Law reports

Law reports

CHILDREN

Father making payments to Child Support Agency and paying fees for child's boarding school - principles applicable for determining whether father having day-to-day care of boarded child - residence orders irrelevant to determination

C v Secretary of State for Work and Pensions and another: CA (Lords Justice Kennedy, Potter and Chadwick): 17 December 2002

In 1994, the mother was granted a residence order in respect of her child, with a contact order in favour of the father, who was making child support payments to the support agency.

In 1997, the child went to a boarding school and the father, who paid the full school fees, applied to the court for a shared residence order, but his application was refused.

The father applied to the Child Support Tribunal for the variation of his child support payment, contending that in view of his payment of the fees he should be regarded as a parent who cared for the child.

The tribunal, taking the court orders in favour of the mother into consideration, rejected that application and held that the mother was the parent with care of the child and the father would not be treated as sharing the day-to-day care of the child.

The tribunal's decision was upheld by the Child Support Commissioner.

The father appealed.

The father and the mother in person.

The secretary of state did not appear and was not represented.

Held, allowing the appeal, that for the purpose of determining the question as to the day-to-day carer of the child, the tribunal and the commissioner had been wrong to be influenced by the court orders which were not relevant for determining the issue; and that, since the Child Support Acts and the regulations made under them were the self-contained statutory regime which established the appropriate principles, the correct approach was to consider who, but for the circumstances that the child was a boarder at a boarding school, would usually be providing day-to-day care for the child.

Young offenders - detention in young offender institution - local authorities' statutory duties to children remaining applicable

R (Howard League for Penal Reform) v Secretary of State for the Home Department: QBD (Mr Justice Munby): 29 November 2002

The claimant sought judicial review by way of declarations that the statement that the Children Act 1989 did not apply to persons under 18 years old in prison establishments, made in paragraph 3.1.4 of Prison Service Order No 4950 (PSO 4950), Regimes for Prisoners Under 18 Years Old, issued on 29 July 1999, was wrong in law and that the procedures found in annex B to that order, implemented from 8 January 2002 by Prison Service Instruction 62/2001, were unlawful in that they were inconsistent with the policy objective of the order, which was to comply with the 'principles and good practice' of the 1989 Act.

Ian Wise (instructed by Frances Russell) for the claimant; Eleanor Grey (instructed by the Treasury Solicitor) for the home secretary.

Held, granting the first declaration sought but refusing the second, that to the extent that the Children Act 1989 neither conferred nor imposed any powers or responsibilities on either the prison service or the home secretary, it did not apply to young offender institutions; that, since the duties which a local authority would otherwise owe to a child under sections 17 or 47 of the 1989 Act did not cease to be owed merely because the child was currently detained in such an institution, the Act did apply to children so detained, although taking effect subject to the necessary requirements of imprisonment; and that, with the exception of that sentence in paragraph 3.1.4, the policy of PSO 4950 seemed to comply with domestic law and more than adequately met the prison service's human rights obligations.

COMMERCIAL

Financial Ombudsman service - ombudsman's misinterpretation of banking code failure to take into account relevant consideration - ombudsman's determination of wider question of fairness reviewable only if Wednesbury unreasonable

R (Norwich and Peterborough Building Society) v Financial Ombudsman Service Ltd: QBD (Mr Justice Ouseley): 14 November 2002

A customer of the claimant complained to the ombudsman that he had been treated unfairly because he was paid a lower rate of interest on his tax exempt special savings account (TESSA) account, which had been superseded, than he was on his TESSA-only ISA (TOISA) account (see Legal Update, p30).

The ombudsman upheld the complaint, holding that it was unfair for a financial institution to pay a lower rate of interest to an account-holder on a superseded account than it did on a less onerous account.

The claimant was ordered to pay 30 damages and a further payment to make up the difference between the two rates of interest.

The claimant had a further 53,000 TESSA account-holders who had been treated in the same way, and it was estimated that it would cost 1.3 million to pay analogous compensation to them.

TESSA account holders with other financial institutions were in a similar position.

The claimant sought judicial review of the ombudsman's decision, alleging that he had failed to take into account a relevant consideration (by misinterpreting the banking code) and/or had reached a conclusion which was Wednesbury unreasonable.

