Law Report: Case Summaries

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

Child

Re HIV; FD (Singer J); 24 March 1994.

In proceedings under the Children Act 1989, applications for leave to submit a child who might be HIV positive to a blood test should be made to a High Court judge of the Family Division, since the question of whether a child was HIV positive raised serious emotional, psychological and practical issues which were relevant to the decision whether to make the order. It was desirable that such decisions should be confined to the small bank of High Court Family Division judges whose decisions might be reported.

Rectification

Cambro Contractors Ltd v John Kenelly Sales Ltd; CA (Nourse, Beldam, Simon Brown LJJ); 29 March 1994.

Where an order for rectification was sought because confusion between the parties and their solicitors had resulted in the exclusion from the conveyance of a roadway which the defendant claimed ought to have been included, but the defendant had failed to show the deed contained a mistake common to both parties and it failed to reflect their common intention, the confusion was no basis for a claim for rectification.

David Stembridge QC and Michael Fay (Hammond Suddards, Leeds) for the appellant; Anthony Mann QC and James Corbett (Walter Scott & Ross, Ilkeston) for the respondent.

Practice

Practice Direction: Remuneration of Nautical and Other Assessors; QBD (Adm Ct); 29 March 1994.

The practice directions sets out the remuneration payable from 1 April 1994, in the absence of special directions in a particular case, to Trinity Master and nautical and other assessors summoned to assist the Court of Appeal, the Admiralty Court on the trial of an action, or a Divisional Court of the QBD hearing an appeal under RSC Ord 74.

Revenue

Inland Revenue Commissioners v SG Warburg & Co Ltd; QBD (Hidden J); 29 March 1994.

A published statement of practice by the Inland Revenue indicated no charge to tax would arise as a result of changing from one valid method of valuation of stock in trade to another. A bank applied for judicial review of a decision by an inspector of taxes that the practice did not apply to a change from the 'lower of cost or market value' (LCM) to 'mark to market value' (MTM). The inspector took the view that MTM was not a valid basis of valuation. The court's task in judicial review proceedings was to decide whether the inspector's decision was reasonable within the principle in Associated Provincial Picture Houses Ltd v Wednesbury Corpn (1948) 1 KB 223, not whether his decision was correct. The application failed on the ground that the inspector's decision was reasonable, but judicial review was not appropriate where another remedy was available, namely, a statutory appeal under the Taxes Management Act 1970.

John Gardiner QC and Jonathan Peacock (Slaughter & May) for the taxpayer; Ian Glick QC and Alan Griffiths (Inland Revenue Solicitor) for the Crown.

Value added tax

Durham Aged Mineworkers' Homes Association v Customs and Excise Commissioners; QBD (Auld J); 14 March 1994.

No taxable supply for VAT purposes was made by a charity which shared its premises and administrative expenses, and, having paid for certain services, recovered half the cost from another charity. There was no formal agreement but the arrangement amounted to an implied contract between the two charities to share their expenses. The position was not that supplies were made to the first charity, which then made a further supply on to the other charity.

Perdita Cargill-Thompson (HH Mainprice) for the taxpayer; Robert Jay (Customs & Excise Solicitor) for the Crown.

Lease

Ridgeons Bulk Ltd v Customs & Excise Commissioners; QBD (Popplewell J); 23 March 1994.

Where a commercial lease provided for an initial three- year rent free period but also contained a covenant requiring the lessee to renovate the property, the lessee had made a taxable supply of services to the landlord in consideration for the period of rent-free occupation. However, the resulting assessment was not valid. Customs & Excise had made it by amendment of a previous assessment, substituting the output tax in respect of the supply for an amount assessed for overclaimed input tax but which had been withdrawn because a fresh assessment for the output tax would have been out of time. To assess output tax by amendment would deprive the taxpayer of the opportunity to contend the assessment of output tax was out of time.

Joe Smouha (HH Mainprice) for the taxpayer; Kenneth Parker QC (Customs & Excise Solicitor) for the Crown.