Law Reports: Case Summaries 23 November 1998

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

Landlord and tenant

Cadogan and another v Morris; CA (Stuart-Smith, Otton, Tuckey LJJ) 4 Nov 1998.

ON THE true construction of s 42(3)(c) of the Leasehold Reform, Housing and Urban Development Act 1993, a tenant claiming a new lease by serving notice on the landlord was required to specify a realistic figure as the premium he proposed to pay. Although the tenant was not required to offer the final figure to which he was prepared to go, a notice specifying a nominal figure would be invalid.

Anthony Radevsky (Lee & Pembertons) for the landlord; Gary Cowen (Wood Winfield) for the tenant.

Courts-martial

R v Graham and Ors; R v Gillespie; CA (Crim Div) (Kennedy LJ, Holland J, Sir Charles McCullough) 13 Nov 1998.

THE DECISION of the European Court of Human Rights in Findlay v UK (1997) 24 EHRR 221 was not that the court-martial procedure was unfair, but rather that it was capable of not appearing to be impartial as required by Art 6 of the European Convention on Human Rights. Reliance on Findlay as though it were a magical incantation to impugn courts-martial was, therefore, wholly misconceived: the Court of Appeal could only interfere if the conviction was unsafe.

David Howell (Registrar of Criminal Appeals) for Graham; Christopher Metcalf (Registrar of Criminal Appeals) for Morrison; Gilbert Blades, solicitor advocate (Registrar of Criminal Appeals) for Miller and Gillespie; Philip Havers QC, Anthony Niblett (Army Prosecuting Authority) for the Crown.

Health and safety at work

Kay v Biggs & anr; QBD (Div Ct)(Rose LJ, Mitchell J) 18 Nov 1998.

WHERE AN information was preferred that a defendant had failed to discharge a duty to which he was subject by virtue of s 6(1) of the Health and Safety at Work etc Act 1974, in that he had supplied a centrifugal extractor for use without a guard contrary to s 33(1)(a) of the Act, the date of supply was not a material averment and therefore not crucial to the alleged failure to comply with the duty imposed by the section. Accordingly, when the issue was whether the machine had been supplied in an unsafe state, there was no necessity for the prosecution to prove the date and place of supply.

Caroline Knight (Health and Safety Executive) for the appellant; Peter Telford (Stephens & Scown, St Austell) for the respondent.

Costs

MB Building Contractors v Ahmed; CA (Hirst LJ, Cazalet J) 18 Nov 1998.

IT WAS wrong in principle for a judge to take into account the fact that a defendant had appeared in person or that he was impecunious when he was determining the appropriate order for costs after a trial in which a plaintiff had been successful. It was only where the conduct of the plaintiff was such as would warrant depriving him of all or part of his costs that the principle that the side who has won overall was entitled to his costs could be departed from.

Timothy J. Walker (Lucas Baron Jacobs) for the plaintiff; Norman W Patterson (Chetty & Co) for the defendant.

Appeal

Commrs of Customs & Excise v Brunt; QBD(Div Ct)(Rose LJ, Mitchell J) 10 Nov 1998.

THE WORDS "any decision" in s 147(3) of the Customs and Excise Management Act 1979 were clear, and entitled a prosecutor to appeal against a sentence imposed by magistrates, and indeed any other decision in criminal proceedings. Moreover, there was nothing in s 48 of the Supreme Court Act 1981 nor in the Crown Court Rules 1982 which was inconsistent with that interpretation.

Andrew Bird (Solicitor to Customs and Excise) for the appellant; the respondent did not appear and was not represented.

VAT

Commrs of Customs & Excise v Plantiflor Ltd; QBD (Laws J) 6 Nov 1998.

VAT WAS payable on the total amount of a separate charge for delivery of mail-order goods. Even though the catalogue stated that payment to the Post Office would be made "on behalf of" the customer, the receipt of the amount of the postage by the taxpayer from the customer was part of its turnover.

Nicholas Paines QC (Solr for C&E) for the Crown; Roderick Cordara QC, Susan Preveza (Denton Hall) for the taxpayer.