CASE SUMMARIES

4 December 1995

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

Contempt

Bah and anor v Walters and anor Re Bah (a minor); FD (Wall J); 8 Nov 1995

A civil court in committal proceedings had power to compel an alleged contemnor to swear an affidavit in advance of the hearing setting out his case. Although it was well established that a defendant to a committal summons was not a compellable witness, the fact that he was not compellable did not mean that the court lacked power to regulate the manner in which any evidence which the defendant chose to produce was produced.

John Critchley (Official Solicitor) as amicus curiae; Philip Marshall (Allen Janes, High Wycombe) for the husband; Anthony Kirk (Turberville Woodbridge, Uxbridge) for the wife; Deborah Eaton (Rowberry Morris, Reading) for the guardian ad litem.

Costs

Penny v Penny; CA (Butler-Sloss, Hutchison LJJ); 22 Nov 1995

The court had no jurisdiction to order a party to pay security for the other party's costs of proceedings which had already been concluded and judgment given, and where there were no continuing proceedings upon which a stay could be imposed. The fact that further, but separate, proceedings had yet to be determined between the same parties (in this case an application to vary the periodical payments order made in earlier divorce proceedings) did not permit the unpaid costs of the earlier proceedings to be enforced by ordering security or imposing a stay of the later.

Patrick Hamlin (Ashworth Tetlow, York) for the appellant; Simon Jack (Denison Pill, York) for the respondent.

Insurance

Promet Engineering PTE Ltd v Sturge and ors: Nukila; QBD (Comm Ct) (Tuckey J); 24 Oct 1995

Underwriters who insured a vessel by a cover in the terms of the Institute Time Clauses including the Inchmaree clause were not liable to indemnify the assured because there had been no consequential damage caused by a latent defect. Although the latent defect, cracks in the welding, had spread and caused damage to the legs and bases of the vessel it was no consequential damage to another part of the vessel because the parts were welded together and therefore could not be considered separate.

Stephen Ruttle (Norton Rose) for the assured; David Mildon (Clyde & Co) for the underwriters.

Judicial review

R v Birmingham Coroner's Court, ex p Najada; CA (Neill, Auld LJJ, Sir Iain Glidewell); 23 Nov 1995

A judge was entitled, in deciding to adjourn judicial review proceedings pending the determination of a criminal trial arising out of the same facts, to take into account not only the alleged infringements of legal rights but also whether, assuming they could be established, the court would be likely in its discretion to grant relief. He was also entitled to take the view that continuation of the judicial review proceedings might well become academic whichever way the criminal trial went.

Richard Gordon QC, Jonathan Goulding (Havell & Co) for the applicant; Richard Rundell (City Solicitor, Birmingham) for the respondent.

Landlord and tenant

Jervis v Harris; CA (Sir Stephen Brown P, Millett, Otton LJJ); 9 Nov 1995

Overruling Swallow Securities v Brant (1981) 45 P & CR 328, the court held that a landlord's right to enter the property, effect repairs himself and then claim to recover the cost of doing so from the tenant was not a claim for damages for breach of a covenant by the tenant "to keep or put in repair during the currency of the lease all or any of the property comprised in the lease" requiring the consent of the court under s 1 of the Leasehold Property (Repairs) Act 1938. The tenant's liability to reimburse the landlord was not a liability in damages for breach of the repairing covenant. The landlord's claim sounded in debt not damages and was in effect a claim for reimbursement of sums actually expended by the landlord in carrying out the repairs himself.

Kim Lewison QC and David N. Berkley (Liefman Rose & Co, Manchester) for the appellant; Anthony Elleray QC and Ian Foster (James A. Singleton, Manchester) for the respondent.

Practice

Practice Statement: Patents Court Procedure); ChD (Jacob J); 6 Nov 1995

The patents judges are willing, unless a matter of general public importance is involved, to hear summons by telephone conference for short (20 minutes or less) matters before the Patents Court. The Patents Court Users' Committee would in future consider the problems and concerns of intellectual property litigation generally.

Revenue

Willson v Hooker (inspector of taxes); ChD (Vinelott J); 30 Oct 1995

An individual who instructed surveyors and solicitors and did everything necessary to implement a single transaction of purchase and sale of land in the UK on behalf of an Isle of Man company was liable to corporation tax as agent of a foreign company under the Taxes Management Act 1970, s 78(1). He was a "regular agent" of the company within the meaning of s 82 of the Act: the term "regular agency" did not necessarily suggest a number of transactions.

Jeremy Woolf (Birkett Westhorp & Long, Colchester) for the taxpayer; Timothy Brennan (Inland Revenue Solicitor) for the Crown.