Law Report: Case Summaries (CORRECTED)

CORRECTION (PUBLISHED 7 MARCH 1994) APPENDED TO THIS ARTICLE

The following notes of judgments were prepared by the reporters of the All England Law Reports.

Crime

R v Cambridge; CA (Crim Div) (Lord Taylor of Gosforth LCJ, Auld, Mitchell JJ); 14 Feb 1994.

At a trial for murder, even when the defence of provocation is not raised and was contrary to defence contentions, it was for the judge to decided whether there was evidence to go before the jury that the defendant was or might have been provoked to lose his self- control.

Once the judge had concluded that there was evidence from which a reasonable jury might properly conclude that the defendant was, in fact, provoked to lose his self-control, or that he might have been, then, pursuant to s3 of the Homicide Act 1957, he was obliged to leave provocation to the jury.

Gilbert Gray QC and Michael Roach (Registrar of Criminal Appeals) for the appellant; Roderick Denyer QC and Ian Bullock (CPS) for the Crown.

Collusion

R v Weston; CA (Crim Div) (Lord Taylor of Gosforth LCJ, French, Harrison JJ); 17 Feb 1994.

Where the prosecution seeks to lead similar fact evidence, which is challenged by the defence on the basis of collusion by the witnesses, the defence must adduce some credible evidence of concoction before the judge was required to hold a voir dire. There should be something in the committal papers or some evidence on behalf of the defence which raised the issue.

A bare assertion on behalf of the defence that there may be collusion or contamination would not warrant the holding of a voir dire.

David Bate (Registrar of Criminal Appeals) for the appellant; Robert H Brown (CPS) for the Crown.

Tenant

Royton Industries Ltd v Lawrence and anor; ChD (Aldous J); 17 Feb 1994.

A tenant's covenant 'to pay the reserved rent as herein provided' did not impose an obligation on the tenant to pay maintenance costs. However, the obligation imposed on the tenants by the words of another clause in the lease, 'yielding and paying unto the landlord the tenant's proportion of the maintenance costs', continued to bind the tenants, as the persons in privity of contract with the landlord, even after the tenants had assigned the leases, there being no express agreement to the contrary.

Jonathan Gaunt QC and John Behrens (Bury & Walker, Leeds) for the landlords; Vivian Chapman (Fox & Co, Taunton) for the tenants.

Patents

Merrell Dow Pharmaceuticals Inc and anor v HN Norton Ltd; Same v Penn Pharmaceuticals Ltd and anor; CA (Sir Donald Nicholls V-C; Leggatt, Henry LJJ); 16 Feb 1994.

The expression 'matter (whether a product, a process, information about either, or anything else) . . . made available to the public' in s2(2) of the Patents Act 1977 had to be construed so as to promote the purpose of the statutory provisions, not defeat them. Accordingly, what was made available to the public by the disclosure of a process for the purpose of that process was everything which inevitably takes place as part of the process whether appreciated or not.

Simon Thorley QC and Andrew Waugh (Bird & Bird) for the plaintiffs; Christopher Floyd QC and Henry Whittle (Roiter Zucker) for Norton; Alastair Wilson QC and Colin Birss (SJ Berwin & Co) for Penn.

Spitfire

Croydon LBC v Gladden; CA (Dillon, Stuart-Smith, Hobhouse LJJ); 7 Feb 1994.

The court has jurisdiction, under s187B of the Town and Country Planning Act 1990, to grant an interlocutory mandatory injunction requiring the removal of a replica aircraft, a World War Two Spitfire, from the roof of premises in the London borough of Croydon.

Robert Gray QC and Michael Druce (Borough Solicitor) for the council; Ashley Underwood and Lisa Goivannetti (Amphlett Lissimore) for the defendants.

Revenue

Sutherland and ors v Gustar(HMIT); CA (Sir Donald Nicholls V-C, Leggatt, Henry LJJ); 22 Feb 1994.

A single partner was competent to appeal against a tax assessment on the partnership if his co-partners were opposed to the appeal. He could similarly appeal in the name of the partnership against the determination of the appeal commissioners to the High Court against the wishes of the other partners.

The judge would ensure that justice was done in awarding costs to an unsuccessful appeal so that the partners who did not wish to appeal were not penalised. If all the partners had to concur in an appeal, a single dissenting partner would be deprived of a right of appeal.

Launcelot Henderson (Inland Revenue Solicitor) for the Crown; the appellant partners in person; Rupert Baldry (Hempsons) for the majority partners.

Fraud

R v Ryan and ors; CA (Crim Div) (Farquharson LJ, Garland, Cazalet JJ); 17 Feb 1994.

The liability to account for VAT in respect of the provision of unlawful gaming machines in public houses and other premises where there was no formal agreement as to profit share, nor to rent or hire, and the machines remained under the control of the defendants who kept the keys and regularly visited the machines to collect and divide the profits, carry out maintenance, and to monitor the prize capability, rested not on the owner of the site on which the machines were placed, but on the defendants, as being the suppliers of the use of the machine to the public.

Their appeals against conviction for cheating the public were dismissed.

The court certified the following point of law: whether note 1(d) in group 4 of sch6 to the VAT Act 1983 - which purports to except the provision of a gaming machine from the general exemption from the tax on the provision of any facilities for the placing of bets or playing any game of chance - is compatible with the sixth Directive EC 77/388.

Anthony Hooper QC and Richard Carey-Hughes; S Schusman; John Black (Registrar of Criminal Appeals) for the appellants; Gibson Grenfell and Carey Johnston (Customs and Excise Solicitor) for the Crown.

Terrorism

R v Secretary of State for the Home Department, Ex p Gallagher; CA (Farquharson, Steyn, Hirst LJJ); 10 Feb 1994.

The Home Secretary was not required to give reasons when making an exclusion order under the Prevention of Terrorism Act (Temporary Provisions) 1989, since s4 gave the widest possible discretion where the evidence involved matters of national security.

Since matters of national security were involved, the fact that the applicant was a citizen of a European Union member state did not mean that the exclusion order breached art 48(3) of the EEC Treaty or art 6 of EEC Directive 64/22 concerning the freedom of movement of workers. However, the court referred to the European Court of Justice the question of whether the Home Secretary breached art 9 of the directive by making an exclusion order before obtaining the opinion of a competent authority, and whether the adviser appointed by the Home Secretary to interview the applicant was such a competent authority.

Robin Allen (Bindman & Partners) for the applicant; David Pannick QC and Mark Shaw (Treasury Solicitor) for the Home Secretary.

Trademark

Loudoun Manufacturing Co Ltd and anor v Courtauld plc (t/a John Lean & Sons); ChD (Aldous J); 18 Jan 1994.

A person could apply to register a trade mark under s17(1) of the Trade Marks Act 1938, and the registrar could register it, so long as the applicant had a bona fide claim to it.

It did not matter that the applicant could not substantiate a proprietary interest in the sense that he had an absolute interest to use the mark.

Hugh Laddie QC and Martin Howe (Morrison Skirrow) for the opponents; John Baldwin QC and Mary Vitoria (Freshfields) for the applicants.

Correction

In Smith v Woodhouse, reported in the Independent on 18 February, Rabinder Singh also appeared for the Inland Revenue.

CORRECTION

In Sutherland v Gustar, the Independent, 28 Feb, Roger Christopher Thomas appeared for the majority partners.