Court Of Appeal Research Articles

LOCUS STANDI IN IUDICIO – THE RIGHT OF A PARENT TO CLAIM MAINTENANCE ON BEHALF OF AN ADULT DEPENDENT CHILD Z v Z 2022 (5) SA 451 (SCA)

This matter dealt with an appeal to the Supreme Court of Appeal (SCA) from the Eastern Cape Local Division of the High Court in respect of a claim for maintenance by one parent on behalf of the adult dependent children against the other parent. The facts of the case were as follows. Mrs Z (the mother) and Mr Z (the father) were married on 10 January 1995. Two children were born of the marriage. The marriage deteriorated and Mr and Mrs Z separated for a period. Both parents continued to support their children financially. Mr Z had been maintaining the children by depositing amounts directly into their individual bank accounts. The marriage relationship between mother and father deteriorated, resulting in Mrs Z initiating divorce proceedings and claiming from Mr Z, inter alia, maintenance for herself and the two major and financially dependent children. Although they were majors, in that they were both over the age of 18, the children were financially dependent on their parents at the time of the divorce. The daughter (B) was a student and unemployed. As part of her studies, she was required to do practical training and received remuneration from time to time for the work she did for a social media company. Notwithstanding these efforts to maintain herself, B remained financially dependent on her parents. Insofar as the adult dependent son (R) was concerned, he was mobile only by means of an electric wheelchair owing to injuries sustained in a motor car accident. Despite obtaining a probationary internship in January 2021, R was still financially dependent on his parents. Owing to his injuries, it was uncertain whether he would be able to continue working as the work required long hours of sitting which caused him to suffer pressure sores, making prolonged sitting impossible.In defending the action, Mr Z raised a special plea, claiming that Mrs Z could not lodge a claim for maintenance on behalf of the children born of the marriage, since they were both adults and, therefore, had the necessary capacity to claim maintenance on their own behalf (Z v Z par 2). As a result, Mr Z contended that Mrs Z lacked the locus standi in iudicio to initiate a claim on behalf of the major children.

Poszerzenie zakresu zabiegu operacyjnego bez zgody pacjenta. Glosa do wyroku Sądu Apelacyjnego w Warszawie sygn. akt I ACa 413/20 z dnia 28 stycznia 2021

The patient’s informed consent is an important aspect in the process of treatment from the point of view of assessing the legality of the doctor’s actions, taken especially during surgery. The judgment of the Court of Appeals of January 28, 2021, which is the subject of this gloss, concerns a factual situation in which, due to extraordinary circumstances that could not have been foreseen during the preoperative diagnosis, there was a need to broaden the scope of surgery during a medical procedure. The court correctly pointed out in the thesis of the voted judgment that it is permissible to widen the surgical field beyond the scope of the patient’s consent, which means that the doctor’s action under the conditions of the necessity to widen the surgical field could not give rise to liability for damages due to the occurrence of circumstances giving rise to the doctor’s duty to save the patient’s life and health.

PARTICIPATION OF THE PUBLIC PROSECUTOR IN THE INTERROGATION OF THE EXPERT IN THE JUDICIAL INVESTIGATION

The article analyzes the situation, arising in connection with the need for the prosecutor - public prosecutor to interrogate an expert in a judicial investigation to clarify or supplement the conclusion given by him. These situations may be due to the probable conclusion of an expert, the presence of a large number of special terms in the conclusion, the expert’s use of a new research methodology and other reasons. Petitions for the interrogation of an expert are mostly submitted by the defendants’ defenders. In refutation of the conclusions of experts obtained in pre-trial proceedings, they often present the conclusions (opinions) of specialists, petitions are made for their interrogation. However, in connection with that, that the conclusions and testimonies of specialists in the vast majority of cases contain an assessment of the expert’s opinion, which is exclusively within the jurisdiction of the court, they are not taken into account by the courts when making a decision on the case, which is reflected in the materials of the trial. The possibility of questioning an expert in a judicial investigation is also used by prosecutors - state prosecutors, who are obliged to take a balanced approach to the application of petitions for this, and carefully consider the list beforehand, the wording, the order of the questions they ask. However, more often, prosecutors have to object to the petitions of defenders to recognize the evidence obtained in pre-trial proceedings as inadmissible, to attach conclusions (opinions) to the case and to interrogate in court specialists involved by defenders who question the conclusions of experts, to appoint repeated examinations, etc. Prosecutors. participating in possible subsequent sessions of the courts of appeal and cassation in this case. In preparing for them, attention will be paid to the content of the questions asked to the expert by the parties and the answers to them, to the validity of the mentioned defense petitions and objections to them by the prosecutor, whether they were taken into account or rejected by the court, and if they are justified, they can be used to defend arguments as appropriate representations of prosecutors, so are the complaints of other participants in the process, objections, as well as to that, has the court taken them into account or rejected them, and if they are justified. Therefore, when reviewing the minutes of the court session, the prosecutor, the person who supported the state prosecution is obliged to find out, how fully does it reflect the content of the expert’s interrogation, the questions asked to him by the parties and the answers to them, the content of the defense’s petitions and the prosecutor’s objections to them. The prosecutor - public prosecutor is obliged to make maximum use of the possibilities of studying expert opinions in the judicial investigation in order to assist the court in making a lawful decision. a reasonable and fair sentence. The article also expresses an opinion on some gaps in the norms of the criminal procedure law governing the appointment of an examination in court, as well as on the certain controversy of the position of the Plenum of the Supreme Court of the Russian Federation regarding one of the grounds for the appointment of a re-examination by the court.

