bluuebunny/crossref_metadata_2025 huggingface dataset:
Of reciprocity and remedies—duty of disclosure in insurance contracts
Authors: Yeo H. Y.
Published: April 2006

One of the most distinguishing features of an insurance contract (being a contract uberrimae fidei) is that it attracts the duty of disclosure. As it presently stands, this duty unfortunately has drawn such criticism from many quarters for inflicting what is arguably one of the most onerous burdens upon the insured. The irony of the situation is that the original intention of the doctrine, as had been expressed by Lord Mansfield himself in the celebrated eighteenth century case of Carter v Boehm, was for both contractual parties–and not just only the insured–to exercise the utmost good faith in their dealings. However, all through the intervening years, the tide had almost entirely flowed in one direction. There has, hitherto, not really been any case law developing, or even spelling out, the insurer's duty of good faith. On the contrary, landmark cases such as CTI v Oceanus and Lambert v CIS have been only too generous in showering the insurer with so many privileges that from the perspective of the hapless insured the duty becomes almost like ‘an engine of oppression’.
Rationality in murder – a reply
Authors: Williams Glanville
Published: April 2006

After the long discussion of the definition of murder, in the courts and in legal writings, and the deliberations of the Nathan committee (which in essence endorsed the present law, as proposed to be slightly modified in the Draft Code), it might have been hoped that this debate would now subside. But there remain some malcontents, whom William Wilson has now joined by his article in 10 LS 307. This propounds a definition of murder which in the author's view would bring ‘rationality’ into the law (assumed to be at present in some way irrational). His two main proposals are the abolition of the doctrine of oblique intent in the context of murder (or altogether), and the acceptance as an additional mental element for murder, of a purpose to create a lethal risk.
The variable standard of care, contributory negligence and volenti
Authors: Kidner Richard
Published: April 2006

One of the problems which arises in the tort of negligence is where the plaintiff is aware of certain characteristics of the defendant which indicate that the defendant is incapable of achieving the usual standard of care, and yet the plaintiff enters into or continues a relationship with that person. Entering a car driven by a drunk driver is a simple example. There seems to be a common feeling that such a plaintiff is ‘less deserving’ and that it is a necessary consequence of the fault system that he should bear at least part of the responsibility for his loss. Recent developments, particularly in Australia, have suggested different approaches to this problem which raise issues about the nature and role of the standard of care, as well as about the relationship between the standard of care and various defences to negligence.
The concept of defectiveness in the Consumer Protection Act 1987: a critical analysis
Authors: Stoppa Alessandro
Published: April 2006

The concept of defectiveness is undoubtedly of crucial importance in the structure of the Consumer Protection Act 1987. The definition of the term ‘defect’, upon which will depend the actionability ofdamage caused by a product, is set out in s 3, which reads as follows:

(1) Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes ‘safety’, in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.
Exclusion clauses: the ambit of s 13(1) of the Unfair Contract Terms Act 1977
Authors: Macdonald Elizabeth
Published: April 2006

The Unfair Contract Terms Act 1977 may lead to considerable forced change in a contract. In some cases a contract term can be rendered automatically ineffective and in others a term can become ineffective unless it satisfies the requirement of reasonableness. Obviously the boundaries of such powerful provisions are of great significance and, for the most part, the sections which produce those effects are stated to apply to terms which ‘exclude or restrict liability.
Review and appeal in administrative law—what is happening to the right of appeal in immigation law?
Authors: Juss Satvinder S.
Published: April 2006

The purpose of this article is to examine the impact of two recent decisions on an immigrant’s right of appeal: Secretary of State for the Home Department v Sonia Mahli was decided in the Court of Appeal in December 1989 and R v Secretary of State for the Home Department, ex p Oladehinde was decided by the House of Lords in October 1990. Both cases raised other substantive issues of considerable importance for public lawyers: Oldehinde made the important point that the Secretary of State for the Home Department could delegate to senior immigration officers his powers to make deportation decisions; Malhi demonstrated how limited are the natural justice rights of overstayers.
Money and the Constitution: Financial control, reporting and audit
Authors: Harden Ian
Published: April 2006

Money is central to the constitution, whether the focus be effective power, legitimate authority, or both. To map the distribution of power within government it is best to begin by examining the control of money, because little of the business of government can be done without incurring expenditure of some sort. Control of money gives control of policy, either directly - because, in many fields, ‘expenditure is policy; policy is expenditure’ -or indirectly, on the principle that he who pays the piper calls the tune.
Uncertainty in leases – Is it a vice?
Authors: Bright Susan
Published: April 2006

