Appeal Decision Research Articles

What influences the influence of U.S. Courts of Appeals decisions?

In this exploratory study, we develop models of factors that influence the citation or influence of judicial opinions written by U.S. Courts of Appeals judges. Prior studies of citation patterns in the U.S. Courts of Appeals largely focus on the judge's career as the unit of analysis. Not surprisingly, this research suggests judge-level factors tend to influence the degree to which judges' opinions are cited in subsequent decisions. Utilizing a dataset with a random sample of individual cases as the unit of analysis, we compare the effects of judge, panel, and case factors. Overall, while several case-level factors influence the number of citations a case receives, few judge- and panel-level variables affect citation rates. The findings suggest that opinion citation models based on judge- and/or panel-level attributes alone miss the influence of case attributes on citation rates. [ABSTRACT FROM AUTHOR]

Joint Enterprise, Murder and Substantial Injustice: The First Successful Appeal Post-Jogee

This paper analyses the Court of Appeal decision in R v Crilly [2018] EWCA Crim 168. This was the first out-of-time appeal after R v Jogee in which the applicant succeeded in demonstrating ‘substantial injustice’ and having his murder conviction vacated. Although the judgment demonstrates that the Court remains faithful to its approach in R v Johnson and the high threshold test of ‘substantial injustice', Crilly suggests that if it can be shown that an applicant's case was in essence about foresight, the odd reference to intention might not prove fatal to demonstrating that had the jury been given Jogee-compliant directions on accessorial liability, this would have made a difference to their verdict.

Koalas Rejoice! And a Good Day for Local Councils in Queensland Tooo Yes, Really!

This paper discusses some of the key features arsing in the Court of Appeal's decision in Boral Resources (Qld) Pty Limited v Gold Coast City Council [2018] QCA 75 and draws out the implications for planning law, local communities and councils.

Restoring transactions unknowingly tainted by insider trading

In the Hong Kong Court of Appeal decision The Securities and Futures Commission v Young Bik Fung and others, the Court applied s. 213(2)(b) of the Securities and Futures Ordinance (SFO) to restore two transactions of shares entered into by an investor who invested based on ‘information, advice or tips’ given by an insider, despite the investor did not know that the advice was based on inside information and was not guilty of insider trading. Nevertheless, the investor was ordered to repay the profits made as if the transactions had not been made. It is suggested that the restoration order in Hong Kong has the widest scope of application among the major common law jurisdictions, because Hong Kong is the only jurisdiction where a person who has not committed any market conduct can nevertheless be subject to a restoration order. The Court justified such wide scope of application with reference to the paramount policies of minimizing market misconduct and ensuring no benefits is obtained from insider dealing by anyone. By a comparative law analysis, it is argued that s. 213(2)(b) SFO has been wrongly interpreted. The paramount policies should not be blindly applied without giving proper consideration to other established principles of law, such as the fundamental right to property of the unknowing investor.

Gross Negligence (Medical) Manslaughter and the Puzzling Implications of Negligent Ignorance: Rose v R [2017] EWCA Crim 1168.

This commentary explores the Court of Appeal's decision in the case of Rose1 in order to assess the risk of liability for gross negligence manslaughter currently faced by the medical profession in the event that negligence causes the death of a patient. Subtly modifying the test established in Adomako,2Rose confirms that in order to be potentially liable, there must be a serious risk of death that was, rather than ought to have been, obvious/foreseeable to the defendant. Consequently, in more complex cases where the serious risk of death is not immediately obvious, negligently failing to assess risk seems to prevent potential liability on the basis that the putative defendant was in a position of negligent ignorance.

