Showing papers in "Cambridge Law Journal in 2015"

The availability of proprietary restitution in cases of mistaken payments

Abstract: This article is concerned with the availability of “proprietary restitution” in cases of mistaken payments. It is argued that the mistake of the claimant is an insufficient justification for proprietary restitution, however a close analysis of the case law demonstrates that the presence of additional factors can justify the availability of proprietary restitution in specific circumstances. The basis of proprietary restitution is to be found in the breach of a duty which arises separately from the claim for unjust enrichment. The significant contribution of this article is the analysis that knowledge merely creates a duty to maintain the fund until restitution is made, and that knowledge cannot establish the breach of this duty. Importantly, breach of this duty is established by a second condition which is demonstrated by the wilful misconduct of the recipient. It is this conduct which justifies the imposition of the constructive trust. By adopting this analysis, the proprietary claim in the context of mistaken transfers can be classified as forming part of the law of wrongs, rather than the law of unjust enrichment.

When sexual infidelity triggers murder: examining the impact of homicide law reform on judicial attitudes in sentencing

Abstract: In October 2010, the UK Parliament brought into effect law that replaced the partial defence to murder of provocation with a new partial defence of “loss of control”, applicable to England, Wales, and Northern Ireland. Although it retained some key features of its controversial predecessor, the new partial defence was in part designed better to address the gendered contexts within which a large number of homicides are committed. In examining the impact of the reforms, we will focus on long-held concerns about the treatment of sexual infidelity as a trigger for loss of control in murder cases. The article undertakes an analysis of English case law to evaluate the way in which sexual infidelity-related evidence has influenced perceptions of a homicide defendant's culpability, for the purposes of sentencing, both before and after the implementation of reform. The analysis reveals that, in sentencing offenders post reform, the higher courts have failed to follow the spirit of the reforms respecting the substantive law by effecting a corresponding change in sentencing practice.

Process and substance as aspects of the public law form

Abstract: I argue that process and substance are two aspects of the public law form and that the form conditions the content of the law. The reduction of a political programme to the explicit terms of a statute involves a conversion of policy into public standards, which produces a kind of legal surplus value. It brings into being a particular type of public standard – one that permits the operation of the principles identified by Lon L. Fuller as the desiderata of the inner morality of law, and which enables individual claims of right based on legal principle to be adjudicated.

Custody chains and asset values: why crypto-securities are worth contemplating

Abstract: Computerisation facilitates instantaneous and direct links between all of us in our work and social lives. At the same time, and counterintuitively so, securities are increasingly held indirectly through chains of custodians that operate between issuers and investors. This disconnects investors from issuers and can significantly reduce the value of assets. The regulatory framework does not prevent this effect. UK regulated holders of client securities should be required to hold these directly in the name of the investor. At an international level it is worth asking if the technology underlying bitcoin and other cryptocurrencies can be used to create an un-intermediated securities ledger connecting investors and issuers directly.

Mens rea in joint enterprise: a role for endorsement?

Abstract: This paper argues that the problems commonly associated with the joint enterprise doctrine might be alleviated by supplementing the cognitive mens rea standard of foresight with a volitional element that looks to how the defendant related to the foreseen risk. A re-examination of the case law suggests that a mens rea conception of foresight plus endorsement might be within interpretative reach. The paper considers possible objections to such a development but ultimately rejects them. It concludes that it is not necessary to wait for Parliament to put in place reforms: joint enterprise is a creature of the common law, and the common law is able to tame it unaided.

Liability for independent contractors in contract and tort: duties to ensure that care is taken

Abstract: Liability for independent contractors generally poses few difficulties in the law of contract, whereas in tort it is a vexed question. The difficulties are only compounded by the governing concept: the so-called “non-delegable duty”. This article explains the differences and argues that no easy parallels can be drawn from the contractual position to answer the riddles in tort. Neither does “assumption of responsibility” help. There is undoubtedly a case for recognising vicarious liability for independent contractors when businesses and public bodies alike now outsource so many of their functions. This issue needs to be confronted squarely, not through unconvincing contractual analogies.

“globalising sovereignty”? pettit's neo-republicanism, international law, and international institutions

Abstract: This article explores Philip Pettit's recent attempts to extend his republican theory of justice and legitimacy to the international sphere in accordance with his ideal of “globalised sovereignty”, with a specific focus on his treatment of international law and institutions. It uses the practice of international law and institutions, with examples largely drawn from international economic law, to test the assumptions built into Pettit's theory. It then considers whether and how some of those assumptions might need to be revised in light of the legal, institutional, and practical constraints of the international domain.

