Law Report: Case Summaries
Monday 14 December 1992
Downsview Nominees Ltd and anor v First City Corp Ltd and anor; PC(Lord Templeman, Lord Lane, Lord Goff of Chieveley, Lord Mustill and Lord Slynn of Hadley); 19 Nov 1992.
A mortgagee or debenture holder and the receiver or manager appointed by him owed a general duty in equity to the mortgagor and to all subsequent encumbrancers to act in good faith for the sole purpose of preserving and realising the assets for the purpose of securing repayment of the debt but there was no further or greater liability in negligence.
Gary Judd and Robert Chambers QC, both of the New Zealand Bar (Alan Taylor & Co) for the appellants; Rhys Harrison, of the New Zealand Bar (Wray Smith & Co) for the respondents.
Re Hooker; QBD (DC)(Kennedy LJ, Waterhouse J); 13 Nov 1992.
A shorthand writer who was using a tape recorder in court without express permission of the magistrate, contrary to s 9 of Contempt of Court Act 1981, but who had not interrupted the proceedings or otherwise misbehaved could not be fined and could only be dealt with by having the tape recorder forfeited.
Stephen John (Russell Jones Walker) for the appellant; Ian Burnett (Treasury Solicitor) for the magistrate.
Health & safety
Bolton MBC v Malrod Insulations Ltd; QBD(DC)(Beldam LJ, Tudor Evans J); 13 Nov 1992.
The statutory duty under s 2 of the Health and Safety at Work Act 1974 to provide and maintain plant and systems of work which ensured the health, safety and welfare of employees, such as a decontamination unit, arose at the time the plant was provided and not merely when its employees were using it and extended to all employees on the site.
Roger Farley (Borough Solicitor) for the council; Timothy King QC and Ivan Woolfenden (Healds, Wigan) for the defendant.
Arab Monetary Fund v Hashim; CA(Dillon, Neill, Hirst LJJ); 24 Nov 1992.
An order under RSC Ord 38, r3, the purpose of which was to facilitate proof of particular facts which, though in issue, were peripheral to the major issues in the action, must identify the particular fact or facts and then specify the type of evidence which can be given of that fact.
To identify documents to be relied on for anything which could be deduced from them not only led to dispensation with the hearsay rule, but also, in the present case, would have the effect of shifting the onus of proof to the defendant in those instances where the documents identified were the subject of a notice under Ord 27, r 4 challenging their authenticity. Such an order could not be a proper exercise of the judge's discretion.
Colin Ross-Munro QC and Hugo Page (Landau & Scanlan) for the appellant; Charles Flint (Freshfields) for the respondents.
Family Housing Association (Manchester) Ltd v Michael Hyde & Partners and ors; CA(Balcombe, Mann, Hirst LJJ); 26 Nov 1992.
On an application to dismiss an action for want of prosecution, evidence as to the content of without prejudice correspondence between the parties was admissible, notwithstanding the general rule excluding reference to without prejudice correspondence, since the main considerations of public policy in favour of the general rule had little or no application.
Stephen Grime QC (Elliot & Co, Manchester) for the appellants; Charles Bloom QC (Sedgwick Phelan & Partners, Manchester) for the respondents.
Landlord & tenant
Trustees of Methodist Secondary Schools Trus Deed v O'Leary; CA(Glidewell, Rose LJJ, Sir Christopher Slade); 24 Nov 1992.
A boarding school caretaker whose duties included school security and emergency repair and maintenance out of normal school hours, who lived near the school on a service occupancy in accommodation in which a telephone and an alarm were installed was occupying the property for the purposes of a business pursuant to s 23(1) of the Landlord and Tenant Act 1954.
Jonathan Ferris (Pothecary & Barratt) for the tenants; Robert Jay (Furley Page Fielding & Barton, Canterbury) for the landlord.
R v Middlesborough Borough Council, Ex p IJH Cameron (Holdings) Ltd; CA(Dillon, Butler-Sloss, Simon Brown LJJ); 25 Nov 1992.
A licensing authority hearing an application for hackney carriage licences was entitled, in order to satisfy itself for the purposes of s16 of the Transport Act 1985 that there was no significant demand which was unmet, to defer the application for further consideration to enable it to obtain the information upon which to base its decision.
Michael Beloff QC and Manjit Gill (Levinsons Donnelly) for the applicant; Stephen Hockman QC and Peter Forbes (Lee Bolton & Lee for Council Solicitor) for the council.
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