UNFAIR ENFORCEMENT OF A CONTRACT AND THE CONSTITUTIONAL NORM OF UBUNTU: Mohamed’s Leisure Holdings (Pty) Ltd v Southern Sun Hotel Interests (Pty) Ltd 2017 (4) SA 243 (GJ)

The courts have accepted that a contractual term not per se illegal will not be enforced if, in the circumstances, enforcement would be contrary to public policy as where, for example, it would unjustifiably infringe a constitutional value or other community value or norm. Good examples of clauses that are often not enforced for these reasons are restraint of trade clauses and time-bar clauses. However, the principle of unlawful enforcement extends to any kind of contractual term. In Bredenkamp’s case, Harms DP referred, by way of example, to a clause in a lease which states that the tenant may not sublet without the consent of the landlord. This sort of term is prima facie innocent, but should the landlord attempt to use it to prevent the property from being sublet in circumstances amounting to discrimination under the equality clause, the court will not enforce the term. In Nyandeni Local Municipality v Hlazo (2010 (4) SA 261 (ECM) par 124–126), the court applied the principle of unlawful enforcement to an “entrenchment” (“non-variation” clause) in an employment contract. The court refused to uphold the clause because to do so would infringe the employer’s right to due process of law under section 34 of the Constitution. See also GF v SH (2011 (3) SA 25 (GNP) par 18–22) where it was held that enforcement of a “non-variation” clause in divorce settlement would be contrary to public policy if it operated against the best interests of the minor children or negated the fundamental duties and powers of the parents.The Supreme Court of Appeal has adopted the dogmatic stance that the mere fact that enforcement of a contractual provision would produce a result, which is unfair or unreasonable, is not enough to make the enforcement contrary to public policy. The basic proposition adopted by the appeal court is that fairness and reasonableness are not freestanding requirements for the exercise of a contractual right and, therefore, a court cannot refuse to give effect to the implementation of a contractual provision simply because it would be unfair or unreasonable to do so. Whether the Constitutional Court will follow this approach, remains to be seen. Nkabinde J’s judgment in Botha v Rich (2014 (4) SA 124 (CC)) seems to imply that a court may refuse enforcement of a contractual provision purely on the ground of unfairness, but it is unclear whether the courts will interpret the judgment in this way or regard it as authoritative. A glaring omission from Nkabinde’s judgment is her failure to even mention, let alone consider, the appeal court decisions dealing with unfair enforcement and the substantial body of legal writing on unfair contracts and the unfair enforcement of contracts. This failure substantially undermines the authoritative status of the judgment. As Waglay J pointed out in his minority judgment in Bosch v Commissioner, South African Revenue Service (2013 (5) SA 130 (WCC) par 103), “[b]efore one is bound to a precedent-setting judgment and is obliged to follow it, the judgment must be clear and unequivocal, it must be plain, unmistakable and explicit in its rejection of previous judgments, which it seeks to reverse” and it must provide reasons why those judgments are no longer good law. The appeal court, in the cases mentioned above, has adopted a clear position on unfair enforcement of a contract: that unfairness does not or cannot render the enforcement offensive to public policy. The least that could have been expected from Constitutional Court was a review of the appeal court cases, a rejection of the view adopted in those cases, and a clear explanation of why the view is no longer good law.Another major shortcoming in Nkabinde J’s judgment is that it does not indicate what principles are to be applied to identify the cases in which unfair enforcement is offensive to public policy. This lacuna in her reasoning effectively leaves the door open for judges to decide issues of unfair enforcement according to their own ideas of what is unreasonable or unfair.

