Damages for Wrongful Fertilisation: Reliance on Policy Considerations

J C Smith once asked whether English law could `really afford the House of Lords as an appellate court' in criminal matters.1 Beyond the allegedly shaky reasoning which so irked Smith and others (such as Glanville Williams),2 it was common to find the Law Lords split 3:2 on important issues such as the definition of central criminal law concepts like recklessness,3 or the limits of consent in the law of non-fatal, non-sexual offences against the person.4 Within these slim majority decisions, it was often possible to detect plain disagreement, or at least distinct lines of argument. The result of this was that the ratio decidendi of many House of Lords decisions in criminal matters was difficult to state with precision. Less charitably, it has been alleged that the law was often left `far more uncertain than it was before the appeal' to the Lords.5 There would often need to be further decisions, typically by the Criminal Division of the Court of Appeal (CA), before the full impact of a House of Lords decision became clear. This might be contrasted with decisions of the CA. There, a real effort is made to present one judgment, which represents the considered view of the judges who heard the case.6 This approach is not perfect (for the simple reason that the CA is so overworked that two differently-constituted benches might conceivably hear two cases on the same issue at the same time and reach two mutually contradictory decisions), but it does at least reduce the margin for error when working out why a particular decision was reached. It is thus easier—for

This study updates an article published a decade ago by the same authors. It presents a systematic analysis of decisions in which EPA or its administrator was a named party in the federal courts of appeals during the 1990s. Relying on a data base of over 300 cases, the main topics of the study are judicial review of statutory interpretation and of EPA's use of science in its rulemaking proceedings. In both the statutory interpretation and scientific areas, one of our most significant findings is evidence that the federal courts have embraced what Tom Grey has termed the new formalism. As a feature of that judicial approach, courts evidence a reluctance to overrule agency decisions when doing so requires disagreeing with the agency on questions of degree or questions of trading off different policy considerations against one another. In the scientific area, this reluctance manifests itself in decisions declining to second-guess agency decisions about whether the data upon which EPA relied was inferior to data proposed by petitioners, whether EPA adequately assessed the weight of the evidence and whether models used by EPA were inferior to other models. In the statutory interpretation area, this reluctance manifests itself in declining to second guess the agency at Step Two of the analysis, i.e., when the question is whether or not the agency's resolution of conflicting policy considerations was reasonable. On the other hand, when attacks on EPA's reasoned decision making with respect to scientific issues could be characterized as pointing to a conclusion reached without any factual support, to a technical model unsuited to the issue, to a link in its reasoning process left completely unexplained, to internally inconsistent reasoning, or to a relevant factor left unanalyzed, those attacks were more successful. In each instance, identifying a categorical failure made judicial reversal more common. Likewise, cases in which statutory interpretation issues were made at Step One - i.e., the court found that the statutory meaning was clear - EPA was much more vulnerable to reversal than at Step Two. The article investigates why EPA and the courts may systematically and in good faith disagree over the location of the boundary between Steps One and Two of Chevron. Our study also provides the first comprehensive picture of the kinds of challenges brought under the reasoned decision making doctrine espoused by State Farm, and of the specific sorts of disagreements in statutory interpretation between the agency and the courts that produce judicial reversals at Step One. It provides evidence that overall, EPA is much more successful in it statutory interpretations than other studies have suggested, with the differences in results attributable to selection bias in other studies. Finally, examining an issue first raised by the Schuck and Elliott study of - and contrary to the conventional wisdom that courts are second-guessing agency interpretations more often in recent years - our study finds that the Chevron effect of increased deference to agency interpretation, has persisted into the 1990s, at least with regard to EPA.

