Law Reports: Case Summaries; 11 November 1996

Law Reports

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

Children

Re C (a minor) (Local authority: assessment); CA (Butler-Sloss, Waite, Roch LJJ) 30 Sept 1996.

A court making an interim care order in favour of the local authority had power under s 38(6) of the Children Act 1989 to give a variety of directions as to the medical, psychiatric or other assessment of the child. Regrettably, that power fell short of enabling the court to direct the authority to accede to the parents' wish that both they and the child be placed at a residential assessment centre pending the hearing of final care proceedings. It was particularly unfortunate for these very young parents as the fostering alternative favoured by the authority effectively removed their only chance of obtaining a final order in their favour.

A.A. Rumbelow QC, A.P. Hayden, Gillian Irving (Norcross Lees & Riches, Oldham; Temperley Taylor Chadwick, Middleton) for the parents; Lesley Newton (Booth & Middleton, Oldham) for the guardian ad litem; Jean France- Hayhurst (Andrew Jeffries, Oldham) for the authority.

Insurance

Sumitomo Bank Ltd v Banque Bruxelles Lambert SA; QBD (Comm Ct) (Langley J) 2 Oct 1996.

The plaintiff banks, which lent money secured by mortgage with the benefit of mortgage indemnity insurance, were not under a duty of disclosure to the insurers. The extent of the duty of disclosure was defined in the policies and was expressed to be the duty of the insured. The banks were not the insured because they had appointed the defendant underwriter as their agent. Therefore the duty of disclosure, as defined in the policies, was placed with the defendant alone as the insured, and the defendant had to take reasonable care in fulfilling that duty and was liable for any failure to do so.

Gavin Kealey QC, David Edwards (Clifford Chance) for the plaintiffs; Peter Scott QC, David Railton (Linklaters & Paines) for the defendant.

Liquidator

Ward v Aitken & ors; Re Oasis Merchandising Services Ltd; CA (Peter Gibson, Otton, Hutchison LJJ) 9 Oct 1996.

A liquidator's right, under s 214 of the Insolvency Act 1986, to sue directors of the failed company suspected of wrongful trading was not "the company's property" and so fell outside the liquidator's statutory power to sell such property. He could not therefore validly agree with a third party for them to meet the costs of the s 214 proceedings in return for a share of the proceeds, if any, recovered from the directors. Such an agreement was champertous unless the third party had, independently of the agreement, a bona fide interest in the fruits of the action.

Robert Wright QC (Ingledew Brown Bennison & Garrett) for the third party; Elspeth Talbot Rice (Jay Benning Levine & Pelz) and Robin Dicker (Ashurst Morris Crisp) for the directors.

Magistrates

Canterbury City Council v Ferris; QB Div Ct (Simon Brown LJ, Gage J) 7 Oct 1996.

Magistrates had a discretion, when imposing a fine for continuing failure to abate a nuisance, to impose a lesser fine than the one-tenth of Level 5 on the Standard scale for each day on which an offence continued as laid down by s 80(5) of the Environmental Protection Act 1990, since s 80 did not expressly limit the magistrate's discretion under s 34(1) of the Magistrates' Courts Act 1980 to impose such a lesser fine.

Gregory Dowell (Canterbury City Council) for the appellant; the respondents did not appear.

Sentencing

R v Hodgson; CA (Cr Div) (Bingham LCJ, Blofeld, Cresswell JJ) 17 Oct 1996.

Section 44 of the Criminal Justice Act 1991, which gave the court additional control over sexual offenders, affected both the period which the offender would serve if recalled to prison after release on licence and the period for which he would continue to be supervised after release on licence. In making an order the court's primary considerations were the need to protect the public from serious harm and the desirability of preventing offenders committing further offences and securing their rehabilitation.

Nicholas Hilliard (CPS) for the Attorney-General; Thomas Easton (Jacobi & Co, Ellesmere Port) for the offender.

Tax

R v Revenue Adjudicator's Office, ex p Drummond; QBD (Turner J) 6 August 1996.

The Revenue Adjudicator's Office was entitled to refuse a taxpayer access to a letter about his affairs which had been sent in by an informant. Although the taxpayer's affairs had been investigated, it had not been as a result only of the letter but also of other information. The allegations had only been used to indicate lines of inquiry which were independently pursued. It was necessary that confidential sources of information were protected.

The taxpayer in person; the Revenue did not appear.