The Gazette 1972

Local Authority Before Lord Denning, the Master of the Rolls, Lord Justicc Phillimore and Lord Justice Cairns. The practice of granting street traders' licences for pitches in London street markets on the basis of "first come, first served", followed by London borough councils since 1960, was overruld by the Court of Appeal in a case from Petticoat Lane. Their Lordships decided that there was no statutory basis for the practice, laid down in a case decided in 1960: that it could work injustice, particularly in the case of a "family" pitch; and that in future when councils met to con- sider a number of applications received on the same date, they should consider them on their merits. Perilly v Tower Hamlets London Borough Council; Court of Appeal; 21/6/1972. Motor Licence Before Mr. Justice Bridge. Judgment delivered July 10th. A boy who obtained more than a month before his sixteenth birthday a provisional licence to ride a motor cycle but who had not reached sixteen when the min'mum age was raised from sixteen to seventeen was held not to "hold" a provisional licence. Kinsey v Hartfordshire County Council; O.B. Division; 11/7/1972. Negligence Before Lord Justice Davies, Lord Justice Buckley and Lord Justice Stephenson. Judgments delivered July 7th. Breach of the Highway Code must not be elevated into a breach of statutory duty giving a right of action to anyone who could prove that his injury resulted from it, Lord Justice Stephenson said. Powell v Phillips; Court of Appeal; 11/7/1972. Planning Before Lord Widgery, the Lord Chief Justice, Mr. Justice Willis and Mr. Justice Bridge. Judgments delivered June 22nd. Criteria for determining a planning unit that has to be considered when deciding whether there has been a material change in use of land were outlined by the Divisional Court. Bundle and Another v Secretary of the Environment; Q.B. Division; 30/6/72. Practice An important point of practice was decided by the Court of Appeal when it allowed an appeal by the second defendant, Mr. F. W. Hadley, of Rugeley, Staffordshire, against an order ofrMr. Justice Talbot on May 16th in a personal injuries case ordering that all further proceedings be stayed until the plain- tiff, Mrs. S. Clarke, of Armitage, Staffordshire, granted him facilities for medical examination. The Master of the Rolls, with whose judgment Lord Justice Cairns agreed, said that the plaintiff was willing to have a medical examination provided she had the opportunity of seeing the medical report that was obtained. The defendants' insurers said that that was contrary to the practice they had always adopted and that the proviso was unreasonable. Cases of medical examination were on a footing on their own. If the defendant had the privilege of having the plaintiff medically examined it was only right that the plaintiff should have a sight of the report so that it could be agreed. His Lordship knew that the practice that would no doubt be adopted after this case meant virtually that medical reports would be obtained on both sides and exchanged with a view to agreement. That was wholly desirable. If a defendant wanted to have the plaintiff medically examined that was a privilege, and if he sought to have the action stayed he'should make the report available. If the present plaintiff got further medical reports herself she should reciprocate and show these reports to the defendant. Clarke v Martlew ap^L Another; 23/6/1972. Restrictive Practices Before Lord Reid, Lord Morris of Borth-y-Gest, Lord Pearson, Lord Kilbrandon and Lord Salmon. The Restrictive Practices Court has been directed by the House of Lords to modify its order of 23rd May 1969 to accord with the majority opinions of Lord Reid, Lord Kilbrandon and Lord Salmon in relation to restrictive practices by news- agents. The order, following a recommendation by the National Federation of Retail Newsagents, Booksellers and Stationers to members in March 1968 to boycott the Daily Mirror for a week unless the publishers agreed nor to reduce the discount

percentage to wholesalers, restrained the Federation from making any specific recommendation as to the action to be taken by its members "in relation to the same class of goods and in respect of the same matters", meaning thereby copies of the Mirror. The majority opinion was that on the proper construction of Section 6 (7) of the Restrictive Trade Practices Act, 1956, the "class of goods" extended or could extent to the ten national dailies. National Federation of Retail Newsagents v Registrar of Restrictive Trading Agreements; House of Lords; 5/7/1972. State Privileges Before Lord Reid, Lord Morris of Borth-y-Gest, Lord Pearson Lord Simon of Glaisdale and Lord Salmon. The public interest requires that all information received by the Gaming Board for Great Britain about an applicant for its consent to apply for a licence under the Gaming Act, 1968, shall be immune from disclosure, the House of Lords held. It is not a question of Crown privilege or privilege. Rogan v Secretary of State for the Home Department; Gaming Board for Great Britain v Rogers; House of Lords; 28/6/1972. Title to Goods Before Lord Denning, the Master of the Rolls, Lord Justice Fhillimore and Lord Justice Cairns. A garage proprietor who bought a damaged Jaguar car for £75 from a rogue whom he honestly believed to be the owner and did £226 worth of work on it was entitled on equitable principles to recover that sum from the original owner when, in proceedings to decide to whom the car belonged, the orig- inal owner was awarded delivery of it. Greenwood v Bennett and Others; Court of Appeal; 26/6/1972. Trade Description Before Lord Widgery, the Lord Chief Justice, Mr. Justice Melford Stevenson and Mr. Justice Milmo. A dealer who supplied a vehicle advertised as a "beautiful car" was guilty of an offence under the Trade Descriptions Act, 1968, because the car was unroadworthy and unfit for use. British Car Auctions Ltd. v Wright; Q.B. Division; 12/7/72. Tax Before Lord Denning, the Master of the Rolls, Lord Justice Buckley and Lord-Justice Orr. Judgments delivered July 14th. The Court held that annual payments made by management consultants, P-E Consulting Group Ltd., to establish a fund to acquire shares for the benefit of their employees were of a revenue and not a capital nature, and that they were wholly and exclusively expended for the purposes of their trade and accordingly deductible from profits for the purpose of ascer- taining the amount of tax payable. But what was revenue and what was capital expenditure was a quest'on of law for the Courts to decide, and although evidence by accountants of the principles of commercial accoun- tancy had always been of assistance, it could never be said that such evidence was binding or conclusive. Heather (Inspector of Taxes) v P-E Consulting Group Ltd.; Court of Appeal; 18/7/1972. The House of Lords by a majority (the Lord Chancellor, Lord Reid/ Lord S'mon of Glaisdale and Lord Salmon, Lord Morris of Borth-y-Gest dissenting) allowed an appeal by the taxpayer, Mr. B. J. Banning, from a decision of the Court of Appeal ((1970) TC Leaflet 2382) that he was not entitled to deduct from rents received by him, pursuant to Section 175 of the Income Tax Act, 1952, and/or paragraphs 8 and 9 of Schedule 4 to the Finance Act, 1963, £1,750 as being a "premium" paid by him within the meaning of Section 22 (4) of the 1963 Act. The £1,750 was part of a sum paid by the taxpayer to his landlords in consideration of their abandoning their claim to terminate his lease at the end of its original term of seven years without the option of renewal by reason of his breaches of covenant in, inter alia, subletting the premises without consent, and of their consenting to the sublettings. Section 22 (4) (see now Section 80 (4) of the Income and Corporation Taxes Act, 1970), provides: "Where, as consid- eration for the variation or waiver of any of the terms of a lease, a sum becomes payable by the tenant otherw'se than by way of rent, the lease shall be deemed for the purposes of this section to have required the payment of a premium to the landlord . . . of the amount of that sum . . . " Banning v Wright (Inspector of Taxes); 21/6/1972. - 2 2 3