Case Summaries 14 June 1999

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

Insolvency

Glenister v Rowe; CA (Butler-Sloss, Thorpe, Mummery LJJ) 21 Apr 1999.

WHERE PROCEEDINGS had been commenced against a person prior to his being declared bankrupt and a costs order was made against him in those proceedings after his discharge from bankruptcy, the costs order did not fall within the definition of "bankruptcy debt" since it was not a contingent liability. Costs of legal proceedings were within the court's discretion and there was no liability to pay them until the court had made an order.

Jamie Riley (Stone Rowe Brewer, Twickenham) for Rowe; Mark Arnold (Brooke North, Leeds) for Glenister.

Nuisance

Haringey London Borough Council v Jowett; QBD, Div Ct (Kennedy LJ, Mitchell J) 27 Apr 1999.

PROCEEDINGS FOR noise nuisance which related solely to traffic noise from outside a complainant's dwelling should properly be brought under s 79(1)(ga) of the Environment Protection Act 1990 as amended by the Noise and Statutory Nuisance Act 1993, and not under s 79(1)(a).

Judith Maxwell (Haringey Legal Services) for the appellant; Bethan Harris (Norton & Co) for the respondent.

Capital gains tax

Steibelt (HMIT) v Paling; Ch D (Sir Richard Scott V-C) 28 Apr 1999.

THE GENERAL Commissioners had no power under s 152(3) of the Taxation of Chargeable Gains Act 1992 to extend the time limit for reinvestment of a gain realised on disposal of an asset. That power was exercisable by the Revenue and could be challenged by judicial review but was not reviewable by the commissioners.

Rabinder Singh (Solicitor of Inland Revenue) for the Revenue; the taxpayer did not appear.

Negligence

Mirza and anor v Bhandal; QBD (Latham J) 27 Apr 1999.

WHERE AN owner of a dwelling gave instructions for work to be done, or employed someone to do work, he did not "take on work" for the purposes of s 1(1) of the Defective Premises Act 1972.A distinction was to be made between those who "ordered" the provision of a dwelling, and those who took on work in connection with the provision of that dwelling.

Julian Waters (Merricks, Ipswich) for the plaintiffs; Joshua Swirsky (Barnes & Partners) for the defendant.

Legal aid

Bridgewater v Grifiths; QBD (Burton J, Taxing Master Rogers and Mr C Jaque) 29 Apr 1999.

ON THE true construction of reg 46(3) of the Civil Legal Aid (General) Regulations 1989, a legal aid certificate related only to the action for which it was granted. In the context of the regulations "proceedings" meant the particular legal application which was to be before the court and which was covered by the legal aid certificate, but the proceedings could be less than the full action.

Andrew Post (L Dawson & Co) for the defendant; David Westcott (Stewart & Co) for the plaintiff; Charles Utley (Katherine Pears) for the Legal Aid Board.

Letter of credit

Czarnikow-Rionda Sugar Trading Inc v Standard Bank London Ltd and ors; QBD, Comm Ct (Rix J) 6 May 1999.

AN INJUNCTION would not be granted to prevent a defendant from paying out the proceeds of a letter of credit on the basis of the fraud exception unless the fraud had come to the bank's notice in time, i.e. in any event before the beneficiary had been paid, and in such a way that it could be said that the bank had had knowledge of the fraud, since the interest in the integrity of banking contracts under which banks made themselves liable on letters of credit or guarantees was so great that not even fraud could be allowed to intervene.

Stephen Males QC, Michael Collett (Middleton Potts) for the United European Bank; Michael Brindle QC, Derrick Dale (Edwin Coe) for Banque Cantonale de Geneve; Trevor Phillipson QC, Clare Ambrose (Berwin Leighton) for the plaintiff; Nicholas Strauss QC, John McCaughran (Morgan Lewis & Bockius) for the first defendant.

Divorce

Clark v Clark; CA (Butler-Sloss, Thorpe, Mummery LJJ) 6 May 1999.

WHERE ONE of the parties to ancillary relief proceedings in a divorce action was guilty of litigation misconduct the court should ensure that, unless there were exceptional mitigating circumstances, the party responsible bore the cost of the waste in full.

T Scott QC, Lucy Stone (Levison Meltzer Piggott) for the husband; the wife appeared in person through her son.