Showing papers in "Modern Law Review in 1992"

Company Directors: Who Cares About Skill and Care?

Abstract: Strengths and limitations of potential enforcers of directors duties of skill and care - tests suggestions for upgrading duties with reference to enforceability - other ways to control competence o...

Right to life of the unborn v promotion of trade in services : the European Court of Justice and the normative shaping of the European Union

Abstract: This Protocol, which by virtue of Article 239 EEC will have the same effect as a Treaty Article, exists to protect the Irish constitutional right to life of the unborn, not from the written provisions of the Treaty on European Union or feared secondary legislation thereunder, but from the jurisprudence of the European Court of Justice. This article argues that the Court has, by reference to its economic and federal teleology of Community objectives, evolved certain legal techniques applicable to human rights which will point the Community in new normative directions. These techniques, supported by the doctrines of supremacy over, and direct effect in, national law,2 are brought into play when national constitutional rights which the Court does not adopt as its own3 are held to have economic implications. The techniques are used to control the three dimensions of conflict between state and federal competencies, between a moral and an economic ideal of what is fundamental (and hence different ideas of fundamental rights), and between different legal doctrines of justification. The techniques are as follows. First, the definition of an act as a service solely on account of its economic significance, regardless of the unconstitutional and criminal nature of that act in national law. Second, the prohibition as a matter of principle of all impediments to the freedom of services, even if caused by disparities between national constitutional rights. Third, the use of fundamental rights to expand the free movement of services and to incorporate thereby supreme rights, based on different values and supported by the doctrines of supremacy and direct effect, for market participants. Fourth, the testing of national constitutional rights as derogations from economic principle. The article questions the desirability of th.ese techniques and also the general solution provided by the Treaty on European Union as well as the particular response to the Article 40.3.3 problem in the Protocol and the recent Declaration on the Protocol instigated by the Irish government. An alternative is proposed in the form of a teleological jurisdictional rule. This article focuses on the structure of argument in Society for the Protection of the Unborn Child v Grogan in the light of the Court's supporting decisions and

Giving Effect to European Community Directives

Abstract: Since the foundation of the European Community, the influence of European Community (EC) law on the national legal system has expanded in two ways: first, in the growth in volume and scope of the substantive law emanating from the EC's legislative institutions; and second, in the readiness of the courts of the Member States to enforce and give practical effect to those laws. Differences over substantive lawmaking have largely been played out in the political field, whereas controversy over the application and enforcement of EC law has taken place, as a result of decisions of the European Court of Justice (ECJ), mainly in the national judicial sphere. The ECJ developed the doctrine of direct effect at an early stage in its jurisprudence, to ensure that the body of law provided for in the EC Treaties would have effect in the various Member States without the need for national implementing legislation.l Through a series of cases the Court developed this doctrine and applied it to articles of the EC Treaties,2 to EC Regulations3 and, in a more limited way, to EC Directives. Direct effect means that provisions of EC law may confer rights upon individuals and are required to be directly applied by national courts at the suit of individual litigants, without the need for domestic implementing legislation.4 Article 189 of the EEC Treaty provides that Directives shall be binding as to their aim, but that the choice of form and method of their implementation remains with the Member States. Despite this provision, the ECJ nevertheless decided that Directives could be relied upon directly by litigants before national courts in certain situations.5 The Court has declared that Directives will not have direct effect where their terms are insufficiently precise or where, although clear and precise, those terms are conditional or leave some discretion to the Member States.6 The major limitation on their direct effectiveness, however, is that Directives cannot be directly enforced in a 'horizontal' situation, ie in proceedings against a private party rather than against the State.7 The case for their direct enforcement against the State appears to be based on a concept of estoppel whereby the State may not rely, as against an individual, upon its own failure to implement a Directive properly and on time.8

The retreat from Gillick.

Abstract: given the atmosphere of judicial restraint prevailing in such leading cases as Tai Hing and also, as Stuart-Smith LJ expressly recognised, given the particular controversy and complexity of the issues of NHS capacity and funding. However, in response to the insistence that the policy issue is not justiciable, one might be permitted the remark that a judicial decision that junior doctors cannot be required to work 'unreasonable' hours is likely to have the same disruptive effect on the NHS, whether it is reached on the basis of 'public policy or an imaginative use of implied terms.

