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THERE can be little doubt that there is disagreement between the Court of Appeal and the European Court of Human Rights (ECtHR) over the whole-life sentence in England and Wales. Despite evolving jurisprudence on the issue of life-long detention emanating from Strasbourg, the Court of Appeal has readily upheld the English whole-life sentence in recent years. It has been doing so by adopting a very wide interpretation of the Secretary of State's power to order the compassionate release of a life sentence prisoner.
IN Mellish v Motteux (1792) 170 E.R. 113, 157, Lord Kenyon observed that “in contracts of all kinds, it is of the highest importance that courts of law should compel the observance of honesty and good faith”. This passage echoes a similar statement by Lord Mansfield 25 years earlier in Carter v Boehm (1766) 97 E.R. 1162, 1910. Despite these early statements of principle, the modern common law has been notoriously hostile to the notion that contracting parties are under a general duty of good faith in the performance of their obligations (see W.P. Yee, “Protecting Parties' Reasonable Expectations: A General Principle of Good Faith” (2001) 1 Oxford U. Commonwealth L.J. 195), and there is certainly “no firm line of modern cases to support such an obligation” in English law (see L.E. Trakman and K. Sharma, “The Binding Force of Agreements to Negotiate in Good Faith”  C.L.J. 598). Nevertheless, some recent decisions in Australia, Canada, and England have begun to imply obligations to perform certain types of promises, in certain classes of contracts, in an honest manner, crafting, in the words of Lord Bingham, “piecemeal solutions in response to piecemeal problems” (Interfoto Picture Library v Stiletto Visual Programmes Ltd.  1 QB 433, 439 (CA)). A recent English example is Yam Seng Pte Ltd. v International Trade Corporation Ltd.  EWHC 111 (QB) in which Leggatt J. found there to be an implied duty of “honesty” and “fidelity to the bargain” in the context of a long-term distribution contract. Importantly, His Lordship emphasised that whether such obligations can be implied is a matter of construction, which involves ascertaining the parties' objective intentions through conventional techniques such as the principle of business efficacy. As implying such obligations depends entirely on the context of each contract (at paras –) there is, at present, no general principle of good faith performance in English contract law, despite some case-by-case recognition (see Mid-Essex Hospital Services N.H.S. Trust v Compass Group UK and Ireland Ltd.  EWCA Civ 200, at , ).
AT the behest of the Law Commission, Contempt of Court: Scandalising the Court (18 December 2012), Parliament recently abolished the common law offence of scandalising the court (s. 33 of the Crime and Courts Act 2013). But the offence is still frequently found in many parts of the common law world and the decision of the Judicial Committee of the Privy Council in Dhooharika v DPP of Mauritius  UKPC 11;  3 W.L.R. 1081 may indicate its future in common law jurisdictions. The Privy Council was asked to decide, inter alia, whether the common law offence was compatible with s. 12 of the Constitution of Mauritius. Section 12 protects a person's freedom of expression but also makes saving for any law, or any act done pursuant to law, which aims to maintain the authority and independence of the courts and which is reasonably justifiable to that end.
A claims an interest in B's property; C is a purchaser who is unaware of A's claim. This is a typical land law dispute involving two innocent parties (A and C). Registration systems generally set out to protect C – it is thought compelling that purchasers should be able to rely on the register to buy land quickly and risk-free. However, there are some limits to this protection.
IN Hounga v Allen  UKSC 47;  1 W.L.R. 2889, the Supreme Court unanimously upheld a claim in the statutory tort of discrimination by a woman who had been dismissed from her employment. The fact that the woman had been working in breach of immigration laws did not enliven the illegality defence. Hounga is one of several recent cases in which the illegality defence has been examined at the ultimate appellate level, the other decisions being Gray v Thames Trains Ltd  UKHL 33;  1 A.C. 1339, Stone & Rolls Ltd v Moore Stephens  UKHL 39;  A.C. 1391, and Les Laboratoires Servier v Apotex Inc  UKSC 55;  3 W.L.R. 1257. The fact that the defence has been considered so frequently as of late at the apex level seems to confirm that the Law Commission was wrong in its prediction, made shortly after Gray and Moore Stephens were decided, that the defence would be brought into a satisfactory state if responsibility for reforming it was left to the courts (The Illegality Defence (Law Com 320, 2010), at [3.37]–[3.41]). We are not alone in holding this view. Writing extra-judicially, Lord Mance and Lord Sumption have called for the Law Commission to re-examine the defence (J. Mance, “Ex Turpi Causa – When Latin Avoids Liability” (2014) 18 Edinburgh Law Review 175, 192; J. Sumption, “Reflections on the Law of Illegality” (2012) 20 Restitution Law Review 1, 8–12). We argue here that Hounga perpetuates (and possibly aggravates) the difficulties from which this area of law suffers.
