Law reports

BANKINGJoint borrowers - covenant that borrowers jointly and severally liable for all moneys lent by bank - second defendant liable for first defendant's personal borrowingAIB Group (UK) Ltd v Martin and another: HL (Lord Irvine of Lairg LC, Lord Hutton, Lord Millett, Lord Scott of Foscote and Lord Rodger of Earlsferry): 13 December 2001The defendants formed a business partnership and borrowed money from the claimant bank secured on various properties which they owned either jointly or individually.

In the case of jointly owned properties they took out a joint mortgage which provided that: 'If the expression "the mortgagor" includes more than one person it shall be construed as referring to all and/or any one of those persons and the obligations of such persons hereunder shall be joint and several' and that: 'The mortgagor hereby covenants with ...

the bank that it will on demand pay or discharge to the bank ...

all sums of money ...

advanced to the mortgagor by the bank...' The first defendant took out additional personal loans from the bank in relation to his own individual business concerns.When the bank called in the loans there was a significant shortfall after the sale of the properties which arose from the first defendant's personal indebtedness to the bank.

The bank sought to recover the shortfall against the second defendant.

The judge and the Court of Appeal found for the bank.

The second defendant appealed.Nicholas Davidson QC and Howard Smith (instructed by Beveridge Milton) for the second defendant.

Michael Briggs QC, Jeremy Cousins QC and John Brennan (instructed by Moran & Co, Tamworth) for the bank.Held, that under the joint mortgage agreement the term 'the mortgagor' meant both defendants together and/or each of them separately; that they had covenanted to pay all sums of money advanced by the bank to the two of them and/or to each of them; that on a true construction of the agreement they had both covenanted to pay the sums advanced by the bank to the first defendant alone, as well as the sums advanced by the bank to them jointly; and that, accordingly, the second defendant was liable for the shortfall arising from the first defendant's personal indebtedness (WLR).CRIMINALAppeal - correct approach where fresh evidence received - conviction unsafe R v Pendleton: HL (Lord Bingham of Cornhill, Lord Mackay of Clashfern, Lord Steyn, Lord Hope of Craighead and Lord Hobhouse of Woodborough): 13 December 2001The Criminal Cases Review Commission referred the defendant's conviction of murder to the Court of Appeal pursuant to section 9(2) of the Criminal Appeal Act 1995.

On the appeal fresh evidence was received under section 23 of the Criminal Appeal Act 1968.

The appeal was dismissed.

The defendant appealed.Michael Mansfield QC and Henry Blaxland (who did not appear at the trial) (instructed by Taylor Nichol Solicitors (who did not act at the trial)) for the defendant.

David Waters QC, Jeremy Benson QC and David Perry (instructed by Crown Prosecution Service, London Division, Casework Directorate) for the Crown.Held, allowing the appeal, that whether a conviction was unsafe section 2(1) of the 1968 Act was a matter for the judgment of the Court of Appeal, although it would usually be wise in a case of any difficulty involving fresh evidence for the court to test its provisional view by asking whether the evidence might reasonably have affected the jury's decision to convict; that if the court thought the conviction unsafe it had to allow the appeal whether or not a retrial was possible; and that, although the Court of Appeal had not misdirected itself, it was not possible, in the light of the fresh evidence, to be sure that the defendant's conviction was safe.

(WLR)Confiscation order - evasion of customs duty - 'pecuniary advantage' derived even though property forfeited R v Smith (David): HL (Lord Bingham of Cornhill, Lord Nolan, Lord Hoffmann, Lord Hutton and Lord Rodger of Earlsferry): 13 December 2001The defendant sailed past customs posts with 1.25 million cigarettes bought abroad without paying duty.

Customs officers stopped him 50 miles up the River Ouse and seized the cigarettes, which were forfeited.

The defendant remained liable for the duty of 130,666.40, but never paid it.

On his plea of guilty to fraudulent evasion of excise duty, he was sentenced to imprisonment and the judge made a confiscation order on the basis that under section 71(5) of the Criminal Justice Act 1988 he had derived a pecuniary advantage in the sum of 130,666.40 when he had evaded the duty at the customs posts.

