Showing papers in "Modern Law Review in 1991"
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TL;DR: A broader approach was taken in the definition of "dominant influence" for the purposes of s 258(4)(a) in the Companies Act 1985 as discussed by the authors, where the concept of dominant influence has become less a matter of substance over form than of substance and form.
Abstract: formalist model of law, assuming a positivist image of how law ought to operate and a procedural rather than a substantive definition of justice. Resistance to broad catch-all substantive anti-avoidance laws and standards in financial reporting and taxation demonstrates very clearly the discourse of formalism at work. The outcome, in practice, has been compromise. In the Companies Act, the concept of 'dominant influence' has become less a matter of substance over form than of substance and form, restricted in application by specific legal criteria. Its scope has been restricted in both the Seventh Directive and the amended Companies Act 1985. Undertaking A shall not be regarded as having the right to exercise a dominant influence over undertaking B, unless there is a written control contract (authorised by the memorandum or articles and permitted by the law under which it is established) which confers a right to give directions with respect to the operating and financial policies of B, and which B's directors are obliged to comply with whether or not they are for the benefit of B.7' This definition represents a narrowing of the rule. An undertaking will not be regarded as having the right to exercise a dominant influence over another "'unless" it has a right to give directions' and 'the directions are such that the directors are obliged to comply.'72 A broader approach was taken in the definition of 'dominant influence' for the purposes of s 258(4)(a). The phrase 'actually exercises a dominant influence' was deliberately left undefined. Yet, it too was linked in closely with more specific criteria. If an undertaking A does not have a 'participating interest' in undertaking B, the issue of dominant influence does not arise.73 Although the definition in relation to 'participating interest' is very wide,74 it does dilute the substantive concepts of both 'actual dominant influence' and 'managed on a unified basis' and opens the way once again to rulebound avoidance. In both cases where dominant influence is used, therefore, the substantive concept has been narrowed down by associated rules. In professional regulation, the ASC succumbed to pressure for guidance on how a broad substantive standard should be applied, and produced application notes, to be regarded as standard practice, along with definitions of 'actual exercise of dominant influence' and 'managed on a unified basis.' Indeed, the DTI, while insisting on broad legal rules, had nonetheless assumed more detailed guidance would be added by the profession. The broad open rules were not expected to stand alone. In tax, too, there has been a narrowing of the new approach. After the Dawson decision, the Institute of Chartered Accountants of England and Wales (ICAEW) and the Revenue Law Committee met with the Inland Revenue to seek guidance on how the substantive doctrine would be applied. In a subsequent exchange of letters, the Revenue, while retaining the caveat that 'there may be individual cases where ... the Revenue would nonetheless feel obliged to follow the Ramsay and Dawson approach,' agreed particular areas where it would 'not as a rule seek to invoke' the new approach.75 The House of Lords has also retreated from the new approach in more recent cases, notably Craven v White. In short, there has already been a retreat from broad, open, flexible laws and 71 Companies Act 1985, Sched IOA, paras 4(1), 4(2). 72 L Soc ED 50, op cit p 6. 73 Companies Act 1985, s 258(4). 74 A participating interest is an interest held by an undertaking in the shares of another undertaking (including interests convertible into an interest in shares and options to acquire shares) which it holds on a long-term basis for the purpose of securing a contribution to its activities by the exercise of control or influence arising from or related to that interest. A holding of 20 per cent or more of shares is presumed to be a participating interest unless the contrary is shown. Companies Act 1985, s 260. 75 Letter from ICA, 8 July 1985; response from Inland Revenue, 20 September 1985.
218 citations
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TL;DR: In Europe, as in the United States, the resurgence of debate on the diversification of professional practices coincides with an intensified internationalisation of trade as discussed by the authors, as if the lines of demarcation between the spheres of competence of different forms of know-how are called into question as an indirect effect of the opening up of national fiontiers.