THE European Court of Human Rights' (ECtHR) judgment in Jones and others v U.K. (2014) 59 E.H.R.R. 1 is the latest word on a long-running debate about whether public international law excludes foreign State immunities before domestic courts in civil proceedings relating to the violation of jus cogens norms, particularly the prohibition against torture. The case joined applications by Mr. Jones and Messrs. Mitchell, Sampson and Walker, all British (or dual) nationals, alleging that the UK's grant of immunity to Saudi Arabia (in Mr. Jones's case) and to Saudi Arabian public officials (in both cases) amounted to a disproportionate interference with their right of access to court under Article 6 of the European Convention on Human Rights (ECHR). The ECtHR decided, by six votes to one, that the House of Lords' judgment in Jones vMinistry of Interior Al-Mamlaka Al-Arabyia AS Saudiya (the Kingdom of Saudi Arabia)  UKHL 26;  1 A.C. 270) (“Jones [HL]”) was correct in finding that public international law did not recognise a “torture” exception to the general rule of State immunity in civil proceedings and, consequently, did not infringe Article 6 of the ECHR.
DIRECTORS owe their company a duty to act bona fide in the company's interests. When the company is insolvent, directors must consider the interests of creditors. The content of this duty, however, has never been clearly articulated. In particular, is a director in breach of his duty if he prefers one creditor to another? In Moulin Global Eyecare Holdings Ltd. v Olivia Lee Sin Mei (2014) 17 H.K.C.F.A.R. 466, Gummow N.P.J., sitting in the Hong Kong Court of Final Appeal, answered this question in the affirmative. This note (1) outlines the facts in Moulin; (2) considers the case law and the nature of the duty; and (3) compares the duty with the statutory preference provisions.
IN R. (Lord Carlile) v Secretary of State for the Home Department  UKSC 60;  3 W.L.R. 1404, the Supreme Court held by a four to one majority (Lords Sumption, Clarke, Neuberger and Lady Hale, Lord Kerr dissenting) that the exclusion of an Iranian dissident from the UK was a proportionate interference with the Article 10 ECHR right to freedom of expression of both the dissident herself and the cross-party group of parliamentarians litigating on her behalf. The parliamentarians had wished to invite Mrs. Maryam Rajavi, the exiled leader of the former terrorist group the People's Mojahedin Organisation of Iran, to the Palace of Westminster to speak about democracy and human rights in Iran. The Home Secretary had excluded the invitee on the basis of a risk assessment formulated in cooperation with the Foreign Office. The risk assessment had concluded that admission of Mrs. Rajavi might endanger foreign relations between Britain and Iran, and British national security because of the potential risk to the safety of British diplomatic personnel based in Iran. Lord Sumption put the matter succinctly: “the future is a foreign country” and the Courts should therefore be reticent to interfere with Executive predictions in the realm of “high policy” (at para. ). The judgment is of great interest not only for its background facts, which concern the often fraught and complicated diplomatic relationship between the UK and Iran, but principally because the decision engages central constitutional questions regarding the institutional competence of the courts in judicial review.
THE recent Supreme Court decision in Scott v Southern Pacific Mortgages  UKSC 52;  H.L.R. 48 considered whether a promise made by the buyer of a piece of land, before completion, could give rise to a proprietary estoppel claim. Obiter, the court also considered the width and applicability of the rule in Abbey National B.S. v Cann  A.C. 56, which has traditionally been seen to provide that completion and the creation of a mortgage charge are to be considered as one transaction in cases of acquisition mortgages where the purchaser could not have purchased the property without the mortgage loan.
EVER since the establishment of separate legal personality of companies and their limited liability in the nineteenth century, there have been attempts by voluntary and involuntary creditors of the insolvent or dissolved subsidiary to obtain remedies from the parent company. The orthodox view is that the parent company is neither responsible for the acts and omissions of the subsidiary nor liable for its debts. The Court of Appeal in David Thompson v The Renwick Group plc  EWCA Civ 635 confirmed that the exceptions to this orthodoxy apply only in truly exceptional circumstances. As discussed below, the importance of this judgment extends into the realm of international human rights and environmental litigation and has the potential to set back the existing efforts within the European Union to ensure effective judicial remedy for corporate abuses.
OVER the past 15 years, international surrogacy has grown from a niche practice catering only to a few adventurous couples, to a convenient response to infertility for those who would otherwise be hindered by restrictive national regimes. While the Hague Conference Permanent Bureau continues to debate the desirability, and indeed viability, of an international convention in this area, governments and courts around the world have been confronted by the difficult question of whether to recognise an agreement that takes place legally in another jurisdiction, but which is contrary to their own laws. In this, England is no exception. With approximately 25%. of all surrogacy arrangements now taking place outside its borders, English courts are regularly being asked to confer parenthood on commissioning parents in circumstances in which the statutory requirements have not only not been met, but in some cases flagrantly breached. The latest development in this regard is Re X (A Child) (Surrogacy: Time Limit)  EWHC 3135 (Fam), where the tension between public policy as evinced in the legislation, and the welfare of the child who will bear the burden of any refusal to recognise parenthood, once again came to a head.