John owns a workshop which he wants to redevelop. Securing the necessary financing and obtaining planning permission will take a few months and in the meantime he is happy to let Mike use the workshop for E30 a week. They draw up a simple form of agreement whereby John lets the property to Mark at the agreed rent ‘until John is in a position to proceed with the redevelopment’. John and Mark are content with the arrangement: Mark has the security of knowing he can occupy the premises for several months; John is getting some income from the property.
Conduct, relevance and the hearsay rule
Authors: Hirst Michael
Published: April 2006

‘In my view, the criminal law of evidence should be developed along common-sense lines readily comprehensible to the men and women who comprise the jury and bear the responsibility for the major decisions in criminal cases. I believe that most laymen, if told that the criminal law of evidence forbade them even to consider such evidence as we are debating in this appeal, would reply, “Then the law is an ass.”…The hearsay rule was created by our judicial predecessors, and if we find that it no longer serves to do justice in certain conditions then the judges of today should accept the responsibility of reviewing and adapting the rules of evidence to serve present society.’
Jury trial, continental style
Authors: Munday Roderick
Published: April 2006

Strange events are occurring in the world of the jury. At a time when English confidence in the institution is on the ebb, a phenomenon evidenced both in the titles of recent jury studies - The Jury Under Attack and Taking Liberties- and in a steady stream of skeptical commentaries, it is reported that in Japan the Bar Federation is set to call for the restoration of jury trial, first introduced by a law of 1926 but suspended after an experimental period in 1942. Spain has a new Constitution that imposes a duty on the legislature to institute jury trial, an undertaking currently under examination by the Spanish Ministry of Justice. And in South Africa, recent calls for a more representative justice system have prompted the editor of the South African Law Journal, Professor Ellison Kahn, to devote a tetralogy of articles to consideration of the reintroduction of jury trial within that jurisdiction.
Consent after the House of Lords: Taking and leading astray the Law of Theft
Authors: Davies Mitchell C.
Published: April 2006

The objectives of the Criminal Law Revision Committee when drafting the radical reforms proposed by the 1966 Theft Bill were described by a contemporary commentator2 as being: ‘. . . to do away with the more embarrassing and restrictive technicalities of the existing law . . .’

In the same place it was observed that the Committee faced a choice between creating a specific definition of the various theft offences and their elements, or one whose generality would allow it to evolve to meet the challenges presented by ever more complex and sophisticated dishonest dealing.
Adjudication and interpretation in the common law: a century of change
Authors: Birks Peter
Published: April 2006

This paper is concerned with one hundred and ten years of legal history. It is a success story. Yet it has, not an unhappy ending, for the end is in the future, but an unhappy present. Markers put down in 1883 and 1983 define the century. The change in question is the modernization of the literature of common law and hence of all the machinery of its interpretative development. Having been kept in shape first by the forms of action and then by a hardening of the doctrine of precedent, in the late nineteenth century the growing mass of case law urgently required to be more rationally ordered and explained. It began to find in the universities the means of achieving that improvement. Analysis, definition and classification, the familiar tools of the university, were brought to bear for the first time on the raw materials of the common law.
Harassing conduct and outrageous acts: a cause of action for intentionally inflicted mental distress?
Authors: Bridgeman Jo , Jones Michael A.
Published: April 2006

Over the years, the genius of the common law lay in its ability to adapt old laws to new circumstances, to remake itself in a new image which reflected the concerns and needs of the time. In this century much of our thinking about the law of torts has been shaped by the tort of negligence, which has been the paradigm of adaptability. Although it was Lord Atkin’s speech in Donoghue v Stevenson that provided the central unifying principle for the subsequent development of the tort, it was Lord Macmillan’s famous dictum that the categories of negligence are never closed which provided much of the driving force for those developments. Liability in negligence shifts the focus of the courts’ attention away from the nature of the plaintiffs interest that has been infringed to the nature of the defendant’s conduct. Once attention moved from the deed itself to the manner of its commission, it gradually became possible for the tort of negligence to seep into almost any arena. The opportunities for human error are manifold, and as the old immunities were removed new areas of liability were established.
Defamation of ‘government’: taking lessons from America?
Authors: Loveland Ian
Published: April 2006

The House of Lords’ decision in Derbyshire County Council v Times Newspapers Ltd has been widely welcomed as a long overdue development in the common law’s treatment of free speech issues. Eric Barendt interprets the judgment as a judicial recognition of free speech as a ‘quasi-constitutional’ right. In a more exoteric vein, a major article in the Observer bracketed the case with Factortame, Pepper v Hart, and Woolwich Building Society v Inland Revenue in suggesting that an increasingly liberal-minded judiciary was fashioning a ‘silent revolution’ against orthodox principles of Parliamentary Sovereignty.
Controlling corporate management: UK and US initiatives
Authors: Riley C. A.
Published: April 2006