The public interest in private nuisance: collectives and communities in tort

Abstract: The relevance of public interests in private law is at the heart of some central divides in tort scholarship. This paper argues that public interests pervade private nuisance cases. The uncertain and contested nature of public interests, and the absence in both the case law and the scholarly literature of an abstract definition of what is to count as a public interest, do not prevent these matters from playing a significant role in tort. In these circumstances, it is important to reflect on how we might set about articulating the public interest. This paper argues that administrative decisions that are intended to serve the public interest can in some cases provide a defensible vision of public interest for the purposes of private law. An examination of the process by which regulatory decisions were reached can provide indicators to assist in identifying and evaluating the strength of claimed public interests.

Benefits for eu citizens: a u-turn by the court of justice?

Abstract: The recent judgment of the Court of Justice of the European Union in the case of Dano (ECLI:EU:C:2014:2358) clarified some important points as regards access to social welfare benefits by EU citizens who move to another Member State. Furthermore, the judgment could have broad implications for any attempts by the UK Government to renegotiate the UK's membership of the EU, which is likely to focus on benefits for EU citizens coming to the UK. This note is an updated and expanded version of my analysis on the EU Law Analysis blog: http://eulawanalysis.blogspot.co.uk/2014/11/benefit-tourism-by-eu-citizens-cjeu.html.

Parliamentary rewards and the evolution of the patent system

Abstract: This article examines the impact on the patent system of rewards for innovation across the eighteenth and early nineteenth centuries During this period, Parliament would regularly grant rewards to inventors, with many of these rewards being set out in legislation This legislation provided Parliament with the opportunity to promote a model of state support for inventors: a model that made public disclosure of the invention a precondition for assistance This had important implications for patent law, in particular, in helping to develop the role of the patent specification and the doctrine of sufficiency of disclosure In this way, the reward system helped establish the framework under which the state would provide support for inventors Simultaneously, however, the reward system created a space in which inventors would have to do more than meet the minimum requirement of public disclosure Rewards allowed the state to distinguish between different classes of inventor and to make special provision for particularly worthy individuals In this way, the reward system recognised the contribution of the “heroic inventor”, whilst leaving the core of the patent system undisturbed

Good faith performance in canadian contract law

Abstract: IN Mellish v Motteux (1792) 170 E.R. 113, 157, Lord Kenyon observed that “in contracts of all kinds, it is of the highest importance that courts of law should compel the observance of honesty and good faith”. This passage echoes a similar statement by Lord Mansfield 25 years earlier in Carter v Boehm (1766) 97 E.R. 1162, 1910. Despite these early statements of principle, the modern common law has been notoriously hostile to the notion that contracting parties are under a general duty of good faith in the performance of their obligations (see W.P. Yee, “Protecting Parties' Reasonable Expectations: A General Principle of Good Faith” (2001) 1 Oxford U. Commonwealth L.J. 195), and there is certainly “no firm line of modern cases to support such an obligation” in English law (see L.E. Trakman and K. Sharma, “The Binding Force of Agreements to Negotiate in Good Faith” [2014] C.L.J. 598). Nevertheless, some recent decisions in Australia, Canada, and England have begun to imply obligations to perform certain types of promises, in certain classes of contracts, in an honest manner, crafting, in the words of Lord Bingham, “piecemeal solutions in response to piecemeal problems” (Interfoto Picture Library v Stiletto Visual Programmes Ltd. [1989] 1 QB 433, 439 (CA)). A recent English example is Yam Seng Pte Ltd. v International Trade Corporation Ltd. [2013] EWHC 111 (QB) in which Leggatt J. found there to be an implied duty of “honesty” and “fidelity to the bargain” in the context of a long-term distribution contract. Importantly, His Lordship emphasised that whether such obligations can be implied is a matter of construction, which involves ascertaining the parties' objective intentions through conventional techniques such as the principle of business efficacy. As implying such obligations depends entirely on the context of each contract (at paras [137]–[143]) there is, at present, no general principle of good faith performance in English contract law, despite some case-by-case recognition (see Mid-Essex Hospital Services N.H.S. Trust v Compass Group UK and Ireland Ltd. [2013] EWCA Civ 200, at [105], [150]).

Taking Economic, Social and Cultural Rights Seriously in International Criminal Law . By Evelyne Schmid [Cambridge: Cambridge University Press, 2015. 359 pp. Hardback £75. ISBN 978-1-107-06396-9.]

