Newswire 121
By Steve Butler and Joe Reevy
Number 121
19 June 2007
The Leading Question
Lasting Powers To Be A Lasting DebacleThe HIPs debacle continues with the publication of new regulations. Every Energy Inspection results in the possibility of a small grant. A carrot to ease the pain of the burden of the effect of the badly thought out regulations. Let's all hope that the government has some sense in the end and abandons this stupid scheme.
Meanwhile another debacle is pending. The Lasting Power of Attorney (LPA) is the new power of attorney which will replace the highly efficient Enduring Power of Attorney. For those of you who do not know what an EPA is, it can be used by people, usually older, who can anticipate that they will need help with the management of their financial affairs. The EPA is so useful because it can be used immediately as a general power of attorney and it then endures after the donor loses his or her faculties.It enables important decisions to be made at a critical time in their lives without delay or difficulty. It comprises four or five simple pages and can be completed easily with little expense.
The Lasting Power of Attorney will be the only way to do the same thing after 1 October 2007 ( a date already postponed from 1st April). The forms for the new LPA have not yet been approved, the regulations have not been finalised, the plans for their use are incomplete. The new forms are to be at least 26 pages for each type - one for financial affairs (to directly replace the EPA) and one for the more serious new powers which will enable the attorney to turn off the life support machine. Unfortunately the Lasting Power only starts after the donor has lost their faculties and after it has gone through the lengthy process of registration with the Court of Protection. It will be useless during the critical time immediately after the donor is incapable. Just as it is useless before the donor reaches that stage. Donors wanting to allow other people to help them to handle their affairs while they retain their capacity will have to prepare a separate Power of Attorney, another expense. The LPA will be expensive to prepare because of its time-consuming preparation and will never be useful during the foreseeable future as far as the donor is concerned. The practicality and attractiveness of the EPA will be gone. Prominent lawyers such as
Trevor Lyttleton MA LL.M (Cantab) have complained about the inept Powers and the inept way they are being introduced but so far to no avail. Follow his lead in this week's Gazette and protest to your MP about this new example of maladministration: see his letter on page 16 of the Gazette 14 June 2007 (not yet on line.)
Regards
Steve Butler
Editor
Practical Materials
Commercial and Contract
Directors Disqualification Hearing - Use of Experts AllowedSecretary of State for Trade and Industry v Aaron and others
ChD
Weekly law Notes Summary
7 June 2007
In directors disqualification proceedings, the court might at times need expert assistance on issues of fact, but, generally speaking, it was hard to see why a court should need expert evidence that was simply expert opinion when considering the key question of whether a director was unfit to be concerned in the management of a limited company.
Conflict of Laws - Which Bankruptcy Law Wins?
AWB Geneva SA and another v North America Steamships Ltd
[2007] EWHC 1167 (Comm)
QBD
Weekly Law Reports Summary
17 May 2007
A party to a contract that was subject to the exclusive jurisdiction of the English High Court could not restrain the other party’s foreign trustee in bankruptcy from seeking an order in foreign insolvency proceedings that certain conditions precedent to liability under the contract should cease to apply.
House of Lords Clarifies Depreciation Taxation for Corporations
Revenue and Customs Commissioners v William Grant & Sons Distillers Ltd;
Small (Inspector of Taxes) v Mars UK Ltd
[2007] UKHL 15
HL
Weekly Law Notes Summary
28 March 2007
Where the taxpayer companies carried forward in their tax computations the element of depreciation in fixed assets that related to production of unsold stock as part of the cost of unsold stocks they did not infringe the prohibition of deductions for the depreciation of capital assets in s 74(1)(f) of the Income and Corporation Taxes Act 1988 (as renumbered by s 144(2) of the Finance Act 1994).
Crime and Punishment
One Off Case About Sentencing - Which Day Was Crime Committed?R v Harries and others
CA
Weekly Law Reports Summary
6 June 2007
A term of imprisonment for public protection should not be imposed for an offence which was committed over a period of two or more days which straddled the coming into force of the dangerous offender provisions where it was not clear when the offence was actually committed.
