Showing papers in "Modern Law Review in 2000"

Share Capital and Creditor Protection: Efficient Rules for a Modern Company Law

Abstract: This article examines the case for rules of company law which regulate the raising and maintenance of share capital by companies. The enquiry has practical relevance because the content of company law is currently under review, and the rules relating to share capital have been singled out for particular attention. The existing rules, which apply generally, are commonly rationalised as a means of protecting corporate creditors. The analysis considers whether such rules can be understood as responses to failures in the markets for corporate credit. It suggests that whilst the current rules are unlikely, on the whole, to be justified in terms of efficiency, a case may be made for a framework within which companies may ‘opt in’ to customised restrictions on dealings in their share capital.

Whistleblowers, the Public Interest, and the Public Interest Disclosure Act 1998

Abstract: Corporate crime and organisational deviance raise complex legal issues. An initial problem lies simply in identifying when such wrongdoing has occurred. Here, whistleblowers can perform a valuable service. However, publicized cases suggest that they often pay dearly for their candour, encountering unfair sanctions at work. In Britain, the Public Interest Disclosure Act 1998 seeks to protect “good-faith” whistleblowers from employer reprisals. In the wake of this legislation, the authors examine whistleblowing from a socio-legal perspective, asking what motivates whistleblowers, how do institutions respond to them, can legislation adequately protect them, and what effects will PIDA have on whistleblowing, employment practices, the culture of the workplace and, ultimately, society.

Limited Liability: Large Company Theory and Small Firms

Abstract: Current enthusiasm for the ‘enterprise culture’ results in strong support for easy access to limited liability forms of business organisation. This has manifested itself in the creation of new limited liability vehicles such as the LLC and the LLP. The UK Company Law Review is examining ways of enhancing the attractiveness of the limited liability company to small business owners. This article examines the claims made for the ‘efficiency’ of limited liability and the applicability of these claims to small firms. It raises the importance of taking into account public policy issues beyond economic efficiency when considering the degree of risk taking and shifting to be encouraged. The article concludes that, although it is difficult to find rational methods of restricting access to limited liability, it does not follow that limited liability should be positively encouraged for all small firms. It is important to signal the limitations of limited liability.

Truth, Reconciliation and Justice: The South African Experience in Perspective

Abstract: The lecture examines the role and objectives of truth and reconciliation commissions in societies undergoing major political transitions, with particular reference to the model of South Africa, and compares this method to others suggested by international criminal law for accommodating both retributive and restorative responses to past conflicts and crimes against humanity

Breach of Confidence as a Privacy Remedy in the Human Rights Act Era

Abstract: This article examines the impact of the Human Rights Act (HRA) on the current lack of a remedy for non-consensual publication of personal information by the media. It argues that the action for breach of confidence is now ripe for development into a privacy law in all but name and that the normative impetus for this enterprise can be found in the HRA which will require domestic courts to consider Convention jurisprudence. It will suggest that when Strasbourg decisions are examined in the context of more general Convention doctrines, they may be seen to suggest the need for an effective privacy remedy. Drawing upon approaches from other jurisdictions it seeks to demonstrate that principled solutions may be found to the thicket of legal problems associated with such development. It contends that the main objection to this enterprise, the perceived threat to media freedom, is largely misplaced, as analysis at the theoretical and doctrinal levels reveals that speech and privacy interests are in many respects mutually supportive and the areas of conflict small and readily susceptible to resolution.

The Brave New World of Sir John Laws

Abstract: This article considers the political philosophy of Lord Justice Sir John Laws who, in a series of articles, developed a theory of the UK constitution based on Kant’s principle of the sovereign autonomy of the individual. The author points to the dangers of entrusting the judiciary with too much power at the expense of the democratic process.

Judicial Representations of Scientific Evidence

Abstract: A critical examination of the way that courts handle scientific expert evidence reveals inconsistency in strategies for validating and legitimating the weight attached to it. This inconsistency is rooted in perceptions of the nature of scientific knowledge. The essay considers the implications of this analysis for the Woolf reforms of civil procedure with respect to expert evidence.

