The Gazette 1973

ENGLISH CURRENT LAW DIGEST

William Cork, chartered accountant, liquidator of the company on the ground that he did not have five years' experience. In re Icknield Development Ltd.; Chancery Division; 14/3/1973. Contract Before Sir John Pennycuick, the Vice-Chancellor. His Lordship declared that a contract created in 1970 between a local education authority and a direct grant school for the authority to take up places and pay for a quarter of the total number of pupils admitted during the preceding educa- tional year, in the year 1971-1972 and to continue to take up these places after 1972, was a continuing arrangement which could only have been validly determined by a three-year notice; that a notice of 22 months was insufficient to determine the arrangement; and that the local authority was bound to take up and pay for such places for the educational year 1973-1974. His Lordship granted the declaration sought by the Birken- head School Ltd. in an action against Birkenhead Corporation as the local education authority but refused to grant a manda- tory order of specific performance of the contract by the authority. Birkenhead School Ltd. v. Birkenhead County Borough; Chancery Division; 15/3/1973. Before Lord Reid, Lord Morris of Borth-y-Gest, Lord Wilber- force, Lord Simon of Glaisdale and Lord Kilbrandon. Speeches delivered April 4th. The House of Lords, Lord Wilberforce dissenting, held that a subclause in a distributorship agreement between German manufacturers and English sellers which was described as a "condition" did not in the context of the particular contract have the effect that any breach of it, however small, would entitle the German firm immediately to repudiate the whole contract. But their Lordships unanimously held that it was not permissible in English law to construe a written commercial contract by reference to the conduct of the parties after the agreement had been made. The majority of the House dismissed an appeal by L. Schuler AG, of Goeppingen, Federal German Republic, from the deci- sion of the Court of Appeal (the Master of the Rolls and Lord Justice Edmund Davies, Lord Justice Stephenson dissenting) {The Times, 27th April 1972; [1972] 1 WLR 840) that they were not entitled to repudicate an agreement made with Wickman Machine Tool Sales Ltd., of Coventry, by reason of Wickmans' breaches of a "condition" in clause 7 (b) to fulfil a weekly visiting obligation for the purpose of soliciting orders for Schulers' panel presses. In 1963 Schulers granted Wickmans the sole selling rights for, inter alia, panel presses made by them until December 1967. Clause 7 (a) of the agreement required Wickmans to use their best endeavours to promote the sale of Schuler products in the designated territory. Clause 7 (b) provided that "It shall be condition of this agreement that (1) Schuler shall send its representatives to visit" the six largest United Kingdom motor manufacturers "at least once in every week" to solicit orders for panel presses, and (ii) that the visits should be by one or two named representatives. No other of the 20 clauses of the agreement was described as a "condition". For the first eight months there was a fairly extensive failure by Wickmans to rpake the visits; but the evidence was that the breaches were treated by Schulers as remediable under clause 11 (a) (I), which provided that either party could terminate the agreement if the other committed a "material breach" of its obligations and failed to remedy it within 60 days of being requred to do so. In the next six months there was an improve- ment, though .there were further failures to visit, some for good reasons. In July 1964 Schulers claimed the right to terminate the contract, and did so in October 1964. Wickmans claimed damages for wrongful repudiation; and on a reference to arbi- tration, the arbitrator construed "condition" in clause 7 (b) as referable to the provisions for remedy in clause 11 (a) (I) and held that Schulers were not entitled to terminate the agreement. Mr Justice Mocatta on a case stated held that the introduc- tion of the words "It shall be condition . . . " in the one sub- clause gave Schulers a right to repudiate the whole contract if 122

Arbitration Before Lord Denning, the Master of the Rolls, Lord Justice Megaw and Lord Justice Scarman. The Court of Appeal held that the time provisions for making a claim under the Centrocon arbitration clause did not apply to claims for general average contribution where the charter- party in question contained a specific provision that "general average shall be payable according to York—Antwerp Rules, 1950, and to be settled in London". Their Lordships dismissed an appeal by the Government of India from the decision of Mr. Justice Mocatta who had held in favour of Norwegian shipowners, E. B. Aaby's Rederi A / S, that their claim for £5,995 general average contribution was not time-barred. In dismissing the appeal their Lordships founded on the construction of the charterparty in a manner contrary to that of the judge, though agreeing with him on the nature of an undertaking given by the Government of India in correspondence arising out of a peril at sea. E. B. Aaby's Rederi A / S v. Union of India; C.A. 20/3/73. Categories of sentences The Court of Appeal laid down guidelines for sentencing motorists guilty of causing death by dangerous driving. Lord Justice Lawton, sitting with Lord Justice Scarman and Mr. Justice Eveleigh, said that some variations in penalties were inevitable, but there were limits to permissible variations. Cases fell into two broad categories: (1) those in which the accident had arisen through momentary inattention or misjudgment; and (2) those in which a person had driven in a manner which showed a selfish disregard for the safety of other road users, or a degree of recklessness. Cases where an accident had been caused or contributed to by a person's consumption of alcohol or drugs formed a subdivision of the second category. Offenders, too, could be put into categories. A substantial number had good driving records; a fair number had records revealing a propensity to disregard speed restrictions or road signs, or to drive carelessly; and a few had records which showed that they had no regard whatsoever for either the traffic law or the rights and safety of other road users. An offender convicted because of momentary inattention or misjudgment who had a good record should normally be fined and disqualified from driving for the minimum statutory period or a period not greatly exceeding it. If the driving record was indifferent, the period of disqualification should be longer— say two to four years—and if the record was bad, the offender should be kept off the road for a long time. Where a fatal accident had been caused through a selfish disregard for the safety of other road users, or of passengers or by reckless driving, a custodial sentence with a long period of disquali- fication might well be appropriate—and if that time of driving was coupled with a bad record the period of disqualification should be such as would relieve the public of a potential danger for a very long period indeed. Lawton L.J., applying these principles, reduced a sentence of four years' disqualification and a fine of £ 75 to one of 12 months and a fine of £ 50 in an appeal by John Guilfoyle, aged 19, of Wakefield, a driver with a good record, who had caused an accident by his momentary inattention. His Lord- ship said that it was in the public interest that the appellant should be required to take a driving test before regaining a full licence as an interruption of 12 months in his driving career would be substantial, and therefore an order to that effect should stand. In general, the longer the period of dis- qualification, the more important it was that there should be a driving test before the driver again had a full licence. Regina v. Guilfoyle; C.A.; 10/3/1973. Company Laws Before Mr. Justice Plowman. There had been a rule of practice in the Companies Court for thirty years not to appoint an accountant of less than five years' standing liquidator in compulsory winding up. It was a good working rule, but the overall discretion of the Court to make exceptions remained. His Lordship so said in a judgment on a motion by First Finsbury Trust Ltd., of Crutched Friars, EC, a creditor of Icknield Development Ltd., reversing the decision of Mr. Registrar Berkeley on January 31st not to appoint Mr. Roger