The testator quarrelled with his family and executed a will to disinherit his daughters. Shortly after this the parties were reconciled and the testator wished to make a new will which included substantial gifts to his daughters. He instructed his solicitors to prepare a will to that effect. Unfortunately, however, they delayed preparations for about two months and at the end of that time the testator died without the new will having been executed. The earlier will was therefore unrevoked. The daughters sued the solicitors to obtain the sums they would have been entitled to under the new will. At first instance the judge dismissed the plaintiffs' claim on the basis that the defendants did not owe the plaintiffs a duty of care, and that the damages sought were of too speculative and uncertain a nature. The Court of Appeal allowed the plaintiffs' appeal. The House of Lords decided by a majority that the defendants' further appeal should be dismissed. In reaching this conclusion, Lord Goff of Chieveley, with whose opinion Lords Browne-Wilkinson and Nolan concurred, was strongly influenced by consideration of the position in other legal systems, and by the policy considerations that had been advanced by academic writers on the subject. Legal systems varied, depending on their particular history and characteristics, as to whether a solution was based on tort or contract. Lord Goff believed that a tort-based solution was most suited to the English legal environment. Nevertheless, he was conscious that this conclusion involved the recognition of a new category of claims in the law of tort, whose precise ambit remained to be explored. This approach was endorsed by Lord Browne-Wilkinson, who emphasised the incremental development of special classes of claim in the law of tort. Lord Nolan accepted that the facts fell within recognised principles of the law of tort. A strong dissent was delivered by Lord Mustill, with whom Lord Keith of Kinkel agreed. He examined the possible application of traditional rules of contract and tort to the fact situation before the court and was unable to find a way of accommodating the claims of the plaintiffs which was consistent with principle and did not lead to an unjustified extension of possible liability. Two of the following comments on the case take up the problem of the contract/tort interface and consider the way that the problem has been addressed from the perspective of French, Belgian and Dutch law. The third comment approaches the facts from a quite different perspective and examines the implications of the fact that the plaintiffs' claim relates to a matter of succession. This fact gives rise to policy considerations that ought to be borne in mind when considering how far the imposition of liability in contract or tort is appropriate.

son or his body after the incident, although she had been called to the hospital in which he died.2 In 1991, this was perceived as a difficult case. The judge, Ward J, had some doubts about the correctness (though possibly not the justice) of his decision in the plaintiffs favour, and that decision occupies fifteen pages of the Law Reports.3 Leave to appeal was granted. By the following year, the case was regarded as so easy that the Court of Appeal was able to reverse the decision without even calling upon counsel for the defendant. This decision occupies a single page, since 'it does not call for a fuller report.'4 The intervening factor was, of course, the decision of the House of Lords in Alcock v Chief Constable of South Yorkshire Police.5 In that case, their Lordships expressed doubts about the correctness of Ward J's judgment in Ravenscroft, and of the very similar result in Hevican v Ruane.6 It has been decided by the Court of Appeal that Ravenscroft (and presumably therefore Hevican) cannot survive the actual decision in Alcock.

The only form of group litigation recognized by the Singapore Rules of Court at present is the representative action. The adequacy of the procedure, and the possible introduction of a wider group/class action mechanism, is being considered. The litigation in Tan Chin Seng & Others v. Raffles Town Club Pte Ltd [2002] SGHC 278 (High Court) and Tan Chin Seng and Others v. Raffles Town Club Pte Ltd (No 2) [2003] 3 SLR 307 (Court of Appeal) provides a useful example of representative proceedings and will be considered.

An important issue in many enforcement cases brought by the Securities and Exchange Commission is the scope of primary liability under the two main anti-fraud provisions, Section 17(a) of the Securities Act and Rule 10b-5 of the Exchange Act. In Flannery, which was an administrative enforcement case, a bare majority of SEC Commissioners adopted broad positions on primary liability under Rule 10b-5(a) and (c) and Section 17(a)(1), (2), and (3). The Commission not only advanced expansive legal conclusions, but it also insisted that the courts accept the agency’s legal interpretations as controlling.This article discusses two issues that Flannery raises, both of them related to the role of administrative agencies in the development, enforcement, and adjudication of federal law. First, the article compares the Commission’s interpretations of the parts of Section 17(a) and Rule 10b-5 with the reasoning and analysis of a series of prominent Supreme Court decisions that imposed meaningful boundaries around aspects of primary liability under Rule 10b-5. That comparison shows that much about Flannery is not consistent with, and is antagonistic to, the Supreme Court’s decisions in Central Bank, Stoneridge, and Janus.Second, the article evaluates Flannery’s explicit demand for Chevron deference and concludes that a reviewing court would have doctrinal and precedential grounds for refusing to accept the Flannery positions as controlling. The reasons start with the text of the provision of the Administrative Procedure Act governing judicial review of agency actions and also cover the actual practice of the Supreme Court and courts of appeals when they review a legal conclusion in an agency adjudication. The precedents identify good reasons for not granting Chevron deference to Flannery. Giving controlling effect to the SEC’s decision would allow the agency both to avoid the teachings of leading Supreme Court authorities and to trump the Supreme Court and other federal courts on significant matters of statutory interpretation.