Anthony Boswood QC and Deepak Nambisan (instructed by Slaughter & May) for the claimant; David Pannick QC and James Strachan (instructed by DJ Freeman) for the ombudsman.

Held, refusing relief, that provisions of the banking code were capable of having only one true construction, which was to be determined by the court, although it was to be interpreted in a purposive, non-technical way; that if the ombudsman misinterpreted the code he was failing adequately to take into account a relevant consideration; that the ombudsman had misapplied the code in requiring the claimant to pay the same rate of interest on a superseded account as it did on a dissimilar account, whereas the code obliged it to do so only where the other account was similar to the superseded account; but that the ombudsman's ruling that fairness required an institution to pay the same rate of interest on a superseded account as it did on a dissimilar but less onerous one was not tainted by his misinterpretation of the code, because his jurisdiction also covered questions of fairness which were not always covered by the code; that consistency in decision-making required the ombudsman to develop additional criteria as to what constituted fairness; and that, where the ombudsman had adopted additional criteria, the court should intervene only where either the criteria he had adopted or the conclusion he had reached were Wednesbury unreasonable.

COSTS

Applications to set aside judgments - conditions imposed requiring provision of security for costs of applications and payment-in in respect of past unpaid costs - judge wrong to impose condition in respect of past costs

CIBC Mellon Trust Co and others v Mora Hotel Corporation NV and another: CA (Lords Justice Peter Gibson, Mance and Hale): 19 November 2002

The defendants wished to pursue applications to set aside default judgments.

The judge ordered that as a condition they should pay 1.6 million into court (1.5 million in respect of costs orders already made but unpaid and 100,000 security for the claimant's costs of the applications to set aside) and refused to vary a freezing order earlier made against them in favour of the claimants to enable them to make the required payment out of frozen assets.

The payment was made by a third party, against whom no imputations were made.

The defendants appealed.

John Wardell QC (instructed by Withers) for the defendants; Philip Marshall (instructed by Shook Hardy & Bacon MNP) for the claimants.

Held, allowing the appeal in part, that there were relevant differences between an application for payment into court of security for costs relating to applications to set aside judgments and an application for payment into court of past costs; that there might be injustice in requiring an applicant to make a payment into court in respect of past costs as a condition of being allowed to proceed with an application to set aside a judgment when the court knew that the only possible source of funds to make such payment was a third party against whom no order for costs under section 51 of the Supreme Court Act 1981 had been sought or could reasonably be made; that in that context it was a relevant consideration that the effect of requiring such payment was, if the application failed, to give the claimant the ability to recoup part of what he was owed from additional assets which, had the application not been made, would not have been available to him; and that, accordingly, the judge had erred in making payment-in of past costs a condition of the set aside applications, but he had not erred in his order for security for the costs of the applications themselves.

Detailed assessment of costs - issue raised concerning claimant's liability to pay solicitor's costs - solicitor not unlawfully maintaining action by continuing to act

Burstein v Times Newspapers Ltd (No 2): CA (Lord Phillips of Worth Matravers, Master of the Rolls, Lords Justices Mance and Latham): 28 November 2002

The claimant was awarded damages in a libel action against the defendant newspaper, with costs subject to detailed assessment.

The defendant's appeal was dismissed but the claimant was awarded only half his costs of the appeal, also the subject of detailed assessment.

On the detailed assessment, the defendant argued that the claimant's costs offended against the indemnity principle in that the claimant had not been liable at any time to pay his solicitor's costs, and sought to cross-examine the claimant and his solicitors.

The costs judge refused to direct a trial of that issue.

The defendant appealed.

Richard Wilson (instructed by Alastair Brett) for the defendant; David Holland (instructed by David Price Solicitors and Advocates) for the claimant.

Held, dismissing the appeal, that there was no principle of law that a solicitor who continued to act for a client whenever he became aware that the client was no longer able to pay his costs unlawfully maintained the action; that where the retainer was in issue the court was concerned to establish the true nature of the contract between the solicitor and the client; and that, since there was nothing in the evidence to suggest the agreement between the claimant and his solicitors was a sham, the costs judge had been correct not to permit cross-examination on that issue.