Significant Means Significant in Vulnerable Death Case
R v Mujuru and another [2007] EWCA Crim 1249
CA
Weekly Law Reports Summary
25 May 2007
Where a jury was considering whether a person was guilty of an offence under s 5 of the Domestic Violence, Crime and Victims Act 2004 of causing or allowing the death of a child or vulnerable adult by the unlawful act of a person in the same household, when he was or ought to have been aware of a “significant” risk of serious physical harm, the term “significant” bore its ordinary, normal meaning.
Drug Traffickers Jointly And Severally Liable
R v Green [2007] EWCA Crim 1248
CA
Weekly Law Reports Summary
25 May 2007
Where two or more persons acting together as principals in a drug trafficking offence, as defined by s 1(3) of the Drug Trafficking Act 1994, jointly received payment or reward in connection with that offence, the value of each person’s proceeds of drug trafficking for the purposes of s 4(1)(b) of the 1994 Act included the whole value of that payment or reward.
24 May 2007
Home Office Press Release
Tough new measures to strip the profit out of crime
Tough Government proposals to give law enforcement agencies new powers to make it easier to seize criminals' luxury possessions and high value goods used in crime, such as cars and boats, were announced today by Home Office Minister Vernon Coaker. A range of robust new measures to take even more cash out of criminals hands have been outlined in the Asset Recovery Action Plan consultation paper.
Misconduct Disclosure Rules Considered Defective Again - Again
R v Tirnaveanu [2007] EWCA Crim 1239
CA
Weekly Law Notes Summary
24 May 2007
Evidence of misconduct by a defendant was evidence “to do with” the alleged facts of the offence with which the defendant was charged and therefore excluded from the definition of bad character in s 98(a) of the Criminal Justice Act 2003, if it had some nexus in time with that offence.
Kidnapping Requires Restriction of Freedom
R v Hendy-Freegard [2007] EWCA Crim 1236
CA
Weekly Law Notes Summary
23 May 2007
The offence of kidnapping was not committed where a defendant, by a fraudulent misrepresentation, induced a person to make a journey which did not deprive him of his liberty.
Misconduct Disclosure Rules Considered Defective Again
R v Musone [2007] EWCA Crim 1237
CA
Weekly Law Notes Summary
23 May 2007
Cases in which a breach of procedural rules would entitle a court to exclude evidence of substantial probative value would be rare and a court should be most reluctant to exclude evidence of that quality for such a breach; none the less there would be cases where the only way in which the court could ensure fairness was by doing so.
Self-Incrimination, Search orders and Computers
C plc and another v P (Attorney General intervening)
[2007] EWCA Civ 493
CA
Weekly Law Notes Summary
22 May 2007
The common law privilege against self-incrimination could not be invoked in relation to illegal material found on a computer in the execution of a civil search order.
22 May 2007
Attorney General's Office Press Release
Death of Alexander Litvinenko: Prosecution decision
Statement by the Attorney General
The Attorney General (Lord Goldsmith QC):
"Today the Crown Prosecution Service (CPS) have announced that they have decided, after applying the evidential and public interest tests set out in the Code for Crown Prosecutors, to prosecute Mr Andrey Konstantinovich Lugovoy, a Russian citizen, for the murder of Alexander Valterovich Litvinenko. The CPS decision was reached after they had consulted me, which is the usual practice in serious and complex cases. They have concluded that there is sufficient evidence to prosecute Mr Lugovoy for murder and it is in the public interest to do so.
Employment and Discrimination
New action to protect vulnerable workers
1 June 2007
Department of Trade and Industry Press Release
Action to protect vulnerable workers and root out the rogue employers was outlined by Trade and Industry Secretary Alistair Darling today.
A Vulnerable Worker Enforcement Forum will bring together experts from unions, business, enforcement and advice bodies to look at the best way to protect the vulnerable in the workforce.
Department for Work And Pensions Press Release
Minister calls on employers to do more for disabled people
DWP Minister Lord McKenzie today called on employers to play their part in aiding social inclusion for disabled people. Employers play a crucial role in ensuring that disabled people are able to play a full part in society through employment by preventing ill-health and injury, and providing appropriate support in the workplace.