His appeal against the confiscation order was allowed by the Court of Appeal (Criminal Division).

The Crown appealed.Andrew Mitchell QC and Kennedy Talbot (instructed by Solicitor, HM Customs and Excise) for the Crown.

Ben Emmerson QC and Peter Weatherby (instructed by Howells, Sheffield) for the defendant.Held, allowing the appeal, that 'pecuniary advantage' included the case where a debt was evaded or deferred and, since under section 71(4) of the 1988 Act the court was concerned with the value of the property to the offender when he obtained it (section 74(5)(a)), it made no difference if it was later damaged or destroyed or forfeited before he had been able to dispose of it.

(WLR)PRACTICESearch and seizure orders - party applying for order in wrong division of High Court - duty on party to explain why normal practice departed fromElvee Ltd v Taylor and others: CA (Sir Andrew Morritt V-C and Lord Justice Chadwick): 6 December 2001The claimant obtained from the Queen's Bench Division a without notice search and seizure order against the defendants on the ground that they had taken from the claimants confidential material and computerised photographs which were subject to copyright.That order was continued following the full hearing of the application.

The defendants appealed on the ground, among other things, that since the claimant had not obtained the without notice search and seizure order from the Chancery Division it should have been set aside.John Davies (instructed by Clyde & Co, Guildford) for the defendants.

Christopher Aylwin (instructed by Rice-Jones & Smith) for the claimant.Held, dismissing the appeal, that although the Queen's Bench Division had jurisdiction to hear the application, copyright proceedings were specifically assigned by statute to the Chancery Division; that it was important, both for the protection of defendants and the proper administration of justice that applications should be made to those judges with experience in the field; that if the normal practice were departed from then the party should explain to the judge the reason for not following it in the particular case; that the claimant's decision to proceed in the Queen's Bench Division had not been taken for tactical reasons; and, that accordingly, there was no reason for discharging the search and seizure order.

Foreign proceedings - restraining order - whether inconsistent with Brussels ConventionTurner v Grovit and others: HL (Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hobhouse of Woodborough, Lord Millett and Lord Scott of Foscote): 13 December 2001The defendant brought proceedings in the employment tribunal in London against the second defendants claiming compensation for unfair dismissal and damages for wrongful dismissal.

The third defendant, a member of the same group of companies as the second defendant, brought proceedings against the claimant in Spain, while the proceedings before the tribunal were still pending, claiming damages for breach of his contract of service.

The claimant applied in England for a restraining order in respect of the Spanish proceedings on the ground of abuse of process.

The Court of Appeal [2000] QB 345, on appeal from the judge, granted the orders.

The defendants appealed.Jonathan Harvie QC and Thomas de la Mare (instructed by Beynons Solicitors) for the defendants.

Laurence Rabinowitz (instructed by the Treasury Solicitor) as amicus curiae.

The claimant did not appear and was not represented.Held, that under English law the restraining orders had rightly been made since the claimant was a party to existing legal proceedings in this country, the defendants had in bad faith commenced and proposed to prosecute the Spanish proceedings with the purpose of frustrating or obstructing the claimant's English proceedings, and the orders were necessary to protect his legitimate interest in those proceedings; but that the question whether the grant of orders was inconsistent with the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (set out in schedule1 to the Civil Jurisdiction and Judgments Act 1982) should be referred to the Court of Justice of the European Communities under article 3(1) (set out in schedule 2 to the 1982 Act).

(WLR)PROBATEPerson procuring will taking benefit thereunder - necessity of showing testator knew and approved of contents of will - proof on balance of probability sufficientFuller v Strum: CA (Lord Justice Peter Gibson, Lord Justice Chadwick and Lord Justice Longmore): 7 December 2001The claimant sought approval of a will under which he was named executor and he and three members of his family received legacies.

He claimed the will had been dictated to him by the testator, who had read it through before signing it in the presence of two witnesses.

The will contained disparaging remarks about the testator's adopted son, the defendant, to whom it left only the residuary estate.

The defendant, who was the only person who would take on intestacy, entered a caveat.

