Law Reports: Case Summaries; 26 February 1996

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

Maintenance

F v F; FD (Holman J); 12 Jan 1996

When considering the making of an appropriate capital award in lieu of maintenance where the husband was wealthy and the wife's assets negligible and it was appropriate to follow the principles in Duxbury v Dux-bury [1987] 1 FLR 7, it was not desirable for time and expense to be taken up in every case in having expert evidence about an appropriate assumed real rate of return. It was important that there should be an "industry standard" for the purpose of the Duxbury approach. In order to achieve such consistency of approach the court proposed to select an assumed real rate of return of 4.25 per cent.

Barry Singleton QC and Lucy Stone (Manches & Co) for the wife; Adrian Taylor (Adrian Pellman) for the husband

Mental health

Tameside and Glossop Acute Services Trust v CH (a patient); FD (Wall J); 22 Jan 1996

Doctors attending a pregnant woman detained under s 3 of the Mental Health Act 1983 were concerned that the woman's state of mind, which had deteriorated as the result of the necessary interruption of her medication by the pregnancy, might cause her to resist treatment during delivery. They sought a declaration that it would be lawful to use reasonable restraint should it be deemed clinically necessary. The proposed treatment, which was the performing of a Caesarian section and, if required, restraint applied to the patient to enable it to be carried out, was in the circum-stances treatment given for the patient's mental disorder within the broad interpretation of s 63 of the Act approved in B v Croydon Health Authority [1995] 1 All ER 683 and the consent of the patient was not required. The declaration was granted.

Huw Lloyd (Hempsons) for the applicants; Robert Francis QC (Official Solicitor) as guardian ad litem for the patient.

Pensions

Cocking v Prudential Assurance Co Ltd and related actions; QBD (Bristol Mercantile Court) (Pensions List)(Judge Raymond Jack QC); 8 Jan 1996

Investors were entitled to pursue their claims of mis-selling through the courts despite the review instigated by the statutory regulators of the industry. The aim of the review was to investigate and compensate where appropriate, without recourse to the courts, all investors who may have been wrongly advised to take out personal pension policies as an alternative to occupational pension schemes. However there was insufficient evidence that there would be a flood of litigation which would disrupt or delay the orderly process of the review to justify staying the investors' actions pending the outcome of the review.

John Virgo (Ringrose Wharton & Co) for the plaintiff; Michael Tennet (Lovell White Durrant) for the defendant.

Solicitors

Barclays Bank plc v Weeks Legg and Dean; QBD (John Toulmin QC); 9 Feb 1996

The bank, which had promised a loan to the purchaser of land at auction, required the purchaser's solicitors two working days before completion to undertake only to pay the funds to the vendor if they were able to obtain a good marketable title. The solicitors gave the undertaking and completion took place. The solicitors had discovered there was a right of way over the land but did not mention its existence to the bank which was not their client, assuming that the bank would have made its own inquiries. Title was transferred to the purchaser under the contract of sale, but the right of way caused difficulties and the purchaser was unable to resell the land for development as intended. The bank sued the solicitors for its loss. The bank's contention that the phrase good marketable title meant a title free of all encumbrance was rejected. When construed in the light of the commercial purpose and factual background, the phrase meant a title which a vendor was able to force an unwilling purchaser to accept under the contract and the solicitors were not therefore in breach.

Jonathan Nash (Lovell White Durrant) for the bank; Genevra Caws QC and Richard McManus (Blake Lapthorn) for the solicitors.

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