CASE SUMMARIES

4 July 1995

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

Children

Re V (a minor); CA (Russell LJ, Wall J) 4 July 1995

If the reasons a judge gave for his decision in a child case constituted a sound basis for the exercise of his discretion and for dissenting from the court welfare officer's recommendation, his failure to state in terms why he was not following the latter's recommendation did not vitiate his exercise of discretion.

John Samuels QC, Gary Crawley (Thrings & Long, Bath) for the appellant; Patrick Eccles QC, June Rodgers (Rowberry Morris, Gloucester) for the respondent.

Houseboat

Nicholls v Wimbledon Valuation Office Listing Officer & anr; QBD (Buxton J) 12 July 1995

A floating home which had no means of propulsion, although a chattel and not of itself real property, was nonetheless a chargeable dwelling for council tax purposes, since those factors were not conclusive as to whether it constituted a hereditament under the Rating Act 1967. The argument put forward by the appellant, that his home was not permanently part of the land and therefore could not be a hereditament, was an issue of fact with which the court could not deal as it had not been argued before the tribunal below, and since there was no power to remit the appeal must be dismissed.

Steven Woolf (Keppe Shaw & Ptrs) for the appellant; David Holgate (Inland Revenue) for the respondent.

Licensing

Breslin v West Yorkshire Police; QBD (Popplewell J) 12 July 1995

When deciding whether to grant a protection order for a public house, under s 10 of the Licensing Act 1964, to protect an existing justices' licence until transfer by the Licensing Justices, magistrates could take into account the character and ability of the applicant to operate and control those particular premises in accordance with the police document of the Liquor Licensing Committee and were not restricted to determining whether the applicant was a fit and proper person to hold a licence.

Gerald Lumley (Lister Croft Harrow Darnton, Wakefield) for the appellant; John Sleightholme (Solicitor, West Yorks Police, Wakefield) for the respondent.

Road Traffic

TNT Express (UK) Ltd v Richmond upon Thames LBC; QBD (Div Ct) (McCowan LJ, Waller J) 14 June 1995

When considering whether a vehicle, which had exemption permits to use streets restricted by the Greater London (Restriction of Goods Vehicles) Traffic Order 1985 during prescribed hours subject to a condition that the vehicle had to take the shortest practicable route, had indeed taken the shortest practicable route, magistrates were not obliged to take into account commercial considerations with regard to time and cost but had to decide only whether the vehicle was physically capable of going down the shortest route.

John Hardy (Jeremy Fear & Co) for the appellants; George Alliott (Borough Solicitor) for Richmond.

Sentencing

R v Hussain; CA (Cr Div) (Roch LJ, Curtis J, Judge Denison, Common Sergeant of London) 16 June 1995

A defendant's personal jewellery was "realisable property" for the purposes of s 5(1) of the Drug Trafficking Offences Act 1986. The Act was draconian and it was doubtful whether a court had a discretion to reduce the amount of a confiscation order by deciding in mercy to exclude personal items of property from consideration.

Barry Forward (Registrar of Criminal Appeals) for the appellant; Mark Gadsden (CPS) for the Crown.

R v Nottingham Crown Court, ex p DPP; QB Div Ct (Stuart-Smith LJ, Butterfield J) 13 July 1995

When sentencing a common assault contrary to s 39 of the Criminal Justice Act 1988, a court should consider any injury that had been sustained by the victim. It was a cardinal principle of sentencing that the court should take into account the consequences to victims, since the law had to redress their greivances by inflicting the appropriate punishment.

Jeremy Carter-Manning QC, Stephen Richards, Philippa McAtasney (CPS) for the DPP; Robert Jay (Treasury Solicitor) for the Crown Court.

Solicitor

Halifax Mortgage Services Ltd (formerly BNP Mortgages Ltd) v Stepsky & anr; ChD (Edward Nugee QC, sitting as a deputy High Court judge) 16 June 1995.

Where a solicitor acted for both a borrower and a lender in the same transaction, and obtained from the borrower knowledge of some fact which it was his duty to the borrower not to disclose to the lender without the borrower's consent, and which it was his duty to the lender to communicate to him, knowledge of that fact was not to be imputed to the lender.

Hugh Jackson (Glenisters) for the plaintiff; Amanda Harrington (JJ Goldstein & Co) for the second defendant.

Tax

R v Special Commissioner, ex p Inspector of Taxes; QBD (Hidden J) 29 June 1995

It was not permissible to adduce evidence of Scottish law at a hearing before the Special Commissioners of income tax sitting in London, but legal argument would be heard. To accept evidence of Scottish law as a question of fact would, if the decision went against the taxpayer, effectively preclude an appeal on a question of law. The question would be one of fact although in Scotland it would be a question of law.

Alan Moses QC, Alison Foster (Inland Reveneue); Charles Flint QC, Robert Grierson (Payne Hicks Beach) for the taxpayer.