The Gazette 1972

was no longer a person ''driving or attempting to drive" a motor vehicle on a road or ether public place. The Lord Chancellor and Viscount Dilnome gave a new interpretation to the relevant section—Section 2 (1) (a) of the Road Safety Act, 1967. [Sakhuja v Allen; House of Lords (1972) 2 A.E.R. 31 i] Conveyancing In deciding under Section 222 (0 of the Companies Act, 1948, whether it is "just and equitable" that a company should he wound up it is permissible to take into account, among other factors, the fact that the company has been formed or con- tinued on the basis of a personal relationship involving mutual confidence, though it may be confusing to talk of its being a "quasi-partnership". [Ebrahimi v Wcsthourne Galleries Ltd. and Others; House of Lords (1972) e A.E.R. 492] On the law as it stood, a charge in favour of the landlord imposed by a schcmc under Section 19 of the Leasehold Reform Act, 1967, on enfranchised property would make it impossible for a building society to advance money on the property to the enfranchised owner unless it provided that the charge in favour of the landlord be postponed to any possible future mortgage that might be made to a building society. [In re Abbots Park Estate (No.2); ch. D. (Pennycuick V.C.)—(1972) 2 A.E.R. 177] Contract The word "condition" used in one subclause of a distributor- ship agreement between a German firm and an English com- pany, by which the English company was to send a represen- tative to visit the six biggest United Kingdom motor manu- facturers every week over four years to solicit orders for large panel presses was held by a majority of the Court of Appeal not to be a term a single breach of which would entitle the erman firm to repudiate the whole contract. [Wickman Machine Tools Sales Ltd. v L. Schuler AG; C.A.; 27/4/1972.] Their Lordships dismissed an appeal by buyers of Nigerian cocoa in a dispute which arose from the devaluation of sterling in 1967. In the Court of Appeal it was said that the cotton as well as the coloa trade was interested in the decision, and that £6m was involved. Their lordships held that where the sellers of the cocoa, Nigerian Produce Marketing Co. Ltd., under fourteen contracts in which the purchase price was expressed to be in Nigerian pounds stated in a letter to the buyers' agents that "payment can be made in sterling", that did not amount to a variation of the purchase price or give rise to a promissory estoppel preventing the sellers from disavowing such a variation. [Woodhouse AC Israel Cocoa and Another v Nigerian Produce Marketing Co. Ltd.; House of Lords; (1972) 2 A.E.R. 271] The National Industrial Relations Court imposed a fine of £30,000 on the Transport and General Workers Union, already fined £5,000 for its continuing contempt of the Court in defying the order of the Court to allow access to lorries belonging to Heaton's Transport (St. Helen's) Ltd. and Crad- dock Brothers to the Liverpool docks. If the fine is not paid by May 4 leave was granted to issue writs of sequestration against the union. And the Court gave a. warning that if there are further complaints of contempt it would consider ordering the seixure and retention by the commissioners executing the writs of all the union's assets and property until the contempt had been purged. Court of Appeal reversed this decision on the ground that the shop stewards were not the servants of the union and the union was not vicariously liable for their acts. [Heaton's Transport (St. Helen's) Ltd. v Transport and General Workers Union; Craddock Brothers v Same; (1972) 3 W1 . R. 73] ' A builder who agreed to buy a house from a woman and in consideration therefor to erect for her a new house on land belonging to her was refused an order for specific performance of the agreement. [Doyle v East; Chancery Division; 21/4/1972.] The position of a guarantor who had guaranteed that another person would perform his obligations under a contract to pay off a debt by instalments was considered by their Lordships. They decided that where a creditor accepted the wongful repudiation by the debtor of a contract wnich included the

guarantee, the guarantor ws> thereby also in breach of his contract of guarantee and the creditor could sue the guarantor, not for the uupaid instalments but for damages, sine* histori- cally the liability of a surety at common law sounds in dam- ages rather than in debt. The House dismissed an appeal—by a differvut process ot reasoning—by Mr. G. Moschi, formerly managing director of Rolloswin Investments Ltd. (now in liquidation) from the Court of Appeal (Lord Justice Daviei, Lord Justice Karminski and Lord Justice Megaw) ([1971] 1 WLR 934), which had held that he was liable for the net outstanding instalments of the company's debt under the repudiated contract to Lep Air Services Ltd., of Shulton Street, WC, the creditors. [Moschi v Lep Air Services Ltd. and Others; House of Lords; 27/4/1972.] When a commission agent's agency is terminated, he is, in the absence of express and reasonable restriction, free to canvass the customers of the old firm on his own behalf, or on behalf of any new principal for whom he bccomes agent. In most cases his right remedy is compensation in a money sum and not a declaration that he is entitled to commission in the future on orders received by his former principal from custo- mers introduced by him. [Roberts v Elwells Engineers Ltd.; C.A.; 12/5/1972.] Costs The Court of Appeal (the Lord Chief Justice, Lord Justice Roskill and Mr. Justice Talbot) decided that payment of costs out of centra] funds cannot be ordered in favour of a successful respondent to a criminal appeal. They were giving judgment refusing an application for costs order by the British Trans- port Docks and Harbour Board, respondents to an unsuccessful appeal by Patrisk Rimmer against his conviction on the board's prosecution, for stealing from t Dutch ship (The Times, November 26). [Regina v Rimmer; C.A.; 1/5/1972.] The House of Lords made an order without precedent in reported cases when they varied a resolution as to costs which the House made on February 23 ([19721 2 WLR 645). Their Lordships allowed a petition by Cassel & Co. Ltd., publishers of The Destruction of Convoy PQ 17 by Mr. David Irving, to amend the order that Cassells should pay all the costs of Captain John Broome, RN (retrd), the plaintiff in a libel action arising out of the book. [Cassell & Co. Ltd. v Broome and Another; House of Lords; 1/5 1972.] Family Section 1 (2) of the Matrimonial Homes Act, 1967, which pro- vides that the Court may make "an order . . regulating the exercise by either spouse of the right to occupy the dwelling house", docs not empower the Court to make an order wholly prohibiting a spouse from exercising his or her right to occupy ' [Tarr v Tarr; House of Lords; (1972) — A.E.R. 295] His Lordship dismissed with reluctance an undefended petition by the English wife of an American ex-serviceman for a decree of nullity of marriage on the ground of lack of jurisdiction as she has lived in England for l as than three years after leaving her husband and returning from the United States. [Kern v Kern; Family Division; 11/3/1972.] A voluntary mental patient can validly consent to the grant of a decree of divorce under Section 2 (1) (d) of the Divorce Reform Act, 1969. The test for validity of consent for dissolu- tion of marriage is the same as the test for contracting a marriage.—Mason v Mason—Sir George Baker [Family Division; 19/5/1972.] Insurance A company whose car was insured under a "named drivers" policy were held not to be entitled to recover from the insurers when the car was damaged while it was being driven by a person having no authority to drive it. His Lordship dismissed a claim by Greenleaf Associated Ltd., of London, for £923 against a Lloyd's syndicate. Barbican Motor Policies, for whom the defendant was the representative underwriter. [Greenleaf Associates Ltd. v Monksfield; Q.B.D.; 14/4/72.] Landlord and Tenant A tenant may be granted a new tenancy of business premises although substantial work which has to be done to make the