Remission of sentences and the constitutionality of life imprisonment in Seychelles

Section 30 of the Seychelles Prisons Act provides that the sentences of all prisoners, except those sentenced to life imprisonment or convicted of drug-related offenses of an aggravated nature, can be remitted. Section 31 of the Prisons Act empowers the Superintendent of Prisons to grant a prisoner a license to be at large. Before 2021, Seychelles law was silent on the issue of whether a person sentenced to life imprisonment had to spend the rest of his/her life in prison. As a result, offenders sentenced to life imprisonment were released after serving between 15 and 20 years. Dissatisfied with this approach, the Court of Appeal held that life imprisonment should mean imprisonment for the remainder of the offender’s life. In 2021, the Criminal Procedure Code was amended to define life imprisonment as imprisonment for the remainder of the offender’s natural life. Article 60 of the Constitution empowers the President to commute any sentence. This implies that in theory, the President could invoke Article 60 to release offenders sentenced to life imprisonment. In this article, the author relies on, amongst other sources, jurisprudence from some African countries, the European Court of Human Rights, and international human rights bodies to argue that the sentence of life imprisonment as defined in Seychelles law is unconstitutional for violating the prisoner’s rights to human dignity and not to be subjected to inhuman and degrading treatment. The author also relies on the drafting history of Article 10(3) of the International Covenant on Civil and Political Rights to argue, inter alia, that life imprisonment without the possibility of release is contrary to Seychelles’ international human rights obligations.

Tax Dispute Analysis of Transfer Pricing Case Study of Tax Court Decisions 2020-2023

Tax Disputes of Transfer Pricing still become the most popular tax issue and the challenge for the MNEs' establishment worldwide. Furthermore, this study aims to continue previous research by conducting content analysis on tax court appeal decisions issued in 2020-2023. This content analysis aims to determine taxpayers' business characteristics as an essential indicator for applying the arm's length principle based on the tax court decisions for 2020-2023. The results of this study show that each type of affiliate transaction that experiences a transfer pricing tax dispute has different characteristics of taxpayers with varying conditions of industry according to the sample of the tax court decisions for 2020-2023. From now on, this study should become an information reference for tax auditors in the audit process when determining corrections to transfer pricing tax disputes, as well as encourage taxpayers to be aware of providing a comprehensive analysis of the business characteristics in preparing transfer pricing documentation.

Glosa do wyroku Sądu Apelacyjnego w Warszawie z dnia 14 czerwca 2023 r., II AKa 272/22, dotyczącego zadośćuczynienia za niewątpliwie niesłuszne zatrzymanie (aprobująca)

Gloss to the judgment of the Court of Appeals in Warsaw of June 14, 2023, case file no. II AKa 272/22 concerning compensation for undoubtedly wrongful detention (approving) In the glossed decision, the Court of Appeals addressed the issue of compensation for unquestionably wrongful arrest. The Court of Appeals, while awarding the amount of PLN 15,000 on this ground, stated that it is adequate to the duration of deprivation of liberty, the physical suffering and negative psychological experiences suffered by the claimant, while also corresponding to the current socio-economic realities in Poland, without causing undue enrichment. The approving gloss to this ruling refers more extensively to the required standards regarding arrest and the procedural guarantees to which a detained person is entitled. Separate considerations concern the criteria for measuring compensation for unquestionably wrongful arrest.