Corporate law — both in the UK and US — remains preoccupied with the separation of ownership and control. Share ownership, the story runs, has become so dispersed in the larger company that control of its affairs has passed from shareholders to managers. It is assumed that managers will have interests which conflict with those of shareholders and will use their control to further the former at the expense of the latter. The orthodox response has been to stress the paramountcy of shareholder interests and to seek ways of compelling management to advance those interests in preference to their own. The urgency with which these prescriptions for company law have been pursued has rather fluctuated, depending upon the wider economic and political climate within which companies operate. Thus, the take-over activity of the late 1980’s created its own excesses, as in the Guinness affair. The subsequent recession, with its effect on profits, caused further strain, exacerbated by rises in executives’ pay and generous severance awards at times unrelated to the companies’ own financial performance. A number of substantial corporate failures or controversies have provided a further impetus.
Damages for breach of the equitable duty of confidence
Authors: Capper David
Published: April 2006

Protection of confidential information has two main juridical bases, contract and equity. Where the defendant is or was the employee or agent of the plaintiff he may be subject to an express or implied contractual duty not to use the latter’s confidential information without his consent Other defendants who receive such information knowing or believing it to be confidential, either from the plaintiff himself or a thiid party, may be subject to an equitable duty of like kind

The purpose of this article is to examine the range and scope of compensatory remedies for breach of the equitable duty of confidence. The term ‘damages’ is sometimes used generically to describe these remedies which are several and different from one another in certain respects? albeit difficult to pinpoint exactly.
Varieties of intention, criminal attempts and endangerment
Authors: Horder Jeremy
Published: April 2006

Intended conduct is not the only means by which people, for good or ill, make their presence felt in the world. Nonetheless, much judicial and academic learning exists on the meaning of intention in law. In spite of so much learning, however, our understanding of how intention affects the wrongfulness of conduct remains impoverished. The impression given by case law and commentary is that the important issues raised by the role of intention in the criminal law can largely be exhausted by exploration of the distinction between direct and oblique intention: between desired goals and side-effects foreseen as certain in acting. Nothing could be further from the truth. In particular, there is far more richness and complexity in the concept of direct intention itself than has been hitherto realised. In this article, I will focus on two more or less neglected species of direct intention: the intention to try to do wrong, and the intention to expose another to the risk of wrongdoing. An understanding of the moral significance of these kmds of intention enhances our understanding of the nature and scope of criminal attempts and possible offences of endangerment in English law.
Pensions as property
Authors: Nobles Richard
Published: April 2006

The overwhelming majority of employees who are members of occupational pension schemes belong to what are called ‘defined benefit’ schemes. These schemes provide for their members to receive a benefit defined by reference to a member’s salary at the date of their retirement or, if they change jobs, the salary paid just prior to their leaving. This article examines the rights of the members of defined benefit schemes. In particular, it considers claims by scheme members that the pension funds which secure their pensions represent their deferred pay, and that these funds are, in some meaningful sense, their property. The article argues that whilst the law of trusts may appear at first sight to lend support to the members’ claims, developments within the law of trusts, coupled with the underlying contradiction in the meaning of ownership in trust law, has made it difficult for the courts to recognise the members’ claims.
Corporate criminality: four models of fault
Authors: Gobert James
Published: April 2006

‘Corporation - an ingenious device for obtaining individual profit without individual
responsibility.’

(A Bierce The Devil’s Dictionary, 1958)

The problem of how to hold a company criminally accountable for the harm produced in the course of its business activity continues to vex the English judiciary. The attempt to apply conventional criminal law to companies has not been a resounding success. This was perhaps predictable, as the relevant rules and doctrines had been developed in cases involving human defendants. Their transposition to an inanimate organizational entity such as a company was never going to be easy. Not only did the judges fail to rise to the challenge, however, they managed to construe the relevant law in a regressive manner that has all but insulated large companies from criminal liability.
Adverse possession – problems of title in registered land
Authors: Cooke Elizabeth.
Published: April 2006

It has been said that ‘the law of limitation is a subject which peculiarly involves an enquiry into first principles.’ That is particularly true in registered land. Section 75 of the Land Registration Act 1925 grafted into registered land a concept inimical to it, namely the possibility of defeat by adverse possession of a flawless documentary title. That endeavour has on the whole been successful; but there remain problems, concerning such fundamental concepts as trusts, the nature of legal estates after 1925, and ‘title absolute.’ This article seeks to explore those problems; at the same time, the opportunity will be taken to look again at the decision in Spectrum Investment Co v Holmes and to suggest that it need no longer be regarded as a major source of difficulty.
A fifth common law obligation
Authors: McBride Nicholas J.
Published: April 2006