Varieties of Damages for Breach of Privacy

This paper offers a comprehensive account of the law of damages within the action for misuse of private information in English law. The paper interrogates which types of damages are and ought to be available for breach of privacy, and the legal rules and principles governing each form of damages including the approach to quantification. In examining the law of damages the paper considers the nature of the emergent privacy action, arguing that it has shed its equitable origins in breach of confidence and now closely resembles 'vindicatory' actions such as false imprisonment, battery and trespass to land. In turn the remedial approach for breach of privacy increasingly follows that adopted within these torts. The paper first considers compensatory damages, arguing that a 'vindicatory' model ought to characterise the approach to compensatory damages, and is the prevailing approach in English law following the High Court and Court of Appeal's important decisions in Gulati v MGN Ltd. According to this approach, damages are available for the wrongful invasion of privacy in itself, irrespective of the suffering of material loss. In addition consequential losses are recoverable, including distress, recognised psychiatric illness and financial loss. Damages are available as of right and are not to be analogised with awards of 'just satisfaction' made by the European Court of Human Rights. The paper then examines non-compensatory damages. The courts are yet to authoritatively determine the availability of such damages for breach of privacy, and the principles governing their award. The paper argues that exemplary damages ought to be available, but quantum should not be so high as to constitute disproportionate interference with free expression. An account of profits should not be available. But if such remedy were to be recognised it ought to be awarded only exceptionally and the criteria for granting an account should follow the normative concerns that underpin the privacy action. Reasonable fee or user damages are one means of measuring loss in property torts; they are not restitutionary. They ought not to be available for breach of privacy as it would be inapt to treat dignitary interests as if they were interests in tradeable commodities. The novel head of 'vindicatory' damages, recognised in a series of Privy Council appeals, should not be available as they would add nothing to existing remedies. Lastly, the paper considers damages in lieu of an injunction, arguing that these damages compensate for the loss of a legal liberty to enforce primary rights; they are not restitutionary. Such damages ought very rarely to be awarded in the place of an injunction in a case of ongoing, unjustified invasion of privacy.

Comment on the Argentinian Federal Court of Appeals Decision “Havana Club”

Comment on the Argentinian Federal Court of Appeals Decision “Havana Club”

A Criminal Justice Review of Constitutional Petitions Against Suspension of Prosecution - Focused on an Attempt to Introduce of Adjudication Appraisal System -

검사의 기소유예처분에 불복하는 피의자의 법적 구제수단으로는 헌법소원심판이 유일하지만, 그 결정주문의 소극적 형식과 헌법재판에 내재된 사실규명의 제약으로 인하여 기소유예의 통제기능에는 어느 정도 한계가 있다. 헌법소원의 인용결정과 기각결정의 실질적 판별기준은 검사가 대상사건에 관하여 ‘현저히 정의와 형평에 반하는 수사를 하였다거나, 헌법의 해석ㆍ법률의 적용 또는 증거판단을 함에 있어서 기소유예처분의 결정에 영향을 미친 중대한 잘못이 있었는가’ 또는 ‘기소유예처분이 헌법재판소가 관여할 정도의 자의적 처분이라고 볼 자료가 있는가의 여부’이다. 이에 헌법재판소법 제31조에서는 증거조사에 관한 규정을 두고 있지만, 헌법재판소의 증거조사에는 수사기관의 초동수사의 결과를 의존할 수밖에 없는 한계가 있다. 또한 위 헌법소원심판의 인용결정에 따라 기소유예처분이 취소되고 검사가 수사를 재기한 후 다시 기소유예 내지 기소하게 되면 헌법재판소의 결정은 사실상 무력화될 우려가 있다. 더욱이 검사의 기소유예처분에 대한 헌법소원의 인용결정과 그 후 당해사건의 불기소처분에 대한 고소인등의 고등법원 재정신청 결정 사이에는 그 재판효력의 우위에 따른 충돌이 있을 수도 있다. 종래 이러한 문제에 관해서는 헌법재판소와 법원간의 위상 내지 헌법재판소와 대법원간 재판의 효력을 둘러싸고 위헌법률심판권과 법률해석권의 관계에서 논의된 바 있다. 이제는 검사의 기소유예를 포함한 불기소처분에 대한 불복수단이 고소인(피해자)의 항고 및 재정신청과 피의자의 헌법소원심판으로 양분되어 있어, 그 양자의 불복에 대해 법원과 헌법재판소의 통일적 판단을 기대하기 위해서는 위와 같은 관념상의 이론적인 충돌가능성을 해소할 수 있는 법제도적 개선방안이 마련되어야 할 것으로 본다. 여기서는 기존의 불복방법과 검사의 기소유예처분의 특성을 비교분석ㆍ검토함으로써 현행 제도의 개선방안을 마련하고자 특히, 기소유예처분에 대한 헌법소원과 재정신청의 기능과 현황을 수집 가능한 통계수치를 중심으로 살펴보았다. 이러한 제도의 운용실태를 바탕으로 검사의 기소유예처분에 대한 사법적 심사 및 통제 가능성을 제시함으로써 기소유예 불복제도를 법원 중심으로 재편성할 발판을 마련하였다.A constitutional petition is the only legal remedy available to a suspect who seeks to object to a suspension of prosecution by prosecutors. However, a constitutional petition is more or less restricted in its ability to provide constitutional control over suspension of prosecution, on account of the negative format employed in the main texts of decisions on constitutional petitions, and the restrictions on fact finding inherent in constitutional court proceedings. The actual criterion of the decision of the Constitutional Court’s appeal decision and the decision to reject is whether the prosecutor has “made an investigation seriously against the justice and the equality or the interpretation of the Constitution or the application of the law or judgment of evidence, there was a serious fault affecting the decision” or “there is any evidence that the postponement of the prosecution is an arbitrary disposition to involve the Constitutional Court.” Although Article 31 of the Constitutional Court Act provides regulations for the investigation of the evidence, there is a limit in the Constitutional Court, which can only be relied on a result of the first result of the investigation agency. It is also possible that the decision of the Constitutional Court will be virtually nullified if the prosecutor rescinds the investigation and then repeals or appeals the prosecution. Moreover, there may be a conflict between the decision of the Constitutional Court on appeals by the prosecutors and the decision of the High Court’s decision on the case against the precedence of its trial. Conventionally, this issue has been discussed in relation to the constitutional court and the court organization and the relationship between the Constitutional Court and the Supreme Court on effect of the trials. Currently, the means of disagreement over the disposition not to institute a public action, including the probation of the prosecutor, is divided into the appeal of the complainant(victim) with the application for finance and the constitutional appeal of the suspect. In order to expect the unified judgment of the judiciary and the Constitutional Court against the disagreement of the two, a legal amendment plan should be prepared to resolve the possibility of theoretical conflict of ideas. In order to propose the improvement solution for the system, the current study analyzes and examines the existing methods of appeal and probation of the prosecution for the disposition of the prosecution. In particular, the study compares the functions and roles of the constitutional petition and the financial applications for the deferment of prosecution by analyzing statistical data. On the basis of analysis of the current system, this study sets the base of reorganization by proposing a possibility of judicial review and control of the prosecutor’s postponement of indictment.

