Case Summaries: 22 March 1999

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

Costs

R v Liverpool Magistrates' Court, ex p Abiaka; QBD, Div Ct (Kennedy LJ, Blofeld J) 5 March 1999.

ON A true construction of s 16(1) of the Prosecution of Offences Act 1985 any magistrates' court had the power to make a defendant's costs order: the power was not restricted to the particular bench of magistrates who had actually dismissed the case against the defendant. Furthermore, there was nothing in the statute which stated that costs orders had to be made timeously.

Stuart Mills (R.M. Broudie & Co, Liverpool) for the applicant.

Tax

Hillsdown Holding plc v IR Commrs; Ch D (Arden J) 11 March 1999.

THE WORD "payment" meant "effective payment" in relation to a payment made to an employer out of its approved pension scheme, giving rise to a tax liability under s 601 of the Taxes Act 1988. Where the payment to the employer was found to be in breach of trust and was returned to the pension fund by order of the court, there was no "effective payment" and the Revenue had to repay the tax.

David Oliver QC and Nigel Giffen (Herbert Smith) for the taxpayer; Ian Glick QC and Richard Gillis (IR Solr) for the Crown.

Sentencing

Attorney-General's Reference (No 71 of 1998); CA, Crim Div (Judge LJ, Sachs, Klevan JJ) 8 March 1999.

WHERE AN offender who had already been convicted of a "serious offence" within s 2(5) of the Crime (Sentences) Act 1997 committed a robbery which, in order to qualify as a second "serious offence" making him liable to a sentence of life imprisonment, required that the offender had had possession of a firearm, it was sufficient that the offence had been committed as a joint enterprise where a firearm had been used, even though the offender himself had never had possession of it.

Neil Moore (CPS) for the Attorney General; Louise Godfrey QC (Grahame Stowe Bateson, Leeds) for the offender.

Employment

Barber and ors v RJB Mining (UK) Ltd; QBD (Gage J) 3 March 1999.

REGULATION 4(1) of the Working Time Regulations 1998, which set a maximum weekly working time for all workers covered by the regulations, imposed a contractual obligation on the parties which was capable of remedy in the civil courts, and accordingly the employment tribunal did not have exclusive jurisdiction over claims arising out of the regulations.

Brian Langstaff QC (Keeble Hawson, Sheffield) for the plaintiffs; Nicholas Underhill QC (Freshfields) for the defendant.

Reinsurance

Wurttembergische Aktiengeselleschaft Versicherungs-Beteiligungsesellschaft v Home Insurance Co; CA (Butler-Sloss, Aldous, Brooke LJJ) 9 March 1999.

A JUDGE deciding a preliminary issue in the course of prolonged litigation was wrong to use the expression "persuasive obiter dicta" in relation to earlier judgments on other preliminary issues in the same litigation, since those judgements were binding only in relation to the matters which they had purported to decide.

Jonathan Hirst QC, Neil Calver (Barlow Lyde & Gilbert) for the appellants; Mark Howard QC, Robin Dicker (Holman Fenwick & Willan) for the respondents.

Extradition

Re Burke; QBD, Div Ct (Rose LJ, Mitchell J) 16 March 1999.

THE WORD "sentence" in art VII(4) of Sch 1 to the United States of America (Extradition) order 1976 was not confined to a sentence of imprisonment, but included a term of supervised release to be served following a term in custody. Such a supervised release was not an ancillary order, but was an integral part of the sentence passed. Furthermore, an order to pay a sum of money by way of restitution and a fine also fell within the article as being a sentence.

John Hardy (Christmas & Sheehan) for the applicant; Roy Brown (CPS) for the Governor of Brixton Prison and the United States Government.

Adoption

Re B (a minor) (adoption order: nationality); House of Lords (Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton and Lord Millett) 11 March 1999.

WHEN CONSIDERING whether to make an adoption order under s 6 of the Adoption Act 1976, the court should not, in determining whether the child's welfare called for adoption, ignore benefits which would result solely from a change in immigration status.

Michael Harrison QC, David Jones (Blake Lapthorn) for the appellants; Ashley Underwood (Treasury Solicitor) for the respondents.