CRIMINAL

Revocation of prisoner's parole licence - parole board's decision whether to release prisoner - not determination of criminal charge so no entitlement to oral hearing

R (West) v Parole Board: CA (Lords Justice Simon Brown, Sedley and Hale): 14 November 2002

The claimant, a short-term prisoner sentenced in October 2000 to three years' imprisonment for affray, was automatically released on licence on 6 August 2001.

On 22 November 2001, the Secretary of State for the Home Department revoked the licence on the ground that the claimant had breached conditions of the licence.

The claimant was consequently arrested and returned to prison.

He made representations to the parole board, to which the case had been referred under section 39(5) of the Criminal Justice Act 1991, asking for an oral hearing.

The board rejected the representations and refused to recommend his immediate release from prison.

The claimant sought judicial review on the ground that the board had erred in refusing him an oral hearing.

Mr Justice Turner dismissed the claim.

The claimant appealed.

Richard Clayton QC and Kris Gledhill (instructed by Kaim Todner) for the claimant; Jonathan Crow and Kristina Stern (instructed by the Treasury Solicitor) for the board.

Held, dismissing the appeal (Lady Justice Hale dissenting), that a parole licence was revoked and the revocation confirmed solely with a view to the prevention of risk and the protection of the public, not by way of punishment; that, therefore, the board was not determining a criminal charge, within the meaning of article 6 of the European Convention on Human Rights, when exercising their section 39 powers; and that, accordingly, the claimant had not been entitled to an oral hearing before the board.

(WLR)

Evidence - calling of potentially unreliable witness matter for prosecution's discretion - prosecution obliged to disclose defendant's defence statement to co-defendant where reasonably likely to help him

R v Cairns and others: CA (Lord Justice Keene, Mr Justice Forbes and Judge Rant QC): 22 November 2002

The defendants were charged with conspiracy to supply a class A drug.

The first defendant's husband, who had pleaded guilty to the conspiracy, gave evidence for the Crown.

The second and third defendants applied for the exclusion of his evidence on the basis that it was unworthy of belief.

The judge rejected that submission.

The first defendant sought disclosure of the defence statements of the second and third defendants.

The judge held that since section 5(5) of the Criminal Procedure and Investigations Act 1996, which required a defendant to give a defence statement to the court and the prosecutor, did not refer to any other party, the co-defendants were not entitled to such disclosure and the judge had no power to order it.

The defendants were convicted and appealed against their convictions on the grounds that the judge's rulings were wrong.

Sarah Elliott (assigned by Registrar of Criminal Appeals) for the first defendant; Malcolm Sinclair (assigned by Registrar of Criminal Appeals) for the second defendant; Richard Sutton QC (assigned by Registrar of Criminal Appeals) for the third defendant; Nigel Pascoe QC (instructed by Crown Prosecution Service, Portsmouth) for the Crown.

Held, dismissing the second and third defendants' appeals but allowing the first defendant's appeal, that it was a matter for the discretion of the Crown whether a witness whose evidence was likely, at least in part, to be unreliable should be called to give evidence; that the prosecution was obliged by section 7(2) of the 1996 Act to disclose to a defendant any prosecution material not previously disclosed; and that, since the phrase 'prosecution material' in section 7(2) was defined in section 7(3) in the same terms as in section 3(2) which related to primary disclosure, the prosecution had a duty to disclose any defence statement which they considered might reasonably be expected to help a co-defendant.

Mandatory life sentences for murder - statutory provision enabling home secretary to fix tariff - provision incompatible with convention right

R (Anderson) v Secretary of State for the Home Department: HL (Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hutton, Lord Hobhouse of Woodborough, Lord Scott of Foscote and Lord Rodger of Earlsferry): 25 November 2002

On conviction of murder the claimant received mandatory life sentences.

The home secretary, pursuant to his power under section 29 of the Crime (Sentences) Act 1997 to control the release of such a prisoner, fixed the claimant's 'tariff', the minimum term to be served for punitive purposes, at a period longer than that recommended by the judiciary.

The claimant sought judicial review on the grounds that the decision was incompatible with article 6(1) of the European Convention on Human Rights.

The Queen's Bench Divisional Court [2001] Gazette, 20 April, 35 dismissed the claim.

The Court of Appeal [2001] EWCA Civ 1698; [2001] Gazette, 6 December, 27; [2002] 2 WLR 1966 dismissed his appeal.