This article is an attempt to add to our understanding of the map of common law obligations. That there is such a thing is an article of faith among those who believe that the common law is based on reason. Any map does three things: it represents a certain area; it enables us to locate any point on that area by providing us with axes of reference (for example, longitude and latitude) and it identifies certain points on that area as significant. The map of common law obligations covers the set of all possible duties. A duty is located in that set by reference to its pattern (its content) together with its origin (the set offacts sufficient to give rise to that duty). The map of common law obligations identifies all the duties which the common law may give effect to by compelling those who are subject to those duties to comply with them.
Group personal injury litigation and public opinion
Authors: Hedley Steve.
Published: April 2006

From within the law school, group personal injury litigation may be approached in various ways. Until very recently it was, indeed, ignored as an irrelevant foreign development: not perhaps ‘it could never happen here’, but at least ‘it hasn’t happened here, yet’. Now that it plainly has happened, it is nonetheless possible to ignore it. The question whether the snail in my ginger beer bottle can give rise to an action is not, in principle, affected by what other people found when they opened theirs; if it is said that in practice it cannot but be affected, the retort would be that the law schools need not concern themselves with the sort of practicalities involved. Indeed, group litigation barely rates a mention in most practitioners’ texts either; so many academics feel excused from considering it all, even as a mere footnote to the general run of cases.
My brother's keeper? Liability for acts of third parties
Authors: Howarth David.
Published: April 2006

In what circumstances, if any, can a person be held liable in tort for failing to prevent another person from causing harm?

Different legal systems answer the question in different ways. In many US jurisdictions, for example, although theoretically there is a presumption against liability, a great number of categories of citizen (including doctors, bar-keepers and psychologists) are held responsible for the harm caused by others to whom, for example, they have prescribed medicines or served alcoholic drinks or offered advice.
Ignorance of law and duties of citizenship
Authors: Husak Douglas N.
Published: April 2006

Theoretical discussion of the question of whether and under what circumstances ignorance of law should be a defence from criminal liability has had a peculiar history in Anglo-American law. Commentators have been more convinced that ignorance oflaw should generally not serve as a defence than they have been persuaded by any particular rationale in favor of this rule. When one argument is shown to be unsound, another emerges to take its place, preserving the conclusion intact; the weight of scholarly opinion does not shift to embrace the position that ignorance of law should typically be a defence from criminal liability.
Sales law and the negotiability of motor vehicles: a legal conundrum*
Authors: Davies Iwan R
Published: April 2006

The traditional common law analysis where a third party wishes to acquire an indefeasible interest in a chattel is to direct the latter to the ‘owner’, as the prerequisite for the enjoyment of most property rights depends upon our ability to acquire these from someone else. In this respect, the issue of whether a disposition constitutes the extinguishment of an interest in the chattel or whether a dealing raises priority questions is fundamental. Extinguishment issues go to rights of ownership, typically, where the property of A is misappropriated by a third party T who disposes of it to B, and the question of law is whether B prevails against A with its attendant consequence of extinguishing A's title. In contrast, a priority dispute arises where there are competing security interests in the same chattel which may be resolved either through a subordination agreement or through clear priority rules.
Equitable fraud committed by third parties
Authors: Battersby Graham
Published: April 2006

In the twin cases of Barclays Bank Plc v O’Brien and CIBC Mortgages Plc v Pitt the House of Lords consided for the first time an issue which has fresuently troubled the lower courts in recent years. In essence the issue can be boiled down to the following question:

Where a debt owed by A to C is guaranteed by B, in what circumstances will the fact that A induced B to make the guarantee by misrepresentation, undue influence or other conduct of which Equity disapproves, render the guarantee voidable by B against C?

(This simplified scenario, where A is the principal debtor, C the creditor, and B the guarantor, will be used in much of what follows). The contemporary significance of the question, and the difficulty which it has posed to the courts, are graphically shown by the fact that it has given rise to eleven reported decisions by the Court of Appeal in the last eight years.
Private law and the environment: nuisance in context
Authors: Steele Jenny
Published: April 2006

Private nuisance is, on the face of it, an old-fashioned tort, whose agrarian, antidevelopmental roots may make its contemporary relevance seem limited. On the other hand, both nuisance and Rylands v Fletcher hold obvious attractions for litigants whose interests have suffered as a result of environmental change. The potential apotheosis of nuisance into a ‘Toxic Tort’ presents tort lawyers and environmental lawyers with a number of pressing questions concerning the nature and scope of private law in this context.

