The Gazette 1972

CURRENT L AW DIGEST SELECTED

In reading these cases note should be taken of the

difference between English and Irish statute law.

A majority of the House of Lords, Lord Cross expressing

doubts, decided that on balance of authority parties who had

engaged in "mutual dealings" within Section 31 of the Bank-

ruptcy Act, 1914, could not by agreement contract out of the

section, so that where a company went into liquidation after an

agreement with its bank to keep debit and credit accounts

separate for four months the bank was entitled to the benefit of

me section and could set off one account against the other.

Their Lordships expressed the hope that the reform of bank-

ruptcy law would not be long delayed as the present majority

view of Section 31 might be embarrassing to those who wanted

to agree to moratoria to assist businesses in financial difficulties.

[National Westminster Bank Ltd. v Halesowen Presswork

and Associates Ltd.; House of Lords; (1972) 1 AER 641.]

Bankruptcy

National Westminster Bank Ltd. v Halesowen Presswork and

Associates Ltd.; House of Lords; see above.

Building Contract

The

Court of Appeal (the Master of the Rolls, Lord Justices

"hillimore and Roskill), in dismissing the defendants'

appeal from the order of Mr. Justice Bristow that the

Plaintiffs be entitled to enter final judgment under Order 14,

IISC, for £10,008 with leave to defend as to the balance of

jhe plaintiffs' claim, held that the principle of

Dawnays Ltd. v

- G. Minter and Trollope and Colls Ltd.

([1971] 1 WLR

205) applied notwithstanding that there was no architect's

certificate of value where the defendant sub-contractors had

been paid by the main contractors the very sums due to, and

claimed by, the plaintiff sub-contractors for the work done.

Ihe RIBA "green form" of contract had been brought into

'he contract with all necessary modifications. Leave to appeal

as refused.

[John Thompson Hoesley Bridge Ltd. and Another v

Wellingborough Steel and Construction Co. Ltd.; C.A.;

22/2/1972.]

^ local authority employing subcontractors for the foundations

blocks of flats was held not to be entitled to withhold from

jhe sum ascertained as due in final payment under a contract

based on the RIBA standard form £14,000 as unliquidated

damages for alleged delay in completing the foundations.

[GHN Foundations Ltd. v Wandsworth London Borough;

-A.; 15/2/1972.]

Contract

A contract for the sale of a freehold house with a condition

hat the contract should be "subject to the purchaser obtaining

satisfactory mortgage" was held not to be binding unless or

bntil the condition was fulfilled, such a condition being void

'°r uncertainty.

r,.. [Lee

-Parker

and Another v Izzet and Others; Ch. Div.;

29/2/1972.]

^ newly-qualified commercial airline pilot who received "dis-

strous" advice from his union not to present himself for work,

did

, - not do so and thereby repudiated a contract under which

t \

been trained by the company with whom he had under-

aken to enter into a service agreement. As a result his father,

ho was a party to the contract, was ordered to pay £1,872

'th interest and costs to the company for the amount which

y had spent on his training. -

[A.D.S. (Aerial) Ltd. v Snell; Q.B.D.]

retired schoolmistress who bought a self-contained flat on the

ngth of an innocent misrepresentation by the vendor's

nt that planning permission for a garage had been granted

held to be entitled to damages in the first case to come

w . r e the Court of Appeal since the coming into force of the

Misrepresentation Act, 1967.

[Gosling v Anderson; C.A.; 6/2/1972.]

Conveyancing

See under

Contract;

Lee-Parker and Another v Izzet and

Others; Ch. Div.; 29/2/1972.

Bankers who take a mortgage from a customer and adopt the

common practice of registering a notice of deposit of the

land certificate, instead of registering their mortgage as a

charge, gain only illusory protection for their mortgage.

[Barclays Bank Ltd. v Taylor and Another; Ch. Div.

24/2/1972.]

Crime

The Court held that the question whether or not an article

was indecent for the purposes of Section 11 (1) (b) of the

Post Office Act, 1953, was to be determined by a jury and a

jury needed no assistance from persons who might have views

on the matter or might give evidence as to the effect of the

alleged indecent material on them.

[Regina v Stemford; C.A.; 29/2/1972.]

There may be a special reason for not disqualifying a driver

where he has moved his car only a few yards without likelihood

of his coming in contact with other users of the road, but no

special reason exists where he drives a lorry 200 yards through

busy streets in circumstances where it is a potential danger to

other road users.

[Coombs v Kehoe; Q.B.D.; 8/2/1972.]

A man who in a public place used insulting words and behaved

in an insulting manner whereby a breach of the peace was

likely to be occasioned had not committed two separate offences

under Section 5 of the Public Order Act, 1936, and an infor-

mation alleging both words and acts was not bad for duplicity.

[Vernon v Paddon; Q.B.D.; 11/2/1972.]

A motorist who had felt drowsy before entering a motorway

and stopped his car on the motorway verge in order to rest

was held not to have stopped his car in an emergency and was

therefore guilty of an offence under Regulation 9 of the Motor-

ways Traffic Regulations, 1959.

[Higgins v Bernard; C.A.; 6/2/1972.]

A postman who overdrew his Post Office Giro account when

his wages ceased being credited to it during the strike last year

but intended to repay the money after the strike ended was

neverthelss guilty of dishonestly obtaining the money by

deception, intending permanently to deprive the Post Office of

it, contrary to Section 15 of the Theft Act, 1968.

[Helstead v Petel; Q.B.D.; 10/2/1972.]

The Court refused to redefine "special reasons" for mitigating

circumstances which could be considered for not imposing dis-

qualification on conviction of an offence against the Road

Safety Act, 1967. Lord Goddard's judgment in

Whittall v

Kirby

([1947] KB 194) when he said that "A 'special reason'

. . . is one special to the facts which constitute the offence.

It is a mitigating circumstance-^-directly connected with the

commission of the offence" remained good law.

However, their Lordships decided on the present special

facts, that events which took place after the offence and in

which the offender had no part constituted circumstances

special to the offence, and quashed a mandatory disqualifi-

cation for twelve months.

[Regina v Anderson; C.A.; L.R. (1972) 1 Q.B. 304.]

There is no proposition of law that a defendant whose past

record is well known to a magistrate should not be tried by

him, the Lord Chief Justice said in the Divisional Court when

refusing an ex parte application for an order of prohibition

directing Mr. Neil McElligott, the Old Street Magistrate, not

to hear a case against two men charged with loitering with

intent.

[Ex parte X and Y; C.A.; 18/2/1972.]

A motorist convicted of being in charge of a motor vehicle

when he had 229 milligranmies of alcohol in 100 millilitres of

his blood contrary to Section 1 (2) of the Road Safety Act,

101