The legality of the image

Abstract: Intimate links exist between political power, law and images. Theology, philosophy and law have always developed elaborate rules about visuality. The iconophilic and iconoclastic traditions complemented one another and combined to construct subjectivity and to reconcile humanity with finitude. In modernity, law replaced religion and philosophy conceptualised legality through the aesthetic category of the sublime. The law understands the importance of the governance of images for the maintenance of the social bond and helps organise a regime of permitted images and forbidden idols which amounts to a complex legal administration of aesthetics and a related aesthetic organisation of law.

Mann v Secretary of State for Employment

Abstract: The interrelationship between insolvency, the rights of creditors, and the particular rights of creditors who are employees of the insolvent organisation is complex and controversial, even at the purely domestic level. The longstanding concern of the European Union for the welfare of employees, including employees of insolvent employers, has made for further complexity and controversy as courts struggle with the interpretation and application of legal principles which derive from two different legal systems. Insolvency law has properly been described as 'characterised by special procedures intended to weigh up the various interests involved, in particular those of the various classes of creditors, which implies that ... there are specific rules which may derogate, at least partially, from other provisions, of a general nature, including provisions of social law'.' By definition, the claims of the creditors of an insolvent debtor cannot be met in full and it is one of the chief tasks of the principles of insolvency, to establish a hierarchy of creditors in accordance with which the inadequate resources of the debtor are to be deployed. It is a principle of any system of insolvency that all creditors on the highest level are to be paid in full before any payment can be made to creditors on the next level down and so on until the money runs out. In principle, secured creditors, that is creditors who are entitled to look for payment to the proceeds of the sale of particular assets belonging to the debtor, will consume the lion's share of the debtor's assets, leaving scraps, if anything, to the unsecured creditors. The claims of the latter are often described as simply personal (i.e. against the person of the debtor alone and not protected by any property owned by the latter). A further distinction should be observed preferential creditors groups of unsecured creditors on whom statute has conferred priority over other unsecured creditors. In the UK, the groups so preferred are essentially the government (e.g. income tax, customs and excise and social security contributions) and employees (in respect of unpaid remuneration and accrued holiday remuneration).2 In the United Kingdom, there is a variety of insolvency regimes in which a debtor may be placed. Business debtors are most likely to be in the form of companies incorporated under the Companies Acts,3 and when insolvent and in the absence of agreement among all creditors to refrain from proceedings to enforce their claims, will be placed in liquidation or administrative receivership or

Tracing and Property Rights: The Categorical Truth

Abstract: Once regarded as something of a legal terra incognita, the law of tracing has in recent years become far more accessible. The sustained theoretical analysis which has been brought to bear as a consequence of the emergence of the law of restitution has done much to reveal the doctrinal geography and function of tracing.' It is thus now clear that despite earlier characterisations tracing properly so-called is neither a right nor a remedy.2 Tracing is an evidential process by which one asset is permitted to stand in the place of another asset for the purposes of whatever rights or claims the plaintiff may have had in respect of the first asset.3 Where the asset in which the plaintiff holds rights is used to acquire or is exchanged for another asset ('the traceable product'), the rights in the original asset are transmitted4 to the traceable product. Even though the plaintiff would otherwise have no right or claim to the traceable product, it is nevertheless treated as the subject of his rights in place of the original asset. The function, then, of the specific rules of tracing is to identify those acquisitions or exchanges which are legally relevant and, thereby, which asset may properly be said to be the traceable product of the original asset. While the broad outline and function of tracing is now understood, many serious questions nevertheless remain to be answered. The issue we seek to address in this short paper concerns the origin of the plaintiff's rights in the traceable product. In particular, where the plaintiff asserts a proprietary right in a traceable product, what is the event or cause of action to which that right can properly be the response? The identification of the source of the right in the traceable product is not, moreover, a matter of idle academic interest. As Lord Millett has recently noted,5 taxonomy and classification have important practical implications. The classification of the origin of the plaintiff's right in the traceable product has consequences for the range of potential defences to the plaintiff's claim to the traceable product6 and the nature or type of the right which may appropriately be recognised in the traceable product.7 The dominant academic view of the origin of the plaintiff's right in the traceable product is that the right always and necessarily arises as a response to the principle

International Promises and Domestic Pragmatism: To What Extent will the Employment Relations Act 1999 Implement International Labour Standards Relating to Freedom of Association

Abstract: This paper explores the rhetoric and reality surrounding implementation of international labour standards in the Employment Relations Act 1999. It focuses on UK commitments relating to freedom of association and considers whether the new legislation goes any significant way towards their fulfilment. The paper begins by outlining obligations which arise from a state's membership of the International Labour Organisation (ILO) and ratification of ILO Conventions. It then goes on to examine indications that, since the change of government in 1997, there has been a significant shift in UK policy relating to such international obligations. The remainder of the paper examines reforms made by the Employment Relations Act to trade union recognition, protection of strikers from dismissal and prevention of anti-union discrimination. It emerges that the Third Way proposed by the present Labour Government entails a complicated detour from the path of full compliance with ILO standards.

