Law Report: Case Summaries

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

Adoption

Re A (a minor); FD (Thorpe J); 18 February 1993.

A natural mother who wished to make an application for leave to apply for an order, such as for contact, relating to an adopted child should take the procedural steps governed by r 4.3 of the Family Proceedings Rules 1991 (SI no 1247).

Generally, the relevant persons to be notified of the application pursuant to r 4.3(2)(b) were the Official Solicitor, who should be invited to be joined not just as amicus but as a respondent, and the local authority which was party to the adoption proceedings so that it could consider the application for leave.

In ordinary circumstances notice should not be given to the adoptive parents at that early stage of proceedings since, in the majority of cases, such applications were destined to fail and it was undesirable for the adoptive parents to be exposed to unnecessary anxiety.

In the rare case where a judge was satisfied that the mother had shown a prima facie case, then it was necessary to notify the adoptive parents.

The notice should not be served on them but the Official Solicitor should communicate with them. All such applications should be transferred to the High Court.

Rodger Hayward-Smith QC (Coffin Mew & Clover, Portsmouth) for the mother; Robin Spon-Smith (Official Solicitor) as amicus curiae.

Child

Re W (a minor); FD (Booth J); 28 January 1993.

Where the family proceedings court was satisfied under s25 of the Children Act 1989 that a secure accommodation order relating to a child in care should be made, the court should, before specifying the maximum term of the order, consider very carefully the purpose to be achieved by the order, which required the restriction of the child's liberty.

It was important to follow the principle that the length of any order should be kept to the minimum time necessary, bearing in mind that the local authority could always apply for a further order if it considered the child should be detained further and the criteria for making a secure accommodation order continued to exist.

The responsibility for authorising the child to be kept in secure accommodation rested in the court and should not be delegated to the local authority. Therefore when exercising its power to make an order, the court had a duty to explain why it did so and must make findings of fact and give reasons for maximum period specified.

Peter Horrocks (Trevor Cox & Co, York) for the child; Jonathan Bennett (North Yorkshire County Council) for the council; Jennifer Kershaw (Craig & Co, Leeds) for the guardian ad litem.

Company

Bishopsgate Investment Management Ltd (in liquidation) v Maxwell; CA (Ralph Gibson, Leggatt, Hoffmann LJJ); 11 February 1993.

The essence of the breach of fiduciary duty by a company director who had wrongfully authorised the transfer of assets of the company to another company for no consideration was simply in signing the transfers and not in the failure to make proper inquiries before signing.

Colin Rimer QC and Paul Girolami (Kingsley Napley) for Mr Maxwell; John Brisby (Stephenson Harwood) for the company.

Land

Dojap Investments Ltd v Workers Trust and Merchant Bank Ltd; PC (Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Donaldson of Lymington, Lord Browne-Wilkinson and Sir Christopher Slade); 22 February 1993.

A deposit in excess of 10 per cent paid under a contract for the sale of land might not be validly forfeited by the vendor in the event of a failure by the purchaser to complete on the due date unless it was reasonable as being in line with the traditional concept of 'earnest money'.

In order to be reasonable a true deposit must be objectively operating as 'earnest money' and the practice of a limited class of vendors could not determine the reasonableness of a deposit. A vendor seeking to obtain a larger amount than the customary 10 per cent by way of a forfeitable deposit must show special circumstances which justified such a deposit.

In the present case a deposit of 24 per cent was a penalty and since it was not a true deposit the court had jurisdiction to order repayment of the whole.

Roald Henriques QC and David Batts, both of the Jamaican Bar (Philip Conway Thomas) for the vendor; Richard Mahfood QC, of the Jamaican Bar, and James Guthrie (Charles Russell) for the purchaser.