Showing papers in "Cambridge Law Journal in 2002"

The Constitutional Foundations of Judicial Review: Conceptual Conundrum or Interpretative Inquiry?

Abstract: T HE essay questions the sense and purpose of current debate over the coherence of the ultra vires doctrine. It argues that the dispute is mainly semantic, serving to conceal rather than illuminate genuine questions about the nature and legitimacy of judicial review. If the doctrine’s opponents are right to emphasise the common law basis of the relevant standards of legality, abstractly conceived, the ultra vires school is equally right to insist that, in a statutory context, legislative intention is critical to the application of such standards. To connect the present debate with significant issues of substance, it would have to be recast as one between those favouring a “normativist” grounding of judicial review in the rule of law, on the one hand, and their “functionalist” or “pluralist” opponents, generally hostile to judicial review, on the other. The futility of the present debate is revealed by the simultaneous adherence of both sides to an integrated “rule of law” perspective. A useful analysis of the foundations of judicial review, capable of illuminating issues of substance, must explore the true meaning of the interrelated concepts of parliamentary sovereignty and the rule of law. No attack on the “empty formalism” of the ultra vires doctrine can carry conviction while at the same time affirming the doctrine of absolute parliamentary sovereignty, a doctrine equally malleable in the hands of judicial interpreters of statute, guided by common law precepts.

The relevance of bad character

Abstract: An important rule of criminal evidence is that evidence of a defendant’s previous misconduct (evidence of bad character) is prima facie inadmissible. The usual justification for this rule is that, in most cases, such evidence is either irrelevant or likely to have an unduly prejudicial effect on the fact-finder. This article questions this justification. After reviewing the psychological research on character, it examines statistical data on recidivism. The statistics suggest that those with previous convictions are much more likely to offend than are those without a criminal record, which implies that evidence of bad character will usually be sufficiently probative to justify its admission as proof of guilt. The remainder of the article examines various criticisms which can be levelled at this argument, in particular, that the recidivism data are misleading and that the way in which fact-finders reason renders evidence of bad character uninformative.

Mingling the waters

Abstract: Views about the nature and extent of the “fusion” effected by the Judicature Acts frequently focus narrowly on those cases which determined the doctrinal position, with insufficient regard for the accompanying changes to practice, procedure and structures. This article examines the means by which the promoters of the legislation and other interested parties sought to promote or restrain its formidable fusionist potential. It explores the use of cross-jurisdictional appointments to infuse equity into the common law divisions; the successive changes to the membership and working arrangements of the court of appeal; and the short-lived experiment of sending Chancery and appellate judges on circuit. It suggests that a more detailed examination of the effect of these structures and the role of individual judges of the Supreme Court of Judicature in its formative years is needed for a full understanding of the limited fusion that emerged.

Digging the dirt: disclosure of records in sexual assault cases

Abstract: The disclosure of confidential records such as those of doctors, counsellors, and therapists may be sought by the defence as a means of undermining the credibility of complainants in rape and sexual assault trials. It is not clear that the procedure under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965, under which disclosure of the records of third parties may be sought, offers sufficient protection for the interests of complainants. This article discusses the weaknesses of section 2 and the implications of public interest immunity as well as Article 8 of the ECHR in this context. It also explores the different approaches taken in Canada, New South Wales and certain American jurisdictions to meet this problem. It concludes by making some suggestions for the amendment of the 1965 Act.

Does Sex Matter

Abstract: Are sex or gender crucial components of modern marriage? In Bellinger v Bellinger [2001] EWCA Civ 1140, [2001] 2 FLR 1048, the Court of Appeal returned to the question of the relevance of biological sex to the validity of marriage, first considered thirty years ago by Ormrod J in Corbett v Corbett (otherwise Ashley) [1971] P 83 Both cases involved male-to-female transsexuals who had undergone gender reassignment surgery but in Bellinger, Mrs Bellinger sought a declaration under section 55 of the Family Law Act 1986 that her marriage to Mr Bellinger was valid at its inception and still subsisting (unlike Corbett, which involved a nullity petition) The Court, by a majority, upheld the decision of Johnson J refusing the declaration

Reconceptualising the express trust

Abstract: This article argues that the express trust should be understood as a species of obligation rather than as a means of organising the ownership of property. Two propositions seem fundamental to the traditional understanding of the trust as an aspect of property law. Firstly, in the nature of the trust, there must be a separation of legal and beneficial ownership. Secondly, there must be trust property. Neither is necessarily true. With many discretionary trusts and other recognised types of express trust it is impossible to locate the beneficial estate. Furthermore, the requirement for there to be trust property is, on closer analysis, a requirement of certainty of obligation in relation to specific subject-matter within which the trust property can be located. The article explores the implications of understanding the trust as a species of obligation. It allows all express trusts, including charitable trusts, to be explained as resting on the same fundamental concepts. The trust in the common law world may still be distinguished from contract and from the civil law forms of the trust. This new conceptualisation also illuminates what is the irreducible core content of the trust. The article concludes with a new definition of the express trust.