The Business of Equality in the Solicitors' Profession

Abstract: In Gender, Choice and Commitment, Hilary Sommerlad and Peter Sanderson argue that 'gender remains a principal determinant in the career trajectories of women solicitors' (p 4). Whilst to many this would appear to be obvious, the tragedy is that this is little recognised within the profession itself. Indeed, there would appear to be a silent conspiracy not to mention gender, let alone feminism, in any debates within the profession concerning women, paradoxical though this may seem. The result is a deeply unsatisfactory situation in which the gendered obstacles in the way of women's full and equal participation in the profession remain 'remarkably durable' (p 13), but the strategies being adopted by campaigners seeking to improve women's status overlook the significance of gender, focusing instead on what has been termed the 'business case' for sex equality. The 'business case' attempts to convince employers that the adoption of equal opportunity measures will bring economic and efficiency gains to their businesses, thereby encouraging them to adopt such practices. As argued by Opportunity 2000, an organisation established in the UK to promote the 'business' case for equality, this is not a strategy 'rooted in a moral or social imperative', but in 'hard commercial facts'.'

Settlement as Civil Justice

Abstract: Right across the common law world, what appear to be large-scale changes in state management of civil disputes have become visible over at least two decades. At the heart of these changes lies a growing recognition of 'settlement' as an approved, privileged objective of civil justice. The courts present themselves not just as agencies offering judgment but as sponsors of negotiated agreement. In this jurisdiction these changes first appeared as spontaneous initiatives within the judiciary. They are now drawn together and given official blessing through the Civil Procedure Rules which came into force in April 1999. They take on a recognizably different shape in the earlier, but now embattled, Family Law Act 1996. How should we understand these changes? Do they imply altered relations between lawyers and their clients, or do they represent a relatively discrete reordering of professional practice? Does this move by government into the formerly 'private' world of negotiated agreement reflect a fundamental change in the mode of government of the kind being forecast at the beginning of the 1980s?1 Historically, government has devoted virtually its entire investment in dispute management to the provision of 'courts'. While any generalization about what English courts have done needs to be advanced cautiously, these agencies have on the whole conceived their role quite narrowly, as one of providing trial and judgment. Pre-trial interventions have been largely devoted to making sure the landscape does not change too much before trial, otherwise leaving the parties to proceed towards trial at their own pace. While on the surface a clear line appeared to be drawn by these arrangements between negotiated agreement and authoritative third-party determination, it is a commonplace that beneath the surface lawyers have conceptualized virtually their entire role in dispute settlement as 'litigation'. Consequently, they have come to use the framework provided by civil procedure as the primary arena for their attempts to 'settle'.2 So these two apparently different modes of decision-making have come to share a single procedural route, one historically devised for the safe achievement of judgment.3 Public recognition that the sponsorship of settlement was an explicit, official objective of the courts came relatively late in the day. Statements of this aspiration appear in the Heilbron/ Hodge Report of 19834 and then in the Interim version of the 'Woolf' Report. In the latter, judicial 'case management' is prescribed and its overall purpose identified as 'to encourage settlement of disputes at the earliest appropriate stage; and, where trial is unavoidable, to ensure that cases proceed as quickly as possible

Future Uncertainty as a Challenge to Law’s Programmes: The Dilemma of Parental Disputes

Abstract: The article poses the problem of the need for judges to make ‘right’ decisions. It then describes how judges have attempted to meet this requirement in difficult cases concerning parental disputes over contact with children where there have been allegations of domestic violence. Applying Luhmann’s concepts of the legal system, law’s function, law's coding and law’s programmes (Das Recht der Gesellschaft (Society’s Law) 1997), offers a very different perspective on the issue to that of the judiciary or legal commentators who tend to see the issue of the law, determining, with expert help, what is best for the child. Law’s function of stabilizing expectations over time obliges it to deal with all matters that come before the courts through the application of ‘conditional programmes’ and prevents it from applying the ‘purpose oriented programmes’ of politics and those who see the issue in terms of ideological conflict.