Public Interest Litigation and Constitutional Theory in Comparative Perspective

Abstract: The scope for citizens to use judicial processes to advance public, political ends gives a discernible indication of social and legal attitudes to politics, the rights and responsibilities of citizenship, and the relationship between electors, legislatures, executives, courts and the disfranchised. This article looks at the way such relationships are reflected in the rules governing constitutional and public interest litigation by concerned citizens. The article does not offer a comprehensive theory of public interest litigation. It does not examine the use of the criminal law, equity or the law of tort for public interest purposes. Nor does it look at civil law systems. All these areas have been dealt with very thoroughly by others.' The primary focus of this article is on the way prevailing ideas of democracy and constitutionalism shape (and are, in turn, themselves reshaped by) the capacity of private citizens to use the forms, procedures and substance of public law, and particularly constitutional law, to advance public political aims. It will be suggested that the judges, in approaching public interest litigation, have to develop a view of the constitution and its underlying principles. This will draw on those commonly accepted principles and beliefs which seem to the judge to underpin the constitutional and political structure. This can be called a constitutional ethic, and is a normative theory which establishes prescriptive principles according to which the constitution should be developed and interpreted. It sets the judge's understanding of current arrangements and power relations in the context of a normative constitutional and legal framework in which descriptive and prescriptive elements are entwined. The judge does not have an entirely free choice of constitutional ethic. I do not argue that there is a Dworkinian duty on judges to make the 'best' fit between their constitutional ethic and their description of the pre-existing constitutional structure, but I do suggest that there is a weaker duty to adopt one of the constitutional ethics which can be made to fit 'acceptably' in the light of operative techniques and principles of legal reasoning. As 'should' implies 'can,' existing institutions and rules may prevent the judge from adopting certain sets of values. Because of the historical development of a state and its constitutional law and practice, it may prove impossible at a particular moment to adopt (let us say) a capitalist, individualistic constitutional ethic while staying within the constraints imposed by the need to make decisions compatible with other aspects of constitutional law under an existing socialist structure. In such circumstances, fundamental reform is needed which cannot be provided by a judge unless the constitution allows judges a role which is normally given only to constitutional legislatures. There may therefore be a tension between

Privacy or Publicity? The Enduring Confusion Surrounding the American Tort of Invasion of Privacy

Abstract: might thus be other theories that better describe what is, and what ought to be, taking place. Fourth, the discussion in the instant comment does provide some (albeit only tentative) evidence that there is a practical difference between positivism on the one hand and natural law on the other.64 Further, this result (if correct) would also buttress the submission in the preceding paragraph. Finally, it ought to be remembered that countries differ in many respects, especially from the historical and socio-legal points of view. Positivism is not a theory that is writ in stone, even where the legal system of the country concerned has emerged from the English legal heritage. Judicial attitudes must reflect the ethos and mores of the country concerned. The extreme positivism in the English law of contract as described and analysed in the present comment has merely underscored the need to look beyond fixed and conventional boundaries.

The Responsibilities and the Rights of Victims of Crime

Abstract: Recent years have seen a variety of developments and proposals designed to improve the criminal justice system's treatment of victims of crime. A central theme of the White Paper, Crime} Justice and Protecting the Public,' and of its Green predecessor, Punishment} Custody and the Community,2 was that by restricting the grounds upon which courts could impose custodial sentences, while at the same time giving them powers to impose 'community sentences' constraining the offender's freedom of movement, the compensation of victims would become a routine feature of the sentencing stage.3 These proposals, like others in the two documents, are underscored by a reliance on the proposition that, at present, the system substantially fails to deliver on the question of the offender's responsibility to the victim for the injuries caused. As the Green Paper put it: 'Imprisonment restricts offenders' liberty, but it also reduces their responsibility; they are not required to face up to what they have done and to the effect upon their victim or to make any recompense to the victim or the public.'4 Responsibility has thus an instrumental and a symbolic facet: both to repair, so far as money or labour can, the actual harm to the victim, and to restore the moral equilibrium disturbed by the offender's wrongdoing. In practice, the White Paper envisaged that most offenders could properly be punished by financial penalties compensation and fines and expressed the hope that, in the case also of the more serious offences attracting community sentences, 'repayment to victims [by means of compensation orders] will be the priority.'s In addition to its efforts to make the offender's responsiblity to the victim more a matter of reality, the government has also sought to meet a range of criticisms by such measures as the enactment of section 49 of the Criminal Justice Act 1991, permitting the admissibility in evidence of video recordings of interviews with child witnesses, continued financial and other contributions to Victim Support,6 the inclusion of victim research in specific projects conducted by the Research and