Privilege Extended To Discussions About Job
Framlington Group Ltd and another v Barnetson [2007] EWCA Civ 502
CA
Weekly Law Notes Summary
24 May 2007
An employee’s discussions with his employer about the scope of his entitlement on the employment contract were inadmissible as “without prejudice” communications even though at the time they occurred there was no litigation in prospect and no basis for litigation at the time they took place.
16 May 2007
Department of Trade and Industry Press Release
Employers face minimum wage fines
The Government is to target cheating employers with a new regime of fines if they pay below the national minimum wage.
In a consultation starting today the Trade and Industry Secretary Alistair Darling will propose options including fixed penalty fines linked to the number of workers underpaid.
It is also proposed that for the first time businesses would have to pay interest or other cash to workers they have underpaid on top of repaying arrears, so the workforce are no longer giving "interest free loans" to their employers.
Family
Big Money Divorce Case Finds For Equality - AgainCharman v Charman
CA
Weekly Law Notes Summary
24 May 2007
In ancillary relief proceedings where the court was carrying out the statutory exercise under s 25 of the 1973 Act, consideration of the “sharing principle” was no longer required to be postponed until the end of the statutory exercise, and sharing had become a principle rather than a “yardstick for use as a check”.
General
Cyclists To Be Treated Like ProtestorsKay v Commissioner of Police of the Metropolis
CA
Weekly Law Notes Summary
21 May 2007
Since no fixed route was followed the monthly mass cycle rides through central London could not be considered commonly or customarily held processions and therefore the organisers were required to give the police prior notice of the names of organisers, date and start time and intended route.
Government
Safe, sensible, social - next steps for the government's National Alcohol Strategy'5 June 2007
Home Office Press Release
'Safe, Sensible, Social - next steps for the National Alcohol Strategy' unveiled today by Home Office Minister Vernon Coaker and Public Health Minister Caroline Flint builds on the foundations laid and the lessons learnt since 2004, when the country's first Alcohol Harm Reduction Strategy was launched.
Firstly, the new strategy will ensure the laws and licensing powers introduced to tackle alcohol-fuelled crime and disorder, protect young people and tackle irresponsibly managed premises are being used widely and effectively.
Chagos Islanders Win At Last
R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2007] EWCA Civ 498
CA
Weekly Law Reports Summary
23 May 2007
The British Indian Ocean Territory (Constitution) Order 2004 and the British Indian Ocean Territory (Immigration) Order 2004 were amenable to judicial review and were an abuse of power in that they frustrated the legitimate expectation of the islanders to be allowed to return to the Chagos Islands.
Immigration and Nationality
Guidelines for health professionals on forced marriage launchedHome Office Press Release
4 June 2007
Guidelines to assist health professionals who suspect cases of forced marriage are today launched by the Government.
Aimed at frontline practitioners such as GPs, school nurses, midwives, and A&E staff, the guidelines provide practical advice on how to recognise the warning signs, and what to do if a patient discloses that they have been, or are about to be, forced to marry.
24 May 2007 00:01
Home Office Press Release
Borders Agency Chief to Target Illegal Migration
24 May 2007
Tackling illegal immigration is a key priority for the Border and Immigration Agency (BIA) and teams operating in London and the South East will be vital in the agency's efforts, BIA's new Regional Director said today.
Tony Smith, recently appointed to lead Border and Immigration Agency operations in the area, was speaking as enforcement officers launched a fresh crack down on bogus employees in Middlesex (see notes for editors).
Right To Marry of Illegal Immigrants UpheldR (Baia and another) v Secretary of State for the Home Department; R (Bigoku and another) v Same; R (Tilki) v Same (Joint Council for the Welfare of Immigrants, intervening); R (Baia and another) v Secretary of State for the Home Department (Joint Council for the Welfare of Immigrants, intervening)
CA
23 May 2007
Weekly Law Notes Summary
The statutory scheme requiring permission by the Home Office for marriage by people subject to immigration control or those who had entered the United Kingdom illegally contravened arts 12 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which guaranteed the right to marry and the right not to be discriminated against for reasons of nationality or religion.
