Family lawBy David Burrows, David Burrows, BristolAn admission bites back parasitic upon ancillary reliefFirst National Bank plc v Walker and another (2001) The Times, 13 February, CAOne of the...An admission bites back parasitic upon ancillary reliefFirst National Bank plc v Walker and another (2001) The Times, 13 February, CAOne of the more difficult aspects of the ancillary relief jurisdiction for judges (I suspect), and for the parties and their advisers alike, is how to deal with yet-to-be-concluded litigation.

Especially where as so often it is the outcome of that litigation is impossible to predict.

For the adviser, it is vitally important not to give hostages to fortune in the ancillary relief litigation which may help to determine the separate, yet-to-be decided, case.In First National Bank plc v Walker and anor (2001) The Times, 13 February, the Court of Appeal considered this question in the context of ancillary relief proceedings and a claim by a wife (W) that she had signed a mortgage as a result of the undue influence of her husband (H), with the consequence, she said, that the bank was fixed with notice of this (per Barclays Bank v OBrien [1994] 1 FLR 1, HL).

In ancillary relief proceedings she obtained an order for transfer of the house to her; but she then executed a conveyance of her and her husbands interest to herself in which she expressly accepted her liability to the bank.On the banks appeal against a judges holding that W was not seeking inconsistent remedies, Sir Andrew Morritt VC held that the claim to set aside the banks loan was parasitic upon the ancillary relief proceedings; and therefore the court must consider first the position between H and W before considering Ws relationship with the bank.

By acknowledging the existence of the further loan in the conveyance to her she was acknowledging that it was not voidable at her instance.

Furthermore, she had pursued her claim for ancillary relief on the basis that the loan existed; and the Vice-Chancellor assumed that, because a defence to the banks action was served a week after the ancillary relief order, then Ws solicitors were aware that she had a defence to the banks claim.Thus, said the court, she should at least have told the ancillary relief court of her defence (Livesey (formerly Jenkins) v Jenkins [1985] AC 424); and, as she did not, she should not be surprised if another court precluded her defence to the banks proceedings.

From this tale the following lessons may be learned: first, always disclose, whatever the nature of the information; and be ever wary of admissions: they always bind (subject to principles similar to Edgar v Edgar (1981) FLR 19, CA); and they can bite back in unexpected places.Freeing application: duty to contact extended family?Re R (a Child) (Adoption: duty to investigate)(2001) The Times, 13 February, Holman JNo statutory provision, or anything in the European Convention of Human Rights, imposed upon a local authority or guardian ad litem an absolute duty to investigate a mothers family as potential carers where the local authority were considering freeing a child for adoption.

In Re R (a Child) (Adoption: duty to investigate) (2001) The Times, 13 February,Mr Justice Holman so held when trying the preliminary issue on application by the guardian of a very young child whose mother said that to contact her family could create extreme difficulties.

To do so in this case would not confer any benefit on the child; and while there might be a positive obligation on the state (Marckx v Belgium [1979] Series a No 31) that had to be qualified by respect for the wishes and private life of the mother herself.

The extended family should not always be ignored solely on the wishes of the mother; but only as here after careful consideration of any competing factors.Finite life of a Calderbank offer Scammell and others v Dicker (2001) The Times, 14 February, CAAn offer once made, can always be withdrawn at any time before acceptance even if expressed to remain open for acceptance for 21 days under Civil Procedure Rules 1998 rule 36.6(5) (Scammell and others v Dicker (2001) The Times, 14 February, CA).

This may not be of direct relevance to family lawyers; but it may remind many of us whose job is to the write Calderbank letters, not so much that that these can be withdrawn; but to ask ourselves whether such letters should have a specific shelf-life.

Examples might include: till one week before a hearing; for three months, or two days before the hearing, whichever is the shorter? Without that, what is to stop the offeree from accepting the offer a term of which was no order as to costs on the day before the hearing; by which time all the work save the hearing itself will have been done? (There is an answer to this; but why not include a term, and save yourself the trouble of looking it up in the contract law text books).