply it to slow horses and fast women, but in accordance with the obligations of the agency agreement.

But the agency agreement only required the agent to retain such premiums as it thought fit, and the bank deposits could not be regarded as retained funds for the purpose of that agreement. The agent had no interest in the deposits whatsoever, either by way of charge or as a beneficiary under a constructive trust.

Gabriel Moss QC, and Sue Prevezer (Freshfields) for the principals; Richard Aikens QC, and George Leggatt (Macfarlanes) for the agents.

Practice

Bank of America National Trust and Savings Association v Chrismas and ors (The Kyriaki) - QBD (Comm Ct)(Hirst J), 31 July 1992.

Pursuant to RSC Ord 15 r 8(4) a writ that is amended to include new defendants has to be served on those defendants within the limitation period if it is not to be time-barred under s 35(3) of the Limitation Act 1980.

Alistair Schaff (Hill Taylor Dickenson) for the plaintiffs; Richard Aikens QC, and Neil Calver (Ince & Co) for the defendants.

Practice Statement

Criminal Justice Act 1991 - CA (Crim Div)(Lord Taylor of Gosforth, CJ, Watkins, McCowan LJJ), 1 Oct 1992.

Lord Taylor CJ gave the following practice statement:

1. Sections 32-40 of the Criminal Justice Act 1991 come into force on 1 October 1992. They make radical changes with regard to sentences. 2. Remission is abolished. 3. Parole will affect only those sentenced to four years' imprisonment and above. 4. Where the sentence of the court is less than four years the Secretary of State will be under a duty to release the prisoner after he has served one half of his sentence. Thus, where the sentence is three years, 18 months will be served. This is significantly longer than would normally have been served before the new provisions came into force.

Furthermore, on release the prisoner will, in effect, be subject to a continuing suspended sentence. If between his release and the end of the period covered by his original sentence he commits any offence punishable by imprisonment, he will be liable to serve the balance of the original sentence outstanding at the date of the fresh offence.

5. For determinate sentences of four years or longer the Secretary of State will have a continuing but reduced element of discretion on release. Prisoners will be released on licence after serving two thirds of the sentence. Whereas hitherto they became eligible for parole after serving one-third of the sentence, they will not now become eligible until they have served half. The 'at risk' provisions following release will be the same for long terms as for short term prisoners. 6. It is therefore vital for all sentencers in the Crown court to realise that sentences on the 'old' scale would under the 'new' Act result in many prisoners actually serving longer in custody than hitherto.

7. It has been an axiomatic principle of sentencing policy until now that the court should decide the appropriate sentence in each case without reference to questions of remission or parole. 8. Lord Taylor CJ had consulted the Lords Justices presiding in the Court of Appeal Criminal Division and it was decided a new approach was essential. 9. Accordingly, from 1 October 1992, it will be necessary, when passing a custodial sentence in the Crown court, to have regard to the actual period likely to be served, and as far as practicable to the risk of offenders serving substantially longer under the new regime than would have been normal under the old. 10. Existing guideline judgments should be applied with these considerations in mind.

11. Lord Taylor CJ stressed however that, having taken the above considerations into account, sentencers must exercise their individual judgment as to the appropriate sentence to be passed and nothing in this statement is intended to restrict that independence.

Sentencing

R v Fitzgibbon - CA (Crim Div)(McCowan LJ, Leonard, Morland JJ), 21 Sept 1992.

In most cases where a defendant had been convicted of supplying heroin, the fact that he might suffer from some degree of mental instability or backwardness would not lead to his escaping the inevitable prison sentence. However, in an exceptional case where the defendant's extra vulnerability had made him susceptible to entrapments by police officers, the court was able to substitute a probation order for the custodial sentence originally passed.

Andrew Lloyd-Eley (Registrar of Criminal Appeals) for the appellant; Robert K Atherton (CPS) for the Crown.

Value added tax

P & O Steam Navigation Co v Customs & Excise Commissioners - QBD (Simon Brown J), 30 Sept 1992.

Input tax was claimed in a VAT return which was, in fact, attributable to a later prescribed accounting period but was not claimed in the correct period. The error gave rise to a penalty for 'serious misdeclaration' under the Finance Act 1985, s 14(1). The statements in the two returns were not regarded as correct under s 14(5A) although the omission in the later return had corrected the earlier.

Relief under s 14(5A), however, would not have been precluded only by the fact that the error was discovered by an officer of the Customs & Excise rather than by the taxpayer.

Further, the principle of proportionality in EC law could not be invoked to hold the penalty regime in the Finance Act 1985 unlawful, even though the error was one of timing and no tax was lost to the Crown.

Nigel Pleming QC (Customs & Excise Solicitor) for the Crown; John Gardiner QC, and Francise Fitzpatrick (Freshfields) for the taxpayer.

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