Case Summaries; 12 October 1998

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

Solicitors' negligence

Yudt and ors v Leonard Ross & Craig (a firm) and ors; Ch Div (Ferris J) 24 July 1998.

WHILST SOLICITORS acting for trustees had to be regarded as owing to the beneficiaries the same duties of care in tort as they owed to the trustess in both contract and tort, the position might be different where the plaintiff was a person who had never become a beneficiary in any true sense, but was rather a disappointed beneficiary under a disposition which had not been made at all because of the solicitors' negligence.

James Munby QC, Richard Fawls (Ralph Davis) for the plaintiffs; Edward Bannister QC, Vivian Chapman (Barlow Lyde & Gilbert) for the defendants.

Joint tenancy

Kinch and anor v Bullard and ors; Ch Div (Neuberger J) 27 July 1998.

WHERE NOTICE to sever a joint tenancy was shown to have been left at the last known abode or place of business of the addressee, that constituted good service of the notice in accordance with s 196(3) of the Law of Property Act 1925, even if the addressee did not actually receive it, and the notice had therefore been "given" in accordance with s 36(2) of the Act, and could not be "unserved" or "ungiven".

Michael Waterworth (Willett & Co, Bury St Edmonds) for the plaintiffs; John Waters (Graham & Oldham, Ipswich) for the defendants.

European Community

Optident Ltd and anor v Secretary of State for Trade and Industry and anor; QBD (Laws J) 4 Aug 1998.

ALTHOUGH AS a matter of fact a product might be both a cosmetic within Council Directive (EEC) 76/768 and a medical device within Council Directive (EEC) 93/42, as a matter of law no product could be subject to both regimes at the same time. Where the authorities of a member state questioned a CE mark granted to a medical device elsewhere on the ground that the product was in truth a cosmetic, they should challenge the mark in the municipal courts of the state where it had been granted.

Stephen Auld (Pinsent Curtis, Birmingham) for the plaintiffs; Christopher Vajda QC (Treasury Solicitor) for the defendants.

Legal aid

R v Bow Street Magistrates' Court, ex p Shayler; QBD (Div Ct) (Kennedy LJ, Sullivan J) 2 Oct 1998.

FOR THE purposes of s 19 of the Legal Aid Act 1988, "criminal proceedings" meant only those proceedings before the court which were active in the sense that the court reasonably envisaged that a further step in the proceedings would take place. That would normally mean that the jurisdiction to grant legal aid arose under Pt V of the Act when a summons was issued or a warrant executed. The court accordingly had no power to consider an application for legal aid from an applicant who had been detained by the French authorities pending consideration of a request for his extradition to England to be tried for offences under the Official Secrets Act 1989.

Andrew Nicol QC, Leon Daniel (Liberty) for the applicant; James Turner QC (Treasury Solicitor) for the magistrates' court.

Magistrates' courts

R v Thames Magistrates' Court, ex p Ramadan; QBD (Div Ct) (Kennedy LJ, Sullivan J) 5 Oct 1998.

A PERSON made subject to a hospital order under s 37(3) of the Mental Health Act 1988 was an offender for the purposes of s 142 of the Magistrates' Courts Act 1980, since he had neither been acquitted nor a prosecution against him abandoned. It followed that a magistrate had power to rescind the hospital order on learning that no arrangements had been made for the applicant's admission to hospital.

Tor Alloway (Wiseman Lee) for the applicant; the respondent did not appear and was not represented.

Arbitration

Inco Europe Ltd and ors v First Choice Distribution (a firm) and ors; CA (Hobhouse, Thorpe, Mummery LJJ) 30 Sept 1998.

THE RIGHT to appeal with leave from a decision whether or not to stay litigation covered by an arbitration clause had not been removed by the Arbitration Act 1996: the Court of Appeal had jurisdiction to hear appeals from decisions of a judge or court under s 9 of the Act, an aggrieved party having the right to apply to the judge or to the Court of Appeal for leave to appeal.

Arshad Ghaffar (Holman, Fenwick & Willan) for the appellants; Mark Halliwell (Hill Dickinson) for the respondent.