Law Report: Case Summaries

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

Costs

Hutchison Telephone (UK) Ltd t/a Quadrant Communications v Ultimate Response Ltd; CA (Dillon, Bingham LJJ); 10 Aug 1992.

On an application by a plaintiff for security for costs against a counter-claiming defendant, the marked discrepancy in size between the amount claimed in the action and the very much greater amount claimed by the counter-claim is relevant in considering whether the counter-claim is a mere defence or a cross-claim in its own right which might well stand and be proceeded with even though the original claim was abandoned.

Nicholas Chambers QC and Selwyn Block (Baker & McKenzie) for the appellants; Peter Sheridan QC (Laytons, Manchester) for the respondents.

Child

Re M (a minor); CA (Balcombe, Steyn, Hoffmann LJJ); 15 Oct 1992.

Where the habitual residence of a young child is in question, the element of volition will usually be that of the person or persons who have parental responsibility for that child. Where a young child is in the physical care of its mother and where she alone has the parental responsibility for the child, then the child's situation with regard to habitual residence will necessarily be the same as hers.

Patrick Eccles QC (Bower & Bailey) for the grandparents; Camilla de Sousa Turner (Simms & Co) for the mother; Elizabeth Hudson (Cole & Cole) for the father; Anna Pauffley (Official Solicitor) for the Official Solicitor.

Re S; FD (Cazalet J); 13 Oct 1992.

Justices must comply with the mandatory requirements of the Family Proceedings Courts (Children Act 1989) Rules 1991 (SI No 1395) when interim applications are made under the Children Act 1989. An interim application is a hearing within r 21(1) which involves the making of a judicial decision. Justices are therefore obliged to comply with r 21(1) which requires that, before the hearing, they read any documents filed under r 17 in respect of the hearing, and with r 21(5) and (6). Failure to comply with the rules resulted in justices making fatally flawed decisions on the ground of improper and erroneous procedures and in the setting aside of the interim order. The court gave guidelines as to the way justices should deal with interim applications.

Mark Johnstone for the appellants; Patrick Kelly for the local authority; Roberta Holland for the guardian ad litem.

Trade description

Dudley Metropolitan Council v Robert Firman Ltd; QBD (DC) (Mann LJ, Leonard J); 15 Oct 1992.

The defendant company, in order to rely on the defence in s 24 of the Trade Descriptions Act 1968, had to show on a balance of probabilities that it had taken all reasonable precautions and shown all due diligence to ensure that the foam and fabric used in the cushions it produced complied with the Furniture and Furnishing (Fire) (Safety) Regulations 1988. The company had not taken such reasonable precautions where its random sampling consisted of only three separate laboratory certificates.

David Travers (Sharpe Pritchard for Council Solicitor) for the council; Peter Ader (Penningtons) for the company.

Crime

R v Howard; CA (Crim Div) (Staughton LJ, Waterhouse, McCullough JJ); 15 Oct 1992.

For the purposes of s 29 of the Offences Against the Person Act 1861 a petrol bomb, consisting of a bottle containing petrol and a wick, is an explosive substance.

Geoffrey Nice QC (Registrar of Criminal Appeals) for the appellant; Duncan Munro-Kerr (CPS) for the Crown.

R v Preston Crown Court, Ex p McGrath; QBD (DC) (Mann LJ, Leonard J); 13 Oct 1992.

A judge can make an order under s 9 of and Sch 1 to the Police and Criminal Evidence Act 1984 for access to material, consisting of special procedure material and other material, provided there are reasonable grounds for believing the material either in its entirety or in part had the legal quality of special procedure material.

Michael Supperstone QC and Daniel Janner (John Roberts & Co, Preston) for the applicant; Michael Shorrock QC and Geoffrey Tattersall QC (CPS) for the prosecution.

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