Abstract: In Europe, as in the United States, the resurgence of debate on the diversification of professional practices coincides with an intensified internationalisation of trade. It is as if the lines of demarcation between the spheres of competence of different forms of know-how are called into question as an indirect effect of the opening up of national fiontiers. Nonetheless, even if the problem is basically similar, it is taken up very differently on either side of the Atlantic. Europeans pose the problem in terms of multi-disciplinary partnerships (MDPs), whereas North Americans seem only to envisage the possibility of law firm affiliates. Comparative analysis of these debates illustrates Abbott's theses' on the contingent character of the domains over which different kinds of know-how have 'jurisdiction. The impassioned nature of the confrontations over the question of multidisciplinarity is a result of the strategic position of the phenomenon in the competition between different professions for a dominant position within the rapidly expanding international consultancy market. This market, where the rules of the game are still very imprecise, offers ample opportunities for different professions to challenge the distribution of roles resulting from different national histories.2 The immense restructuring process which affects industrial and commercial enterprises has its equivalent in the professional domain.' As with the discovery of colonies in earlier times, the opening up of new markets gives rise to fearsome appetites for power. In this vast game of musical chairs which affects the whole of the professional system, it was the accountants who gave the starting signal, no doubt because they were 'poor relatives' with most to gain from the upheaval. The big audit firms were the instigators of the 'supermarket strategy,'4 by which elite accountants hoped to conquer part of the market and some of the social presige that hitherto had been the privilege of lawyers. As evidence for this ambition, which is one of the strongest motivating forces of their drive to expand, one can cite a text written at the request of those who see themselves as the 'spearhead' of the French accountancy profession and whose practices operate on the Anglo-Saxon model.5 The lawyers responded to
47 citations
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TL;DR: The legal regulation of professional competence is a matter fraught with difficulty as discussed by the authors, and the task of the lawyers is no more than defining clearly what those standards are and then deciding whether they have been complied with in any given case.
Abstract: The legal regulation of standards of professional competence is a matter fraught with difficulty. Few professions welcome attempts by lawyers to pass judgment on the competence of individual members of the profession in the performance of their duties. In most cases, though, there are recognisable professional standards,' and the task of the lawyers is no more than defining clearly what those standards are and then deciding whether they have been complied with in any given case. Consideration of the legal regulation of accounting presents two particular difficulties, which may help to explain why both the case law and the legal literature in this area are so scanty. The first is that relatively few lawyers have much understanding of the principles of accounting, whilst the second is that the accountants themselves have not succeeded in developing a satisfactory conceptual framework for the subject,2 so that the definition of professional standards and objectives against which to measure performance is made much more difficult. It must be recognised at the outset that this difficulty may well be very attractive to accountants and auditors, since one of its effects is to reduce their exposure to legal liability. If lawyers generally do not understand the practices of the profession, then the law can do little other than accept the expert evidence of members of the profession as to what is acceptable practice. Despite this, the task of preparing and auditing company accounts is subject to statutory regulation in the Companies Acts 1985 and 1989. This article looks at that scheme of regulation from the point of view of its central feature, the requirement of a 'true and fair view,' and considers the status of that requirement. A major reason for undertaking this examination at the present time lies in the belief that this area of the law is likely to become increasingly controversial in the future. The great 'merger boom' of the 1980s led to many contested takeovers, in which attention was often focused on the accounts of the target company.3 This in turn has caused the practices of accountants and auditors to come under closer scrutiny. The resulting dissatisfaction with the accountancy profession's attempts to regulate its own affairs culminated in the replacement of the Accounting Standards Committee by the Financial Reporting Council and its subsidiary organ the Accounting Standards Board pursuant to powers contained in the Companies Act 1989. This change, which is more fully considered below,4 may bring about a much greater legal involvement in the process of standard setting,5 though it will
34 citations
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TL;DR: The Speaker's Commission on Active Citizenship as discussed by the authors was established by the Speaker of the House of Commons to consider the encouragement and development of "Active Citizenship" by first defining it, then reviewing existing initiatives, and finally by considering devices for recognising its application.
Abstract: Citizenship, according to Bernard Weatherill, the Speaker of the House of Commons, has to be learned like everything else. Yet schools fail to provide even the most basic instruction, and young people have little idea of their rights and responsibilities as future members of political society. Those who do volunteer and take part in community service at whatever age find hurdles to participation. Hence the Speaker's Commission was established to consider the encouragement and development of 'Active Citizenship' by first defining it, then reviewing existing initiatives, and finally by considering devices for recognising its application. The first task was eased somewhat by appointing to the Commission those who could be expected to know what they were looking for, since the prototype active citizen may have much in common with the man on the Clapham omnibus beloved of lawyers both are more imaginary than real. Educationalists and industrialists made up the majority of the 34 members of the Commission, with the remainder of the group including a couple of bishops and a politician from each of the three main parties (but no apparent token Scot; and many more men than women). 'Active citizenship' is a hybrid concept involving lofty ideals, part Palmerstone (the proud assertion 'civis Britannicus sum' is again to imply protection against injustice and wrong), part Roosevelt New Deal (the essential attribute of citizenship as the ability and willingness to pull one's weight). Knowledge, skills, opportunities and encouragement are all needed to get more of us involved both in political society and also in voluntary work. That Active Citizenship is a Good Thing is taken as self-evident; it enriches giver, recipient, the community and, ultimately, democracy. Gone are the days of Bagehot and disdain and contempt for the lower orders; all are now equal partners in the task of strengthening democracy and community life. For twenty months the Commission contemplated citizenship. It sought guidance and experience from a wide and possibly disparate group of organisations, including the British Institute for International and Comparative Law, the Family Policy Studies Unit and the Prince's Trust. It held meetings and seminars, and undertook research. Its agenda included discussions on the philosophy of citizenship, the constitutional aspects of citizenship, citizenship and caring, the youth service and citizenship, and industry and citizenship. Citizenship was explored, examined, probed and dissected. At the end of the day, though, its recommendations were on the whole more muted than radical, more self-evident commonsense than dramatic iconoclasm. First, civics training should begin in infant school and continue right through until university, with certain occupational groups (including doctors, civil servants, police ofElcers and judges) receiving additional specific training. Second, the law should be made more accessible both by codiifying it and by improving access to it. Third, each citizen should be able to 'live the life of a civilised human being according to the
33 citations
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TL;DR: In this paper, a historical analysis of accounting for business combinations is presented, with a focus on the relationship between accounting and law, and a discussion of the regulatory tension between accountants and men of business.