Testing Fidelity to Legal Values: Official Involvement and Criminal Justice

Abstract: The article examines the current criminal law and possible justifications for it with respect to three areas that are located between prosecutorial discretion and defences. These areas are officially-induced mistakes of law, entrapment, and conduct motivated by a desire to bring someone else to justice or to restore property. Common themes in the justifications for the avoidance of punishment in these examples suggest an underlying principle of fidelity to legal values, which should guide procedural and substantive law.

Assuring Real Freedom of Movement in EU Direct Taxation

Abstract: The decisions of the European Court of Justice in applying the Treaty principles of freedom of movement to the direct taxation of individuals have been strongly criticised as taking an overly simplistic view of the interactions between national tax systems. The interactions often make non-discrimination an inappropriate criterion. This article proposes a framework, grounded in economic analysis, for understanding the implications of the interactions for freedom of movement. First, I establish a precise definition of obstacles to freedom of movement of individuals as costs of migration, as distinguished from incentives to migration (such as mere differences in national tax levels). Incentives can encourage economic distortions in migration, but they are not obstacles to migration (or free movement). Secondly, I develop the cross-migration test to distinguish costs of migration from incentives. I apply the test to show that two commonly used schemes of double tax relief, including exemption with progression, create unjustified obstacles to free movement.

‘Caparo Under Fire’: a Study into the Effects upon the Fire Service of Liability in Negligence

Abstract: This article discusses a research project which aimed to analyse the relationship between judicial pronouncements over the likely effects upon a defendant of the imposition of a duty of care in negligence, and any effects in practice. Empirical research was carried out to ascertain the effect upon the fire service of the Court of Appeal decision in Capital and Counties and Digital Equipment v Hampshire County Council[1997] QB 1004. This decision imposed a duty of care upon fire services to avoid making mistakes whilst fighting fires which might cause the fire to become more serious. The findings of the project are drawn upon to make observations regarding how the courts presently apply the third limb of the three stage test of duty of care derived from Caparo v Dickman, which asks whether it would be fair, just and reasonable to impose a duty of care.

Three Faces of Justice and the Management of Change

Abstract: The apparatus of legal principles we use has, far more than we realise, transformed the way we think about the control of private power in the name of social justice. The actual sort of equity that the legal and political system is searching for is not reflected in our major political theories, nor indeed in the official rhetoric of many such systems themselves. The reason for this mismatch has to do with the need to accomodate change – a space opened by the law and unacknowledged by theory. This article sets out the current theoretical frameworks within which the regulation of private power is analysed, and it contrasts these with a different approach to the problem of justice at work in employment and corporate law that does not find its way into theory. Once that approach is given a formulation, its place within a larger theory of justice is proposed, and its wider implications for the relationship between state and civil society are investigated.

Of Coase and Corn: A (Sort of) Defence of Private Nuisance

Abstract: Drawing on the work of Coase, the essay argues for a reform of the law of nuisance based upon property rights rather than determinations of social welfare by the courts, and for the use of a reformed law of nuisance as the least flawed method of regulating the environment in many situations compared to other techniques of regulation. The argument is developed and illustrated by reference to several contemporary issues, including genetically modified crops.

Judicial Bias and Disqualification after Pinochet (No. 2)

Abstract: the making of further enquiries. The Law Commission's provisional proposal to limit overriding interests based on occupation to the occupied land seems to repeat the error made by the Court of Appeal in the Ashburn Anstalt case namely, a failure to distinguish the rights of the occupier from their mode of protection (ie, the fact of occupation). It is to be hoped that the Court of Appeal's decision in Ferrishurst Ltd v Wallcite Ltd will encourage the Law Commission to reconsider its position.

Burying Bell: Managing the Judicialisation of Social Security Tribunals

Abstract: The Social Security Act 1998 introduced fundamental changes to the tribunal system for hearing appeal claims in respect of benefits. This article examines the reasons for these changes to the largest tribunal system in the United Kingdom, and their implications for claimants. It emphasises the increasing legalism and approximation to ordinary courts of these tribunals. In particular, the article considers the implications of the reduction of lay membership of tribunals and the threats posed to the traditional inquisitorial approach.