Physical damage in negligence

Abstract: Being an action on the case, it has long been supposed that negligence is consummated only upon the occurrence of damage. Physical damage ordinarily occurs where there is some change in the state or structure of a person’s body, or where there is some change in the state or structure of tangible property. The author argues that courts have, in recent wrongful conception and contamination cases, widened the orthodox notion of what constitutes physical damage. The courts have employed an ordinary bystander test in order to determine whether particular failures of care, arising in circumstances of high or unnecessary risk of physical harm, should be treated as if they give rise to physical damage. These are cases of a new form of actionable damage, that is, damage of a socially constructed kind.

Voluntary euthanasia and the logical slippery slope argument.

Abstract: In his recent book “Euthanasia, Ethics, and Public Policy”, John Keown puts forward two slippery slope arguments against the legalisation of voluntary euthanasia. One of these arguments claims that a defender of voluntary euthanasia is logically committed to the permissibility of non-voluntary euthanasia. This paper seeks to show that Keown’s argument either rests on a logical confusion or on a misunderstanding of the value of autonomy.

A Case for the Abolition of Legal Compulsion as a Ground of Restitution

Abstract: Where two parties are liable in respect of the same obligation and one party discharges the obligation, he may be able to recover some or all of his outlay from the other. This article addresses the rationale underlying the relief granted in such circumstances. While restitution theorists tend to emphasise the claimant’s lack of choice, it is argued that this focus is misleading. Moreover, using unjust enrichment to explain relief is unnecessary and inaccurate. An alternative explanation is put forward, which derives support from the case law on contribution—that relief aims to ensure equitable distribution of the burden of liability.

Vandervell v. I.R.C.. A Case of Overreaching

Abstract: The decision of the House of Lords in Vandervell v. IRC [1967] 2 AC 291 is difficult to explain but highly convenient in everyday commerce. This article uses the doctrine of overreaching to explain and justify their Lordships’ approach to the formalities for dealing with trust property at the direction of beneficiaries. It seeks to explore the limits of that justification, and thereby suggest answers to practical questions left unresolved by the decision. These questions remain highly relevant, particularly in the age of widespread electronic communication without formality.

'Clean hands' in derivative actions

Abstract: This article challenges the commonly expressed view that shareholders wishing to bring a derivative action on behalf of the company must have 'clean hands' i.e. that there must be nothing in the shareholders behaviour which renders it unjust to allow the derivative action to proceed. While minority shareholders' misbehaviour might well have consequences for themselves, such as requiring the repayment of dividends known to have been paid unlawfully, those actions ought, in the normal course of events, to be irrelevant for the purpose of deciding whether to allow a derivative action to proceed. This article suggests some circumstances in which a minority shareholder's situation or actions may affect the decision to allow a derivative action brought by that particular shareholder to proceed, but these do not spring from the clean hands doctrine, but rather from the particular factual circumstances of the case or from an entirely proper desire on the court's part to use the derivative action only where it is necessary to achieve justice for the company.

Fraud and letters of credit: is there a nullity exception?

Abstract: Despite the absence of fraud on the part of the beneficiary of a letter of credit, is the issuing or confirming bank entitled to refuse to pay the beneficiary on the ground that a tendered document is a “nullity” in the sense that it was forged by a third party or has been executed without the authority of the person by whom it purports to be issued?

A better way of convicting businesses of avoidable deaths and injuries

Abstract: THE offence of manslaughter, in any of its various forms, has few friendsxcept among those reformers (including our Law Commission1) who believe that fewer lives would be lost, and fewer injuries sustained, in calamities on public transport, in the workplace, and in the course of supplying goods and services, if it were made easier to invoke the emotionally charged and highly symbolic legal procedure of trial by jury against the corporate body whose undertaking, workplace, or business occasioned the tragedy, and to convict it, as well as the individuals responsible, of the crime of manslaughter by gross negligence or of an offence, closely modelled on it, to be called "corporate killing". It is impossible to know whether the reformers' belief is warranted. But both the number and the circumstances of such deaths and injuries occurring each year is truly shocking,2 and no possible means of preventing any of them should be neglected. Moreover, there can be little doubt that some, at least, among the families and friends of those killed, or who were themselves injured, would find some solace in a formal legal inquiry and adjudication, such as a criminal trial provides, as to whether the deaths or injuries were the avoidable consequences of contravening the law. And justice to those within a business with responsibility for the observance of safety regulations requires that they should be given the opportunity to argue that the death or injury would have occurred anyway. If judges (the magistrates having declined jurisdiction) are to reflect, as they are now expected to do,3 the loss of life or the injuries suffered in the fines they impose, they should be doing so with, rather than withoutS the benefit of verdicts which attest to them.