The judge heard evidence of the testator's disappointment in his adopted son but concluded that the remarks attributed to him in the will were so out of character that he could not have known or approved of them.

He, therefore, upheld the validity of only part of the will, disapproving those parts relating to the claimant and his family.

The claimant appealed.The claimant in person.

Jack Mitchell (instructed by Embertons, Enfield) for the defendant.

Held, allowing the appeal, that a person who had been instrumental in preparing a will under which he was also a beneficiary had to satisfy the court on a balance of probabilities that the testator knew and approved of the contents of the will; that although the suspicion aroused by the circumstances of execution or contents of the will would vary from case to case there was no basis for imposing a burden of dispelling it beyond all reasonable doubt; and that any suspicion aroused in the present case was amply dispelled on the evidence.

(WLR) REVENUECondemnation proceedings brought over six months after goods taken - power to forfeit not arising until goods 'seized' - six-month period for bringing proceedings commencing when notice of claim given Commissioners of Customs and Excise v Venn and others: QBD (Mr Justice Harrison): 11 December 2001On 24 February 1999, customs officers took a substantial quantity of allegedly obscene material from the respondents.

On 20 April 1999 and 25 May 1999 customs gave notice of seizure of those goods as being liable to forfeiture under section 49(1)(b) of the Customs and Excise Management Act 1979.

On 13 May 1999 and 10 June 1999 respectively the respondents gave written notice of claim to customs that the goods were not liable for seizure.

In October 1999 customs by summons commenced condemnation proceedings.

In April 2001, the deputy district judge in the magistrates' court decided that he had no jurisdiction to hear the complaint because the goods had been seized on 24 February 1999 and so the six-month period prescribed by section 127 of the Magistrates' Courts Act 1980 for bringing proceedings had expired.

The Customs and Excise Commissioners appealed by way of case stated.David Barnard (instructed by Solicitor, Customs and Excise) for the commissioners.

The respondents did not appear and were not represented.Held, allowing the appeal and remitting the matter to the magistrates' court, that section 139 of the 1979 Act made a distinction between seizure and detention, and forfeiture was dependent on seizure; that in the absence of additional evidence on the events of 24 February the deputy district judge could not have been in a position to decide whether the goods had been seized, rather than merely detained, on that date; that the true nature of the matter of complaint was that the seizure was challenged by a notice of claim, giving rise to a duty on customs to bring condemnation proceedings, and so until such notice was given, there was no person against whom a complaint could have been made; and that, accordingly, the six-month period began when the notice of claim was given by the respondents.

(WLR)TAXATIONValue added tax - non-profit making organisation supporting administration of justice - provision of supplies exempt because organisations aims 'of a civic nature'Expert Witness Institute v Customs and Excise Commissioners: CA (Lords Justice Chadwick and Longmore and Mr Justice Harrison): 12 December 2001The claimant, a non-profit making company limited by guarantee, had as its aims 'the support of the proper administration of justice and the early resolution of disputes through fair and unbiased expert evidence'.

A VAT tribunal dismissed its appeal from a decision of the Customs and Excise Commissioners that it was not entitled to exemption from VAT on its supplies as provided by article 13A(1)(l) of the Sixth Directive (Council Directive 77/388/EEC).

On the claimant's appeal Mr Justice Lloyd [2001] 1 WLR 1658 held that its aims came within the provisions thus entitling it the exemption.

The commissioners appealed.Michael Patchett-Joyce and Rebecca Haynes (instructed by Solicitor, Customs and Excise) for the commissioners.

Richard Drabble QC (instructed by KLegal) for the claimant.

Held, dismissing the appeal, that article 13A(1)(l) of the Directive provided for exemption for the supply of services by non-profit making organisations having 'aims of a civic nature'; and that, on a fair reading of that provision, the claimant's aims came within that phrase, thus entitling it to claim the exemption for its supplies.

l The law reports are prepared by the reporters to the Incorporated Council of Law Reporting for England and Wales; telephone: 020 7242 6471; fax: 020 7831 5247; http://www.lawreports.co.ukWLR means that a report has been submitted for publication in the Weekly Law Reports