Subsequently, the European Court of Human Rights in Stafford v United Kingdom (Application No 46295/99) (unreported) 28 May 2002, revising its former opinion, concluded that in domestic law a mandatory life sentence did not, save exceptionally, impose lifelong imprisonment and that the home secretary's role in fixing the tariff period involved a sentencing exercise.

The claimant appealed.

Edward Fitzgerald QC and Phillippa Kaufmann (instructed by Irwin Mitchell, Sheffield) for the defendants; David Pannick QC and Mark Shaw QC (instructed by the Treasury Solicitor) for the home secretary.

Held, allowing the appeal, that in defining the punitive period to be served before he considered licensed release, the home secretary performed a classical sentencing function; that since the European court's reconsideration rested on an accurate understanding of domestic law, it was appropriate to give effect to its judgment; that imposition of sentence was part of a trial to which article 6(1) applied and since the home secretary, as a member of the executive, was not independent or impartial nor a tribunal he had acted inconsistently with the claimant's right; and that, since section 29 could not be interpreted under section 3(1) of the Human Rights Act 1998 conformally with article 6, a declaration of incompatibility under section 4 was the appropriate relief.

(WLR)

EMPLOYMENT

Unfair dismissal - breakdown of trust and confidence between employer and employee result of employee's fault - not 'breach of trust' and not gross misconduct

Coxon v Rank Xerox Ltd: EAT (Mr Justice Wall, Mr J Hougham CBE and Mr M Clancy): 18 November 2002

The applicant was dismissed from her employment as a customer support analyst on grounds of gross misconduct, namely 'breach of trust', although precisely what that meant was never fully particularised.

The applicant brought a claim for unfair dismissal.

The claim was dismissed on the grounds that any procedural deficiencies in the initial disciplinary procedure had been corrected by the employer's internal appeal process.

The applicant appealed on the bases, among other things, that neither the employer nor the tribunal had made any adequate findings as to what the alleged gross misconduct/breach of trust had involved, or alternatively that the finding that the applicant had been fairly dismissed following a fair disciplinary process was perverse.

The applicant in person; Lydia Seymour (instructed by Jacqueline Robertson, Uxbridge) for the employer.

Held, allowing the appeal in part, that neither the employer nor the employment tribunal had made adequate findings as to what the applicant had done which had constituted the 'breach of trust' for which she had been dismissed; that the tribunal's finding that the disciplinary proceedings had been fair was perverse because, with the resources available to it, the employer should have better particularised the allegations of misconduct, given the employee longer than three days to respond to them, and provided for the initial disciplinary hearing to be chaired by a senior manager who was not party to the events giving rise to the disciplinary charges; that the employer and the tribunal had erroneously equated 'breach of trust' with a breakdown in the relationship of trust and confidence between employer and employee; but that the tribunal's finding, that the relationship had indeed broken down the result wholly of the applicant's fault, was reasonable; and that, accordingly, the finding that the applicant had been dismissed for gross misconduct would be set aside but the finding that her dismissal was fair upheld.

EUROPEAN COMMUNITY

Jurisdiction of Court of Justice - reference for preliminary ruling from national court - Court of Justice lacking jurisdiction to make findings of fact - national court not bound by Court of Justice's conclusions

Arsenal Football Club plc v Reed: ChD (Mr Justice Laddie): 12 December 2002

The claimant football club sought an injunction to restrain the defendant, who had sold unauthorised football memorabilia including scarves bearing the club's name, from infringing its registered trade mark consisting of the use of the word 'Arsenal'.

The defendant had not indicated to his customers that the signs on his goods were sanctioned by the claimant and he said that he had used them merely as 'badges of allegiance', not as indicating trade origin.

After the High Court had found, at the original trial of the action, that the signs on the defendant's goods would not be perceived by consumers as indicating trade origin, it referred to the Court of Justice of the European Communities for a preliminary ruling under article 234 EC the question whether there would be a defence to infringement under article 5(1) of First Council Directive 89/104/EEC (the Trade Mark Directive), where the use complained of did not indicate trade origin.

The Court of Justice held that where the third party's use of the mark was not intended by him, or understood by the public, to be a designation of origin, there could be no infringement.

