Law report: Case Summaries

November 1998

THE FOLLOWING notes of judgments were prepared by the reporters of the All England Law Reports.

Probation officers

R v Teesside Probation Committee, ex p National Association of Probation Officers; QBD, Crown Office List (Collins J) 11 Sept 1998.

A DECISION by a probation committee to create a new grade of employee, without the expertise or qualifications required of probation officers, to supervise an offender if a senior probation officer in consultation with a probation officer had determined that the risk of his reoffending was sufficiently low and that he needed to be reintegrated into the community, was not unlawful. A probation officer could decide that for any particular offender certain tasks could be undertaken by others, and the statutory regime did not require that there should be personal contact between the probation officer and the offender.

Duncan Ouseley QC, Andrew Sharland (Thompsons) for the applicant; Charles Bear (Smith & Graham) for the respondent.

Corporation tax

Westmoreland Investments Ltd v MacNiven (HMIT); CA (Peter Gibson, Pill, Mummery LJJ) 23 Oct 1998.

THE TAX avoidance principle in WT Ramsay Ltd v IRC AC 300 did not apply where a company borrowed money from its parent in order to pay interest on loans from the parent itself. Although the whole transaction was circular, and payment of the interest had a fiscal purpose, the taxpayer had a genuine commercial interest in refinancing its debt.

David Milne QC, Adrian Shipwright (Ashurst Morris Crisp) for the taxpayer; Christopher McCall QC, Michael Furness (IR Solr) for the Crown.

Highways

British Telecommunications plc v Nottinghamshire County Council; QBD (Div Ct) (Lord Bingham CJ, Collins J) 21 Oct 1998.

SECTION 71 of the New Roads and Street Works Act 1991 created a continuing offence, so that a person failing to reinstate the highway following works carried out by them could be prosecuted for defects in materials and standards of workmanship at any time until the reinstatement was properly carried out.

Jeremy Carter-Manning QC, Mark Bryant-Heron (BT Group Legal Services, Milton Keynes) for the appellants; Colman Treacy QC (Solr to Notts County Council) for the respondent.

Income tax

Taylor (HMIT) v Hurley; CA (Kennedy, Aldous, Potter LJJ) 23 Oct 1998.

ALTHOUGH MOST appeals by way of case stated were brought in the Queen's Bench Division, revenue appeals were brought in the Chancery Division, where judges did not have day-to-day experience of appeals by way of case stated. It was incumbent on counsel, therefore, to bring to the judges attention the most recent law relating to such appeals, which was not necessarily to be found in the tax field.

James Munby QC, Bruce Carr (IR Solr) for the Crown; G.R.A. Argles (T.G. Baynes & Sons) for the taxpayer.

Practice

Day v RAC Motoring Services Ltd; CA (Butler-Sloss, Ward LJJ) 29 Oct 1998.

IN CONSIDERING whether to exercise its discretionary power to set aside a default judgment, the court should, not as a rule of law but as a matter of common sense, determine whether the defence had merits to which the court should pay heed. It was not necessary for the defence to show by way of affidavit evidence that there was a real likelihood of success.

James Bell (Davies Arnold Cooper) for the defendants; Harry Trusted (Gambrills, Folkstone) for the plaintiff.

Negligence

Gray v Stead; QBD (Commercial Ct) (Geoffrey Brice QC sitting as a High Ct Judge) 26 Oct 1998.

THERE WAS a duty on all employers of fishermen on inshore trawlers to apply their minds to the safety of such fishermen, and not merely to follow convention and practice in such matters. It was sufficient for a prudent employer to conclude that, notwithstanding practices on other trawlers, the risk of a fisherman who was on watch alone falling overboard and drowning would be minimised if not wholly eliminated by an instruction to wear a single- chamber inflatable lifejacket.

Thomas Finch (Macardwell & Mitchell) for the plaintiff; Michael Davey (Andrew M. Jackson) for the defendant.