“All for One and One for All”: The Rise to Prominence of the Composite Judgment within the Civil Division of the Court of Appeal

Abstract: This paper chronicles the very recent rise to prominence of the composite judgment, showing that at least one in seven decisions of the Civil Division of the Court of Appeal is now delivered in the form of an agreed, collective judgment of the court. In effect, English courts have quietly espoused something resembling a civilian judicial procedure. The article considers when appellate courts have tended to have recourse to this device and how they allocate responsibilities for drafting composite judgments, and concludes with reflections on some of the consequences that could flow from widespread adoption of this new appellate device. A subsequent paper will explore further the philosophical and comparative ramifications of this significant shift in English judicial method.

A British Republic

Abstract: Arguments are generated in an ad hoc way about the continuation of the monarchy. Such media-led arguments are no substitute for a rational analysis of constitutional issues, although of course public opinion has an important part to play in the future of any constitutional institution. At present there is not even a basic framework against which any such reasoned analysis could begin. While a case against the British monarchy has been constructed by several people, the silence of constitutional lawyers on the central issue of monarchy or republic is surprising, for what is that issue if not one concerning a central part of the constitution, and, indeed, a very pervasive one? The author,a constitutional lawyer, examines the constitutional arguments and implications about the alternatives of monarchy or republic in the United Kingdom and attempts to make clear which matters would require decision if the United Kingdom were to opt for republicanism. He demonstrates that a change to a British republic would require the resolution of many interrelated issues. Even the answer to the apparently simple question of principle of whether a monarchy or a republic is preferred may turn on the type of republic which was on offer. Conversion to a republic would involve wide and deep changes to much of the constitution because of the legal peculiarities of the ancient British monarchy. These are not insoluble difficulties, but they do mean that the abolition of the monarchy would be an intellectually challenging exercise.

Judicial sovereignty and the Human Rights Act 1998

Abstract: Section 3(1) Human Rights Act 1998 appears to limit the powers of the court; statutes can only be interpreted in a manner compatible with Convention rights ‘so far as possible’. However, in practice, Parliament has given the judiciary carte blanche to determine when it is impossible to interpret statutes in a manner compatible with Convention rights. The express words of section 3(1) are so vague as to provide no clear outline of the limits of possibility. Nor does the legislative history of the Act provide any clear boundary. Should the judiciary so wish, section 3(1) could have the same effect in practice as if it impliedly repealed the provisions of all statutes contrary to Convention rights. It is the judiciary and not Parliament that determine how far human rights will be protected.

Commercial Expectations and the Rome Convention

Abstract: Which law governs a contract where none has been chosen by the parties? The solution lies in Articles 3 and 4 of the 1980 Rome Convention on the Law Applicable to Contractual Obligations. Article 3 allows a court to infer the parties’ intentions from the circumstances. But such intentions must be “real”, not presumed, and in the absence of genuine consent, Article 4 provides that the applicable law is that most closely connected with the contract. Under Article 4(2) this is (in effect) the law in force where the supplier of goods or services is located, or (if relevant) has a branch—for the supplier’s performance is invariably “characteristic” of a contract, in the sense intended by the Convention. But any clarity thereby won is immediately lost because the presumption is rebuttable under Article 4(5) whenever a contract is better connected with another law, exposing Article 4(2) to the risk of constant challenge. The presumption is especially vulnerable because it will so seldom be appropriate to apply the supplier’s law, the law of the place of performance frequently having a stronger claim to govern. Perplexingly, it is a presumption more apt to be rebutted than applied.

Dishonest assistance: guilty conduct or a guilty mind?

Abstract: Chancery lawyers have for many years awaited a definitive House of Lords ruling on the mental element required to make strangers to a trust liable for knowing or dishonest assistance in a breach of trust, and for knowing receipt of trust property. The appeal in Twinsectra Ltd. v. Yardley [2002] UKHL 12, [2002] 2 All E.R. 377 provided the opportunity for resolution of the issue in the former case but not the latter; the degree of knowledge required for a knowing receipt claim remains for final determination on another occasion.

