Law reports

COMPANY

Undischarged bankrupt concerned in management of company known by prohibited name - strict liability offences - no defence that defendant believed she was not managing company

R v Doring: CA (Lord Justice Buxton, Mr Justice Grigson and Mr Justice Pitchford): 24 June 2002

The defendant, who had managed a company until it was wound up and she was adjudicated bankrupt, was charged that she had thereafter acted as a director or been concerned in the management of another company known by a prohibited name without the leave of the court, contrary to section 216(3)(a)(b), (4) of the Insolvency Act 1986 and that as an undischarged bankrupt she had acted as director of, or taken part or been concerned in the management of, that other company without the leave of the court, contrary to section 11(1) of the Company Directors Disqualification Act 1986.

The defendant said in evidence that she was involved in publicity, promotion and various other activities for the other company but that she neither hired nor fired staff nor made financial decisions on behalf of that company.

The judge directed the jury that the offences were ones of strict liability and they were required only to consider whether her acts, objectively understood, amounted to being concerned in the management of a company.

She was convicted.

She appealed against conviction on the grounds that the judge's direction was wrong.

Charles Conway (assigned by the Registrar of Criminal Appeals) for the defendant; Christopher Drew (instructed by the Department of Trade Industry, Legal Services) for the Crown.

Held, dismissing the appeal, that both offences were strict liability offences; that whether the defendant had been concerned in or had taken part in the management of a company was a matter for the jury; that the defendant's own view that her actions did not constitute management could not amount to a defence; and that, accordingly, the judge's direction to the jury was correct.

CRIMINAL

Defendant making confession in presence of solicitor - allegation that solicitor incompetent - no basis for excluding confession

R v Wahab; R v Cromer: CA (Lord Justice Judge, Mr Justice Astill and Judge Colston QC): 26 June 2002

The defendants were arrested on suspicion of conspiring to supply a class A controlled drug.

The first defendant was interviewed in the presence of his solicitor, whom he asked to approach the police to see whether his family, who were in custody, might be released if he admitted his guilt.

A senior officer made it clear that no promises could be made, except in relation to reviewing the evidence.

The first defendant then admitted that he had been involved in the supply of drugs as a middleman.

At the trial he sought to have his confession excluded under section 76(2) of the Police and Criminal Evidence Act 1984 on the grounds that it was unreliable.

He called another solicitor, as an expert witness, to demonstrate that the conduct of his first solicitor at the police station fell below the proper standard of professional competence.

The judge ruled that the first defendant was a man of intelligence who had been adequately advised, and accordingly allowed the confession to be admitted.

Both defendants were convicted.

They appealed.

Nigel Shepherd (instructed by Middleweeks, Manchester) for the first defendant; Anthony Watson (instructed by Steele Greenwood, Burnley) for the second defendant; Howard Bentham QC (instructed by the Crown Prosecution Service, Preston) for the Crown.

Held, dismissing the appeals, that advice properly given to a defendant by his solicitor did not normally provide a basis for excluding a subsequent confession under section 76(2); that a legal adviser's duty was to give realistic advice which did not have to be directed to 'getting the client off' or simply making life difficult for the prosecution; that the judge did not need expert legal evidence to enable him to form a view about the reliability or otherwise of the confession; and that, accordingly, the judge's ruling was right.

PRACTICE

Injunction - worldwide freezing order - requirement to disclose assets not normally to be stayed pending challenge to freezing order

Motorola Credit Corporation v Uzan and Others: CA (Lord Woolf CJ, Lords Justices Waller and Sedley): 26 June 2002

The claimant obtained a worldwide freezing order against the first and fourth defendants, in support of proceedings commenced against them in the US, which included provisions requiring them to provide information to the claimants' solicitors as to all their assets worldwide.

The first and fourth defendants applied for the freezing order to be set aside and, while accepting that the order should continue until the hearing of that application, each sought a stay of the disclosure provisions pending that hearing.

Stays were refused on the grounds that, in principle such disclosure provisions were a standard and important part of the freezing order jurisdiction; that once it was accepted that the freezing order should stand pending a full hearing it was prima facie inappropriate to stay the disclosure order; and that the circumstances relied on did not take the case out of the norm.

The first and fourth defendants appealed.

Nicholas Strauss QC and Alain Choo Choy (instructed by Weil Gotshal & Manges) for the first defendant; Kenneth MacLean QC (instructed by Weil Gotshal & Manges) for the fourth defendant; Mark Cran QC and Michael Bools (instructed by Steptoe & Johnson) for the claimant.

Held, dismissing the appeals (Lord Justice Sedley dissenting), that although it was an invasion of privacy to force any party to disclose assets, a freezing order in normal circumstances could not be effective without that disclosure; that, once it was accepted that the freezing order should continue pending the hearing of the application to set it aside, then prima facie a disclosure provision would be the normal provision so that the freezing order could be properly policed and be effective; and that, in all the circumstances, the court should not interfere with the exercise of the judges' discretion.

Concluded appellate proceedings in High Court - application to reopen - court having jurisdiction if only effective remedy for significant injustice

Seray-Wurie v Hackney London Borough Council: CA (Lords Justices Simon Brown, Brooke and Dyson): 25 June 2002

The claimant applied to the High Court for permission to appeal against a deputy costs judge's order setting aside his default costs certificate.

Mr Justice Gibbs refused the application and the claimant, relying on Taylor v Lawrence [2002] EWCA Civ 90; [2002] Gazette, 21 March, 35 applied to the court for an order that the case be 'reopened for a hearing'.

Mr Justice Lloyd refused the application on paper, whereupon the claimant sought an oral hearing of the application.

Mr Justice Lloyd transferred the case to the Court of Appeal.

The applicant in person.

The defendant did not appear and was not represented.

Held, refusing the application, that the High Court, when sitting as an appeal court, possessed jurisdiction to reopen its decisions in exceptional circumstances to avoid real injustice, in the same way that Taylor decided that the Court of Appeal did; that the requirement for the exercise of the power was that a significant injustice had probably occurred for which there was no alternative effective remedy; and that, on the facts, that requirement had not been satisfied.

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