User-Generated Content Shapes Judicial Reasoning: Evidence from a Randomized Control Trial on Wikipedia

User-generated content, for example, on Wikipedia, is easily accessed but has uncertain reliability. This makes it attractive to use but also creates risk, so there should be limits to who uses Wikipedia and for what purposes. In this paper, we use a randomized control trial to show that Wikipedia’s influence extends to judicial decision making, a field that is highly professional and supposed to follow strict procedures. This causal evidence further emphasizes the widespread influence of Wikipedia and other frequently accessed user-generated content on important social outcomes. Our findings also reveal boundaries to user-generated content’s influence. Although Wikipedia’s influence does extend to courts of “first instance” (where the case is first decided), it does not extend to higher courts (Court of Appeals, Supreme Court). These results suggest that normative prohibitions do seem to be sufficient to keep Wikipedia from influencing the most-important, well-resourced parts of law but that these prohibitions are insufficient in areas where time and resource pressures are greater. By showing that Wikipedia is influencing such an important and formal domain, our paper reinforces the importance of improving the accuracy and reliability of user-generated content, especially in domains with far-reaching societal consequences. Because there is no obvious way to prevent individuals from taking advantage of user-generated content professionally or nonprofessionally, our findings also contribute to the ongoing discussion of how to build public repositories of knowledge into more reliable storehouses.

Bridging the artificial intelligence inventorship gap

Objective: to study the gaps in the legal regulation of relations in the sphere of inventions made by artificial intelligence.Methods: dialectical approach to cognition of social phenomena, allowing to analyze them in historical development and functioning in the context of the totality of objective and subjective factors, which predetermined the following research methods: formal-logical and sociological.Results: in Thaler v. Vidal, the U.S. Court of Appeals for the Federal Circuit ruled that an artificial intelligence (AI) machine cannot be an inventor under patent law. This decision leaves open the question of whether a natural person can be the legal inventor of AI-generated inventions. This is a pressing question because it decides whether AI-generated inventions are patentable, as no patent rights can exist without an inventor. Scholars have proposed two doctrines that might resolve this question: the doctrine of simultaneous conception and reduction to practice and the doctrine of first to recognize and appreciate. This article analyzes the two doctrines and argues that neither doctrine readily applies to AI-generated inventions, thereby leaving an “inventorship gap”.Scientific novelty: the article is the first to pose and solve the problem of legal regulation of inventions made with the help of artificial intelligence and to state the need for the U.S. Congress to amend the copyright law in terms of recognizing a physical person who uses artificial intelligence to generate inventions as the author of such inventions. It bridges the gap in legal regulation of relations in the sphere of inventions and patenting and facilitates the goals of the patent system.Practical significance: the main provisions and conclusions of the article can be used in scientific, pedagogical and law enforcement activities when considering the issues related to the legal regulation of relations in the sphere of inventions made by artificial intelligence.

Responding to the danger of wrongful conviction for historical sexual abuse: A case for resurrecting abuse of process for delay?

This article examines the potential risk of wrongful conviction for defendants facing historical sexual abuse charges where there is substantial delay. This risk arises from problems with truth-finding based on witness testimony, challenges posed by missing evidence and the increasing erosion of procedural safeguards. This article considers two recent proposals for reform, including first, whether the Court of Appeal should be more prepared to revisit the factual basis of decisions in historical sexual offence appeals; or second, whether there is a need to strengthen procedural safeguards at trial through the doctrine of abuse of process for delay. This article concludes that, whilst there would be advantages to broadening the grounds for appeal, the criminal courts should be more prepared to stay substantially delayed claims for abuse of process where there is missing evidence. The current approach has the potential to be unfair and fails to protect those defendants who are most disadvantaged by delayed claims.

Round-up of United States copyright cases 2023

Abstract The US Supreme Court and lower court provided further guidance on fair use defense. The US Copyright Office provided guidance on AI as an author. The Court of Appeals provided guidance on substantial similiarty, server test, abstraction-filtration-comparison, and discovery rule.

The Licensee Called - He Wants His Peace Back!

English jurisprudence has long established that only those with a legal interest in land may bring an action for nuisance. Although thought to have been challenged by the Court of Appeal in Khorasandjian v Bush, the House of Lords in Hunter v Canary Wharf Ltd affirmed the original position, noting the importance of nuisance as a tort against land. With the highest Court in the nation in Fearn v Tate Gallery reframing nuisance as a tort against land, it appears that Courts have conclusively closed the prospects of relief under nuisance for those whose rights fall short of a legal interest in land such a licensees. Yet the policy imperatives advocating for the converse are not insignificant. Licences are important not only in both the domestic and commercial context. This paper seeks to examine the principles on standing to sue for nuisance to consider whether there is anything to gain from extending its protection to licensees. It argues that there is sufficient reason to afford some protection for licensees, albeit it might best be done not by expanding the tort of nuisance, but through the development of a new tort following Manchester v Dutton as identified by Professor Adam Baker.