The Criminal Procedure (Insanity and Unfitness to Plead) Act 1991

Abstract: In recent years, the procedures and criteria by which defendants are found unfit to plead or not guilty by reason of insanity (the special verdict) have come in for frequent criticism. Under the Criminal Procedure (Insanity) Act 1964 the automatic consequence of a finding of unfitness to plead or a special verdict has been that the defendant is made subject to a hospital order with restrictions without limit of time under sections 37 and 41 of the Mental Health Act 1983. The effect of a restriction order is that the patient may be detained indefinitely, and may only be discharged by the Home Secretary or a Mental Health Review Tribunal (MHRT). Hence, a defendant found unfit to plead under the 1964 Act lost his right to be tried and faced potentially indefinite detention in hospital for a crime which he might not have committed.l Two cases highlighted the potential injustices. The first was that of Glenn Pearson, a tnentally handicapped man who was found unfit to plead to an indictment of stealing three light bulbs and five pounds. He was ordered to be detained under a restriction order at a mental handicap hospital. His appeal against his detention was heard by a MHRT after three months. His discharge was ordered by the tribunal because, although mentally handicapped, he was not suffering from mental impairment, which requires abnormally aggressive or seriously irresponsible conduct.2 Because a tribunal has a duty to discharge a patient who is not suffering from mental disorder within the meaning of the Mental Health Act 1983, Glenn Pearson was discharged to his home.3 The second case was that of Valerie Hodgson who is mentally handicapped and lived with her father. One morning she found her father's body. He had been stabbed in the chest. During interviews with the police, she confessed to the murder. She was found unfit to plead and was detained in a secure hospital. Fourteen months later, new evidence emerged, and her nephew was convicted of the murder. The insanity defence lost its attraction after the introduction of the plea of diluinished responsibility to murder,4 and because under the 1964 Act the automtic consequence of a special verdict was the imposition of a hospital order without limit of time.5 Defendants were therefore unlikely to raise the defence. In fact, the

Contracting Out of Company Law: Section 459 of the Companies Act 1985 and the Role of the Courts

Abstract: Since the late 1970s, company law theory has been enriched by a vociferous debate about the role of contract in explaining corporate personality. ' The advocates of the contractual cause seek to challenge traditional legal theory by arguing that companies represent a mere nexus of contracts between those various corporate actors shareholders, directors, creditors, employees, etc interested in the affairs of the company. This article seeks to join the debate and pursues two objectives. First, Section I describes and criticises the contractual approach. That approach purports to be comprehensive in its application, in the sense of addressing all corporate relationships and all classes of companies, yet the emphasis has usually been upon the larger, public company and upon the shareholder-management relationship within such companies. The focus for this article is the smaller, private company and the intershareholder relationship therein. Moreover, as much as the contractarian position seeks to offer a normative framework for all corporate contracting, it has proceeded at a relatively abstract level, failing to address itself adequately to the detail of those contracts it suggests constitute the company. This article sets out to examine the actual process and form of inter-shareholder contracting. In so doing, it emphasises the role of the judiciary in that process, and argues for the inevitability and legitimacy of limited interference in private contracting. Second, it is a theme of this article that the construction of the contract between shareholders is driven by the particular remedy which is sought. To this end, Section II focuses upon the unfair prejudice provisions of sections 459-461 of the Companies Act 1985. This appears to be the regime resorted to with growing frequency by minority shareholders, and its interpretation and application by the courts should tell us much about the judiciary's attitude towards the theoretical position advanced in Section I, as well as offering the opportunity to look at contractual construction in the context of specific remedies.