Abstract: 'Accounts are the one subject of which lawyers are supposed to know nothing.' In both statute and case law, this view has until quite recently been evidenced by a reluctance to set detailed rules for company accounts, and a willingness to leave matters of accounting to accountants and 'men of business.' Where accountants and men of business agree, such a laissez faire attitude is attractive to accountants; any profession seeks to establish its own domain of regulation. The problems start when accountants and men of business disagree. In these circumstances, accountants seeking to enforce their views may find the regulatory power of the accountancy profession weaker than they would wish. A stronger and more effective domain must be entered, that of law. But in appealing to law in order to enforce their views, accountants risk sacrificing autonomy. This inevitably creates tension, and the relationship of accounting and law can therefore be an uneasy one.' These regulatory tensions are explored here in an historical analysis of accounting for business combinations. The problems of accounting for business combinations are representative of those arising where accounting and law interface. These problems do not arise in a vacuum; they are the consequences of the interaction of accounting and law over several decades. In the first section, we outline the alternative methods of accounting for business combinations. We then examine the historical process whereby accounting for business combinations has come to be regulated. This historical examination is in three sections, divided by the major changes in the relevant statute law in the Companies Act (CA) 1948 and CA 1981. The final section of the article draws conclusions from the historical analysis.
33 citations
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TL;DR: The National Health Service and Community Care Act 1990 (hereafter, the 1990 Act) will long be remembered by connoisseurs of ParliamentaIy affairs for the stormy passage of the Bill through the Commons as mentioned in this paper.
Abstract: The National Health Service and Community Care Act 1990 (hereafter, the 1990 Act) will long be remembered by connoisseurs of ParliamentaIy affairs for the stormy passage of the Bill through the Commons. Along the way there was the invocation of 'grave disorder' by the Speaker to suspend a sitting for the first time in over 50 years, the Government's first defeat during the session, and the Health Secretary's abrupt about turn shortly after enactment to delay the implementation of the major community care provisions. The strength of the arguments reflects the fundamental and far-reaching character of the changes introduced by the Act. It is a remarkably comprehensive piece of legislation with its basis in two White Papers Working for Patients (1989, Cm 555)' and Caring for People (1989, Cm 849) and follows a major Ministerial review of the National Health Service. In many ways also it constitutes the outcome of the Government's long-term dialogue with Sir Roy Griffilths it is a direct, if belated response to the 'Griffiths II' Report2 on community care, and builds further on the changes in NHS management set in motion by 'Griffiths I.'3 Given the wide scope of the 1990 Act this note will be necessarily partial and selective in its description of the major provisions and their implications. In a statement in mid-July 1990, the Health Secretary indicated that, with the exception of certain provisions relating to mental illness which would be implemented in April 1991, the major community care provisions would not take effect until 1993. Consequently, our focus will be on those parts of the legislation dealing with the National Health Service, which in themselves amount to the most fundamental reform of the system that has occurred since 1948.4 Baldwin and Houghtons have drawn attention to a discernible retreat from primary legislation in recent years in favour of quasi-legislative and administrative rules. They are concerned that increasing recourse to delegated legislation, or informal rules with a less clear legislative mandate, may have the effect of making law without resort to Parliament and of insulating bureaucracies from review. The 1990 Act is a case par excellence of open-ended legislation: it is drafted in very broad terms and much of the detail will depend on delegated legislation in the form of orders
25 citations
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TL;DR: In this article, it is argued that the decision delivered in that case is wrong in principle, insofar as its allocation of the burden of proof is concerned, and that it would be a far better strategy for a tree-feller to forsake, when appropriate, the statutory permission and rely upon the common law defence of necessity.
