Law reports

CONTRACT

Contract for hire of vessel to assist stricken vessel - common mistake as to proximity of vessels - no equitable jurisdiction to rescind contract for common mistake and contract enforceable

Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd: CA (Lord Phillips of Worth Matravers Master of the Rolls, Lords Justice May and Laws): 14 October 2002

The defendant contracted for hire of the claimant's vessel to escort and standby a severely damaged ship.

Both parties mistakenly believed the vessels to be in close proximity.

The contract gave a right to cancel subject to a cancellation fee of five days' hire.

On discovering their mistake, the defendant did not repudiate the contract until a closer vessel had been found to assist, and then refused any payment to the defendant.

The claimant brought an action for payment of the cancellation fee or for wrongful repudiation.

The defendant sought rescission of the contract on the ground of common mistake.

The judge gave judgment for the claimant.

The defendant appealed.

John Reeder QC and Rachel Toney (instructed by Shaw & Croft) for the defendant; Huw Davies (instructed by Stephenson Harwood) for the claimant.

Held, dismissing the appeal, that there was no jurisdiction in equity to grant rescission of a contract on the ground of common mistake where that contract was valid and enforceable on ordinary principles of contract law; that it was impossible to reconcile the Court of Appeal decision in Solle v Butcher [1950] 1 KB 671, in which it had been held that the court had power to set aside a contract which was binding in law on the ground of common mistake, with the House of Lords' decision in Bell v Lever Brothers Ltd [1932] AC 161 which defined the rules of law governing mistake in contract; and that, accordingly, Solle v Butcher could not stand and should not be followed.

(WLR)

CRIMINAL

Unlawful sale of veterinary medical products - labels indicating that products were prescription-only medicines presented for treating or preventing disease in animals - prosecution not required to prove chemical composition of products

Department for the Environment, Food and Rural Affairs v Atkinson and another: QBD (Lord Justice Brooke and Mr Justice Bell): 9 October 2002

The defendants were charged with offences relating to (i) selling by retail veterinary medical products without a prescription, contrary to sections 58(2)(a) and 67 of the Medicines Act 1968 and the Medicines (Veterinary Drugs)(Prescription Only) Order 1991; (ii) possessing for the purpose of placing on the market veterinary medical products in respect of which no marketing authorisation had been granted under the Marketing Authorisations for Veterinary Medical Products Regulations 1994; and, (iii) placing such products on the market.

The prosecution relied on the labels on the containers to prove the identity of their contents.

The justices held that there was no case to answer on the basis that, no evidence having been adduced as to their chemical composition, it could not be proved that the contents were veterinary medical products or prescription-only medicines.

The prosecution appealed.

Kenneth Parker QC and Kassie Smith (instructed by Treasury Solicitor) for the prosecution; Simon Temple (instructed by Beaty & Co, Wigton) for the first defendant; Paul Timothy Evans (instructed by Scott Duff & Co, Penrith) for the second defendant.

Held, allowing the appeal, that by section 24(1) of the Criminal Justice Act 1988 the labels constituted statements which were admissible in evidence to prove the identity of their contents; that for the purposes of the 1994 regulations, a product which was presented for treating or preventing disease in animals by virtue of its labelling or packaging was a veterinary medical product, and so the prosecutor did not have to prove the ingredients of the products for the purposes of the charges in groups (ii) and (iii); and that there was therefore a case for the defendants to answer on all the charges and the matter would be remitted for the justices to continue the hearing.

Bail - curfew condition - justices entitled to impose 'doorstep' condition requiring defendant to present himself at door of curfew premises on police request where necessary to secure compliance with bail duties

R (Director of Public Prosecutions) v Chorley Justices: QBD (Lord Justice Latham and Mr Justice McCombe): 9 October 2002

The defendant faced charges carrying the risk of imprisonment under circumstances which could justify the refusal of bail.

He did not resist the prosecution's request that any bail granted should be subject to a curfew condition as well as a 'doorstep' condition, whereby the defendant could be required, during the hours of his curfew, to present himself at the door of the premises if requested to do so by a police officer.