Abstract: the view that context matters and legal scholars have a great deal to learn from other disciplines. Law and its institutions do not exist, operate, or evolve in a vacuum. There is some degree of risk, however, in encouraging interdisciplinarity, particularly if comparative constitutionalists begin to dabble in fields outside their expertise. As Koen Lemmens has observed, comparative lawyers have been known to incorporate “bits and pieces” from other established disciplines, such as economics, history, and political science, without having received the necessary training or having a good understanding of those fields (particularly their limitations). Legal comparativists might therefore engage with other disciplines on a superficial – or, even worse, misguided – basis. This risk might be managed by a detailed review of the methodological choices made and the results obtained from experts within the relevant disciplines. A second challenge to Hirschl’s argument is that, by emphasising context and invoking the methodological tools and perspectives of other disciplines to help explain legal phenomena, the quality and rigour of legal analysis in the scholarship might decline in favour of these non-legal fields. Despite these risks, there is much room in the field for a diversity of approaches to flourish and Hirschl’s view of “comparative constitutional studies” set out in Comparative Matters makes a valuable contribution to that end. Its influence is likely to be felt for years to come.

Drifting towards proportionate liability: ethics and pragmatics

Abstract: This article investigates an apparent, convergent shift in common law jurisdictions away from the traditional principle of joint and several liability towards proportionate liability in cases involving multiple wrongdoers, and argues that this is best seen as an unprincipled drift. The shift is often presented by defendants and legislators as a logical extension of the ethics of comparative (contributory) negligence doctrine. Here we deny any ethical connection between the two doctrines. We also suggest that there is no good, generalisable ethical or pragmatic argument in favour of proportionate liability in its own right and caution jurisdictions currently considering reform of the joint and several liability rule against leaping to any such assumption.

The enforceability of arbitration clauses in trusts

Abstract: This article considers the enforceability of arbitration clauses which are included in trust documentation. It focuses on two main questions. The first is whether internal trust disputes are capable of being settled by arbitration. The article offers arguments in favour of the arbitrability of such disputes. It then addresses the question of whether parties to an internal trust dispute can be forced to arbitrate, rather than litigate, where the trust documentation contains an arbitration clause. It is argued that there are real difficulties in the argument that such clauses can be enforced as arbitration agreements, under the ordinary arbitration statutes, but that the court could potentially enforce such a clause under its inherent jurisdiction to control its proceedings.

Responsibility in groups of companies and the future of international human rights and environmental litigation

Abstract: EVER since the establishment of separate legal personality of companies and their limited liability in the nineteenth century, there have been attempts by voluntary and involuntary creditors of the insolvent or dissolved subsidiary to obtain remedies from the parent company. The orthodox view is that the parent company is neither responsible for the acts and omissions of the subsidiary nor liable for its debts. The Court of Appeal in David Thompson v The Renwick Group plc [2014] EWCA Civ 635 confirmed that the exceptions to this orthodoxy apply only in truly exceptional circumstances. As discussed below, the importance of this judgment extends into the realm of international human rights and environmental litigation and has the potential to set back the existing efforts within the European Union to ensure effective judicial remedy for corporate abuses.

Shall i be mother? the prohibition on sex discrimination, the un disability convention, and the right to surrogacy leave under eu law

Abstract: DOES EU law entitle a woman who had her genetic child through surrogacy to paid leave of absence from employment equivalent to maternity leave or adoption leave? That is, in essence, the issue the Court of Justice of the European Union (CJEU) was faced with in Z, C-363/12, EU:C:2014:159 (“Z”), a reference for a preliminary ruling from the Equality Tribunal (Ireland), and in C.D., C-167/12, EU:C:2014:169 (“C.D.”), a reference from the Employment Tribunal, Newcastle upon Tyne (UK). The Opinions in the two cases (by A.G. Wahl, EU:C:2013:604 and A.G. Kokott, EU:C:2013:600, respectively), while reaching opposite conclusions, were both delivered on 26 September 2013, giving the Court the benefit of two well-reasoned analyses on which it could base its deliberations. The judgments of the Grand Chamber, which essentially followed the Opinion of A.G. Wahl, were delivered on 18 March 2014. This note focuses on Z, while referring to C.D. when appropriate.

Protecting inferences of fact in defamation law: fair comment and honest opinion

Abstract: Distinguishing “comment” from allegations of “fact” within the defamation defence of fair comment has long been notoriously difficult. While the defence has recently been replaced by a statutory “honest opinion” defence, the distinction remains highly relevant. There is a real need for judicial determination of the treatment of factual inferences within the defence. In recent years, some judgments have equated “comment” with unverifiable opinions, which would exclude verifiable factual inferences from the defence. This is inconsistent with the defence's aims to protect public reasoning and contrary to its history. We explain how a better approach is possible for English courts.