Abstract: some evidence to substantiate that defence.23 At the same time, section 60(6) of the Town and Country Planning Act 1971 does not imply that common law defences such as duress and necessity would not be available to a tree-feller. Hence, it would be a far better strategy for a tree-feller to forsake, when appropriate, the statutory permission and rely upon the common law defence of necessity. The fact that this choice between defences of identical substance may have such far-reaching implications reinforces the foregoing critique of Alath. It is not suggested that Alath's outcome necessarily amounts to a miscarriage of justice. Rather, it is submitted that insofar as its allocation of the burden of proof is concerned, the decision delivered in that case is wrong in principle. It is, nevertheless, good news for tree-lovers.
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18 citations
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TL;DR: In this article, the Spanish vessel owners would be compensated for loss if refused registration and the UK government or its Elshing communities or vessel owners could be compensated either by the Spanish government or by Spanish fishing vessels or by the Commission for the loss that arises from the interim injunction or the fishing by Spanish against the UK quota.
Abstract: pending a decision on the substantive issue; the Spanish vessel owners would be compensated for loss if refused registration. If legislation provided UK fishing vessel owners and others who suffer from the unlawful taking of fish in breach of the common fisheries policy with compensation from the owners of the vessels concerned then their interests too would be protected. Instead, under the law as it stands, the local fishing industries of member states, which the quota system is supposed to protect, suffer the loss. In Community law the position seems to be extremely complex and no attempt will be made here to deal with it. That would make another article. But if, as seems likely, there is no right for the UK government or its Elshing communities or vessel owners to be compensated either by the Spanish government, or by the Spanish fishing vessels, or by the Commission for the loss that arises from the interim injunction or the fishing by the Spanish against the UK quota, the common fisheries policy looks pretty empty. Quite apart from any compensation point if the Spanish vessel owners win, they will have driven a coach and horses through this, and indeed any, quota system and this must raise issues as to how fish stocks can be effectively conserved and fishing communities protected at the same time.
17 citations
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TL;DR: In this article, a licensing scheme for regulation of embryo research and infertility treatment is proposed. But the licensing scheme is not suitable for women and requires women to be present during the procedure.
Abstract: Status of human embryo - Human Fertilisation and Embryology Authority (UK) - licensing scheme for regulation of embryo research and infertility treatment - parental status provisions - new abortion...
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TL;DR: Is not a worthie Professor of Law a starr in the firmament of the Commonwealth? Is he not lux a tenebris wheresoever he dwelleth? Is not his house.. an Oracle not only to a Towne or Citty, but to a whole country round about him?' as discussed by the authors.
Abstract: Is not a worthie Professor of Law a starr in the firmament of the Common-wealth? Is he not lux a tenebris wheresoever he dwelleth? Is not his house . . . an Oracle not only to a Towne or Citty, but to a whole country round about him?' ORentimes too, to aggravate the rest, concur many other inconveniences, unthankful friends, decayed friends, bad neighbours, negligent servants [ . . . ] thievish slaves, sly cunning varlets, they break through a thousand bolts, they steal, they eat up, they take the tit-bits; casualties, taxes, mulcts, chargeable offices, vain expenses, entertainments, loss of stock, enmities, emulations, frequent invitations, losses, suretyship, sickness, death of friends, and that which is the gulf of all, improvidence, ill husbandry, disorder and confusion, by which means they are drenched on a sudden in their estates, and at unawares precipitated insensibly into an inextricable labyrinth of debts, cares, woes, want, grief, discontent, and melancholy itself.2
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TL;DR: The Audit Commission for Local Authorities in England and Wales was established by Part III of the Local Government Finance Act 1982 ('the 1982 Act') to take overall responsibility for the audit of local government.
Abstract: The Audit Commission for Local Authorities in England and Wales was established by Part III of the Local Government Finance Act 1982 ('the 1982 Act') to take overall responsibility for the audit of local government.' It was created with the twin objectives of emphasising the independence of the audit process and promoting greater value for money in local authority spending, the government being of the view that 'improving public sector efficiency is still in large measure a matter of improving scrutiny, monitoring and management within the context of existing institutions. 2
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TL;DR: In this paper, it is argued that a refusal to accept a live-saving blood transfusion is not sufficient in itself to be the legal cause of death, even if it is unforeseen and not reasonably foreseeable.
