White v Minnis and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CHADWICK,LORD JUSTICE MANCE,Lord Justice Chadwick,LORD JUSTICE PETER GIBSON |
| Judgment Date | 05 May 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0505-23 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CHANF/1999/0014/A3 |
| Date | 05 May 2000 |
QUEEN'S BENCH DIVISION
Before Mr Justice Turner
Education - Special Educational Needs Tribunal - jurisdiction
The Special Educational Needs Tribunal had jurisdiction to hear an appeal by a parent against a local education authority's decision to cease to maintain a statement of special educational needs for her child aged over 16 where that child had previously been the subject of such a statement when of compulsory school age.
Mr Justice Turner so held in the Queen's Bench Division when allowing an appeal by S against the decision made by the Special Educational Needs Tribunal on October 25, 1999 that it did not have jurisdiction to determine S's appeal against the decision of Essex County Council to cease to maintain a statement of special educational needs for her son, J, because he was not registered as a pupil at a school and therefore not a child for the purposes of an appeal under paragraph 11 of Schedule 27 to the Education Act 1996.
Mr David Wolfe for S; Mr Timothy Mould for the tribunal; the local authority did not appear and was not represented.
MR JUSTICE TURNER said that the tribunal had jurisdiction to hear and determine an appeal against an education authority decision by the parent of the child.
Section 579(1) of the 1996 Act provided that, unless the context otherwise required, "child" meant a person not over compulsory school age.
Section 312(5) defined "child" in relation to those with special educational needs as a person under 19 who was a registered pupil at a school.
At the time the authority decided to give notice to determine to cease maintaining J's statement, J was of compulsory school age and a registered pupil.
A delay by the education authority in notifying S that it would not maintain the statement, caused by a dispute with the authority as to where J should continue to be educated, meant that by the time of that notification and the subsequent notice of appeal to the tribunal which was submitted in time by S, J had ceased to be of compulsory school age and therefore registered as a pupil.
His Lordship said that if the tribunal was correct in that it had no jurisdiction, the matter to which a right of appeal was conferred by the 1996 Act could never be adjudicated on once a child had ceased to be registered as a pupil at a school which accepted children only up to their compulsory school age.
The definition of "child" under section 312(5) was inclusive, not exclusive, and in the context of the J's case required a definition other than that in section 312(5) or 579(1), and meant a child who was the subject of a statement at the time the authority decided to give notice to determine to cease maintaining a statement.
Any other result was so unreasonable that Parliament could not have intended it. Accordingly, the tribunal decision would be quashed and the matter remitted for hearing.
[2000] EWCA Civ J0505-23
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
Park J.
Lord Justice Peter Gibson
Lord Justice Chadwick And
Lord Justice Mance
Case No: CHANF/1999/0014/A3
Miss Sonia Proudman Q.C. and Mr. Alistair Craig (instructed by Messrs Coldham Shield & Mace of Chingford for the Respondent)
Mr. George Laurence Q.C and Mr. Gordon Bennett (instructed by Messrs Sprecher Grier Halbertsam of London for the Appellants)
This is an appeal from an order made on 16 December 1998 by Mr Justice Park in proceedings brought by Miss Olive White, as personal representative of her late father, Mr Dennis White, who died on 30 November 1993. Immediately before his death Mr Dennis White carried on business in partnership with his brother, Mr Lawrence White, under the firm name "B E White". Mr Lawrence White died on 23 June 1994. The defendants to the proceedings are his executors.
The partnership business was carried on from freehold premises at Brantwood Road, Tottenham. Those premises had been shown in the partnership accounts, over many years, at a value equal to historic cost. The terms of the partnership provided that, on the death of a partner, the partnership should not be wound up; rather the share of the deceased partner in the capital of the partnership should be paid to his personal representatives by the surviving partner. The issue in the proceedings is as to the basis on which the value of the share of the deceased partner should be ascertained. The judge held that the deceased partner's share in the capital of the partnership should be ascertained on the basis of an open market valuation of the premises at Brantwood Road. It is against that decision that the executors of Mr Lawrence White have appealed to this Court.
