Law Report: Case summaries

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

Child

Re B (a minor); FD (Ewbank J); 27 June 1994.

Following the separation of his parents, a child who had acquired habitual residence in England was taken back to Canada for a short time while his parents attempted a reconciliation, but the child did not thereby acquire habitual residence in Canada.

It was desirable that if a specific defence was to be raised to an application under the Convention on the Civil Aspects of International Child Abduction 1980 it should be indicated in the affidavits or prior notice should be given of such an intention.

Ian Karsten QC and Jeremy Rosenblatt (Laurence Singer, Amersham) for the father; James Holman QC and Nicola Simpson (Jane Dicks & Co, Chesham) for the mother.

Re W (a minor); FD (Ewbank J); 17 June 1994.

A court dealing with an application for a secure accommodation order could allow a child to be present, but should only do so if satisfied attendance would be in the interests of the child.

Where the court was of the view on the material before it that the child could be unruly, for instance that the child would have to be shackled in court to control him or her, it had power in the exercise of its inherent jurisdiction to control its own proceedings to refuse to allow the child into court.

Peter Thornton QC and Susannah Walker (Jane Coker & Partners, Tottenham) for the child; Kate Hudson (Alun G Phillips) for the council; Cherry Harding (Farrell Matthews & Weir) for the mother; Claire Turney, solicitor (Philcox Gray & Co) for the guardian ad litem; Anna Pauffley (Official Solicitor) for the Official Solicitor.

Compulsory purchase

Sheffield Development Corp v Glossop Sectional Buildings Ltd; CA (Sir Stephen Brown P, Staughton, Rose LJJ); 30 June 1994.

A person claiming compensation under s 46(1) of the Land Compensation Act 1973 who otherwise fulfilled all the requirements of the section did not fail to qualify for compensation merely because he had ceased to trade after the date of a deemed notice to quit but before the acquiring authority had required the claimant to deliver up possession of the land.

Malcolm Spence QC and Mark Lowe (Nabarro Nathanson, Doncaster) for the corporation; Christopher Thomas QC and Clive Smith (Ronald England & Sons, Sheffield) for the claimant.

Housing

R v Ealing Borough Council, Ex p Sukhija; CA(Sir Stephen Brown P, Staughton, Rose LJJ); 24 June 1994.

A statement by an intentionally homeless person that she had believed that there would be no difficulty finding work in England was a matter of aspiration and hope rather than a relevant fact within the meaning of s 60(3).

The court ruled that the local authority had been justified in taking the statement into account in reaching its conclusion that she had not established that she had been unaware of a relevant fact within section 60(3) and that therefore she had deliberately left settled accommodation in India and was not entitled to be rehoused.

Lisa Giovannetti (Council Solicitor) for the council; Ian Lewis (JR Jones) for the applicant.

Lease

Hindcastle Ltd v Barbara Attenborough Associates Ltd and ors; CA (Sir Stephen Brown P, Rose, Millett LJJ); 15 June 1994.

Where the liquidator of a company, which had taken an assignment of a lease from an intermediate assignee, had disclaimed the lease under s 178(4)(b) of the Insolvency Act 1986, the original lessee and any surety for the original lessee nevertheless remained liable to pay the rent due under the lease. The position of an intermediate asssignee of the lease who had entered into direct contractual relationship with the lessor was indistinguishable from that of the original lessee.

David Oliver QC and Carolyn Walton (Stallards) for the appellants; Jonathan Arkush (Chethams) for the lessor.

Pharmacists

R v Yorkshire Regional Health Authority, Ex p Suri; R v Same, Ex p Gompels; QBD(DC) (Popplewell J); 1 July 1994.

For the purposes of reg 4 of the National Health Service (Pharmaceutical Services) Regulations 1992 the question of whether the relocation of a pharmacy was to the same neighbourhood was a question of fact to be determined having regard to both geographical and social factors and taking the population as a whole as opposed to restricting it to the 'patient' population. The regional health authority's decision should be succinct and there was no need for a lengthy decision letter.

Michael Beloff QC and Jonathan Fisher (Charles Russell) for the applicants; Robert Carnwath QC and Keith Freeman (FHS Appeal Unit) for the respondents; Cherie Booth (Lloyds Group Legal Services, Warley); Jonathan Harvie QC and Judith Beale (Boots Legal Department, Nottingham) for interested parties.

Marshall (Inspector of Taxes) v Kerr; HL (Lord Mackay of Clashfern LC, Lord Templeman, Lord Goff of Chieveley, Lord Lowry and Lord Browne-Wilkinson); 30 June 1994.

A scheme to avoid capital gains tax on gains accruing to a foreign trustee failed on the ground that a residuary beneficiary, K, in receipt of capital payments was the settlor of a chose in action, ie, her right to have a will duly administered.

K, who was resident in the UK, settled the property, described as her 'fund', on trusts administered in Jersey by the Jersey resident trustee. K had claimed that, by virtue of the provisions now in the Taxation of Chargeable Gains Act 1992, s 62(6), no charge to capital gains tax arose on K as 'settlor' under the predecessor of s 87 of the 1992 Act since she was deemed by s 62(6) never to have been entitled to the fund which was treated as having passed directly from the testator to the trustee.

Christopher McCall QC and AWH Charles (Inland Revenue Solicitor) for the Crown; Robert Venables QC and Robert Grierson (Wragge & Co, Birmingham) for the taxpayer.

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