Making It More Likely v. Making It Happen

Abstract: When the gods looked down and spied lusty Ares entangled with lovely Aphrodite in the net which her grimy husband used to entrap them, there arose on Mount Olympus “unquenchable laughter”—in Homer’s words “asbestos gelos”. In the modern world, however, asbestos is no laughing matter: inhale the fibres of that mineral wool and you may contract asbestosis, a debilitating lung disease, or, as was discovered 30 years later, mesothelioma, a fatal cancer. Asbestosis is cumulative—you get worse the more you inhale—so that everyone who culpably fails to protect you contributes to your ultimate condition. Mesothelioma is quite different, for it is most likely caused by a single fibre: of course the more you inhale, the greater the risk of getting that fatal fibre, but until you get it, exposure makes you no more likely to get it, and once you have got it, you are a dead man, and further exposure makes no difference. Thus if you get mesothelioma after being exposed to fibres in six successive employments, each employer has contributed to the risk of your getting the disease, but the disease itself is due to only one of them. To ascertain in which employment the fatal fibre struck is, however, quite impossible and will likely remain so whatever advances are made in medical science, since the symptoms take up to forty years to manifest themselves, and before then no one can tell whether, much less when, the victim has been hit.

Policing in a Changing Constitutional Order . By N EIL W ALKER . [London: Sweet & Maxwell. 2000. xxiii, 297 (Bibliography) 25 and (Index) 24 pp. Paperback. £34.95 net. ISBN 0–421–63370–0.]

Abstract: T his book rests on what may well seem to most lawyers to be a self-evident truth: that “[a]ll policing systems are profoundly influenced by the constitutional order in which they are situated” (p. 1). But the author states that for many, particularly sociologists, this would be a debatable or false proposition. These would consider either that “occupational culture [was] the primary determinant of police behaviour” or would at any rate stress the discrepancy between the “legal ideal and profane reality” (p. 1, footnote 1). These latter propositions appear to be as self-evident as the first one: we live in a fallen world and so there will always be a gap between “legal ideal and profane reality” and who can doubt that police culture influences police behaviour.

Intellectual property: jurisdiction or choice of law?

Abstract: LADDIE J. said, in Fort Dodge Ltd. v. Akzo Nobel N. V., "Intellectual property litigation in general and patent litigation in particular in Europe is in a state of some disarray''1 and again, in Coin Controls Ltd. v. Suzo International ( UK) Ltd., he confessed that "I cannot pretend to be happy that the consequences for intellectual property litigation have been thought through properly in the [Brussels] Convention."2 When the question came up for the first time3 in an Australian case: Potter v. Broken Hilln4 involving an action in Victoria for the infringement of a New South Wales patent, the Australian Supreme Court confirmed the judgment of the court below that only the courts of the place where the patent had been granted had jurisdiction to adjudicate this issue. The court relied on the decision of the House of Lords in British South Africa Co. v. Cia de Mocambiques where in relation to an action for trespass to land in South Africa jurisdiction was held to be exclusively local and

Courage v. crehan: judicial activism or consistent approach ?

Abstract: In Case C-453/99 Courage Ltd. v. Crehan (judgment of 20 September 2001, not yet reported), the European Court of Justice has been confronted once more with the difficult task of reconciling the effectiveness of Community rights with national rules on remedies. By virtue of a series of agreements between Inntrepreneur Estates Ltd. (IEL), a company which owned public house estates, and Courage Ltd., a brewery with a 19% share of the United Kingdom market in sales of beer, all IEL tenants were required to purchase the whole of their beer requirements exclusively from Courage Ltd. In 1993, Courage Ltd. brought an action for the recovery from Mr. Crehan, a tenant of IEL, of a sum of more than £15,000 for unpaid deliveries of beer. Mr. Crehan contended that the exclusive purchasing obligation was anti-competitive because Courage Ltd. sold its beers to independent tenants of public houses at substantially lower prices than those imposed on IEL tenants. He claimed that the beer tie was therefore contrary to Article 81(1) EC and sought damages for loss caused to him by the imposition of the beer tie. Carnwath J. dismissed the counter-claim and found in favour of Courage Ltd. (Courage Ltd. v. Crehan [1998] E.G.C.S. 171). Mr. Crehan appealed.

Assisted Suicide and Personal Autonomy

Abstract: The European Court of Human Rights recently confirmed that the exceptionless prohibition of assisted suicide under section 2(1) of the Suicide Act 1961, which had been unsuccessfully challenged by the applicant in the House of Lords because of its effects on persons physically unable to commit suicide unassisted by another (R. (Pretty) v. DPP, [2001] UKHL 61, [2001] 3 W.L.R. 1598, noted by Keown (2002) 61 C.L.J. 8), is compatible with the United Kingdom’s obligations towards the applicant under the European Convention on Human Rights: Pretty v. United Kingdom, judgment of 29 April 2002. As she had before the House of Lords, Mrs. Pretty put forward arguments under Articles 2, 3, 8, 9 and 14 of the Convention. Important differences between the decisions of the European Court of Human Rights and the House of Lords emerged only in the assessment of the merits of Mrs. Pretty’s case with regard to Article 8 and Article 14.