The underlying facts.
A business under the name "B E White" was established by Mr Bernard Edwin White at or about the turn of the century. In 1930, Mr Bernard White purchased the freehold land at Brantwood Road, Tottenham, and arranged for factory premises to be constructed on that land. A balance sheet in respect of his business, as at 31 March 1934, shows as an asset: "Building Account —£6,409".
Mr Dennis White was born in 1911. Mr Lawrence White was born in 1920. On leaving school each worked in their father's business. In 1940 Mr Bernard White took his two sons into partnership. Accounts for the year ended 31 March 1945 show that the father was entitled to a 50% share in the profits of the business; and that each of the two sons was entitled to a 25% share in the profits. The balance sheet, as at 31 March 1945, shows the asset "Building Account" at a value of £8,098. By 31 March 1946 that balance sheet figure had risen to £8,135, by reason of "additions due to war damage". It remained at that figure in the balance sheet as at 31 March 1949.
With effect from 1 April 1949 Mr Bernard White's daughter, Mrs Jessie Emily Turner, was taken into partnership with her father and her two brothers. For that purpose a deed of partnership was executed on 12 May 1949. The deed recites that Bernard Edwin White, Dennis Arthur White and Lawrence Edwin White have, since 1 August 1940, carried on in partnership the business of an Electrical Engineer; that Jessie Emily Turner had been employed in the business for many years; and that it had been agreed that she should become a partner with the other partners. Clause 1 declares that the parties to the deed shall be partners in the trade or business of electrical engineers for a term of seven years from 1 April 1949 upon the terms of the deed. Clause 2 provides that the business of the partnership shall be carried on under the style or firm of "B E White" at the Brantwood Road premises. Clause 3 is in these terms:
The Capital of the partnership including the freehold premises and land at Brantwood Road Tottenham aforesaid shall be the sum of Nineteen Thousand Five Hundred Forty Five Pounds 10/—and there shall be credited to each Partner's Capital Account the sum of Four Thousand Eight Hundred Eighty Six Pounds, Seven Shillings Six Pence.
The words shown in italics were written into the deed after it had been typed. The amount of the capital of the new partnership (£19,545.10s) is equal to the aggregate of the amounts (£13,000 19s.6d., £2,822 5s. 3d. and £2,822 5s. 3d.) standing to the credit of the capital accounts of Mr Bernard White, Mr Dennis White and Mr Lawrence White in the closing balance sheet in respect of the old partnership; that is to say in the balance sheet as at 31 March 1949 to which I have already referred. The necessary inference, in my view, is that the new partnership deed was entered into on, or shortly after, the date upon which the 31 March 1949 accounts in respect of the old partnership had been prepared and approved; and with those accounts in mind. The capital of the new partnership was ascertained on the basis that the value of the freehold land and premises at Brantwood Road was that shown in the closing accounts of the old partnership under the item "Building Account". There is no dispute that that item (£8,135) represented the historic cost of purchasing the land and constructing the factory premises.
The amount to be credited to the capital account of each partner in the new partnership (£4,886 7s. 6d.)is one quarter of the aggregate of the amounts standing to the credit of the capital accounts of the three former partners in the old partnership. In effect, therefore, Mr Bernard White made gifts to each of his three children of parts of his interest in the business.
The 1949 partnership deed contained provision for what should happen in the event of the death of one of the partners. Clause 18 was in these terms:
18. In the case of the death of a Partner his or her share in the capital of the Partnership and any undrawn profits when ascertained shall be paid to his or her Executors or Administrators by the surviving Partner or Partners by twelve equal quarterly instalments each instalment to be paid together with interest for the time being if remaining unpaid at the rate of five per cent per annum. The first of such instalments together with interest at the rate aforesaid from the date of death to be paid at the expiration of three calendar months after such death and the whole of the property of the partnership shall as from such death belong to the surviving Partner or Partners, as the case may be, and all liabilities of the partnership shall as from that date be discharged by the surviving Partner or Partners and all such assurances releases and...
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