Law Report: Case Summaries

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

Contact

Re B (Minors: contact); CA (Butler-Sloss LJ, Sir Francis Purchas); 16 Dec 1993.

A judge had a discretion whether to decide a contact application on written evidence and argument, or to give directions for a full hearing with oral evidence. The relevant considerations included: whether there was sufficient evidence; whether the evidence which the applicant for a full hearing proposed to adduce, and whether the opportunity to cross-examine the witness, was likely to affect the outcome; whether the delay would be so detrimental to the child's well-being that, exceptionally, there should not be a full hearing; the prospects of success for the applicant for a full trial; and whether the justice of the case required a full investigation with oral evidence.

Hugh Bennett QC and Christine Dooley (William Bailey & Co) for the stepfather; Joanna Dodson QC and Gillian Brasse (Solr, Lewisham LBC) for the local authority; Marcus Scott- Manderson (JB Wheatley & Co) for the mother; Peter Jackson (Thos Boyd White) for the natural father.

Child proceedings

R v South East Family Proceedings Court, ex p D; FD (Ewbank J); 13 Jan 1994.

When considering an application to transfer a private law case from the magistrates court to the county court pursuant to art 8 of the Children (Allocation of Proceedings) Order 1991 (SI 1677, L 21), the family proceedings court should consider the interests of the child under s1(2) of the Children Act 1989 and decide where the case would more appropriately be dealt with. The clerk to the justices should not be restricted to the sole question of delay, but had to consider the interests of the child and other matters such as the complexity of the case.

Jonathan Swift (Saulet & Co, Portsmouth) for the applicant; Kerry Barker (Richard Holliday, Portsmouth) for the justices' clerk.

Costs

Frank Jones (Builders) Ltd v Roberts; CA (Glidewell LJ, Douglas Brown J); 12 Jan 1994.

On the true construction of Ord 38, r4 of the County Court Rules, in determining the amount recovered by a plaintiff, in order to ascertain the scale of costs, a payment by a defendant who was unaware that proceedings had commenced was to be included.

David Platt (Coffin Mew & Clover, Fareham) for the plaintiff; the defendant in person.

Counterfeit

goods

Re McAngus; QB Div Ct (Simon Brown LJ, Morland J); 13 Dec 1993.

A person who openly sold counterfeit goods from a warehouse could be charged under s25 of the Theft Act 1968 with having with him an article for use in the course of a cheat. An interposition of another party within the framework of the deception could not logically affect the seller's guilt and it was wholly unreal to suppose that anyone engaged in the counterfeit business could have thought other than that an appreciable number of the buying public would become the subject of a deception.

Clare Montgomery (Reynolds Dawson) for McAngus; James Lewis (CPS) for the respondent.

Landlord and

tenant

Nicholls v Kinsey; CA (Mann, Hirst LJJ, Sir Michael Kerr); 25 Jan 1994.

Where an agreement between the parties for the business tenancy of a field was authorised by order of the district registrar under s38(4) of the Landlord and Tenant Act 1954 to exclude the statutory protection afforded by ss24-28 of the Act, the order was invalid because the term of the tenancy had not been for a term of years certain, as required, and as a result the agreement was not made pursuant to an order under s38(4) and therefore fell within and was declared void by s38(1).

Martin Rodger (Burgess Salmon, Bristol) for the appellant; Paul Lowenstein (Rigby Stringer & Holmes, Sandbach) for the respondent.

Obscene

publications

R v Taylor; CA (Cr Div) (McCowan LJ, Scott Baker, Blofeld JJ); 28 Jan 1994.

A person who developed and printed photographs from customers' films showing obscene acts and advertised that he dealt with private and personal material, was guilty of 'publishing an obscene article' contrary to s1(3) of the Obscene Publications Act 1959, because the process of printing on to the special paper created a new product and the passing back of those products to the owners for gain constituted a publication. It was irrelevant to consider whether property in the photographic image passed to the developer.

Anthony Callaway (Reg of Crim App) for the appellant; Stewart Patterson (CPS) for the Crown.

Tax

Joint (Insp of Taxes) v Bracken Developments Ltd; ChD (Vinelott J); 17 Jan 1994.

A close company was obliged to notify the Inland Revenue of any loans which it had made to participators. Section 109 of the Taxes Management Act 1970 applied s10 of the same Act to s419 of the Income and Corporation Taxes Act 1988, which imposed a charge to corporation tax on close company loans to participators. If notice was not given in accordance with s10, the company would be liable to default interest under s88 of the Taxes Management Act.

Jonathan Peacock (Morris Scott & Co) for the taxpayer; Launcelot Henderson (Inland Rev) for the Crown.

VAT

Customs & Excise Cmrs v Peninsular & Oriental Steam Navigation Co; CA (Balcombe, Peter Gibson LJJ, Sir Tasker Watkins); 26 Jan 1994.

Credit for input tax claimed in a VAT return in the prescribed accounting period before it was properly due, but omitted in the next period when it should have been claimed, did not cause any loss of tax to the Crown and did not attract any penalty for a serious misdeclaration under s14(1) of the Finance Act 1984 in respect of the initial error. By

virtue of s14(4), allowance was to be made for such an error where a corresponding error occurred in 'any period': a set-off was not limited to the same prescribed accounting period.

Kenneth Parker QC and Alison Foster (Cust & Ex) for the Crown; David Milne QC, Gerald Barling QC and Adrian Shipwright (Lovell White Durrant) for the taxpayer.