Mediation in the Lawyers' Embrace

Abstract: Government strategy, dominated by steering the economy, involves the promotion of what Habermas terms 'civil privatism': rather than aiming at the normative justification of political arrangements, the state upholds its legitimacy by at once depoliticising the public sphere and simultaneously seeking to ensure that its citizens' expectations of private, essentially material, rewards are met.86 Why subjects should consent to these arrangements when the rewards are not generated hardly figures in the Government's account at all.87

Nationalisation of Foreign‐owned Property for a Public Purpose: An Economic Perspective on Appropriate Compensation

Abstract: The emergence of a large number of new states after the end of the Second World Brar was accompanied by an upsurge of national consciousness and fierce demands for 'economic independence' and for the elimination of what many saw as economic 'imperialism.' An important aspect of this was a reaction in many countries against foreign private investment, especially in the exploitation of their national natural resources. Resentment of this type of foreign control had, of course, long smouldered before the war in several countries, giving rise to popular agitations and government concern, and even to nationalisations, for example, the Mexican nationalisation of American oil interests in 1938. The United Nations Centre on Transnational Corporations reports that the nationalisation of foreign companies reached its peak in the mid-1970s with the oil crises and then declined rapidly by 1985.' It apparently saw this as a trend and argued not only that developing countries are now willing to cooperate with direct private foreign investors, but also that nationalisation will, in the future, represent a minimal risk. This conclusion must be seen as optimistic if account is taken of the fact that the year 1975 was in the middle of a severe economic crisis for many countries in the developing world, as a result of the rise in oil prices and the accompanying world recession. These countries not only had by that time to search for outside assistance, but also to turn to the IMF for help. One of the conditions of such help required them to relax their previous attitudes towards private foreign investment and to encourage the return of multinational corporations. It is by no means clear, therefore, that the postulated changes in attitudes, born partly of economic crisis, will be permanent, particularly with respect to foreign control over activities considered of vital importance to the national economy, such as exhaustible natural resources. On the contrary, the nationalisation of the commercial assets of foreigners, which has a long history, is, paradoxically, likely to revive as the fortunes of developing countries revive, and with it the controversy over appropriate compensation. The serious and divisive social and political strains that exist in many developing countries often become more severe as national incomes

Rights and utility in Anglo-Australian family law.

Abstract: Moral and political philosophical analysis of the development of family law - Australian Child Support Scheme - philosophy and family law - rights and utility in family law - public and private sph...

A Community of Interests? Making the Most of European Law

Abstract: The word 'Community' in the title of the 'European Community' denotes a 'community of nations.' This is a point worth bearing in mind when considering the evolution of its institutions. The precise constitutional character of the European Community is a matter not only of political contention but also of academic debate. For some, the Community is a classical treaty-based international or transnational organisation,' for others an evolving federation with an admittedly somewhat indeterminate constitution, others again prefer the looser language of confederation.2 Classification tends to depend on semantics3 but the point is not without importance. International organisations differ from nation states in being designed primarily for use by governments rather than with the citizens of the states which compose them in mind. Thus, if the European Community is first and foremost a 'comrnunity of nations,' we might deduce that it is entirely proper for the legislative power to be vested in the Council of Ministers. Again, it is arguably more in keeping with the character of an international organisation for its assembly to be composed of delegates of national Parliaments as was the case with the European Assembly before direct elections were introduced in 1979 than to be directly elected by the people.4 But few today would accept such a limited role for the Community, viewing it as at least a precursor of the closer union of the diverse peoples of Europe. And as the Community has evolved into something more than a Common Market, the absence of space in the governmental arrangements for the people of Europe becomes at the same time more marked and less defensible. For whatever else it may convey, the term 'European Community' scarcely suggests a 'community' in the popular sense of the word. While every one of the

Ethical Investment in Hard Times

Abstract: This, then, is the lesson to be learned from Royall. Simple verbal tests are no substitute for a careful analysis of causal principles. This is not to say, of course, that causal principles offer a straightforward answer to all the complicated causal questions thrown up by the criminal law. As with any other principle, they need interpretation and application, and there will always be borderline cases. Nevertheless, without a clear exposition of these principles we lack the tools necessary to approach the difficult problem of causation in the law.

Writing ‘Law and Society’ Histories

Abstract: Conceived over twenty years ago, this eagerly awaited text has been a long time in the making. While several draft papers were completed by Geoffrey Clark prior to his death in 1972, the vast bulk of the considerable material and writing that makes up this substantial book is the work of Bill Cornish. Without Cornishis assiduous commitment, this book would never have seen the light of day. Its appearance is undoubtedly an important event for modern legal history.