Abstract: What happened between 1983 and 1989 to occasion this turnaround in the fortunes of the criminal law's conception of causation? The answer is nothing, and the argument of this paper will be that Williams' assessment of the position is much closer to the mark than that of the Law Commission. As a result, the Law Commission's own recent analysis, in restating the common law, only succeeds in replicating its confusions.4 To take the discussion of the refusal of a live-saving blood transfusion one of two crucial examples on supervening causeS the Commission's argument does not properly support the conclusion advanced, that an original assailant has caused ensuing death. It is argued that the refusal is not sufficient in itself to be the legal cause of death, even if it is unforeseen and not reasonably foreseeable.6 While it is obvious that a refusal to accept blood can only form part of a causal sequence leading to death where some prior act has occasioned a serious condition of bleeding, so that the refusal by itself can never be the sufficient cause of death, this is an observation concerningfactual,7 not legal, causation, and does not address the question of whether the causation is to be imputed to the accused in law. What if the victim refused the transfusion out of spite for the accused? Would the Law Commission still maintain that the assailant had caused the death, given that the wound would remain a necessary condition, and the refusal could still not be said to be sufficient to cause death? Some indication of what might be the relevant means for breaking the factual chain of causation in such a case is necessary in order to distinguish, for example, the religious from the spiteful victim, but the Law Commission do not provide it.8
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TL;DR: In this article, it was pointed out that reliance by someone other than the plaintiff as a factor sufficient to establish the required proximity was prepal-ed to contemplate reliance by another party.
Abstract: the design is clear. As argued above,70 Murphy involved reliance by ABC Homes on the local authority and their independent contractor whereas it is quite clear that the majority in the Australian decision regarded the absence of any kind of reliance in the case before them as crucial. Indeed at one point,7l Deane J indicates that the result Inight have been different if the plaintiffs' predecessor in title had relied on the local authority. Deane J was thus prepal-ed to contemplate reliance by someone other than the plaintiff as a factor sufficient to establish the required proximity.
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TL;DR: The use of accounting numbers as a basis for economic contracting between corporate entities and related interest groups can be traced back to the development of an underpinning conceptual framework, as in the USA.
Abstract: The numbers reported in corporate financial statements are attributed particular meanings that have evolved to become 'generally accepted,' perhaps to the extent of having been further legitimised by the development of an underpinning conceptual framework, as in the USA Whether they have received the support of a formal conceptual framework or not, we can observe pervasive evidence that accounting numbers are perceived to have sufficient credibility to be suitable to act as a basis for economic contracting between corporate entities and related interest groups Thus, for example, widespread use is made of accounting numbers in debt covenants, structuring management compensation plans, collective wage negotiations and in the calculation of corporate tax liabilities Regulatory bodies also rely heavily on accounting numbers as controls over regulatees, for example, the regulation of financial firms' capital adequacy requirements The UK Stock Exchange also imposes various constraints on listed firms such as requiring the disclosure in the directors' report of contracts of significance (Class 1 transactions), defined as contracts which represent in value a sum equal to one per cent or more of a company's net assets for a capital transaction Again accounting numbers, in this case the total assets minus total liabilities or net worth (ie the equity of a firm), assume a pivotal role Apart from regulatory controls of various statutory bodies, companies are constituted within the framework of company law At one level the law can be thought of as effectively serving as an alternative, more fundamental, control over the activities of business enterprises, providing a broad framework of 'generally acceptable and unacceptable actions which, in the absence of the law, would be extremely costly and hence inefficient to permit or restrict through private contracting arrangements Accounting numbers play an important role in company law, not just because their disclosure and audit is usually mandated, but also because of their function in the protection of creditors Of particular importance are the definitions of equity, creditors (debt) and distributable reserves In the UK, companies are in general restricted to distributing realised profits (less accumulated losses) only Additional restrictions are imposed on investment companies (that require assets to be at least 150% of liabilities) and on insurance companies The law of insolvency also hinges crucially on accounting numbers to define the insolvency event and hence the situations under which directors face penal sanctions Elsewhere creditor protection provisions vary in detail but still relate to accounting statements For example, in the USA the Revised Model Business Corporation Act 1984 permits distributions as long as a corporation is able to pay its debts as they fall due and as long as its total assets exceed total liabilities, where valuations might be based on generally accepted accounting principles or fair valuation or some other method that is reasonable in the circumstances State law adoption of these restrictions on distributions varies, with some states having more restrictions consisting of, for example, constraints on dividends being paid out of retained earnings and other
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TL;DR: A few months after the resignation of Harold Wilson in 1976 Tony Benn noted in his diary the remarkable transformation which had taken place in the former Prime Minister. He wrote: 'Wilson has just disappeared from sight. Once his patronage has gone, there's nothing left.' No one could make a similar assessment of Mrs Margaret Thatcher as discussed by the authors.
