Bankruptcy Criminal Company Practice Taxation


Bankruptcy



Statutory demand for judgment debt signed and served on behalf of creditor's successor in title - legal assignment of judgment debt to successor after demand served and before hearing of application to set aside - statutory demand valid

Coulter v Chief Constable of Dorset Police: CA (Lords Justice Waller, Chadwick and Carnwath): 8 October 2004



A statutory demand was issued on behalf of the current chief constable in respect of a judgment debt in favour of the previous chief constable.


The debtor applied to set aside the demand. Before the hearing date, the judgment debt was assigned to the new chief constable by her predecessor under section 136 of the Law of Property Act 1925.


The district judge refused the application. The judge upheld that decision on the grounds that there had been an equitable assignment of the debt at the time the demand was served [2004] 1 WLR 1425.


The debtor appealed, contending that the demand was defective and had not been cured by the legal assignment of the debt.


Gerard Stubbert, solicitor-advocate, of Chua's Solicitors, London, for the debtor; Timothy Callard (instructed by Lester Aldridge, Bournemouth) for the chief constable.


Held, dismissing the appeal, that the demand was served on behalf of the current chief constable, the person who, on any view, was the creditor at the time of the hearing of the set-aside application by virtue of the assignment under the 1925 Act; that she would be able to present a bankruptcy petition under section 267 of the Insolvency Act 1986 on the basis of the statutory demand, unless the demand was set aside, as she satisfied the condition in section 267(2)(c) read with section 268(1) of the 1986 Act; and that it could not be said that any injustice would result from a refusal to set aside the statutory demand, provided that the debtor was given the three-week period that section 268(1)(a) of the 1986 Act allowed to pay the debt before any bankruptcy petition was presented.



Criminal



Allegation that defendant had consensual sexual intercourse with girl under 16 - statutory time limit for prosecution for unlawful sexual intercourse with girl under 16 expired - prosecution for indecent assault on same facts abuse of process

R v J: HL (Lord Bingham of Cornhill, Lord Steyn, Lord Clyde, Lord Rodger of Earlsferry and Baroness Hale of Richmond): 14 October 2004


A 17-year-old girl alleged that when she was between the ages of 13 and 15, the defendant had, on numerous occasions, had consensual sexual intercourse with her. The defendant was charged with three counts of indecent assault under section 14(1) of the Sexual Offences Act 1956. He applied for those counts to be stayed on the ground that the alleged conduct amounted to unlawful sexual intercourse with a girl under 16, contrary to section 6(1) of the 1956 Act, which, by paragraph 10(a) of schedule 2 to the Act, was subject to a 12-month time limit for prosecution, and consequently it was an abuse of process for the prosecution to circumvent the time limit by bringing charges of indecent assault. The application was refused and the defendant was convicted on each count. The Court of Appeal [2003] 1 WLR 1590, dismissed his appeal against conviction on those charges. He appealed to the House of Lords.


Martin Meeke QC and Terence Holder (instructed by Risdon Hosegood, Minehead) for the defendant; David Perry and Miranda Hill (instructed by Crown Prosecution Service headquarters) for the Crown.


Held, allowing the appeal (Baroness Hale of Richmond dissenting), that the court could not decline to give effect to a statutory provision that was clear and unambiguous, on the ground that its rationale was anachronistic, or discredited, or unconvincing; that the 1956 Act was internally inconsistent and lacked coherence, but the deficiencies of the Act could not absolve the court from its duty to give effect to clear and unambiguous provisions; that it was impossible to read paragraph 10(a) as if it provided that a prosecution for sexual intercourse with a girl under 16 might not be commenced more than 12 months after the offence charged, but that, if a prosecution was not commenced within that time, the same conduct could thereafter be prosecuted under section 14; that Parliament had to have intended the prohibition in paragraph 10(a) to have some meaningful effect and such a reading would deprive it of any meaningful effect whatsoever, given that when the 1956 Act was passed the same maximum penalty applied on conviction under either section; but that in very many cases, even where the 12-month time limit had passed, there would be independent acts other than sexual intercourse itself, or conduct inherent in or forming part of it, on which a prosecution could properly be founded. (WLR)



Anti-social behaviour order made against claimants - local council and police publicising details of claimants' identities - publicity lawful

R (Stanley and others) v Commissioner of Police of the Metropolis and another (Secretary of State for the Home Department, intervening): QBD (Lord Justice Kennedy and Mr Justice Treacy): 7 October 2004


Anti-social behaviour orders were made against the claimants. A leaflet publicising the orders was subsequently distributed throughout the greater part of the exclusion area attached to the orders and the local authority posted details of the proceedings on its community Web site and published a report of the proceedings in its newsletter to tenants. The material carried the claimants' images, names and ages and details of the orders issued against them. The claimants sought judicial review by way of a declaration that the publicity was unlawful and in breach of their right to respect for their private life under article 8 of the European Convention on Human Rights.


Michael Fordham (instructed by Liberty) for the claimants; Christopher Johnston (instructed by Director of Legal Services, Metropolitan Police Directorate of Legal Services) for the commissioner; David Carter (instructed by the Borough Solicitor, Brent London Borough Council, Wembley) for the local authority; Wendy Outhwaite (instructed by the Treasury Solicitor) for the home secretary.


