Law Report: Case Summaries

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

Company

Re Vedmay Ltd; ChD (Gavin Lightman QC, deputy High Court judge); 22 Sept 1993.

Where the liquidator has disclaimed property under s 178 of the Insolvency Act 1986 as onerous property, a statutory tenant has locus standi to make an application under s 181 of the 1986 Act to have the property vested in him.

Kim Lewison QC and Janet Bignall (Denton Hall Burgin & Warrens) for the statutory tenants; Robert Reid QC and Tim Harry (Radcliffes) for the freeholder.

Coroner

R v North Humberside and Scunthorpe Coroner, Ex p Jamieson; QBD (DC) (Neill LJ, Mantell J); 9 July 1993.

At the inquest into the death of a prisoner who had committed suicide, the coroner was entitled to decide not to leave a lack of care verdict to the jury, since, although the prisoner had previously attempted suicide and had been placed in a single cell, final decisions about the treatment of the prisoner had to be left to the clinical judgment of the medical officer in charge of the prisoner.

Ian Macdonald QC and Tim Owen (Ruth Bundey & Co, Leeds) for the applicant; Ian Burnett (local authority solicitor) for the coroner.

Crime

R v Jennings and anor; CA (Crim Div) (Rose LJ, Turner, Judge JJ); 27 Sept 1993.

The Court of Appeal has no jurisdiction to entertain an appeal under s 9(11) of the Criminal Justice Act 1987 against a refusal of a trial judge, in a preparatory hearing in a serious fraud case under s 7, to sever a count from the indictment where severance has been sought to avoid alleged prejudice to a defendant, although it might be arguable that where severance is sought to reduce complexity a refusal to sever could give rise to a right of appeal if it could be shown that the exercise of the trial judge's discretion in refusing the application had been fundamentally flawed. Because of the consequences to other appellants of the need to list applications for leave to appeal under s 9(11) urgently, there is a clear duty on barristers and solicitors, underlined where public funding is involved, to scrutinise anxiously (1) whether there is jurisdiction in the court to entertain an application and (2) whether there is any real prospect of successfully arguing that the judge's exercise of his discretion was fundamentally flawed.

Raymond Walker QC and Bruce Stuart (Betesh Fox, Manchester); Daniel Hollis QC and Geoffrey Birch (Lloyd Brennard, Brentford) for the appellants; David H Evans QC and Mark Ellison (Stephenson Harwook) for an interested party, a co-accused; Christopher Clark QC and Justin Gau (SFO) for the Crown.

Practice Direction

Practice Direction (Judge in Chambers in London: Amended Procedure); QBD (Lord Taylor of Gosforth LCJ); 29 July 1993.

The practice direction amends the practice for inter partes applications and appeals to the Queen's Bench judge in chambers and replaces Part A of the existing Practice Direction (Judge in Chambers: Procedure) (1983) 1 WLR 433, as amended by the Practice Direction (Judge in Chambers: Amended Procedure) (1989) 1 WLR 359.

Striking out

Doyle v Robinson; CA (Neill, Beldam, Leggatt LJJ); 22 Sept 1993.

In an application to strike out for want of prosecution, where there had been inordinate delay by the plaintiff, where the question of liability was not in dispute and the calculations of special damages were simple, a defendant was not required to provide actuarial evidence as to those calculations to prove that he had been prejudiced by the delay since it would be wrong to burden him with the cost of such evidence.

Frederick H Brown (Geffens, Walsall) for the plaintiff; Stephen Oliver-Jones (David Harris & Co, Birmingham) for the defendant.

Practice

Chiron v Murex; CA (Balcombe, Staughton, Rose LJJ); 7 April 1993.

Where in an action relating to the validity of a patent the trial judge struck out paragraphs of the defence and refused leave to amend the defence, his decision would not be disturbed by an appellant court unless the judge was plainly wrong. It was the trial judge who controlled the proceedings, and it was part of his duty to identify the crucial issues and to see they were tried as expeditiously and as inexpensively as possible.

Alastair Wilson QC and Jessica Jones (Needham & Grant) for Murex; Robin Jacob QC, David Kitchin and David Anderson (Bristows Cook & Carpmael) for Chiron.

Value Added Tax

Customs and Excise Commissioners v London Diocesan Fund; Same v Penwith Property Co Ltd; Same v Elliott; QBD (McCullough J); 24 March 1993.

Construction work done on dwellings and some other qualifying buildings was zero- rated if it amounted to a new building but not if it was 'conversion, reconstruction, alteration or enlargement of an existing building' within note (9)(a) to Group 8 of Schedule 5 to the Value Added Tax Act 1983. That was a question of the meaning of ordinary words and as such was a question of fact for a VAT tribunal, not a question of law which the court could decide. But even a new building was zero-rating by note (9)(b) if there was internal access between it and an existing building.

Stephen Richards (Customs & Excise Solicitor) for the Crown; David Milne QC and Andrew Hitchmough (Winckworth & Pemberton) for the London Diocesan Fund; Mark Lomas (Reynolds Porter Chamberlain) for Penwith Property Co.

Costs

R v Liverpool Crown Court, Ex p the Lord Chancellor; QBD (DC) (Watkins LJ, Rougier J); 6 April 1993.

A defendant's costs order under s 16 of the Prosecution of Offences Act 1985 made 11 months after the trial ended and which was a contrived way to find a method of remunerating counsel who was not covered by the legal aid certificate was susceptible to judicial review.

Clare Montgomery (Treasury Solicitor) for the Lord Chancellor; David Hart (Treasury Solicitor) as amicus curiae.

Revenue

Lord (HMIT) v Tustain; Same v Chapple; ChD (Vinelott J); 18 May 1993.

In order to qualify for tax relief under the Income and Corporation Taxes Act 1988, s 360, for interest paid on a loan obtained to buy an interest in a close company, the company had to be a trading company which 'exists wholly or mainly for the purpose of carrying on a trade'. A company satisfied that condition if it was incorporated or acquired for the purpose of obtaining a trade, even if, at the time when the relevant loan was made, the company had not itself started to trade.

Launcelot Henderson (Inland Revenue Solicitor) for the Crown; Stephen Allcock QC (Shoosmith & Harrison, Northampton) for Mr Tustain; Mr Chapple in person.

Gray (HMIT) v Seymours Garden Centre; ChD (Vinelott J); 1 April 1993.

A glasshouse called a 'planteria' for the display of plants for sale in a garden centre and constructed of special materials to keep the plants in good condition was not 'plant' for capital allowances purposes. It was part of the premises from which the business was carried on, not apparatus used in the business.

Timothy Brennan (Inland Revenue Solicitor) for the Crown; Robin Mathew (Badhams Thompson) for the taxpayers.