Abstract: A few months after the resignation of Harold Wilson in 1976 Tony Benn noted in his diary the remarkable transformation which had taken place in the former Prime Minister. He wrote: 'Wilson has just disappeared from sight. Once his patronage has gone, there's nothing left. Nobody thinks about him any more." No one could make a similar assessment of Mrs Margaret Thatcher, who was on several tests an outstanding Prime Minister who has left a considerable political mark. My purpose is, however, not to assess all aspects of her premiership. Rather, it is to analyse the circumstances of her departure and a number of constitutional issues which were thrown up by it, and then to evaluate the constitutional legacy which she has bequeathed. My thesis is that, for constitutional lawyers at any rate, Mrs Thatcher will be reInembered as much for the manner of her overthrow as for her few lasting effects on the British constitution.
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TL;DR: In this paper, it was shown that there are two types of chance, namely personal chance and statistical chance, and any claim based upon a 'lost chance' involves either a question of past fact or a future hypothetical question.
Abstract: Recently, the doctrine of compensation for a 'lost chance' has been subjected to detailed judicial and academic attention. Although the House of Lords in Hotson v East Berkshire AHA ' denied recovery in the instant case, reversing the adoption of such a doctrine by the Court of Appeal, their Lordships unfortunately left open the question of whether, when a lost chance of recovery or of avoiding loss could be proved to result from a breach of duty, compensation for that 'lost chance' was recoverable in tort. The term 'lost chance' is an ambiguous one. It is the aim of this article to show that there are in fact two types of chance, namely personal chances and statistical chances, and any claim based upon a 'lost chance' involves either a question of past fact or a future hypothetical question. Only in cases involving a future hypothetical question can there be a lost chance of any value. That is a lost 'personal' chance. An appreciation of these two points is vital to an analysis of a loss of chance doctrine, and such an analysis shows that a loss of chance argument has no real substance in the way it has been hitherto applied. The loss of a statistical chance, standing alone, should not be considered a compensatable loss.
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TL;DR: The Courts and Legal Services Act (CLS) as discussed by the authors was the culmination of an extraordinarily well-orchestrated and determined political process, and it is a complex piece of legislation dealing with a wide variety of matters.
Abstract: The passing of the Courts and Legal Services Act through Parliament on l November 1990 was the culmination of an extraordinarily well-orchestrated and determined political process. Irrespective of the effect of the legislation on the working of the courts or the legal profession, its enactment was a dramatic example of the parliamentary process in action. The fill details of that process and the parts played by the various actors in it will not be known until official records are available in 30 years time. What we do already know, from the published record, is that at least certain provisions of the Act and the policy discussions that preceded it generated an extraordinary degree of hostility, much of it directed against the Lord Chancellor himself. l The Act itself is 'framework' legislation, in two senses of that term: in the technical sense, it provides the legal basis for much delegated legislation; in the practical sense, it purports to set the context within which legal services and the work of the courts are to be set in the years to come. It is a complex piece of legislation, dealing with a wide variety of matters. This note cannot offer a detailed summary of the Act itself; what it does attempt is a preliminary analysis of the likely significance of the Act.2 Comment here will focus on three main issues: the courts; competition in legal services; and consumer protection. At the end of this note, brief mention will be made of certain matters the Act did not address and some conclusions will be drawn.
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TL;DR: Bodin's notion of sovereignty, coupled with Hobbes' justification of absolute power as 'an imaginary compact between ruler and ruled' appears to have provided Austin with the raw materials for his own view of law as a command of the sovereign.
Abstract: Bodin's notion of sovereignty, or the absolute and perpetual power within the state,5 coupled with Hobbes'6 justification of absolute power as 'an imaginary compact between ruler and ruled'7 appears to have provided Austin with the raw materials for his own view of law as a command of the sovereign.8 Austin's command theory provided that the sovereign who is not subject to any law whatsoever, could, if that was the wish, command all whom he may find within his 'independent political society'9 to be subject to his command. Hegel, who fell under the influence of these views formulated his theory of dialectics.'° At the zenith of social advancement chartered by Hegelian dialectics may be found the state which for Hegel was the 'highest achievement of human endeavour."' Within this nineteenth century philosophical framework sovereign immunity took an absolutist form justifying an attitude against impleading a foreign sovereign before a local court. This attitude became clearly established in the decisions concerning ships, which were handed down by the courts on both sides of the Atlantic. 12 Yet another contributing factor for the growth of the absolutist view was the nineteenth century quest for colonial expansion. Colonial expansion raised the notion of a sovereign with absolute powers. Austin described his sovereign as one whose powers were indivisiblel3 and illimitable.l4 Chief Justic Marshall of the United States Supreme Court'5 and Lord Stowell in the Admiralty Courtl6 took the view that 'Sovereigns have made an implied contract to respect each others' independence
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TL;DR: In the case of the United Kingdom v Secretary of State for Transport, Ex parte Factortame (No 2) as discussed by the authors, the authors raised a number of important isksues about the compatibility of English law with Community law, and remedies in English law.