Evolution or Revolution? Unfair Terms in Consumer Contracts

Abstract: Director General of Fair Trading v. First National Bank plc [2001] 1 UKHL 52, [2001] 3 W.L.R. 1297 marks the beginning of an evolution in the common law of contract. The House of Lords considered for the first time whether a contractual term was an unfair term under the Unfair Terms in Consumer Contracts Regulations 1994, S.I. 1994/3159 (which implemented Council Directive (EEC) 93/13, now implemented by the Unfair Terms in Consumer Contracts Regulations 1999, S.I. 1999/2083). The case arose when the Director General sought injunctive relief, pursuant to regulation 8(2), to restrain the use of a contractual term.

Rescission of guarantees for misrepresentation and actionable non-disclosure

Abstract: It has been a traditional requirement of rescission (ab initio), even as a response to fraudulent misrepresentation, that it must be possible to restore both parties to the relevant contract to some equivalence of their pre-contract positions. A line of cases involving rescission of guarantees has, however, permitted a surety to be entirely released from the guarantee even though the creditor has relied on it by supplying credit to the principal debtor. The suggested rationalisation is that the traditional requirement is confined to cases where rescission in specie is being sought and the innocent party can be adequately protected by a claim for damages. The article also addresses the relevance to rescission of the restitutionary concepts of change or position and counter-restitution.

Foreign Law Inspiring National Law: Lessons from Greatorex v. Greatorex

Abstract: The author focuses on the voluntary use by judge or counsel of foreign law and foreign legal ideas as a means of shaping national law when this is unclear, contradictory, or otherwise in need of reform, as distinct from the formal presentatin of foreign law through expert witnesses where such law has to be applied. The number of instances in which this kind of borrowing may happen must, of necessity, be limited. The problem is that foreign law is unlikely to come in a simple form, attractively packaged; and language is a major problem in judicial attempts to be inspired by a foreign idea if not to transplant the actual solution. This has led the author to advocate a more co-ordinated use of the different talents that judges, practitioners, and academics bring to the process of creating and interpreting law and to assist the process by provision, in the English language, of easily accessible accounts of relevant foreign material. The approach finds an excellent practical illustration in the judgment of the High Court in Greatorex v. Greatorex.

Controlling Contractual Discretion

Abstract: In 1993 Leggatt L.J. said in Abu Dhabi National Tanker Co. v. Product Star Shipping Ltd. (The Product Star) [1993] 1 Lloyds Rep. 397, 404: Where A and B contract with each other to confer a discretion on A, that does not render B subject to A’s uninhibited whim. In my judgment, the authorities show that not only must the discretion be exercised honestly and in good faith, but, having regard to the provisions of the contract by which it is conferred, it must not be exercised arbitrarily, capriciously or unreasonably.

Professional privilege and the tax man

Abstract: R. (on the application of Morgan Grenfell & Co. Ltd.) v. Special Commissioner of Income Tax [2002] UKHL 21, [2002] 3 All E.R. 1 is an exercise in statutory interpretation in which different courts came to diametrically opposite views. The Revenue were trying to decide how MG, the taxpayer, should be assessed in relation to certain transactions and so asked MG to supply certain documents. MG declined, in part because these documents consisted of advice which MG had obtained from leading counsel and solicitors about whether the scheme behind the transactions would work; so the issue was the scope and nature of legal professional privilege (“LPP”). The Revenue asked for—and obtained—the consent of the Presiding Special Commissioner (His Honour Stephen Oliver Q.C.) for the issue of a notice by them to MG under Taxes Management Act 1970, s. 20(1), which allows an inspector by notice in writing “to require a person to deliver to him such documents as are in the person’s possession or power and which … contains information relevant to any tax liability of that person”. MG applied for judicial review to quash the notice, failing before the Divisional Court ([2000] S.T.C. 965, Buxton L.J. and Penry-Davey J.) and the Court of Appeal ([2001] EWCA 329, [2001] S.T.C. 497, Schiemann, Sedley L.JJ. and Blackburne J.), so that all six judges were for the Revenue; MG must therefore have been both delighted and perhaps surprised when a unanimous House of Lords, led by Lord Hoffmann, decided in its favour.