District nurses now less likely to face prosecution for gross negligence manslaughter.

In this article the author discusses the Court of Appeal decision in R v Rose [2017] that redefines the threshold for prosecution for gross negligence manslaughter. The impact on district nurses will be that they are unlikely to face prosecution where a careless error contributed to a patient's death unless there was a serious and obvious risk of death at the time the error was made.

Enforceability of Foreign Copyright in Nigeria: A Review of the Court of Appeal's Decision in Microsoft v. Franike

Enforceability of Foreign Copyright in Nigeria: A Review of the Court of Appeal's Decision in Microsoft v. Franike

Concerning the determination of the period of familiarization with the materials of the criminal case

Despite the variety of proposals to improve the completion of the preliminary investigation, they are mainly palliative. This is due that researchers count this institute is aprioristic. The article is devoted to only one element of the Institute — the establishment of the period of familiarization with the materials of the criminal case by the court. The initial research hypothesis was the assumption of abuse of procedural rights by participants in criminal proceedings when familiarizing themselves with the materials of the criminal case by retardation the procedure. The article analyses the judicial practice has confirmed this assumption. The analysis also revealed some peculiarities of law application in different regions, which are not essential. In addition, the study of court decisions, combined with an analysis of the existing norms, revealed a number of defects in the criminal procedure law, which nullify such procedural guarantees as the appeal of the court decision on the setting the deadline of familiarization with the materials of the criminal case and arraignment. The author came to the conclusion that it is necessary to radically modernize the procedure for the completion of criminal proceedings with the preparation of an indictment, since the available regulation creates the prerequisites for the falsification of evidence by both parties and does not contribute to the justice. The methodological basis of the research is the General philosophical principles of cognition of comprehensiveness, objectivity, pluralism, as well as specifically sociological, formal-logical and comparative methods of cognition. The during research was studied the works of T. Volchetski, A. Grinenko, S. Gubin, T. Riabinini, V. Strukova and others, were used 13 scientific papers. The empirical basis of the work is 150 appeals (cassation) decisions of the courts of the Irkutsk region and Primorsky and Khabarovsk territories for the period 2011–2017.