Held, dismissing the claims, that the local authority and the police had power to publicise the results of their applications for orders since an anti-social behaviour order needed publicity in order to operate; that whereas the claimants had contended that in limiting publicity to what was necessary and proportionate those contemplating initiating publicity should identify the legitimate end or ends which they sought to achieve, in fact those ends normally overlapped; that whether publicity was intended to inform, to reassure, to assist in enforcing the existing orders by policing, to inhibit the behaviour of those against whom the orders had been made, or to deter others, it was unlikely to be effective unless it included photographs, names and at least partial addresses; that the remainder of the content of any publicity must depend upon the facts of the case; and that, accordingly, the publicity was not unlawful.



Company



Shareholder alleging company's affairs conducted in manner prejudicial to him - requirement that proceedings be commenced by petition mandatory - proceedings commenced by claim form nullity

Bamber v Eaton and others:

ChD (Mr Justice Pumfrey):

6 October 2004


The claimant was a shareholder of a company.


By a claim form and particulars of claim, he sought relief under section 459 of the Companies Act 1985 on the ground that the affairs of the company were being conducted in a manner which was unfairly prejudicial to him.


The defendants submitted that those proceedings, not having been begun by petition, were irredeemably flawed and applied to strike them out.


Andrew De La Rosa (instructed by Sparling Benham & Brough, Colchester) for the defendants; the claimant in person.


Held, granting the application, that the requirement in section 459(1) that proceedings be commenced by way of a petition was mandatory rather than directory; that the power in rule 3.10 of the Civil Procedure Rules 1998 (CPR) to remedy errors of procedure applied to procedures established by the CPR and not to requirements imposed by statute; that it did not seem that the power of amendment in CPR rule 17.3 was sufficiently wide to enable one form of procedure to be transformed into another; that even if it was, in the circumstances it would not be appropriate to exercise the power; and that, accordingly, the proceedings were null.



Practice



Defendant's solicitor notifying company liquidators that it would accept service of proceedings - defendant's debt assigned from company to claimant - service of claim form on defendant at home address valid

Firstdale Ltd v Quinton: QBD (Comm Ct) (Mr Justice Colman): 5 August 2004


Before a subsidiary of the claimant went into liquidation it alleged that its ex-employee, the defendant, was indebted to it. Solicitors instructed by the liquidators invited the defendant's solicitors to confirm that they were instructed to accept service of proceedings. The latter notified their acceptance in writing.


The case lay dormant for some years without commencement of proceedings. Subsequently, the claimant's solicitors sent the defendant a deed of assignment, notifying him that the debt had been assigned to the claimant. A claim form was issued and served by the claimant on the defendant at his home address, just before expiry of the limitation period. The defendant applied, among other things, for an order that, by virtue of CPR rules 6.4 and 6.5, the claim form had not been validly served since it should have been served on his solicitors.


Ian Clarke (instructed by Fox Williams, London) for the claimant; Stephen Nathan QC and Victoria Windle (instructed by Sebastians, London) for the defendant.


Held, that pursuant to CPR rules 6.4 and 6.5, an indication by a potential defendant's solicitor that he was authorised to accept service of proceedings that had already been the subject of discussion or which raised a claim that had already been put forward could not ordinarily be taken to have indicated his authority to accept service of a document relating to different proceedings; that the scope of the solicitor's authority to accept service of a claim form had to be defined not only by reference to the claim that had already been indicated by the potential claimant, but also by reference to the identity and capacity of the claimant; that since at the time the claim form was served, neither the defendant nor his solicitors had given an address for service within rule 6.4 or 6.5, it followed that service of the claim form at the defendant's home address did not render service defective.



Taxation



Employment - anti-avoidance legislation applying to one-person service companies - interposition of recruitment agency not preventing payments from client to service company being treated as earned income of company's owner

Usetech Ltd v Young (Inspector of Taxes): ChD (Mr Justice Park): 8 October 2004


A computer software specialist, operating through a one-person service company owned by him, provided services to a client. His terms were agreed in a contract between his company and a recruitment agency retained by the client.


The contract terms entitled the company to replace the specialist with a suitable substitute and did not oblige the client to provide him with work. A special commissioner dismissing an appeal by the company held the 'IR 35 legislation' (in schedule 12 to the Finance Act 2000 and regulation 6 of the Social Security Contributions (Intermediaries) Regulations 2000) required payments received by the company from the client to be treated as the specialist's personal income from his employment with the client. The company appealed.


Simon Devonshire (instructed by Nelsons, Leicester) for the company; Akash Nawbatt (instructed by the Solicitor, Inland Revenue) for the Inland Revenue.



Held, dismissing the appeal, that the effect of the IR 35 legislation had been explained by Lord Justice Robert Walker in R (Professional Contractors Group Ltd) v Inland Revenue Comrs [2002] STC 165, and applied in Synpatek Ltd v Young [2003] ICR 1149; and that the contractual provisions agreed between the company and the client interposing the recruitment agency did not succeed in preventing the payments made by the client from being treated for tax and national insurance purposes as earned income of the software specialist.