This article will seek to assess in outline the positive potential of tort law in this respect, but it will also be argued that there may nevertheless be real conflicts between the law of tort and central elements of environmental law. The nature of those potential conflicts can only be understood if we clarify the form (or forms) of liability effected by relevant torts, and here the tort of nuisance poses particular problems. Once clarified, however, I would suggest that these conflicts can contribute to debates, not just about tort law, but also about the basic aspirations of environmental law and policy.
Executive pay: beyond control?
Authors: Villiers Charlotte
Published: April 2006

Are company executives greedy? Recent reports reveal that executives’ pay no longer corresponds with corporate performance. The earnings gap has also continued to widen since the 1980s and senior executives in public companies are regularly criticised for taking too much from the corporate purse. The press has highlighted large salary figures and, during a period of economic recession, headlines which accuse corporate bosses of riding a gravy train have considerable impact. This is an issue for corporate governance. We are forced to ask why company law has seemingly failed to control levels of pay at the top of the corporate hierarchy.
Negligently inflicted psychiatric harm: a re-appraisal
Authors: Murphy John
Published: April 2006

The law of negligence has long been concerned not to countenance liability ‘in an indeterminate amount for an indeterminate time to an indeterminate class’. Nowhere, except perhaps in relation to pure economic loss, has this reluctance been more pronounced than in the context of negligently inflicted psychiatric harm. Without aiming to advocate a system of law that would create an increase in the workload of personal injury practitioners, this article attempts a thoroughgoing reappraisal of the bases of liability for psychiatric harm. More particularly, its primary aim is to accommodate liability for such harm within the current, tripartite framework governing the duty of care: that harm to the plaintiff be foreseeable, that there be a relationship of proximity between the plaintiff and the defendant and, that it be just and reasonable to impose a duty. Such an endeavour is both timely and necessary in view of the House of Lords’ recent insistence that in all cases-even those involving physical harm-all three limbs of the duty formula must explicitly be demonstrated.
The limits of beneficence:egg donation under the Human Fertilisation and Embryology Act 1990
Authors: Plomer Aurora , Martin-Clement Norma
Published: April 2006

The Human Fertilisation and Embryology Act 1990 (HFE Act) has been described as a ‘milestone in biomedical regulation’. Yet as a milestone, it marks out the frontier of medical science as it stood at 1990. It was always accepted that the Act would not be the ‘last word on the subject’ of embryology. Five years on and, inevitably, the frontiers of the reproductive revolution have been pushed forward by scientific and clinical developments, and, again inevitably, those developments have thrown up new social, ethical and legal problems. Thanks to the passing of the 1990 Act, the new techniques do not exist in a vacuum: one of the achievements of the HFE Act is that it provides the institutional and legal framework in which new problems can be debated and resolved as they arise. The key element in that framework is the statutory licensing authority created by the 1990 Act-the Human Fertilisation and Embryology Authority (HFEA).
Comparing legal cultures of Eastern Europe: the need for a dialectical analysis
Authors: Puchalska-Tych Bogumila , Salter Michael
Published: April 2006

Comparative legal studies have been haunted by many unresolved scholarly problems of a methodological and theoretical nature which too often continue to be ignored within the literature. The deficiencies in theory and method of comparative legal studies have rightly been often blamed for marginalisation of this subject in legal education and practice. The aim of the present article is to contribute to this general debate by identifying and then analysing certain deficiencies of approach to the task of comparing western and socialist legal systems and cultures. Our main preoccupation is to address critically the methodology of comparative law not only for its own sake but also in response to the challenge raised by Bell's recent claim that legal theory has much to learn from reflecting upon the issues raised by the comparative enterprise.
Note: what is wrong with insider dealing
Authors: Campbell David
Published: April 2006

In this journal Harry McVea recently has asked ‘What's Wrong with Insider Dealing?’ One imagines that many readers will have thought the question rather supererogatory, but Mr McVea more than adequately shows that just this question is very live in many of the leading works on the economics of stock markets. One is here dealing with seminal works such as those of Easterbrook, Fischel, Hirshleifer and Manne which are identified with the discipline of financial economics as such. Mr McVea, in my opinion rightly, concludes that insider dealing is wrong, but does so in a way that I think is wrong headed, particularly in the way that one fears his conclusion will be interpreted by most readers of this journal. Though there is much that is admirable in Mr McVea's paper, his conclusion is uncompelling, and is so for a reason with which I think it important to take issue.
Intention and the creation of proprietary rights: are leases different?
Authors: Hill Jonathan
Published: April 2006