AT common law, in cases where the substantive claim is governed by foreign law, questions of procedure are nonetheless governed by the lex fori. In the context of damages, although the existence of damage is a question for the lex causae, its quantification and assessment is determined according to the law of the forum (Boys v Chaplin  A.C. 356). The distinction between substance and procedure is preserved by Article 1(3) of Council Regulation (EC) No 864/2007 (“Rome II”) which provides, with certain exceptions, that Rome II “shall not apply to evidence and procedure”. That rule is, however, qualified by Article 15, which requires the law applicable under the Regulation (i.e. “the law applicable to non-contractual obligations”) to govern, inter alia, “the existence, the nature and the assessment of damage or the remedy claimed” (Article 15(c)). The decision of the Court of Appeal in Wall v Mutuelle De Poitiers Assurances  EWCA Civ 138;  3 All E.R. 340 concerns the definition of “procedure” in Article 1(3) and the meaning of “applicable law” in Article 15(c). It raises the important question of how far Rome II has encroached on the traditional view of national procedural autonomy in the conflict of laws.
THE issue of whaling has been the subject of considerable controversy in recent years, as the international community remains divided as to how the world's marine resources should be managed: some states prioritise conservation, while others favour sustainable exploitation. Against this background, Australia initiated proceedings against Japan before the International Court of Justice (ICJ) in May 2010, claiming that Japan's continuing whaling activities, carried out under the guise of scientific research, were in breach of its various obligations under the International Convention for the Regulation of Whaling (ICRW). New Zealand later intervened in the proceedings, exercising its right under Article 63 of the ICJ Statute, and oral pleadings involving the three states were held in June and July 2013. On 31 March 2014, the ICJ delivered its judgment in Whaling in the Antarctic (Australia v Japan, New Zealand Intervening), finding that Japan had violated three provisions of the ICRW – the moratorium on commercial whaling, the ban on factory ships, and the prohibition on whaling in the Southern Ocean Sanctuary – by authorising the killing of certain whale species as part of its JARPA II research programme. The decision has largely been welcomed, especially by environmental activists, for offering a measure of protection to endangered marine life, but the judgment carries broader significance for its treatment of a number of points of international law, including the standard of review exercised by international courts, the role of scientific reasoning in international dispute settlement, and the interpretation of treaties.
DOES EU law entitle a woman who had her genetic child through surrogacy to paid leave of absence from employment equivalent to maternity leave or adoption leave? That is, in essence, the issue the Court of Justice of the European Union (CJEU) was faced with in Z, C-363/12, EU:C:2014:159 (“Z”), a reference for a preliminary ruling from the Equality Tribunal (Ireland), and in C.D., C-167/12, EU:C:2014:169 (“C.D.”), a reference from the Employment Tribunal, Newcastle upon Tyne (UK). The Opinions in the two cases (by A.G. Wahl, EU:C:2013:604 and A.G. Kokott, EU:C:2013:600, respectively), while reaching opposite conclusions, were both delivered on 26 September 2013, giving the Court the benefit of two well-reasoned analyses on which it could base its deliberations. The judgments of the Grand Chamber, which essentially followed the Opinion of A.G. Wahl, were delivered on 18 March 2014. This note focuses on Z, while referring to C.D. when appropriate.
This article investigates an apparent, convergent shift in common law jurisdictions away from the traditional principle of joint and several liability towards proportionate liability in cases involving multiple wrongdoers, and argues that this is best seen as an unprincipled drift. The shift is often presented by defendants and legislators as a logical extension of the ethics of comparative (contributory) negligence doctrine. Here we deny any ethical connection between the two doctrines. We also suggest that there is no good, generalisable ethical or pragmatic argument in favour of proportionate liability in its own right and caution jurisdictions currently considering reform of the joint and several liability rule against leaping to any such assumption.
How should a civil court use a relevant conviction? Some have argued that a civil claim contesting the factual basis of a conviction should be struck out as an abuse of process unless new evidence is presented which “entirely changes the aspect of the case”. Such a high evidential requirement is wrong in principle, inconsistent with section 11 of the Civil Evidence Act 1968, and unjust in practice. The law should recognise that there are two distinct types of cases. The first is concerned with truly abusive claims, where the later civil suit is brought for an improper purpose or otherwise similarly abusive; there a high level of new evidence should be required. The second deals with challenges to convictions which are in principle permissible; there, if on the facts they have no real prospect of success, an application for summary judgment by the other party is the solution.
Liability for independent contractors generally poses few difficulties in the law of contract, whereas in tort it is a vexed question. The difficulties are only compounded by the governing concept: the so-called “non-delegable duty”. This article explains the differences and argues that no easy parallels can be drawn from the contractual position to answer the riddles in tort. Neither does “assumption of responsibility” help. There is undoubtedly a case for recognising vicarious liability for independent contractors when businesses and public bodies alike now outsource so many of their functions. This issue needs to be confronted squarely, not through unconvincing contractual analogies.
The common law regarding the formation of contracts made through an agent on behalf of a principal suffering from latent mental incapacity is still undeveloped. This article argues that, in general, such a principal can confer actual authority to contract on an agent so long as the agent (reasonably) is, and remains, unaware of the incapacity. On the same basis, an incapax principal can manifest to a third party that such an appointment has been made, thereby creating apparent authority in the agent.