The English Court of Appeal Judgment in Bristol-Myers Squibb Company vs. Baker Norton Pharmaceuticals and Napro Biotherapeutics2 has restricted the scope of second medical use claims in England to inventions for distinctly different therapeutic applications, thereby excluding inventions for new modes of administration or ones with inherent therapeutically beneficial effects. The Court of Appeal’s decision cuts across a body of European and international decisions and limits 3 to second non-medical uses. In coming to their decision, the Court of Appeal considered in detail the European decisions of 4 and Mobil but declined to overrule them. How the Court of Appeal’s decision will impact on decisions by Courts in other jurisdictions, in particular in Europe, remains to be seen. However, the English Courts have recently considered two further ‘second medical use claim’ patents: the Court of Appeal in American Home Products vs. Novartis5 and the High Court in Lilly Icos 6. And although these cases do not turn on the fact that they are second medical use claim patents, the Courts do not appear to be deviating from the Court of Appeal decision in Bristol-Myers Squibb. Nevertheless, what is clear, is that the Court of Appeal in Bristol-Myers Squibb omitted to address the public policy issue regarding the extent to which valuable and costly research and development in new therapeutic applications of known medicines, exemplified by the Bristol-Myers Squibb case, should be rewarded by the grant of further patents. This issue is of concern to the pharmaceutical industry and is one that the English Courts will undoubtedly have to clearly address in the future.

Recent judgments of the English Court of Appeal have disturbed the conventional view that employment is a status fiduciary relation. Regrettably the analytical departure (specifically the denial of status accountability) was not grounded in sound principle or authority, and fresh uncertainty has been introduced into the law. The matter is significant obviously because employees and employers require a lucid regulation to materially inform their actions. I review the case law to confirm that the fiduciary accountability of employees previously was recognised as status-based. I then identify the trial judgment that crystallised the break from convention and explain why the analysis in that judgment is deficient. I proceed to demonstrate that subsequently certain Court of Appeal judges bypassed the prior jurisprudence, uncritically incorporated the deficient reasoning and failed to identify any other satisfactory justification for the denial of status accountability. Throughout the discussion I will weave in the views of commentators, both to evaluate the policy considerations thought to be relevant and to illustrate the apparently weak comprehension in the employment context of the contours of fiduciary accountability.

An arrangement to fix, control or maintain prices is the classic competition law per se offence, and is deemed to substantially lessen competition under s 30 of the Commerce Act 1986. However, it is currently unclear when arrangements that do not explicitly concern price fall within the ambit of s 30. This article examines the recent Court of Appeal decision in Commerce Commission v Lodge Real Estate Ltd which found that the defendants were liable under the per se offence provisions. It contends that the Court of Appeal took the overseas case law out of context, misunderstood key factual findings made by the High Court at first instance and overlooked important legal and policy considerations. As a result it is argued that Lodge sets an unfortunate precedent that should be overruled or strictly confined to its own facts.

The purpose of this analysis is to offer insights on how the recently established Unified Patent Court (‘UPC’) – particularly the Court of Appeal in Luxembourg – might apply the Doctrine of Equivalents (‘DoE’). The answer to this question will affect, in a concrete manner, the scope of protection of most patents (with the exception of national patents) litigated in countries subject to the UPC and greatly influence members of the broader EPC, with evident practical consequences. Specifically, the following work seeks to address this query by looking in turn at the policy considerations underlying the DoE, at the legal framework binding the UPC, and at the jurisprudence on the DoE of the main EPC countries (in order: Germany, UK, France, The Netherlands and Italy). Finally, drawing from the above findings, a number of informed assumptions are made, setting out what is most likely to be expected from the UPC.

