The Gazette 1961 - 64

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 v. 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 v. 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. v. 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.) 82