Направления совершенствования государственной судебной политики в области судебных расходов в контексте доступности правосудия

Court appeal is an integral component of the constitutional right to judicial protection. This paper introduces ways to improve the institution of civil court costs through the prism of justice accessibility. The author studied the optimal mechanisms for paying state fees at civil court; the direct connection between the benefits for the payment of state duty, the principle of justice accessibility, and the right to judicial protection; grounds for granting benefits for the payment of state duty. The author finds it highly undesirable to increase the rates of state duty because this factor can affect the scope of guarantees for judicial protection. However, the current inflation creates prerequisites for an increase in the cost of civil trials for the state, which means expanding the criteria for benefits. A judicial practice analysis revealed no uniformity in the provision of benefits for the payment of state duty but identified the grounds for the application of certain preferential mechanisms. The author proposes to introduce additional guarantees for the right to legal protection, e.g., the institution of financing court costs by a third party, not involved in the case but with guarantees for reimbursement of their costs for financing the trial. The mechanism for investing court costs could be tested in group proceedings.

Protest policing and policing protesters: Litigation in the U.S. circuit courts of appeals

Protest policing and policing protesters: Litigation in the U.S. circuit courts of appeals

Median pelisäännöt. Sananvapauden toteutuminen oikeustapausten ja toimitustyön eettisyyttä arvioivien Julkisen sanan neuvoston ratkaisujen pohjalta

The online publication examines the implementation of freedom of speech and the requirements set for editorial work based on selected legal cases and the decisions of Council for Mass Media in Finland, which evaluates the ethics of journalism. The presentation aims to identify and illustrate" the problem areas of journalistic work by connecting the discussed case examples as part of the chronological editorial work process. Presentation starts from the external starting points of journalism (Journalism's operating environment), the general rights related to freedom of speech and access to information (The public's relationship with the media) and the journalistic decision-making power and independence of newsrooms, where we also look at possible abuses of media power (Journalism's credibility). The chapters following these parts deal with the time-sequenced practices of editorial work (Information acquisition, Story implementation, Publishing, and Follow-up journalistic activities). "Efforts have been made to follow selected legal cases until their final, legally binding decisions" Some of the cases have been resolved in the national district court, court of appeal or supreme court proceedings, but some of these have progressed to the decision of the European Court of Human Rights, which interprets freedom of speech. The examples also include non-accusation settlements regarding the use of freedom of speech. In the cases decided by the Council for Mass Media in Finland, features assessed as both unethical and meeting ethical requirements have been dealt with. In the examples, ethical interpretation of the considered part of the solution has been described, but the exempt-condemnatory marking that characterizes the conclusion as a whole has been removed. The publication is based on the author's lecture courses on legal standards and ethics of journalism at the University of Jyväskylä and its partner institutions.

Median pelisäännöt

The online publication examines the implementation of freedom of speech and the requirements set for editorial work based on selected legal cases and the decisions of Council for Mass Media in Finland, which evaluates the ethics of journalism. The presentation aims to identify and illustrate" the problem areas of journalistic work by connecting the discussed case examples as part of the chronological editorial work process. Presentation starts from the external starting points of journalism (Journalism's operating environment), the general rights related to freedom of speech and access to information (The public's relationship with the media) and the journalistic decision-making power and independence of newsrooms, where we also look at possible abuses of media power (Journalism's credibility). The chapters following these parts deal with the time-sequenced practices of editorial work (Information acquisition, Story implementation, Publishing, and Follow-up journalistic activities). "Efforts have been made to follow selected legal cases until their final, legally binding decisions" Some of the cases have been resolved in the national district court, court of appeal or supreme court proceedings, but some of these have progressed to the decision of the European Court of Human Rights, which interprets freedom of speech. The examples also include non-accusation settlements regarding the use of freedom of speech. In the cases decided by the Council for Mass Media in Finland, features assessed as both unethical and meeting ethical requirements have been dealt with. In the examples, ethical interpretation of the considered part of the solution has been described, but the exempt-condemnatory marking that characterizes the conclusion as a whole has been removed. The publication is based on the author's lecture courses on legal standards and ethics of journalism at the University of Jyväskylä and its partner institutions.

Bilingual Law in Wales (and England): The Implications of Law Being Made in Two Languages

Abstract This article concerns bilingual legislation and focusses on the legal status of the Welsh language in Welsh legislation, an issue complicated by the confusing context of the single jurisdiction for England and Wales. It refers to analysis of the position undertaken by the Law Commission of England and Wales (which included comparative analysis of the position in Canada, in particular), and to recent consideration by the Court of Appeal (E&W) of the implications of the England and Welsh languages having equal status for all purposes. This has significant effects on practitioners and the courts, in both Wales and England.