There are various angles from which the role of intention in the creation of proprietary rights can be approached. First, since proprietary rights are rights which are legally enforceable, rights which are established by a particular transaction or arrangement cannot take effect as proprietary rights unless the parties intend to create legal relations. So, even in a case where Y is in exclusive occupation of land owned by X and pays X a periodic sum in return for use of the land there is no tenancy - and no contractual licence - if the parties do not intend to enter legal relations.
Easements and exclusive possession
Authors: Luther Peter
Published: April 2006

The case of Copelund v Greenhalf has puzzled students of land law for over forty years. It is usually taken as authority for the proposition that a claim to an easement will fail if it amounts, in effect, to a claim of exclusive possession of the servient land. The plaintiff, the owner of a strip of land leading to an orchard, had sought to restrain the defendant, a wheelwright with premises across the road from the orchard, from leaving vehicles awaiting repair on the strip of land. The defendant countered that he and his father had used the strip (save for enough space to allow access to the orchard) for storage of vehicles for 50 years; he therefore claimed a prescriptive easement, under s 2 of the Prescription Act 1832, to do so.
A right to mislead Parliament?
Authors: Tomkins Adam
Published: April 2006

The assertion was recently made in the House of Commons that ministers have the right, in certain circumstances, to mislead Parliament, either by telling an outright lie, or by keeping quiet. This astonishing statement concerns a central aspect of the British constitution: namely the essential ability of Parliament to acquire accurate information about government, even (or perhaps especially) when the government does not want to give it. Despite popular cynicism as to the ability of politicians ever to tell the truth, not lying to Parliament has long been regarded as being of the utmost importance. The very survival of politicians in office has often been made dependent on whether it can be shown that they have misled Parliament: ‘John Profumo lost office not because of his sexual misbehaviour but because he lied to Parliament. When Mrs Thatcher narrowly survived the Westland affair the debate was on whether Parliament had been deceived’. The ability to ensure the effective acquisition of relevant information is essential to Parliament's key tasks of engaging in meaningful and effective debate, and of scrutinising the work of the executive:
Coercion or caring: analysing adolescent autonomy
Authors: Brazier Margaret , Bridge Caroline
Published: April 2006

The judgment of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority appeared to usher in an era ofjudicial respect for children's rights and the autonomy of the older child. Just a decade later the decisions of the Court of Appeal in Re R and Re W were perceived as signalling a reversion to judicial paternalism and dealing a near fatal blow to adolescent autonomy. The fundamental philosophy of the Children Act 1989 itself, in which the wishes of children and the ‘rights’ of the more mature minor play such a central part, came under attack in a continuing series of cases at first instance where judges overruled the judgments of older children in favour of the judgment of their doctors.
Appreciating Olugboja
Authors: Gardner Simon
Published: April 2006

The mainly social nature of humanity's existence has necessitated an apparatus of ideas for evaluating, amongst other things, the acceptability of personal interactions. The idea of consent is an important part of this apparatus. We find it a valuable ingredient in our thinking about such activities as physical, sexual, or psychic invasion, and the transfer or use of property. We commonly say that if someone performs one of these activities without the consent of another person whom we identify as having rights in the matter, they do a wrong; and, albeit perhaps a little less commonly, that if the other person does consent, they do not do a wrong. And we go on to articulate at least some of this thinking in the form of rules of the criminal law.
Conciliation and the New Zealand Family Court: lessons for English law reformers
Authors: Bridge Caroline
Published: April 2006

Conciliation has formed an integral part of the New Zealand Family Court’s management of family disputes since 1980. The Family Court is a tiered structure, designed to encourage the parties to resolve their own disputes by providing opportunities for conciliation within a statutory process. The first two tiers, counselling and judicial mediation, are procedures intended to empower the parties, enable self-determination, and encourage a conciliatory rather than combative attitude towards both each other and the dispute. Consequently, the parties are compulsorily channelled through the conciliation tiers of the court even if the ultimate goal of one of them is a court room battle. The hope is that the third tier, adjudication by a Family Court judge in the Family Court, will be avoided.
Shifting images: police-suspect encounters during custodial interrogations
Authors: Bryan Ian
Published: April 2006

Under the Police and Criminal Evidence Act 1984 (PACE), the freedom enjoyed by the police to detain suspects in custody and to question them in order to obtain incriminating admissions, is made subject to the mandatory duty of the court to exclude any confession that was or may have been obtained by oppression or as a result of conduct likely to render the confession unreliable. The courts are assisted in this duty by the requirement for custodial interviews to be contemporaneously recorded either by verbatim notes or by audio tape.