War Crimes Act 1991

Abstract: The War Crimes Act 1991 was enacted amidst great controversy. Not only was there a clear division of opinion between the Commons and the Lords concerning the merits of the Bill, but the opposition of the Lords proved so intransigent that, for the first time ever, a Conservative government resorted to the Parliament Acts to ensure its enactment. In this note, I shall examine the reasons why such a brief measure proved so highly controversial and assess whether it is (apparently) so potentially destructive of the fabric of English law.2

European Community Law: New Remedies, New Directions?; Joined Cases C‐6/90 and C‐9/90, Francovich and Bonafaci v Italy1

Abstract: From an early stage in its jurisprudence, the European Court of Justice has endeavoured to secure the binding nature of Community law in conjunction with the protection of individual rights. Delving into the Court's case law, we see a host of reasons set out for allowing individuals to pursue their rights in the national courts against both the Member States and private parties: the creation of a new legal order, the transfer of sovereign rights, appeals to uniformity and efficacy.2 Through the doctrines of direct effect and indirect effect, individual rights in Community law have evolved to a high degree of protection. But problems arise where Member States are slow to implement Community obligations and where national courts are unable, or unwilling, to interpret national law so as to give effect to the supremacy of Community law. The EC Commission has repeatedly stressed the need to impress upon the Member States the importance of implementing Community law promptly and correctly if the Single Market is to be realised. Recent annual reports on the monitoring of Community law have shown an increased willingness on the part of the EC Commission to commence Article 169 EEC and Article 171 EEC actions against the Member States.3 However, the Interim Report on the implementation of the Single Market programme reveals that there are still long delays in transposing some measures into national law.4 The EC Commission has drawn up guidelines for the monitoring of the implementation of the Single Markets and a variety of measures have been taken to ensure that the Member States implement Community law correctly. Such measures include informing interested parties of the transposition of measures via databases accessible to the public, making texts of national transposition available for scrutiny, encouraging the consolidation of Directives in certain fields and raising awareness of the Member States' rate of transposition through periodic reports and Council discussions. Without the ability of individuals to enforce Community rights in the national courts, the original enforcement mechanisms contained in Articles 169 and 170 of the Treaty of Rome 1957 are limited. Individuals have no part to play in the process6; they cannot compel the EC Commission to commence proceedings by

Restitution, Misdirected Funds and Change of Position

Abstract: By any standard, the decision of the House of Lords in Lipkin Gorman (a firm) v Karpnale Ltd l is of great significance. At the level of high general principle, the House of Lords has, for the first time, clearly and unequivocally recognised the existence of a law of restitution based upon unjust enrichment. The task of mapping out the limits of the law of restitution must now begin in earnest and here, too, there is much of interest to be found in the judgments, particularly the recognition, also for the first time, of a defence of change of position. As often happens in cases of great legal significance (and complexity), the facts were straightforward. The plaintiffs were a firm of solicitors. One of their partners, Cass, was authorised to draw on the client account for the purposes of the partnership. But he also drew on the account in order to fund his gambling addiction. Over a period of time, Cass withdrew £323,222.14 from the client account to finance his gambling and he used three techniques to obtain money. His principal method was to draw cheques on the client account which were made payable to cash but he also, on occasion, drew cheques made payable to building society accounts which he had opened in the name of the partnership and the proceeds of the cheques were credited to the accounts. Finally, on one occasion, Cass obtained a banker's draft for £3,735 which he indorsed over to the defendant club. Cass repaid over £100,000 of the money which he had stolen from the plaintiffs, thus leaving them £222,908.16 out of pocket. Cass had gambled the money away at the Playboy Club in Mayfair, which was owned by the defendants. At the club Cass exchanged the cash for plastic chips which were then used for gambling at the casino. During the relevant period, Cass staked in excess of £560,000 with the club, his winnings amounted to £378,000, thus leaving the defendants with a net gain of £174,745, of which it was agreed that £154,695 was derived from money stolen from the plaintiffs. The plaintiffs brought an action against the Playboy Club as the recipients of their money, and Lloyd's Bank, who repeatedly released the funds from the client account which Cass had misapplied. At first instance, Alliott J held that the club was not liable because it had not been dishonest,2 but he held that the plaintiffs were entitled to succeed against the bank on the ground that the bank, through its manager, had knowingly assisted in the dissipation of the plaintiffs' funds. The Court of Appeal allowed the bank's appeal and held that it was not liable to the plaintiffs.3 Also, albeit by a different route, they affirmed that the club was not liable. The court assumed that the club, as recipients of the plaintiffs' funds was strictly liable, but, by a majority, held that the club had provided valuable consideration and on that ground was not liable. The plaintiffs appealed to the House of Lords, seeking to recover £222,908.98 from the club4 in an action for money had and received.