Despite that decision on the law, the court came to the finding on the facts that the trade mark proprietor was entitled 'in circumstances such as those in the present case' to rely on article 5(1)(a) of the Trade Mark Directive to prevent such use; a finding at odds with that of the referring court.

The action came back to the Chancery Division of the High Court for determination.

Simon Thorley QC and Thomas Mitcheson (Lawrence Jones) for the claimant; Roger Wyand QC, Ashley Roughton and Simon Malynicz (Stunt & Sons, Chelmsford) for the defendant.

Held, dismissing the claim, that where the Court of Justice, on a reference to it under article 234 EC, made findings of fact which reversed the national court on those findings, it exceeded its jurisdiction and the national court was not bound by the final conclusion of the Court of Justice; that the High Court had no power to cede to a jurisdiction that the Court of Justice did not have; that, accordingly, the court had to apply the Court of Justice's guidance on the law to the current findings of fact made in the High Court, so that the defendant would succeed on the issue of trade mark infringement.

FAMILY

Public policy - remand prisoner applying to marry prosecution witness prior to trial - no power to prevent marriage as contrary to public policy

R (Crown Prosecution Service) v Registrar-General of Births, Deaths and Marriages and another: CA (Dame Elizabeth Butler-Sloss President, Lord Justice Waller and Sir Philip Otton): 7 November 2002

A remand prisoner applied for permission to marry his fiance.

Since she was to be a prosecution witness in his forthcoming murder trial and, by section 80 of the Police and Criminal Evidence Act 1984 (as amended by the Youth Justice and Criminal Evidence Act 1999), would cease to be a compellable witness, the Crown Prosecution Service attempted unsuccessfully to persuade the registrar-general and the prison director not to allow the marriage to take place until after the trial.

On a claim for judicial review, the judge determined that the registrar-general could refuse to issue a certificate of marriage pursuant to section 31(2) of the Marriage Act 1949 for public policy reasons; and the prison director could not take public policy considerations into account when exercising his duty under section 27A(3) of the 1949 Act, as amended by the Marriage Act 1983.

The registrar-general appealed and the Crown Prosecution Service cross-appealed.

Richard Gordon QC and Martin Chamberlain for the Crown Prosecution Service; Alison Foster QC and Jenni Richards for the registrar-general; Richard Furniss for the prison director.

Edward Bartley Jones QC and Louis Browne for the prisoner.

Held, allowing the appeal and dismissing the cross-appeal, that, although the registrar's absolute duty could be subject to implied limitations on public policy grounds, since Parliament had chosen to make spouses non-compellable witnesses and entering into a lawful marriage did not amount to perverting the course of justice, there was no power to prevent the marriage; and that, by section 27A(3)(b) of the 1949 Act, a prison director could only object to a marriage on logistical grounds concerning considerations of convenience and availability of the establishment, not grounds of public policy.

(WLR)

LAND

Planning appeal determined following informal hearing - claimant making representations at hearing critical of proposed conditions but not subsequently consulted by inspector on draft conditions between hearing and decision - decision quashed as unfair

Jory v Secretary of State for Transport Local Government and the Regions and others: QBD (Mr Justice Sullivan): 12 November 2002

The second defendant sought planning permission to extend their premises which were used as a cultural centre.

Permission was refused.

The second defendant appealed.

The inspector, appointed by the secretary of state, held an informal hearing at which the local planning authority proposed that any grant of permission be subject to a number of conditions.

The applicant contended that the proposed development would adversely affect his home and criticised the proposed conditions as impractical.

After the hearing the inspector wrote to the authority and the second defendant, requesting their comments on some amended draft conditions.

Neither the applicant nor any other party was asked to comment.

The inspector granted planning permission subject to conditions which were, in essence, a slightly amended version of the draft conditions which he had sent to the defendants after the hearing.

The applicant applied under section 288 of the Town and Country Planning Act 1990 for the decision to be quashed on the basis that he too should have been permitted to make representations on the inspector's draft conditions.

Peter Harrison (instructed by Altheimer & Gray) for the applicant; Philip Coppel (instructed by the Treasury Solicitor) for the secretary of state; Christopher Boyle (instructed by Linklaters) for the second defendant; The authority did not appear and was not represented.