The justices' decided that they could not lawfully impose such conditions in conjunction under section 3 of the Bail Act 1976 and declined to do so.

The prosecution sought judicial review.

David Perry (instructed by Crown Prosecution Service, Preston) for the Director of Public Prosecutions; Angus McCullough (instructed by Treasury Solicitor) for the justices.

Held, granting judicial review, that the justices' power to impose conditions of bail arose under section 3(6) of the 1976 Act and enabled them to impose such conditions of bail as appeared to them to be necessary to secure the defendant's compliance with the duties set out in paragraphs (a) to (c) of section 3(6); that the only question before the justices had been whether, in the circumstances of the case, the requested conditions were so necessary; and that, accordingly, where a defendant was remanded on bail subject to a curfew condition, a court had the power to impose a 'doorstep' condition if it appeared necessary to secure the defendant's compliance with section 3(6)(a)-(c).

HOUSING

Long leaseholds - lessor entitled to recover from lessees costs of 'all other services' - not including legal costs in possession proceedings

St Mary's Mansions Ltd v Limegate Investments Co Ltd: CA (Lords Justice Ward, Mummery and Jonathan Parker): 11 October 2002

The lessor brought possession proceedings against a lessee under a long lease of one flat in a large mansion block.

The defendant joined the lessees of other flats in the block as part 20 defendants.

Preliminary issues arose on the construction of the lease.

The judge held, among other things, that express provisions permitting recovery of 'the costs of all other services which the lessor may at its absolute discretion provide' and of 'reasonable and proper fees' for the general management of the building in principle entitled the lessor to include in the lessees' service charges its legal costs of bringing proceedings to recover arrears of charges and ground rents.

The part 20 defendants appealed.

Edward Cousins (instructed by Cawdery Kaye Fireman & Taylor) for the lessees; Paul Letman (instructed by Morgan Cole) for the lessor.

Held, allowing the appeal in part, that the court's task was to construe the precise terms of the particular lease and in so doing was not assisted by decisions on the construction of similar provisions in other leases; that the disputed terms dealt with the physical facilities, allowing the lessor to charge for services and installations in the block, and with the general management fees of auditors or agents; and that, on a true construction, neither permitted the lessor to charge lessees as part of their service charges any of the lessor's legal costs.

LAND

Planning permission - planning authority to have regard to material considerations in dealing with application - no formal requirement to refer every consideration back to planning committee

R (Kides) v South Cambridgeshire District Council and Others: CA (Lords Justices Aldous, Laws and Jonathan Parker): 9 October 2002

The applicant applied for judicial review of a planning permission issued by the council on 16 October 2000, for comprehensive development of 30 hectares of land at Home Farm, Longstanton, Cambridgeshire.

The permission was granted to the major landowner and the developer, who were joined as interested parties.

Permission to apply for judicial review was refused on paper but at a renewed oral hearing, Mr Justice Sullivan directed that the application for permission and the substantive application be heard together.

Mr Justice Ouseley refused permission but gave a full judgment in which he gave detailed consideration to the merits.

The applicant appealed.

Wyn Williams QC and Martin Edwards (instructed by Richard Buxton, Cambridge) for the applicant; Alice Robinson (instructed by Cambridgeshire District Council) for the council; Richard Drabble QC (instructed by Marrons, Leicester) for the landowner and the developer.

Held, dismissing the appeal, 'dealing with' in section 70(2) of the Town and Country Planning Act 1990 in the context of the activities of a planning authority, in relation to a planning application, included anything done by or on behalf of the planning authority which bore in any way, whether directly or indirectly, on the application in question; that a consideration was 'material' if it was relevant to the question whether the application should be granted or refused; but that an authority's duty to 'have regard to' material considerations was not to be elevated into a formal requirement that in every case where a new material consideration arose, after the passing of a resolution to grant planning permission but before the issue of the decision notice, there had to be a specific referral of the application back to committee.

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