Intellectual Property and Computers
Controller General of Patents Has Right To Influence AppealRaytheon Company v Comptroller General of Patents, Designs and Trade Marks[2007] EWHC 1230 (Pat)
Ch D
Weekly Law Notes Summary
22 May 2007
The court had a discretion to allow the Comptroller General of Patents, Designs and Trade Marks to raise objections on appeal that had not been maintained before a hearing officer determining whether to grant a patent.
Self-Incrimination, Search orders and Computers
C plc and another v P (Attorney General intervening)
[2007] EWCA Civ 493
CA
Weekly Law Notes Summary
22 May 2007
The common law privilege against self-incrimination could not be invoked in relation to illegal material found on a computer in the execution of a civil search order.
International/Europe
EU Fines Get BiteBritannia Alloys & Chemicals Ltd v Commission of the European Communities (Case C-76/06P)
ECJ
Weekly Law Reports Summary
7 June 2007
Where the Commission of the European Communities found that an undertaking had participated in anti-competitive practices contrary to art 81 EC and imposed a fine by reference to the undertaking’s turnover in the “preceding business year”, and the undertaking had no turnover in the business year preceding the date of the infringement decision, the Commission was entitled to refer to another business year.
Conflict of Laws - Which Bankruptcy Law Wins?
AWB Geneva SA and another v North America Steamships Ltd
[2007] EWHC 1167 (Comm)
QBD
Weekly Law Reports Summary
17 May 2007
A party to a contract that was subject to the exclusive jurisdiction of the English High Court could not restrain the other party’s foreign trustee in bankruptcy from seeking an order in foreign insolvency proceedings that certain conditions precedent to liability under the contract should cease to apply.
Land and Environment
Right to Buy and Possession OrdersLondon Borough of Islington v Honeygan-Green
QBD
Weekly Law Notes Summary
25 May 2007
Where the determination of a secure tenancy by the granting of a possession order had brought to an end an existing application under the Housing Act 1985 which had established the right to buy at a particular time and a particular price, that application was not capable of being revived once the tenancy itself had been revived.
Tenants Rights Restricted in Long Lease Case
Howard de Walden Estates Ltd v Aggio and others;
Earl Cadogan and another v 26 Cadogan Square Ltd
[2007] EWCA Civ 499
CA
Weekly Law Reports Summary
24 May 2007
It was not within the contemplation of the Leasehold Reform, Housing and Urban Development Act 1993 that the leaseholder of a long lease of a building, which included multiple flats and common parts, came within the expression “a qualifying tenant of a flat” in s 56(1) so as to be able to exercise a statutory right to acquire a new long lease of a flat in the leased building, and the landlord of such a leaseholder was not bound to grant a new long lease.
Shock and Awe in Business Tenancy Proceedings
Lay and others v Drexler and others
[2007] EWCA Civ 464
CA
Weekly Law Reports Summary
18 May 2007
Where a tenant had filed an acknowledgment of service indicating an intention to take a new lease in response to his landlord’s application to the court to grant a new lease under the amended provisions of s 24(1) of the Landlord and Tenant Act 1954, subsequent notice to the court that the tenant no longer wanted a new tenancy was similar to filing of a notice to discontinue a claim for a new lease justifying an order that the tenant should pay the costs of the entire proceedings to the landlord.
Litigation, Courts and Human Rights
Findings of Fact - Second Hearing To Take Note of First?Shierson and another v Rastogi [2007] EWHC 1266 (Ch)
Ch D
Weekly Law Notes Summary
25 May 2007
The principle that judicial findings made in a previous case were not admissible in later proceedings as evidence of facts found only applied where a party in the second proceedings had not had opportunity, by himself or his privy, to challenge evidence adduced in the first hearing.