The requirement to make contemporaneous records appears to have been designed ‘to prevent the police from fabricating confessions or damaging statements [and] to prevent those who have in fact made admissions subsequently retracting them’. Backed by the statute, this requirement is more stringent than that provided for under the old Judges’ Rules.
A general right to a minimum wage in English law: an argument from generic consistency
Authors: Beyleveld Deryck , Villiers Charlotte
Published: April 2006

Is there a general right to a minimum wage in English law? That we even ask this question might prompt a suspicion that we have taken leave of our senses. After all, no general right to a minimum wage exists in statutes or in the common law, and the situation is not altered by the incorporation of European Community (EC) law into domestic law by the European Communities Act 1972 -for, while it is true that the Social Chapter of the Maastricht Treaty may be interpreted as granting a general right to a minimum wage, the UK has opted out of this chapter?

Certainly, the UK is party to international treaties and conventions - most notably the European Social Charter (ESC) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) - that expressly grant a general right to a minimum wage.
Ethics by the pervasive method — the case of contract
Authors: O'Dair D R F
Published: April 2006

‘the duty of the law schools is to help its students to understand the ultimate significance of the lifework they have undertaken: to see the ultimate purpose of a lawyer's work… .’ [Brainard Currie]

The Lord Chancellor's Advisory Committee on Legal Education and Conduct (ACLEC) has recently called upon academic law teachers of the undergraduate degree in law to take more of an interest in professional ethics. This means that academic law teachers can no longer set the subject aside as something to be dealt with during vocational legal education. Professional ethics must be taught pervasively, ie at each stage of legal education. This paper argues, however, that professional ethics must be taught pervasively in a further sense: even within the undergraduate curriculum, the task of educating tomorrow's lawyers in professional ethics cannot be left to one or more specialists in the subject.
Euthanasia, pain relief and double effect
Authors: Price David
Published: April 2006

The law's overseeing of administrations of pain-relieving treatment with inevitable life-shortening consequences is of crucial significance in view of the dogmatic approach of English criminal law to active euthanasia. As Lanham states in respect of society's treatment of terminal physical pain:

‘If the euthanasia option is not available, some other method will have to be found. In Britain and Australia that method involves palliative care and the hospice movement. By contrast, in the Netherlands active euthanasia is available and palliative care is poorly developed.’

The recent prosecution in R v Cox made it abundantly clear that causing death in order to relieve a patient of further pain and suffering amounts to murder under current law. By contrast, knowingly shortening life through the administration of pain-killing drugs was recently declared to be lawful by Lord Goff in the House of Lords in Airedale NHS Hospital Trust v Bland.
Civil disobedience as constitutional Patriotism
Authors: Bengoetxea Joxerrarnon , Ugartemendia Juan Ignacio
Published: April 2006

‘One afternoon, near the end of the first summer, when I went to the village to get a shoe from the cobbler’s, I was seized and put into jail, because, as I have elsewhere related, I did not pay a tax to, or recognise the authority of, the state which buys and sells men, women and children, like cattle at the door of its senate-house. I had gone down to the woods for other purposes. But wherever a man goes, men will pursue and paw him with their dirty institutions, and, if they can, constrain him to belong to their desperate odd-fellow society. It is true, I might have resisted forcibly with more or less effect, might have run ‘amok’ against society; but I preferred that society should run ‘amok’ against me, it being the desperate party. However I was released the next day, obtained my mended shoe, and returned to the woods in season to get my dinner of huckleberries on Fair-Haven Hill”
Mortgage default: possession, relief and judicial discretion
Authors: Haley Michael
Published: April 2006

At common law, and whether or not there is default on the part of the debtor, the legal mortgagee enjoys the proprietary right to take actual possession of mortgaged property for any purpose: ‘… before the ink is dry on the mortgage.’ Although technically this is an absolute right, in practice possession will be sought only if the borrower is in breach of the mortgage agreement. The danger remains, however, that such an unqualified right may be arbitrarily used by a capricious mortgagee. Any minor and temporary default might be seized upon by the lender as justification for taking possession and, subsequently, selling the property. This would deprive the mortgagor of any opportunity to remedy the default. The lender could, thereby, render the borrower homeless simply to rid itself of the inconvenience of a problem debtor.
Negative enforcement of employment contracts in the sports industries
Authors: McCutcheon J Paul
Published: April 2006

The right to the exclusive services of sports performers is a valuable asset, in team sports, to the clubs which employ them and, in individual sports, to the agents, managers and/or promoters who act for them. This is most visible in professional football's market for players’ services where leading performers are currently ‘sold’ for many millions of pounds. The notion of players as assets is often reflected in clubs’ accounts and enhances clubs’ overall value. Of those clubs which are owned by publicly quoted companies the securing (or loss) of a star player can crucially affect the share price of the controlling company. In a more general sense a player's value to his club is reflected in his capacity to attract larger attendances, an increased volume of pre-season ticket sales and enhanced merchandising and marketing opportunities.
Strikes and the contract of employment: a comparison of the laws of Spain and England
Authors: Murcia Joaquín García , Villiers Charlotte
Published: April 2006