Abstract: The decisions of the United Kingdom courts in the two cases of R v Secretasy of State for Transport, Ex parte Factortame ' and Factortame (No 2) 2 raise a number of important isksues about the compatibility of English law with Community law, and remedies in English law. The factual background to the litigation is complicated and needs to be set out briefly before the legal issues can be explored. The common fisheries policy of the European Community is suppoksed to protect the Hlshing stocks in EC waters by limiting catches. Given that the limitation of fishing will inevitably damage the HIshing industries of the various member states, a quota system was introducecl that was designed to 'assure each member state relative stability of fi
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TL;DR: A more cautious welcome is in order. as discussed by the authors argues that the plactical effect of the powers given to the licensing authority may turn out to be more the centralisation of medical power than the opening of professional values to public debate.
Abstract: teature of the xlew framework lies in its comprehensivelless48 and the hope that creating a single body to supervis;e ptactice will lea(l to the emergence of coherent pl inciples. This is in contrast to the mole general failure to co-ordinate policy-making on bioethic;.49 Neverthelesss wllen the new fiamework is coIlsidered in terms of its effectiveness as a method of making healt}l professionals accountable, a more cautious welcome is in order. In general, Erlglish law has been reluctant to intrude on the clinical freedom which health professionals, and paIticularly doctors, have established.5° Some features of the way in which the new Authority is to operate will make the professions responsive to lay concerns. There ale lay members on the Authority, reports to Parliament and the possibility of more precise Government contlol. Nowhere, however, is there any guarantee that those most affected by the matters at stake will have a voice. Lay participation is sought through the betlevolence of the great and the good, not by empowering consumers. As a result, the plactical effect of the powers given to the licensing authority may turn out to be more the centralisation of medical power than the opening of professional values to public debate.
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TL;DR: The House of Lords has considered the validity of the all-monies clause and has pronounced it effective as mentioned in this paper, but for reasons which will become apparent, the decision is rather unsatisfying.
Abstract: The retention cf title clause is now commonplace in commercial transactions but despite a decade and a half of commercial usage, and at least nine reported cases, the effectiveness of any particular clause will often be difElcult to predict, since it will depend on the wording of the particular clause and the circumstances of the contract in which it appears.' One particularly difficult area has been the effectiveness of the so-called 'all monies' clause. Under a simple retention of title, the seller retains title to goods supplied under a particular contract until he receives the price for those goods. The effectiveness of such a clause was established by the decision of the Court of Appeal in Clough Mill Ltd v GeoJ0rey Martin,2 although it seems that an attempt to extend the seller's protection by laying claim to proceeds of sale of his goods, or to new products manufactured from his goods, will probably fail.3 An 'all monies' clause seeks to extend the seller's protection in a different way; the seller retains title to goods supplied undeI the contract until he is paid not just their price but also other sums due from the buyer. Many different forms of such clauses are in use; the seller nzay retain title until payment of 'all sums due at the time of this contract' or 'all sums due at the tilne of payment' or 'all sums due to us on any account at any time.' Although in several of the reported cases4 the clauses in question were of the all tnonies variety, each of those cases was argued and decided on a different point, without consideration of the special problems of an all monies clause. Now, at last, the House of Lords has considered the validity of such a clause and has pronounced it effective. However, for reasons which will become apparent, the decision is rather unsatisfying.
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TL;DR: The Woolf report on the Prison Disturbances April 1990' received a good press when it was published on 25 February 1991 as mentioned in this paper, and the Home Secretary announced that its recommendations were to be the subject of a White Paper in the summer.
Abstract: Lord Justice Woolf's report on the Prison Disturbances April 1990' received a good press when it was published on 25 February 1991. The Home Secretary announced that its recommendations were to be the subject of a White Paper in the summer. It is, of course, too early to say what impact the Report will make on prisons policy. What can be assessed at this stage is the importance of the inquiry process itself. As an insider in that process I cannot easily claim impartiality. Nevertheless, I believe that the manner in which the inquiry was conducted significantly opened up the prisons debate and provides a model which future inquiries might copy. Certainly, the recently appointed Royal Commission on the Criminal Justice System could, with advantage, emulate aspects of the Woolf recipe. Following this basic theme, this article addresses three issues. First, to describe and explain the overall strategy adopted by the Woolf Inquiry. Second, to outline some of the problems encountered by the Inquiry and the measures taken to try and overcome them. Third, to consider generally how successful the Inquiry was in realising the ambitious task it set itself. One further word is necessary by way of introduction. What follows is more than a personal viewpoint. I do not subscribe to the view that the deliberations of the jury room must remain forever secret. Indeed, I think our understanding of decisionmaking and policy formation would benefit from franker (which necessarily means more open) scrutiny of the processes, including those adopted by inquiries, to which government regularly resorts. Nevertheless, I accept that imaginative deliberation by teams of policy advisers depends crucially on trust; confidence and courtesy demands that some transactions are not made public. It is a tribute to the open manner in which the Woolf Inquiry was conducted that I have been able to write this piece, without having to confront those dilemmas of secrecy whicll all too often in Britain constrain those outsiders who, like myself, become, for a brief period, insiders. Most of what follows can be verified by consulting the documents which the Woolf Inquiry brought into the public domain.