Held, quashing the inspector's decision, that the claimant was not entitled to be informed of the proposed amendments to the draft conditions as of right under rule 14(3) of the Town and Country Planning (Hearings Procedure) (England) Rules 2000; that there was a 'spectrum of responses' as to what was fair in any given case, dependent upon factors such as the subject matter of the decision, the identity of the person who had not been consulted and the effect of the subsequent decision upon him, the firmness of the inspector's conclusions at the time of the hearing, the scope of the representations permitted after the hearing, and the likely response of those interested parties had they ben able to reply to the further submissions; that the applicant's right to a fair hearing under the Human Rights Act 1998 added nothing to his right to natural justice at common law; but that, since the likely effectiveness of planning conditions was uncharacteristically central to the inspector's decision, it had been unfair to the applicant for the inspector not to have asked him for his comments on the draft conditions.

LANDLORD AND TENANT

Landlord's breach of covenant to repair - tribunal appointing manager - manager not owing tenant landlord's duty so tenant not entitled to set off claim for damages against landlord against manager's claim for contribution

Maunder Taylor v Blaquiere: CA (Lords Justice Aldous, Tuckey and Longmore): 14 November 2002

The tenant's flat suffered from problems arising from breaches by the mesne landlord, which was in administrative receivership, of its leasehold covenants to repair.

The leasehold valuation tribunal acceded to the tenant's application for the appointment of a manager under section 24(1) of the Landlord and Tenant Act 1987.

The manager made claims in respect of the tenant's share of the costs expended for repairs and the supply of services.

The tenant's plea, that the manager owed the tenant the like duties of repair as did the mesne landlord under the covenants to repair so that the tenant was entitled to set off damages due to him from the landlord, was rejected by the county court.

The tenant appealed.

Nicholas Dowding QC and Anthony Tanney (instructed by Cawdery Kaye Fireman & Taylor) for the tenant; Timothy Fancourt (instructed by Gisby Harrison, Cheshunt) for the manager.

Held, dismissing the appeal, that the purpose of part II of the 1987 Act (as amended by section 86 of the Housing Act 1996) was to provide a scheme to enable the tribunal to appoint a manager who would carry out the functions required by the tribunal, which might not be confined to carrying out the duties of a landlord under a lease; that the manager carried out those functions in his own right as a tribunal-appointed official and was not appointed as the manager of the landlord or even of the landlord's obligations under the lease; and that, accordingly, the tenant was not entitled to set off against claims made by the manager such sums as he might be entitled to claim by way of damages for breach of covenant from the mesne landlord.

(WLR)

PRACTICE

County court judge refusing permission to appeal - claimant seeking permission to apply for judicial review - judicial review not appropriate

R (Sivasubramaniam) v Wandsworth County Court (Lord Chancellor's Department intervening); R (Sivasubramaniam) v Kingston upon Thames County Court and another (Lord Chancellor's Department intervening): CA (Lord Phillips of Worth Matravers, Master of the Rolls, Lords Justices Mance and Latham): 28 November 2002

The applicant brought various employment-related claims in two county courts.

His claims were dismissed by district judges and he was refused permission to appeal.

He made various applications to judges in the county courts for, among other things, permission to appeal, which were refused.

The applicant sought permission to apply for judicial review of, among other things, the decisions refusing him permission to appeal.

The judge refused the applications.

The applicant appealed.

The applicant in person; Philip Sales (instructed by the Treasury Solicitor) for the Lord Chancellor's Department, intervening.

The county courts did not appear and were not represented.

Held, dismissing the appeals, that although the High Court had jurisdiction to entertain claims for judicial review of decisions of judges in county courts to grant or refuse permission to appeal, it ought not to do so where the applicant had failed to pursue an appeal or where the judge in the county court had refused permission to appeal against a district judge's decision, save in very rare exceptional circumstances where a litigant challenged a decision to give or refuse permission to appeal on the ground of want of jurisdiction or procedural irregularity constituting a denial of the applicant's right to a fair hearing.

Appeal - factual challenges to decision of judge reached after full hearing - appellate court to take particular care before reversing judge's decision on facts

Assicurazioni Generali SpA v Arab Insurance Group (BSC): CA (Lords Justice Ward and Clarke and Sir Christopher Staughton): 13 November 2002

Following a commercial dispute between insurers and reinsurers, the judge, after a full trial, awarded the claimants substantial damages.