Threats to bioethical principles in medical practice in Brazil: new medical ethics code period.

We aimed to outline the profile of medical professionals in Brazil who have violated the deontological norms set forth in the ethics code of the profession, and whose cases were judged by the higher tribunal for medical ethics between 2010 and 2016. This survey was conducted using a database formed from professional ethics cases extracted from the plenary of the medical ethics tribunal of the Federal Council of Medicine. These were disciplinary ethics cases that were judged at appeal level between 2010 and 2016. Most of these professionals were male (88.5%) and their mean age was 59.9 years (SD=11.62) on the date of judgment of their appeals, ranging from 28 to 95 years. Most of them were based in the southeastern region of Brazil (50.89%). Articles 1 and 18 of the medical ethics code were the rules most frequently violated. The sentence given most often was the cancellation of their professional license (37.6%) and the acts most often sentenced involved malpractice, imprudence, and negligence (18.49%). It is acknowledged that concern for the principles of bioethics was present in the appeal decisions made by the plenary of the medical ethics tribunal of the Federal Council of Medicine.

Incorporating transparency into the governance of deep-seabed mining in the Area beyond national jurisdiction

In the governance of natural resources, transparency has been linked to improved accountability, as well as enforceability, compliance, sustainability, and ultimately more equitable outcomes. Here, good practices in transparency relevant to the emerging governance of deep-seabed mining in the Area beyond national jurisdiction are identified and compared with current practices of the International Seabed Authority (ISA). The analysis found six areas of good transparency practice that could improve the accountability of deep-seabed mining: i) access to information; ii) reporting; iii) quality assurance; iv) compliance information / accreditation; v) public participation; and vi) ability to review / appeal decisions. The ISA has in some instances adopted progressive practices regarding its rules, regulations, and procedures (e.g. including the precautionary approach). However, the results here show that overall the ISA will need to consider improvements in each of the six categories above, in order to reflect contemporary best transparency practices, as well as meeting historical expectations embodied in the principle of the ‘common heritage of mankind’. This would involve a revision of its rules and procedures. The ongoing review and drafting of the ISA’s deep-seabed mining exploitation regulations offers a once-in-a-generation opportunity to improve upon the current situation. Findings from this analysis are summarised in 18 recommendations, including publication of annual reports submitted by contractors, publication of annual financial statements, development of a transparency policy, compliance reporting, and dedicated access to Committee meetings.

Constitutional Role of the Courts under the NZ Bill of Rights: Three Narratives from Attorney-General v Taylor

In Attorney-General v Taylor, New Zealand's Court of Appeal upheld the High Court's recognition, and exercise, of an implied jurisdiction to make (non-binding) declarations of legislative inconsistency with the New Zealand Bill of Rights Act 1990 (the NZ Bill of Rights). Recognition of this novel jurisdiction says something important about the evolution of judicial-legislative relations under the NZ Bill of Rights. The question is: what exactly? This article suggests that a close analysis of the Court of Appeal's decision in Taylor in fact discloses three interwoven narratives that speak to the constitutional role of the courts in enforcing the NZ Bill of Rights: the NZ Bill of Rights as "legal benchmark"; the NZ Bill of Rights as "facilitator of inter-branch dialogue"; and the "common law-fuelled bill of rights". The article unpicks these narratives, explores the relationship between them and discusses the extent to which they succeed in accommodating or justifying the new declaratory remedy.

California Court of Appeals Decision Affects the Prostate Cancer Drug Market – Medivation Inc. v. Aragon Pharmaceuticals Inc.

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.

CONTRACTING FOR SELF-DENIAL: ON ENFORCING “NO ORAL MODIFICATION” CLAUSES

Abstract“No oral modification” (NOM) clauses should be enforced in English law. Parties should be permitted to impose formality requirements upon themselves. Entire agreement clauses are (rightly) enforced and this provides a compelling parallel. The reasoning of two Court of Appeal decisions holding NOM clauses unenforceable is critically analysed. The extent to which NOM clauses should be defeasible by estoppel and unfair terms legislation is considered.