Sexual Orientation Discrimination after Grant v South‐West Trains

Abstract: In Grant v South-West Trains [1998] ECR I-621, the European Court of Justice implied that, as a general matter, discrimination against an employee on the ground of sexual orientation did not violate Article 141 EC. This article argues that Grant rests on shaky foundations, in that it is conceptually inconsistent with the Court’s earlier decision in P v S and Cornwall County Council [1996] ECR I-2143. Furthermore, the scope of Grant has since been qualified by decisions of the European Court of Human Rights – decisions which may well have undermined the status of the case more broadly. However these difficulties are ultimately resolved, the Court of Justice’s treatment of sexual orientation discrimination exposes flaws in its approach as a self-proclaimed constitutional court.

Safeguarding children's welfare in non-contentious divorce: towards a new conception of the legal process?

Abstract: This article considers the working of the current procedure intended to ensure the welfare of children when their parents divorce but are not seeking any orders relating to them. It shows that the process is ineffective in safeguarding children's welfare and is not geared to ensuring that their wishes and feelings are taken into account. It argues that the focus of policy should shift away from assuming that the legal system can handle the problems of divorce, towards using the legal process as a point of contact through which families can be offered the full range of services they may need during relationship breakdown.

Defaming Politicians: The Not So Common Law

Abstract: expression and the protection of public reputations? These questions or something like them have recently been asked of the highest appellate courts in Australia, New Zealand and Britain. Traditionally, the common law has refused to accept that a defamatory statement, not provably true, could properly be made to the world at large simply because it concerned matters of public interest. Similarly, fair comment demands that defendants show the factual basis of the comment to be true. While qualified privilege is not dependent on the proof of truth, it does require that what is said serve 'the common convenience and welfare of society.'1 What was requisite for the public benefit was narrowly construed. Conventional wisdom denied that there could be a privilege in favour of widespread political dialogue which was honest, albeit erroneous.2 Additionally, the extent of publication had to be appropriate to the occasion and no wider than necessary.3 Each of the cases under review departs from this tradition to some extent. Though they differ significantly, they broadly agree about three matters. Firstly, in modern democratic societies a freedom to communicate widely about the use of political power and other matters of public moment is essential. Secondly, the law must allow the media some margin for factual error if the exercise of that freedom is not to be unduly inhibited by the threat of having to pay substantial damages libel's so-called 'chilling' effect. Thirdly, some form of qualified privilege is the most appropriate method of securing an expanded freedom of expression while continuing to offer suitable protection to reputation.

Juridification, Codification and Sanction in UK Competition Law

Abstract: The Competition Act 1998 radically reforms United Kingdom (UK) competition law displacing discretionary political action with more juridical norms based on the European Community (EC) competition rules. Such alignment is not required under EC law but in fact has occurred in most Member States1 and in all those countries seeking to join the EC in the near future.2 The basis of British competition law has shifted from a control of abuse system to a prohibition system. Under the control of abuse system everything was legal until expressly declared illegal. No penalties were imposed and decisions ultimately could be taken at the political level by the Secretary of State. Under the new prohibition system introduced by the Act breach of either of the two prohibitions on restrictive agreements and abuse of dominance may lead to the imposition of substantial fines in a manner similar to that found under EC law. This reform can properly be seen as a seismic shift in the regulation of competition within the UK leading to a juridification and codification of competition policy backed by a system of sanctions. This article argues that this process of juridification has redefined the role of the Office of Fair Trading (OFT) and created a very powerful regulator in its Director General. Codification takes the form of the Act itself supplemented by guidelines and for the first time a system of precedent through the now juridified successor of the Monopolies and Mergers Commission (MMC) the Competition Commission (CC). While codification facilitates and emphasises compliance, the Act also introduces strong investigative powers and sanctions. Finally, the article concludes that soft harmonisation with EC norms does not lead to complete harmony between the two systems of rules nor should it. In fact, there is continuing strength in the diversity that remains, leading to a greater bedding down of the system into the domestic legal order thus ensuring its acceptance and effectiveness, one where there is recognition that uniformity of legal norms across legal orders is little more than a fiction and that there are aspects of the EC system which can be improved on.

Taking Nazi Law Seriously

Abstract: Book reviewed in this article: Michael Stolleis, The Law Under the Swastika: Studies on Legal History inNazi Germany