Law Report: Case Summaries

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The following notes of judgments were prepared by the reporters of the All England Law Reports.

Adoption

Re S (a minor); CA (Staughton, Waite, Peter Gibson LJJ); 21 April 1994.

The court's power to impose a condition on the making of an adoption order should be exercised very rarely. Although a judge was fully entitled to be troubled by a degree of medical risk involved where the adopting parents were Jehovah's Witnesses, a condition that they would not withhold consent to a blood transfusion was not necessary in the interests of the child, in view of the procedures available to doctors in an urgent situation or by way of specific issue order under the Children Act 1989. In a case where such sensitive and problematic issues arose and where the only party represented was the applicant, the appointment of a guardian ad litem under r 18 of the Adoption Rules was called for.

Vear Mayer (Wilford McBain, Brixton) for the appellants; Robin Spon-Smith, amicus curiae.

Contract

Bovis Homes Ltd v Oakcliff Investment Corpn & anr; ChD (Harman J); 30 March 1994.

In considering whether time was of the essence of a term in a contract, so that breach of it amounted to repudiation, the court must bear in mind the nature of the obligation imposed by the term. If the term required a single act to be done, it was easier to conclude that the time for doing it might be of the essence of the term. But where one sub-clause contained a continuous series of stipulations, requiring a builder not only to 'complete the development works within three years' but also to do so 'in a substantial and workmanlike manner', 'with materials of good quality' and 'in conformity with the provisions' of planning approvals, statute and the applicable byelaws, so that breaches of the clause could occur in many different ways wholly unrelated to time, then it would not be correct to treat the time stipulation as a separate obligation, breach of which would have entirely different consequences from those resulting from breach of the other parts of the clause.

Kim Lewison QC and R Stewart (Masons) for the plaintiff; Leolin Price QC and Shan Warnock-Smith (Blakes) for the defendants.

Immigration

R v Home Secretary, ex p Teame; CA (Staughton, Hoffmann LJJ, Sir Roger Parker); 25 March 1994.

The existence of a court order for residence or wardship, or an application for such an order under the Children Act 1989, did not preclude the Home Secretary from making a deportation order under the Immigration Act 1971 in respect of the person with whom the child had been ordered to reside and the deportation or removal of such a person could not, therefore, amount to contempt of court.

Elizabeth Szwed (Jane Coker & Ptrs, Tottenham) for the Children Act applicant; Richard Scannell (Jane Coker & Ptrs) for the judicial review applicant; Vera Mayer (Goodman Ray, Hackney) for the applicant's sister; Nicholas Carden (Official Solicitor) for the guardian ad litem; Steven Kovats (Treasury Solicitor) for the Home Secretary.

Crime

R v Redman; CA (Cr Div) (Russell LJ, Alliott J, Sir Tasker Watkins); 18 April 1994.

A trial judge erred in summing up the case on a different basis from that put forward in argument and in declining to add to the summing up after the matter was drawn to his attention by counsel.

The Court of Appeal had urged judges time and again to resolve issues of law before counsel's speeches or at least before summing up.

Stephen Parish (Registrar of Criminal Appeals) for the appellant; Mark Lomas (CPS) for the Crown.

Evidence

R v Deakin; CA (Cr Div) (Farquharson LJ, McKinnon, Laws JJ); 15 April 1994.

In a case where a care assistant, who worked at a home for the mentally handicapped, was charged with indecent assault on one of the inmates, the evidence of two psychologists as to the complainant's competence to give evidence should have been heard in the jury's absence. The question of the complainant's competence was one of admissibility for the judge to decide and a distinction should be drawn between expert evidence given by a third party and that in R v Reynolds, 34 Cr App R 60. Timothy Barnes QC and Richard Martin (Registrar of Criminal Appeals) for the defendant; Mark Eades (CPS) for the Crown.

Jury

R v Kemp; CA (Cr Div) (McCowan LJ, Morland, Buckley JJ); 15 April 1994.

Although the jury's right to acquit a defendant at any time after the close of the Crown's case was well established at common law, the judge should not go beyond a mere intimation to them of their right to stop the case, and should not invite them to acquit.

Roger Farley QC (Registrar of Criminal Appeals) for the appellant; Roger Brown (CPS) for the Crown.

Limitation

Welsh Development Agency v Redpath Dorman Long Ltd; CA (Glidewell, Simon Brown, Peter Gibson LJJ); 17 March 1994.

A new claim sought to be added by a proposed amendment to a statement of claim could not be made under s 35(3) of the Limitation Act 1980 until the pleading was actually amended. Kennett v Brown (1988) 2 All ER 600 was wrongly decided.

Donald Keating QC and Keith Bush (Eversheds Phillips & Buck, Cardiff) for the plaintiffs; Brian Knight QC and Martin Bowdery (Mark Galloway, Croydon) for the defendants.

Possession

Hammersmith & Fulham LBC v Hill; CA (Nourse LJ, Wall J); 15 April 1994.

Once an order for possession of residential property had been made in the county court under Sched 2 of the Housing Act 1985, and the terms of any suspension or stay of enforcement on the possession order had been breached, a warrant for possession could be issued and enforced under the Housing Act and the County Court Rules without further reference to the tenant. There was an anomaly between Supreme Court and County Court rules, but the court could not imply a term in s 85(2) of the 1985 Act that notice of the application for the issue or execution of a warrant be given to the tenant, and the County Court Rules contained no requirement for such notice.

Freya Newbery (CT Mahoney) for the council; Lorna Tagliavini (Lawrence & Co) for the respondent.

Service

Kelliher v Savill Engineering Ltd; CA (Nourse LJ, Wall J); 14 April 1994.

A county court judge had a discretion under Ord 13, r 4 of the County Court Rules 1981 to extend the period within which a summons in a personal injury action was required by Ord 7, r 2C (1)(b) to be served, where exceptional circumstances and the interests of justice required, and particularly where the failure to serve the summons was entirely the fault of the county court concerned.

Roger Eastman (Neilsons) for the appellant; Jonathan Howard (Lawrence Graham) for the respondent.

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