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TL;DR: Barber's success at the European Court of Justice (ECJ)' goes some way towards settling two crucial 'frc)ntiers' in Community equality law as discussed by the authors : the first is between 'employment equality' and 'welfare equality' provisions and the second is between the scope of Article 1 l9/EEC and the residual scope of the employment equality directives.
Abstract: When Douglas Barber was made redundant by Guardian Royal Exchange Assurance (GRE) on 31 December 1980 at the age of 52, his redundancy package included a statutory redundancy payment, together with an ex gratia payInent but excluded an entitlement to an immediate occupational pension (OP), which was deferred until his pension age of 62. A redundant woman aged 52 would, in similar circumstances, have received a smaller lump sum than Mr Barber but would have had immediate access to her OP. Mr Barber's claim under section 1(1) of the Sex Discrimination Act 1975 might well have succeeded, were it not for the notorious 'retirement provision' exclusion in section 6(4) of the Act. Mr Barber's success at the European Court of Justice (ECJ)' goes some way towards settling two crucial 'frc)ntiers' in Community equality law. The first is between 'employment equality' and 'welfare equality' provisions and the second is between the scope of Article 1 l9/EEC and the residual scope of the employment equality directives. This note considers the new demarcation lines established in Basber and the implications of Barber for UK OP schemes. Given these implications, a critical analysis will be made of measures and devices, including the prospective effect given to the Barber ruling, which might minimise the financial impact of the ruling and migllt, in the case of 'equalisation downwards,' snatch improved benefits from the victims of sex inequality.
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TL;DR: The notion of substance over form has been used as a legal concept in the UK tax system for a long time as discussed by the authors, but it has not yet been applied in the accounting domain.
Abstract: Both taxation and accounting are concerned with economic transactions; both have had to face the argument that within their respective domains transactions should be analysed according to their 'economic substance' rather than their legal form. Within the UK tax system the law has eschewed that doctrine until very recently, but in the world of accounting it seems to have been embraced as a principle, concept or consideration underlying accounting practice. Whether this represents a contradiction between the practices of taxation and accounting, between lawyers and accountants, or whether the issue is different in the two contexts, notwithstanding the use of the same terminology, is considered here. In their professional domain accountants have encompassed both taxation and accounting to such an extent that it would not be surprising if there was an idea shift from one to other. However, like many such shifts it may not be wholly appropriate, or the idea itself may need further explication. In particular there is the danger that substance over form is seen as a peculiarly legal doctrine, whereas it will be argued that it is a general issue potentially applicable wherever there is a rule governed activity. That being so, substance is not something to be determined exclusively by reference to legal, or for that matter economic, characteristics; it is something which derives from the perspective of the activity under consideration. As an idea, substance over form can be discussed in a quite neutral sense; but its application will always depend on the context. Substance is to be understood in the context of prior definitions or norms; it is not determinative of those definitions or norms. In that sense it is a second order issue. Substance over form is therefore not regarded here as a fundamental accounting paradigm which can determine accounting outputs. This paper suggests, using taxation as an example, that the doctrine of substance over form has more than one meaning; at one level it is a legal doctrine of construction, (or in more general terms it is a question of categorisation)); at another it is an equitable concept employed by those charged with administering generalised rules in a hostile environment. Taxation is a rule-governed activity; tax law represents the rules by which tax policy is administered. By contrast, accounting has not always been a rule-governed activity. It has been practised and only relatively recently has that practice been regulated, latterly through accounting standards. These standards, or rules, seek to administer the activity which is accounting, but they are grounded in an extant practice. In essence they seek to codify that practice by formalising the consensus on best practice as rules; and they seek to do so in an increasingly internally consistent way. To that end attempts have been made (notably in the US) to formulate a conceptual framework a conceptual base to underpin the specific rules of individual standards. In so doing, consistency with fundamental concepts may in fact require a change in the detail of practice or existing standards. It will be argued that the doctrine of substance over form in accounting has two facets broadly similar to those at issue in taxation. One is the question of categorisation, the other is the equitable application of accounting rules. The problem
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