Costs


Care proceedings - jointly commissioned expert report - parties to contribute to costs on proportionate basis



Calderdale Metropolitan Borough Council v S and another: FD (Mr Justice Bodey): 18 October 2004



An assessment and report into the psychological functioning of the parents was commissioned by all four parties to care proceedings.


The local authority was ordered to pay half the costs, with the other half in effect being paid by the Legal Services Commission, on the 'moiety basis'. The local authority appealed on the grounds that the court should have ordered equal contributions from all four parties (the 'proportionate basis'). The commission was joined as a party and, as the only participating respondent, filed a cross-appeal for an order that the local authority should have been ordered to pay the whole of the costs of the assessment.


Eleanor Hamilton QC and Joanna Geddes (instructed by the Solicitor, Calderdale Metropolitan Borough Council, Halifax) for the local authority; John Reddish (instructed by Legal Director, Legal Services Commission) for the commission.


Held, allowing the appeal and dismissing the cross-appeal, that a pragmatic half-and-half apportionment of public money was out of step with the rationale and conventional use of costs orders; that, ultimately, it was a matter of discretion but relevant considerations included the reasonableness with which the local authority had conducted the information-gathering process, the extent to which the report went merely to satisfying the 'threshold' for state intervention, as distinct from ultimate disposal, and whether the report was from a 'treating', as opposed to a purely forensic expert brought in specifically to make a full overview report to the court; that the fact that a party was publicly funded was not a reason for taking a different decision about costs from that which would otherwise have been taken; and that the proportionate basis should be applied with the local authority paying one-quarter and the commission paying three-quarters of the costs of the report.



Practice



Defendant sending letter to claimant marked 'without prejudice' - court to determine whether letter intended to be negotiating document - letter privileged



Schering Corpn v Cipla Ltd and another: ChD (Mr Justice Laddie): 10 November 2004


The managing director of the first defendant wrote to the claimant, the proprietor of a patent, in a letter headed 'without prejudice', stating that the claimant's patent was invalid and that it would avoid revocation if an alternative commercial solution could be found. The claimant, instead of replying to the letter, commenced proceedings for infringement of its patent. The contents of the letter constituted the sole basis for the claimant's allegations. The defendants applied to strike out the proceedings on the ground that, since the contents of the letter were privileged, the claimant had no material on which to rely.


Colin Birss (instructed by Taylor Wessing, London) for the defendants; Simon Thorley QC (instructed by Bird & Bird, London) for the claimant.


Held, granting the application, that when considering whether a document headed 'without prejudice' was to be treated as such, the court had to determine whether or not it was bona fide intended to be a negotiating document; that in order to so determine, the court had to look at the intention of the author and how the document would be received by a reasonable recipient; that, although the heading 'without prejudice' did not conclusively make such documents privileged, it was an indication that the author intended it to be so treated and, in many cases, a recipient would receive it on the understanding that the author intended to attempt negotiation; that the first defendant's letter was a negotiating document and, therefore, covered by privilege; and that, accordingly, the claimant was not entitled to refer to it.



Revenue



Income tax - non-resident entertainers and sportsmen - payments under overseas endorsement contracts not chargeable to tax in UK



Agassi v Robertson (Inspector of Taxes): CA (Lords Justice Buxton, Sedley and Jacob): 19 November 2004


A, an international tennis player not resident in the UK, controlled a non-resident company through which he negotiated endorsement contracts with non-resident equipment manufacturers. He visited the UK annually to play tournaments, his company receiving payments from the manufacturers which derived from those sporting activities. He was assessed to UK income tax on the payments to his company under sections 555 and 556 of the Income and Corporation Taxes Act 1988. His appeal against the assessments was dismissed by both the special commissioners and the judge. A appealed.


Patrick Way (instructed by Christopher Mills, Tenon Media, London) for A; Bruce Carr (instructed by the Solicitor, Inland Revenue) for the Revenue.


Held, allowing the appeal, that the issue concerned the applicability of section 555(2) of the 1988 Act to companies with no UK tax presence; that applying the principles laid down by the House of Lords in Clark v Oceanic Contractors Inc [1983] 2 AC 130, the proper construction of the provisions relating to non-resident entertainers and sportsmen in sections 552 and 553 of the 1988 Act were not applicable to impose a charge to tax on A in respect of payments made to a company under his control that had no tax presence in the UK. (WLR)



The law reports are prepared by the reporters to the Incorporated Council of Law Reporting for England and Wales; telephone: 020 7242 6471; fax: 020 7831 5247; http://www.lawreports.co.uk

WLR means that a report has been submitted for publication in the Weekly Law Reports