“Trust Me, I'm A Patient …”: Disclosure Standards And The Patient's Right To Decide

Abstract: A medical practitioner's role as adviser prior to treatment is crucial in providing the basis on which the patient consents to a procedure or not. In Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] A.C. 871, the House of Lords confirmed the applicability of the “Bolam” test, historically the province of treatment cases, to cases concerning the disclosure of risks. By a majority decision, although without a clear ratio, the question of what risks a practitioner should disclose was regarded as matter for clinical judgment. Where a practitioner could demonstrate that he had disclosed an amount of information that was in keeping with the practice of a responsible body of medical opinion, this would defeat a claim in negligence. Lord Bridge provided two exceptions: first where there was a substantial risk of grave adverse consequences, an example of which he gave as the 10% risk of a stroke, and, secondly, where the patient had specifically questioned the practitioner. In both circumstances, the risk ought to be disclosed regardless of settled medical practice. Lord Scarman dissented on the basis that the analytical starting point in disclosure cases was the patient's right to know what risks they would be subjected to; this was not a matter for clinical judgment.

The modern function(s) of the economic torts: reviewing the english, canadian, australian and new zealand positions

Abstract: The economic torts were developed to regulate excessive competitive practice. They had the limited function of stretching existing civil liability where a defendant deliberately inflicted economic harm on a claimant, through the use of an intermediary. However, claimants seek to expand the function of the unlawful means and conspiracy torts so that they can fill “gaps” in existing tort liability, to regulate commercial misbehaviour more generally. In light of this phenomenon, the aim of this article is to analyse the modern approach to these torts in the English, Canadian, Australian, and New Zealand courts.

Killing two birds with one stone? the court of justice's opinion on the eu's accession to the echr

Abstract: ACCESSION to the European Convention on Human Rights (ECHR) has long been on the EU's political agenda. The EU's membership of the ECHR is not only seen as symbolically significant, but is also aimed at filling an important gap in the enforceability of human rights across Europe. At present, the EU cannot be brought before the European Court of Human Rights (ECtHR) and, while all EU Member States are parties to the ECHR, as long as the EU protects fundamental rights to a standard equivalent to that required under the ECHR, Member States cannot be held responsible for alleged violations of the Convention resulting from EU law either (Bosphorus v Ireland (2006) 42 E.H.R.R. 1).

The difficulty of enforcing surrogacy regulations

Abstract: OVER the past 15 years, international surrogacy has grown from a niche practice catering only to a few adventurous couples, to a convenient response to infertility for those who would otherwise be hindered by restrictive national regimes. While the Hague Conference Permanent Bureau continues to debate the desirability, and indeed viability, of an international convention in this area, governments and courts around the world have been confronted by the difficult question of whether to recognise an agreement that takes place legally in another jurisdiction, but which is contrary to their own laws. In this, England is no exception. With approximately 25%. of all surrogacy arrangements now taking place outside its borders, English courts are regularly being asked to confer parenthood on commissioning parents in circumstances in which the statutory requirements have not only not been met, but in some cases flagrantly breached. The latest development in this regard is Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam), where the tension between public policy as evinced in the legislation, and the welfare of the child who will bear the burden of any refusal to recognise parenthood, once again came to a head.

Strasbourg's u-turn on independence as part of an effective investigation under article 2

Abstract: AFTER McCann and Others v the United Kingdom (Application no. 18984/91) (1995) ECHR 31, in which the European Court of Human Rights first read into Article 2 the procedural obligation of effective investigation, Mustafa Tunc and Fecire Tunc (Application no. 24014/05), 14 April 2015, is perhaps one the most interesting decisions on the nature of the obligation to conduct an effective investigation in the Court's recent history. The Court, through its case law, has clarified that, when individuals have been killed by the state or a private party, the Contracting Parties have to undertake an investigation under Article 2, which has to be independent, adequate, prompt, and publicly scrutinised. It has been unclear, however, whether the element of independence had to meet criteria similar to those under Article 6, which guarantees a fair trial, or whether a lower standard was sufficient for an investigation to be considered effective in the context of Article 2. The Strasbourg court went back and forth on the issue (even adopting an absolutist approach in Al-Skeini and Others v the United Kingdom (Application no. 55721/07) (2011) ECHR 1093) and it was not until Mustafa Tunc that the issue of independence under Article 2 was addressed head-on.

Whole-life sentences in the uk: volte-face at the european court of human rights?

