Law Report: Case Summaries

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

Children

Re T (Minors); FD (Bracewell J); 17 March 1993.

Where a foreign national issued an originating summons under art 21 of the Hague Convention on the Civil Aspects of International Child Abduction, as incorporated by the Child Abduction and Custody Act 1985, in order to secure access rights, under a foreign access order, to children brought within the jurisdiction, the role of the central authority (the Lord Chancellor's Department) was limited to arranging for the applicant to have English solicitors to apply on his behalf for a contact order under s 8 of the Children Act 1989 in separate family proceedings. Given the international element and the complexities of such proceedings, it was desirable to begin them in the High Court and invite the Official Solicitor to act on the children's behalf.

Henry Setright and Leonora Klein (Bindman & Partners) for the plaintiff; David Hershman (Irwin Mitchell, Birmingham) for the defendant.

Costs

Re G: FD (Johnson J); 1 March 1993.

Solicitors and counsel in family proceedings should bear in mind the court's power to order costs against legal representatives who, in the court's opinion, supported appeals which lacked merit. Moreover, reg 67 of the Civil Legal Aid (General) Regulations 1989 (SI 339) imposed a duty on solicitors and counsel for assisted persons to report to the area director if they believed an assisted person had required the case to be conducted or continued unreasonably so as to incur unjustifiable expense to the fund.

The present appeal, against an interim care order, had been ill- advised and had little practical effect on the children's lives. The courts had repeatedly deprecated the bringing of appeals against interim orders such as this, which had given rise to considerable public expenditure. However, a costs order was not made in this case.

Alan Inglis (Stantons) for the appellant; Glenn Brasse (D P Clephan, Kent County Council) for the local authority; Caroline Rodger (Redfern & Stigants, Gillingham) for the second respondent; Marc Brittain (Garland & Co, Gravesend) for the third respondent; Patricia Dangor (Good, Good & Co) for the guardian ad litem.

Employment

Sibson v UK (Case No 4/1992/349/422); European Court of Human Rights; 20 April 1993.

The requirement by an employer, at a work site where no closed shop operated, that a particular employee, who had formerly belonged to the same union as all the other employees, should rejoin that union or be transferred to another site, did not amount to a form of treatment striking at the very substance of freedom of association so as to violate art 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

European Procedure

Sonntag (supported by Land Baden-Wurttemberg) v Waidmann & ors (Case C- 172/91); European Court of Justice; 21 April 1993.

'Civil matters' as defined in art 1(1) of the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (as amended) included a civil action for compensation for injury caused to an individual following a criminal act which had been the subject of previous criminal proceedings. An action for damages brought before a criminal court against a teacher from a state school who, during a school trip to another member state, had injured a pupil through an illegal and culpable breach of his duty of care, even where cover was provided for such liability by a scheme of social insurance under public law, was a 'civil matter' under the Convention.

Human Rights

Modinos v Cyprus (Case No 7/1992/352/426); European Court of Human Rights; 20 April 1993.

Provisions of Cyprus law which criminalised homosexual relations in private between consenting male adults constituted a violation of art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, under which 'everyone has the right to respect for his private and family life, his home and his correspondence'.

Practice

Chiron v Murex; CA (Balcombe, Staughton, Rose LJJ); 7 April 1993.

Where in an action relating to the validity of a patent the trial judge struck out paragraphs of the defence and refused leave to amend the defence, his decision would not be disturbed by an appellant court unless the judge was plainly wrong. It was the trial judge who controlled the proceedings, and it was part of his duty to identify the crucial issues and to see they were tried as expeditiously and inexpensively as possible.

Alastair Wilson QC and Jessica Jones (Needham & Grant) for Murex; Robin Jacob QC, David Kitchin and David Anderson (Bristows Cook & Carpmael) for Chiron.

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