Implied Duty to Give Information During Performance of Contracts

Abstract: During the performance of contracts, information may be acquired by one party in which the other has a vital interest. The information may concern facts which affect performance or events which trigger alterations in the terms of the contract. To what extent and in what circumstances must such information be disclosed? Questions about a duty of disclosure are usually raised in connection with the formation of contracts. Here, the common law tends to deny the existence of any general duty of disclosure of facts outside fiduciary relationships, relations of confidence within the doctrine of undue influence, and contracts uberrimae fidei. The law takes a more paternalist approach to disclosure of the terms of the contract; the common law requires reasonable efforts to bring the content of the terms to the attention of the other contracting party,l and statutes impose detailed requirements as to the manner and type of information about the terms to be communicated to consumers.' The economic justiElcation for the rejection of a duty of disclosure of facts is that information is generally expensive to acquire and, in order to reap the reward of investment in discovering information, the information may be withheld so that any bargaining advantage obtained from this knowledge is preserved.-3 These considerations do not apply to disclosure of the terms of contracts butn on the contrary, obscure or hidden terms are likely to impede the competitiveness of markets, so the economic arguments point the other way in favour of a duty to provide full disclosure. But do these economic considerations similarly rule out an implied duty to disclose information during the performance of contracts? Consider a case of a contract of carriage of goods by road, where the owner of the goods hears on the radio that the main road is blocked due to an accident. Should the owner give this information to the carrier so that the delivery is not delayed? Or can the owner simply leave the carrier to fend for itself, with the result that the carrier breaks the contract by delivering the goods late? Here, the economic analysis points towards a duty to disclose the information. The failure to disclose the information would simply increase the costs of performance to the carrier to the extent of the damages payable for delay and the opportunity costs caused by having a lorry stuck in a traffic jam, with no benefit to the owner of the goods. Since these costs could be avoided at the price of a telephone call, the criterion of wealth maximisation suggests that an implied duty of disclosure of this information should be imposed. A similar conclusion emerges from an alternative analysis of this example in terms of the value of co-operation.4 If we assume that the common law recognises a

Citizenship and Democracy in Industrial Relations: The Agenda for the 1990s?

Abstract: Last July, the Government presented a Green Paper to Parliament which proposed further reform of labour relations law. ' Although no Employment Bill was referred to in the Queen's Speech,2 the Government made it clear that they do intend eventually to implement in full the programme of reform in the Citizen's Charter,3 which will include legislation based on some of the proposals in the Green PapeP; but at the time of writing no Bill has been published.5 In this article I want to discuss the Green Paper proposals, not only because it would be foolish to suppose that the Tories may not win the forthcoming election, but also because they reveal some of the conceptions that underlie the Government's political thinking in general. I shall begin with a short account of the Government's envisaged reforms, before considering certain of them in greater detail. Turning first to the stated aims of the proposals, the Green Paper talks of the Act consolidating the objectives behind the legislation passed over the last eleven years, which are said to have been threefold:

Reflections on R v R

Abstract: the club of a banker's draift for £3,735 and the difficulties which surround the relationship between a claim in conversion and a restitutionary claim. In many ways it is appropriate that, 25 years aifter the publication of the first edition of Goff and Jones' The Law of Restitution, which has had an enormous influence upon the way in which we think about the law of restitution, one of its authors, Lord Goff, should write the leading judgment in the House of Lords which takes the important double step of recognising an independent law of restitution based upon unjust enrichment and a defence of change of position. As this note has sought to demonstrate, many difficulties lie ahead and there remain many matters for debate to occupy the attention of restitution lawyers, but these debates can now focus on the shape and scope of the subject rather than its existence.