Human Rights and Licensing Application
Belfast City Council v Miss Behavin’ Ltd
[2007] UKHL 19
HL
Weekly Law Notes Summary
25 April 2007
A licensing authority, in refusing an application for a sex establishment licence, had been entitled to take objections and representations made after the expiry of the prescribed 28-day period into account. Where it had acted fairly and properly exercised its powers its decision was not vitiated by failure to refer specifically to the applicant’s Convention rights.
Money, Property and Tax
29 May 2007Department of Trade and Industry Press Release
Government cracking down on unfair selling
Millions of people are set to benefit from a government crack down on aggressive and unfair trading and selling practices.
Consumer Minister, Ian McCartney today published a consultation that will implement the Unfair Commercial Practices Directive (UCPD).
The new law will protect consumers by outlawing a host of deceptive and intimidating sales practices that are unfair but not currently illegal. It will also benefit honest businesses, by simplifying consumer protection legislation and clamping down on rogue traders.
Powers of FSA RestrictedBunney v Burns Anderson plc and another;
Cahill v Timothy James & Partners Ltd[2007] EWHC 1240 (Ch)
Ch D
Weekly Law Notes Summary
25 May 2007
The Financial Services Ombudsman did not have the power to make a direction under s 229(2)(b) of the Financial Services and Markets Act 2000 that would require a respondent to make a money award exceeding the statutory cap provided in the Ombudsman scheme rules.
Armed Forces Pension Appeal Formalities Considered
Secretary of State for Defence v Pensions Appeal Tribunal
QBD
Weekly Law Reports Summary
18 May 2007
Notification requirements contained in s 9 of the Pensions Appeals Tribunals Act 1943 relating to rights of appeal from decisions of the Secretary of State for Defence on war pensions claims made pursuant to the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 1983, and to the time limits for such appeals, did not require the provision of a single document but could be fulfilled by the provision of a letter enclosing a leaflet to which reference was made,.nor was it necessary to state the date on which the time limit for the bringing of an appeal expired. Provided the information was reasonably clear, a notice specifying that notice of appeal must be given within a specified period of a specified date sufficed. A failure to comply strictly with the requirements of s 9 did not preclude the relevant time limits for appeals from starting to run.
House of Lords Clarifies Depreciation Taxation for Corporations
Revenue and Customs Commissioners v William Grant & Sons Distillers Ltd;
Small (Inspector of Taxes) v Mars UK Ltd
[2007] UKHL 15
HL
Weekly Law Notes Summary
28 March 2007
Where the taxpayer companies carried forward in their tax computations the element of depreciation in fixed assets that related to production of unsold stock as part of the cost of unsold stocks they did not infringe the prohibition of deductions for the depreciation of capital assets in s 74(1)(f) of the Income and Corporation Taxes Act 1988 (as renumbered by s 144(2) of the Finance Act 1994).
Personal Injury
UK Limitation Period Against MIB Too ShortByrne v Motor Insurers’ Bureau and another [2007] EWHC 1268 (QB)
QBD
Weekly Law Notes Summary
5 June 2007
The procedure for making a claim to the Motor Insurers’ Bureau for compensation in respect of injury caused by an untraced driver under the Untraced Drivers Agreement 1972, which procedure was relied on by the United Kingdom as implementing art 1(4) of Council Directive 84/5/EEC, should be subject to a limitation period no less favourable than that which applied under s 28 of the Limitation Act 1980 to the commencement of proceedings by minors for personal injury in tort against a traced driver. Because the three-year time limit for the bringing of a claim under the Untraced Drivers Agreement 1972 was not compliant with art 1(4) of the Directive, which was capable of having direct effect, the United Kingdom was in sufficiently serious breach of its Community law obligations to give rise in principle to a liability for damages.
Oh What Lovely Law!
Legal Practitioner
Mike Semple Piggot and Norman Baird continue their good work on the Legal Practitioner:Land Law
Sale by a mortgage-lender; the title of the purchaser.
Mike Harwood
PART ONE
Read:
http://www.spr-consilio.com/artlandrabbit.htm
Sale by a mortgage-lender; the title of the purchaser.
PART TWO
Read:
http://www.spr-consilio.com/artlandrabbit2.htm