An essential element of the tort of negligence is the duty of care, which is measured by the objective standard of a reasonable person and does not take into account a defendant’s personal characteristics. In Dunnage v Randall, the Court of Appeal was tasked with deciding whether a person’s mental illness should be considered when defining the appropriate standard of care. The court held that the deceased, an undiagnosed paranoid schizophrenic who set himself on fire, was subject to the objective standard, breached his duty by failing to act with reasonable care and was therefore liable for the burns his nephew sustained while attempting to prevent the incident. The court further found that a defendant can only escape liability for negligently caused injury if their mental illness entirely eliminates responsibility, thus articulating a strict approach towards the liability in tort of persons suffering from mental illness. As this comment will discuss, the Dunnage decision is a handy illustration of the basic tenets of the tort of negligence, revealing the policy considerations at play and questioning the underlying rationale of the tort law regime.

This paper explores what has been the most successful attempt to date to introduce an “escape hatch” into the adjudication process for those on the wrong end of decisions: the area of natural justice. The decisions of the Technology and Construction Court relating to this area reflect the complexity of the key policy consideration underlying them: the extent to which judges should second guess adjudicators when it comes to matters of procedure. The paper argues that the Technology and Construction Court has in recent years reached a high water mark of intervention before being reigned in by the then senior judge of that court and by the Court of Appeal. It suggests that a more stable and predictable position now prevails. That certainty, common approach, and balance have been welcomed by the construction industry. This paper suggests that welcome is a better benchmark of whether the intervention/nonintervention debate has been correctly resolved than any academic or theoretical approach.

The explosion of litigation under the Hague Convention on Civil Aspects of Child Abduction in the U.S.A., the United Kingdom and other member states has highlighted the difficulties in determining the habitual residence of a child, particularly in cases where the child has close connections with more than one country. The drafters and most courts have made little attempt to solve this problem under the pretext that the determination is one of fact. This article examines this pretext critically and concludes that the determination should be characterised as one of law, thus facilitating purposive interpretation of the term. The main hypothesis of the article is that, whichever characterization is correct, courts are influenced by policy considerations in determining habitual residence of children in borderline cases. If the determination is treated as one of law, open discussion of these considerations is permissible and, in the author's view, desirable. The author contributes to this discussion by (1) setting out a list of relevant policy considerations; (2) analysing the appropriate scope of each consideration in the light of the objectives of the Abduction Convention (and other legislative instruments which employ the habitual residence of the child as a connecting factor), legal pinciple and caseslaw; (3) examining methods of balancing conflicting considerations and (4) testing these methods by reference to decided cases. The author concludes that the analysis of the caselaw supports her hypothesis and calls for open judicial discussion of the influence of policy considerations in these cases in order to improve the quality of decisions, which have such critical human consequences.

Rules governing unilateral mistakes were developed in the context of contracts made directly between individuals. How do these rules apply in the digital age when individuals rely on algorithms to enter into contracts? A further challenge is posed by the earlier decision of Chwee Kin Keong v Digilandmall.com (Digilandmall), where the Court of Appeal recognized the doctrine of unilateral mistake in equity, departing from the English position in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd. How should the equitable doctrine be applied? In February 2020, the Singapore Court of Appeal in Quoine Pte Ltd v B2C2 Ltd (Quoine) had the opportunity to consider some of these issues and clarify how these principles would apply in the context of algorithmic trading. This article examines some of the developments and issues raised in Quoine, and suggest where the law may further develop.

In our previous note: Cryptocurrencies and Code before the Courts ((2019) 30(3) King’s Law Journal 331 - 337), we discussed the Singapore International Commercial Court (High Court)’s decision in B2C2 Ltd v Quoine Pte Ltd. The case subsequently went on appeal, and the Singapore International Commercial Court (Court of Appeal), by a majority, affirmed the decision of the lower court in Quoine v B2C2 (“Quoine”). The case of Quoine represents the first time an apex court in the Commonwealth has ruled on the applicability of contractual principles to situations involving automated trading software. In our recent case note: Rethinking Mistake in the Age of Algorithms (forthcoming in the King’s Law Journal), we examine the decision in Quoine and argue that given that finding actual or constructive knowledge of an error necessary to invoke the doctrine of unilateral mistake may well be impossible in cases involving contracts formed by certain types of automated software, the approach set out by Lord Mance, who penned the dissenting judgment, may provide a viable solution.