The defendants were given permission to appeal on the merits.

At the outset of the hearing of the appeal an issue arose as to the proper approach to be adopted by the appellate court in conducting the appeal hearing under the Civil Procedure Rules 1998 (CPR), rule 52.11, which provided that appeals be limited to a review of the decision of the lower court unless it would be in the interests of justice to hold a re-hearing.

Julian Flaux QC and Simon Picken (instructed by Holman Fenwick & Willan) for the defendants; Stewart Boyd QC and Richard Millett (instructed by LeBoeuf Lamb Green & Macrae) for the claimants.

Held, dismissing the appeal (Lord Justice Ward dissenting in part), that the general guidance as to the appellate approach under CPR rule 52.11(1) given by the Court of Appeal in Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311 was not concerned with factual appeals of this kind; that where it was sought to reverse a factual decision by a lower court the approach, whether by way of 'review' or 'rehearing' should be the same, the appellate court taking particular care before reversing a decision of the judge reached after hearing oral and documentary evidence; and that, having subjected the evidence to meticulous examination, the defendants had failed to establish that the judge had been wrong to reject the defences which they had raised.

REVENUE

Corporation tax - capital allowances - not available for finance leasing scheme in respect of machinery or plant for use by non-resident business

BMBF (No 24) Ltd v Inland Revenue Commissioners: Ch D (Mr Justice Etherton): 26 November 2002

Heavy equipment situated at all relevant times in Illinois was used by C Inc, a company resident in the US, in its manufacturing business.

Seeking to raise finance, C Inc arranged to transfer the equipment to its subsidiary, CIL, a company resident for tax purposes in the UK.

Under the finance leasing scheme arrangements, the taxpayer purchased the equipment from CIL for 165 million, leasing it back to CIL for a term of 30 years.

CIL thereafter subleased it to C Inc for 11 years.

The taxpayer's claim under the Capital Allowances Act 1990 for writing-down allowances on the provisions of its capital expenditure on the equipment was rejected by special commissioners.

The taxpayer appealed.

John Gardiner QC and Jonathan Peacock QC (instructed by Slaughter & May) for the taxpayer; Brian Green QC and David Ewart (instructed by the Solicitor, Inland Revenue) for the commissioners.

Held, dismissing the appeal, that section 24 of the Capital Allowances Act 1990 specified the basic conditions for entitlement to allowances; that section 42 of the Act (assets leased outside the UK) set out circumstances where the entitlement was curtailed; and that, on a true construction, the provisions of section 42(3) applied to the finance leasing scheme and operated to disentitle the taxpayer from the availability of the allowances claimed.

ROAD TRAFFIC

Claimants claiming prescriptive vehicular right over track on village green - use unlawful so right incapable of acquisition by prescription - statutory right to acquire identical easementMassey and another v Boulden and another: CA (Lords Justice Simon Brown, Mantell and Sedley): 14 November 2002

The claimants made a claim to a prescriptive vehicular right of way over a track which led from a public highway, across a village green owned by the defendants, to the claimants' residential property.

The judge upheld the claim, holding that the user had commenced in 1956 and gone on until 1997.

The defendants appealed.

Vivian Chapman (instructed by John Collins & Partners - in association with Edward Harris & Son - Swansea) for the claimants; Peter Harrison (instructed by Kingsfords, Ashford) for the defendants.

Held, allowing the appeal in part (Lord Justice Mantell dissenting), that section 34(1)(a) of the Road Traffic Act 1988 was unambiguous such that a person driving a motor vehicle without lawful authority on land not forming part of a road was guilty of an offence; that, so construed, section 34(1)(a) meant that prescriptive rights to vehicular access could never be acquired save over a public highway or over a road to which the public already had de facto access; that consequently a person driving on a track over a village green would be making unlawful use of the land and so could not acquire a prescriptive right of way over the track; that such a person might now, however, be entitled to purchase an identical easement under the Countryside and Rights of Way Act 2002; and that, accordingly, the relevant use down the years had contravened the 1988 Act but the claimants were now able to purchase an identical easement under the 2002 Act.