Round-up of European enforcement case law 2023

Abstract In 2023, several noteworthy decisions relating to the enforcement of intellectual property rights (IPRs) were handed down, including in relation to anti-counterfeiting, parallel trade, litigation aspects and restrictions on the enforcement of IPRs. The decisions of the Court of Justice of the European Union and Supreme Courts and Courts of Appeals of the European Union Member States that the authors consider important are summarized in this contribution. The judgments were rendered between 1 January 2023 and 31 December 2023. As in previous editions, the authors have adopted a practical approach aimed at readers seeking an overview of the key IPR enforcement decisions of 2023.

Peculiarities of consolidation of criminal penalties and the justice of the final sentence in the practice of Lithuanian courts

Scholars of criminal law have not considered the issue of consolidation of criminal penalties for some time, and it has been undeservedly forgotten. However, the method of consolidation of criminal penalties and the size of the final punishment are very important for the defendant. In addition, in judicial practice, there are often various problems related to the correct and appropriate summation of sentences. It is sometimes very easy to get lost in the labyrinths of sentence sizes, numbers and calculation of the last sentence. The article begins by presenting a negative example of judicial practice, when the lower court, ignoring the decision of the appeal court, decides to postpone the execution of the prison sentence after the sentence has been combined. Next, the author raises the question of why criminal law provides only the minimum amount of penalties to be added. Still, when putting together several sentences, adding at least the minimum part of the penalties is not mandatory. On the other hand, in the context of this problem, we can reasonably doubt whether, in cases where the offender commits several dozen or several hundred criminal acts, putting together the punishments and adding a minimum part of each punishment, the last punishment is not too severe. Finally, at the end of the article, the difficulties of putting together punishments are shown when punishments have to be shared by simultaneous application of Article 63 of the Criminal Code and Article 64 of the Criminal Code.

EVALUATING THE ADMINISTRATION OF JUSTICE AND ABUSE OF PROCESS: A CRITICAL ANALYSIS OF THE MARIANA JURISDICTION CHALLENGE [2022] AND THE EUROPEAN SYSTEM OF LAW FOR CIVIL AND COMMERCIAL MATTERS FOR A THIRD STATE

Background: This research critically analyses the jurisdictional challenges and their implications for the proper administration of justice in the case of Mariana vs. BHP Group [2022] EWCA Civ 951. The legal route taken by the High Court of Appeal is examined, considering both the proceedings in the UK (pre-Brexit) and a third state (Brazil). This text examines the impact of the European legal framework on EU member states and evaluates the approach of UK towards Article 34 of the Brussels Regulation. The analysis examines whether pursuing damages based in civil or commercial liability suffered by victims domiciled in a Third State through European jurisdiction is appropriate. Methods: The study employs a case law analysis, supported by doctrinal legal research methodology, to systematically examine the balance of the principle of forum non conveniens and the consistent application of the Brussels Regulation in the Mariana Case. This is a critical review of the UK High Court's decision to overturn Judge Turner's ruling. The review emphasizes the adherence to historical national precedents, European Union Law, and the European Court of Justice's previous rulings against the United Kingdom's strike-out legal technique. The article explores the complexities of administering justice, focusing on the interplay between case management discretion, the principle of proportionality, and the court's responsibility to ensure a fair trial. It analyses the impact of factors such as the court's structure, case complexity, and the time required for resolution within this framework, while also considering the court's duty to administer justice effectively. . Results and Conclusions: The study's findings enhance comprehension of jurisdiction challenges in transnational litigations within the European Legal System and their implications for the proper administration of justice. The article recommends a balanced approach that upholds the substantial rights of claimants while aligning national practices with EU civil liability standards, promoting judicial harmony in transnational civil and commercial liability cases in the European Union.

Vicarious Liability and Conferred Authority: Trustees of the Barry Congregation of Jehovah's Witnesses v BXB

In Trustees of the Barry Congregation of Jehovah's Witnesses v BXB, the Supreme Court held that there was a single approach to determining all cases of vicarious liability. No ‘tailoring’ of that approach was required either because the defendant was a religious organisation or because the tort in question was sexual abuse. It followed that the Court of Appeal had erred in placing significance on the authority conferred by the defendant on the tortfeasor to guide the behaviour of the claimant when determining vicarious liability. This note explores whether there is any role for conferred authority after Barry. To accommodate distinctions in the existing cases and contain further unwarranted expansion, it is argued that it is necessary to recognise a discrete form of strict liability for the tort of another, distinct from vicarious liability, that responds to the potential for conferred authority to be abused.