Despite having made some important advances in the harmonization of labour law in the European Union, the regulation of strikes continues to differ among the member states. In this article we will investigate the effect of the strike on the contract of employment and the extent of the employer's powers in the context of the strike in Spanish and English law. We will preface these particular issues with a general comparison of the characteristics of the two legal systems and their labour law principles. We will be concerned with the definition given to the strike in each legal system and whether there exists a right or a freedom to strike.
Relativism, reflective equilibrium, and justice
Authors: Schwartz Justin
Published: April 2006

As the issue is usually framed, the fundamental issue at stake between mainstream liberal jurisprudence and various forms of Critical Legal Studies (CLS) is, as Jeffrie Murphy puts it, whether there are ‘neutral principles in law and morality. By neutral principles [are] mean[t] those principles that can be agreed to by all rational beings.’ CLS theorists of all sorts typically hold that there are no neutral principles in a society divided into groups with vastly unequal power and status. Socialist Critics assert the class character of the law and morality. Feminist and Critical Race Theorists hold that these are infected with gender or racial biases. Social conflict between groups translates into irreconcilable conflicts of values. But in rejecting liberal neutrality, Murphy claims, the Critics fall into a radical ‘value relativism or skepticism’, which he regards as pragmatically self-defeating given their political commitments to the interests of subordinate groups.
The application of the ‘broad principle of Hedley Byrne’ as between parties to a contract
Authors: Whittaker Simon
Published: April 2006

In Henderson v Merrett Syndicates Ltd the House of Lords held, inter alia, that a party to a contract may rely on a tort committed by the other party, as long as doing so is not inconsistent with its express or implied terms. In doing so, it made clear (with respect, correctly) that the much-quoted passage in Lord Scarman's speech in Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd should not be interpreted as assigning to contract an domain exclusive of tort and it thereby upheld the formerly predominant view which allowed concurrence of actions in tort and contract in principle. However, in finding a duty of care on which to base the plaintiffs’ claims in tort, Lord Goff in Henderson relied on Hedley Byrne as establishing a very broad principle of liability in tort based on the defendants’ ‘assumption of responsibility’ and this principle invites a radically different treatment of the relationship between the tort of negligence and contract between parties to contracts.
Remarks on the philosophy and politics of public law
Authors: Frankenberg Günter
Published: April 2006

To this very day, public law scholars seem to be concerned about the identity of their area of scientific interest. Many of them in many European legal cultures routinely labour, some even agonise over distinguishing public law from what appears to be a securely established field of private law. More than 20 years ago, 20 to 30 variations of the public/private-theme, usually elevated to the rank of ‘theories’, could be counted in German scholarship alone, none of them satisfying the desire to clarify, once and for all, the nature, purpose, and scope of public law.

In this vein, law students are required to discuss at least the major demarcation theories so as, for instance, to establish jurisdiction of administrative courts, liability of the state, or the scope of constitutional rights.
Combating the mortgagee's right to possession: new hope for the mortgagor in chains?
Authors: Dixon Martin
Published: April 2006

The need for certainty about the scope of the court's jurisdiction to interfere with a mortgagee's right to possession of a dwelling house following default by the mortgagor needs little emphasis. Much is at stake, and unless the mortgagor can plead some substantive defence such as undue influence, the mortgagor faces losing what is usually the family home. Until relatively recently, this certainty has existed and the extent of the court's jurisdiction to control or deny a mortgagee's possessory rights has not been in issue, the focus being instead on the narrower question of how the court's recognised powers should be exercised. However, a number of recent decisions, including Cheltenham and Gloucester plc v Krausz; Cheltenham and Gloucester plc v Booker and Bristol & West Building Society v Ellis and Ellis, have prompted more fundamental questions.
The Court of Justice as a policy actor: the case of the Acquired Rights Directive
Authors: Hunt Jo
Published: April 2006

In 1977, the Council of the European Community unanimously adopted Directive 77/187/EEC on the approximation of laws of the member states relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses, or parts of businesses. The first half of the 1970s had witnessed an ever increasing incidence of business restructuring throughout the territory of the Community. Concern over the possible impact of such structural changes on affected employees prompted the introduction of the Acquired Rights Directive, which, according to its preamble, had the primary purpose of providing ‘for the protection of employees in the event of a change of employer, in particular to ensure that their rights are safeguarded’. In the event that a transfer of an undertaking results in a change of employer, the directive provides for the automatic transfer of the employment relationship from the old employer (the transferor) to the new employer (the transferee).