Abstract: THE ECtHR has for the second time in three years engaged with the British Government's handling of whole-life prison terms. In Hutchinson v United Kingdom (Application no. 57592/08), Judgment of 3 February 2015, not yet reported, the Fourth Section accepted the authoritativeness of an English court's decision on the meaning of English law relating to the Home Secretary's discretion to reduce a whole-life sentence. It also yielded to national judges on whether this sentence review mechanism complies with the proscription on inhuman and degrading treatment in Article 3 of the ECHR.

Ghosts of genocides past? state responsibility for genocide in the former yugoslavia

Abstract: IN Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), the International Court of Justice (“ICJ” or “Court”) dealt with a claim by Croatia that Serbia was responsible for the commission of genocide against ethnic Croatians in contravention of the Convention on the Prevention and Punishment of the Crime of Genocide (“the Convention”), and with Serbia's counter-claim that Croatia had committed genocide against ethnic Serbs also in breach of the Convention. In its judgment of 3 February 2015, the Court dismissed both the claim and counter-claim. While many of the acts complained of constituted the actus reus of genocide, there was no evidence that they had been perpetrated with the required mens rea, namely the intention to destroy, in whole or in part, the targeted group as such.

Land registration: rectification and purchasers

Abstract: A claims an interest in B's property; C is a purchaser who is unaware of A's claim. This is a typical land law dispute involving two innocent parties (A and C). Registration systems generally set out to protect C – it is thought compelling that purchasers should be able to rely on the register to buy land quickly and risk-free. However, there are some limits to this protection.

The certainty of term requirement in leases: nothing lasts forever

Abstract: This article explains the rule that leases have a certain term from the outset by placing the lease within the wider context of the system of estates in land. There are no perpetual estates in land. However, some uncertain terms risk creating genuinely perpetual estates, conflicting with the nemo dat principle. All leases for uncertain terms cause considerable difficulties if a superior estate comes to an end. The article shows that the common law addressed this difficulty, not entirely consistently, before 1925, but there are still real difficulties in the operation of escheat were uncertain terms to be permitted.

The amended diminished responsibility plea

Abstract: IN R. v Golds [2014] EWCA Crim 748, the Court of Appeal was asked to clarify the meaning of “substantially impaired” in the partial defence of diminished responsibility in murder cases. By virtue of s. 2(1) of the Homicide Act 1957, as amended by the Coroners and Justice Act 2009, s. 52, diminished responsibility is made out where: (1) … D was suffering from an abnormality of mental functioning which –(a) arose from a recognised medical condition,(b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and(c) provides an explanation for D's acts and omissions in doing or being a party to the killing.(1A) Those things are –to understand the nature of D's conduct;to form a rational judgment;to exercise self-control. … The facts in Golds were tragically redolent of many such cases. Golds suffered from schizophrenia, and was said to live in fear of “everything” and to hear voices criticising and tormenting him. His partner (Claire) had registered to become his carer. He stopped taking his medication and his condition got steadily worse. On the fateful day, according to other witnesses, there was a difficult meeting with Claire and her family, and Golds later assaulted Claire at their home. Claire told Golds to leave, and they argued further over a bank card. Golds himself did not remember what happened next, but he fetched a knife and said that he would kill Claire, which he did (22 separate knife wounds were found on her body). When the police arrived, he said that Claire “had Satan in her eyes”.

Judicial review at the crossroads

Abstract: IN R. (Moseley) v Haringey LBC [2014] 1 W.L.R. 3947, the Supreme Court unanimously upheld a judicial review challenge to the legality of a public consultation carried out by the defendant pursuant to a statutory duty to consult on proposed changes to Council Tax. However, more significant than the outcome is the marked divergence in the reasoning of different Justices. This divergence reflects wider tensions within the field of common law judicial review which have emerged over the last year. In particular, some judges have shown renewed enthusiasm for analysing review cases in terms of “rights”, which may foreshadow a major shift in the nature of review. Common law judicial review is seemingly approaching a crossroads. Which route is taken will have significant implications for the future of the field.

“the choice is cruel”: assisted suicide and charter rights in canada

Abstract: IN a groundbreaking decision, the Supreme Court of Canada in Carter v Canada (Attorney General) 2015 SCC 5 has declared the criminal law measures prohibiting the provision of assistance in dying unconstitutional. In doing so, the Supreme Court unanimously overruled its previous decision ( Rodriguez v British Columbia (Attorney-General) [1993] 3 S.C.R. 519) upholding the blanket prohibition on assisted suicide.