The Gazette 1961

a caravan site owned by him in the area. He did not

comply with the notice, and on the zyth March, 1961,

he began High Court proceedings against

the

Council. On the 2ist July, 1961, the solicitors to

the Council issued a writ for an injunction restraining

the defendant from keeping and maintaining the site

in such a state as to be a statutory nuisance pursuant

to section 100 of the Public Health Act, 1936. A

notice of motion asking for interim relief was served

on the same date. Three days later on the 24th July,

the Council in a meeting resolved " being of opinion

that summary proceedings would afford an in

adequate remedy to secure compliance " with the

notice served in January, to take proceedings in the

High Court for securing the abatement of the

nuisance. The defendant objected at the hearing

that the Council had no power to issue such proceed

ings since under section 100 its " opinion " had not

been expressed at the date when the writ was issued.

Widgery, J. decided that the Council did not lack

capacity to sue and the defendant appealed from his

decision.

It was held by Evershed, M.R. and

Danckwerts, L.J. (Willmor, L.J. dissenting) that

although the Council had not formally recorded its

opinion at the date of the issue of the writ it had

done so by the time the the motion came for hearing,

i.e., by the time that the first effective step in the

action had been taken. The section should not be

strictly construed so as to require that a formal

expression of the requisite opinion should precede

in time the issue of the writ. The court should hold

that an opinion formally expressed on the 24th July

had in fact been held three days before. The appeal

was therefore dismissed.

(Warwick Rural District

Court

Miller Reid.) All £^.—(1962)—I—212.

Costs

Order to tax costs " of and incidental to negotia

tions leading to this order: " Trustees of the

will of a deceased were empowered by a court

order to pay to the deceased's widow a certain sum

in full and final settlement of her claim against the

estate. The order was made " to tax on the common

fund basis

the costs of the defendant of and

incidental to negotiations leading up to this order ".

One of the items was disallowed by the Taxing

Master on the grounds that the expenses included

therein related to a period before negotiations with

the trustees began and were incurred in connection

with investigation of the widow's claim.

Con

sequently they were not covered by the words " and

incidental to ". The widow took out a summons

for a review of the taxation and she contended that

the work set out in the item was " incidental " as

it had to be carried out before the negotiations

could commence. It was held by Plowman, J. that

the words " and incidental to " as used in the order

meant " costs of and consequent upon the negotia

tions," and accordingly did not cover costs incurred

before the negotiations commenced. These could

not be said to be costs incidental to the negotiations.

The summons was dismissed.

(In re Fahey's Will

Trusts.) All E.R. (1962)—I—73.

Statement of claim amended during trial.

In Pathak

James Nourse Ltd., an action for

negligence taken by a sailor against shipowners

arising out of an accident it became evident during

the trial that the particulars of negligence alleged in

the statement of claim were completely incorrect.

The trial judge expressed the view that the accident

was nevertheless due to gross negligence on the part

of the defendants and he gave leave to amend the

statement of claim to substitute a different allegation

of fact and totally different allegations of negligence.

He also gave leave for consequential amendments to

the defence. The action was tried on the amended

pleadings, the defendants were held liable and

damages and costs (including the costs of the

amendments) were awarded. The defendants appealed

and the Court of Appeal dismissed their appeal on the

question of liability. As regards the costs it was held

that the trial judge had erred in imposing the costs of

the amendments on the defendants. He had departed

from the exercise of proper discretion and had erred

in law by awarding the costs of the amendments

against the defendants. The Court of Appeal directed

that neither party be awarded costs up to the date of

the amendment and to that extent the appeal was

allowed.

(Solicitors' Journal,

December 22nd, page 1106.)

Stamp duty on compulsory transfer of stock under a

statutory provision.

In Ridge Nominees Ltd.

Inland Revenue Com

missioners the Court of Appeal has held that where

one company has offered to take over the shares of

another, which offer has been accepted by the

majority of shareholders, a stock transfer executed by

the nominee of the offering company in respect of the

stock of a dissenting stockholder is a " conveyance or

transfer on sale " within section 54 and schedule I to

the Stamp Act 1891. This is so notwithstanding the

fact that the transferor was compelled to sell against

her will her dissent being overridden by the assent

imposed by the Companies Act 1948 (section 209).

The transfer was accordingly liable to

ad valorem

stamp duty under the head of " conveyance or

transfer on sale " in schedule I to the Stamp Act

1891.

(AH England Law Reports,

1961—III—page 1008.)