Deregulating planning control over Britain’s housing stock

PurposeTo apply path dependence theory and analysis to the regulatory framework for private-rented housing in Britain, especially affecting houses in multiple occupation (HMOs) and addressing the increased involvement of the planning system through planning use classes, permitted development rights and Article 4 directions.Design/methodology/approachThis paper identifies critical junctures in primary and secondary legislation for housing and planning and analyses individual local authority responses in planning policy documents and tribunal decisions.FindingsThe rise of the HMO reflects wider changes in society leading to new forms of household and inter-generational inequalities. Local authority discretion and locked-in responses have resulted in different regulatory regimes for housing and planning, recently favouring existing communities of owner-occupiers against HMO residents, seen as transient populations not committed to the neighbourhood.Research limitations/implicationsPotential for further research on demographics and household formation, and on reviewing planning and appeal decisions involving HMOs.Originality/valueThe research is apparently the first specifically addressing planning regulation of the HMO from a path dependence perspective, in the context of planning protection of the single-family dwelling house and marginalization of other forms of housing.

When The Outcome of An Appraisal Is Not Nice: A Review Of Nice Appeals

The National Institute for Health and Care Excellence (NICE) provides stakeholders to health technology appraisals the option to appeal the decision. We conducted an analysis of past appeals to review the appraisal appeal process by time, therapeutic area, number and type of appellants, grounds of the appeal, and success of the appeal. Appeals starting from the year 2000 were identified on the NICE website. Appeal decision documents were reviewed to obtain date of appeal, therapeutic area, number of appellants, type of appellant, grounds of the appeal, and outcome of the appeal (ie, whether it was dismissed or upheld). Results were tabulated in an Excel spreadsheet and descriptive statistics were compiled. A total of 87 past appeals were identified and appeal decisions were available for 75 of the appeals. The annual number of appeals peaked between 2006 and 2008. The most common therapeutic areas of appeals were oncology (39%), rheumatology (16%), and endocrinology (12%). There were a mean of 2.4 appellants per appeal. Manufacturers were the most common appellant (47%), followed by professional group (22%), patient group (22%), clinical (5%), and other (3%). The most frequent ground for an appeal was unreasonable evidence (92%), followed by failure to be fair (64%), and exceeded powers (23%). Forty-two (56%) of the appeal decisions were dismissed on all grounds, while the remaining 33 (44%) were upheld on one or more grounds. Failure to be fair was the most common ground for upholding the appeal (38%), followed by unreasonable evidence (34%), and exceeded powers (7%). Manufacturers are the most common appellant in NICE appeals, with unreasonable evidence being the most common ground for the appeal. However, failure to be fair is the ground for appeal most likely to be upheld.

“L’affaire Tapie”, a Review From an Arbitration Perspective

This paper discusses the arbitration law issues raised in the dispute that opposed French businessman Bernard Tapie to its former bank (that the French state has since bailed-out) following the sale of the German company Adidas in 1992. The dispute was eventually decided by an arbitral tribunal which ordered the bank to pay to Mr Tapie over € 400 million as damages. The case was brought before the French courts, and the question that arose was whether the bank was entitled to request a judicial review of the award based on the alleged fraud committed by Mr Tapie and/or his counsel and one of the arbitrators, to favour Mr Tapie in the arbitration. The decisive criterion was the domestic or international nature of the arbitration, as a review would only be possible if the arbitration was domestic. The Paris Court of Appeal (decision of 17 February 2015) and the Cour de cassation (decision of 30 June 2016) ruled in favour of the bank, stating that the arbitration was of domestic nature and the review of the arbitral award admissible. The French judge also held that fraud was indeed constituted, and withdrew the arbitral award. This case sheds light on the French courts’ narrower interpretation of the internationality of a dispute and offers a good illustration of the possibility for a judge entrusted with the judicial review of an arbitral award to consider elements originating from pending criminal proceedings.