Appeal Decision Research Articles

Wish to die trying to live: unwise or incapacitous? The case of University Hospitals Birmingham NHS Foundation Trust versus ‘ST’

The recent legal dispute about medical treatment for a 19-year-old patient, Sudiksha Thirumalesh, (known initially by the Court of Protection as ‘ST’) in A NHS Trust versus ST & Ors...

Using the planning system to promote a healthier food environment: review of planning policies and appeal decisions in England for hot food takeaways

Local authorities are using their planning powers to manage hot food takeaways. The use of these powers is mediated by the Planning Inspectorate. A case-study approach was adopted to understand outcomes of takeaways policy and decision after the statutory policy examination and appeal stages. Eight case studies in England were selected and a documentary analysis was undertaken to determine how public health issues were considered by inspectors. The analysis identified challenges and strengths in inspectors’ approach and decisions. Understanding these factors can help the public health system navigate engagement with inspectors and secure successful outcomes when managing takeaways.

Title VII and Religious Accommodations in the Workplace After Groff v. Dejoy (2023)

The United States Supreme Court in Groff v. DeJoy rejected a 50-year precedent regarding the application of Title VII of the United States Civil Rights to requests by private and public employees for Title VII workplace religious accommodations. The article evaluates the impact of 73 U.S. District Court and U.S. Court of Appeals decisions decided after Groff to determine whether Groff has had an impact on how lower federal courts have evaluated requests for Title VII workplace religious accommodations. The article also evaluates the role of U.S. District Courts as gatekeepers for Title VII workplace religious accommodation lawsuits. Finally, the article discusses the impact of Groff on the most common types of workplace religious accommodation requests. The article argues that employers will have greater difficulty persuading U.S. District Court to grant motions to dismiss or motions for summary judgment to end Title religious accommodation lawsuits.

The British Courts and Compulsory ADR—How Did That Happen?

On 29 November 2023, the Court of Appeal held in James Churchill v Merthyr Tydfil County Borough Council, that the courts of England and Wales are entitled lawfully to order parties to engage in non-court-based dispute resolution processes. This important decision should not come as a surprise. This article will argue by reference to case law, judicial commentary and the Civil Procedure Rules (CPR) that this decision is the most recent expression of an impulse the courts have long maintained: that a case can be dealt with justly by moving (by various means) litigants away from the judgment seat to one of negotiated, consensual outcomes. The decision corrects an anomaly within the CPR that obliges parties to further the overriding objective by considering alternative dispute resolution but deprives the court of a particular remedy to enforce that obligation. This article will trace the roots of the Court of Appeal decision and identify to what extent it is the natural progression in judicial thinking, and it truly breaks new ground. Keywords: ADR; justice; civil justice; court reforms; overriding objective; Halsey; CPR; Churchill v Merthyr Tydfil; Article 6; arbitration agreements.

An examination of erroneous medical practices in circumcision surgery in light of supreme court decisions.

Global interest in circumcision, one of the oldest and most frequently performed surgical procedures worldwide, continues. There is a significant increase in cases regarding medical malpractice claims in the world and in our country. It is aimed to identify situations that lead to malpractice claims in circumcision surgery, which has question marks regarding its psychological and ethical aspects, to identify situations that are considered errors and professionally risky, and to contribute to eliminating these deficiencies. We examined the Supreme Court appeal decisions related to circumcision malpractice cases resolved between 2012 and 2022, using the keyword "circumcision" on the official website of the Republic of Turkiye Supreme Court. We examined 30 Supreme Court decisions that met our criteria. It was determined that the most common lawsuit was filed due to negligence (43.3%), followed by carelessness (20%) and faulty action (20%). Physical conditions must be appropriate and healthcare personnel must be adequately trained for circumcision, which is frequently performed especially in pediatric patients and is more frequently subject to malpractice lawsuits than other pediatric operations.

United States: tax classification and treatment of non-U.S. private foundations

Abstract This article discusses a U.S. Court of Appeals decision from August 2022 regarding the proper classification of a Liechtenstein Stiftung foundation for U.S. federal tax purposes. It also discusses at a high level the implications of different classifications. Founders (including non-U.S. persons) and their advisers should consider these implications when establishing foundations, particularly when the foundations’ beneficiaries are U.S. persons or if the foundations hold U.S. situs assets.

Disavowing an Implied Term of Fairness

Disavowing an Implied Term of Fairness

Vicarious trauma among legal practitioners and judicial officers

The term ‘vicarious trauma’ refers to a range of cumulative and harmful effects from exposure to the trauma of others and is now recognised as a category of causation in the diagnostic criteria of post-traumatic stress disorder. Legal practitioners may be exposed to the risk of harm from vicarious trauma in a number of occupational contexts. This article reviews recent case authority, including a 2023 prosecution of Court Services Victoria for failing to provide a safe workplace in the Coroners Court of Victoria and the High Court decision in Kozarov v Victoria (2022) and the Victoria Court of Appeal decision in Bersee v Victoria (2022). It considers measures that should be taken to provide a workplace for both legal practitioners and judicial officers that is as safe and without risks to health as is reasonably practicable.

False Statement or Omission Penalties in Canadian Tax Law

This article examines the judicial interpretation of subsection 163(2) of the Income Tax Act, which penalizes taxpayers for false statements or omissions arising from "knowledge" or "gross negligence." The article specifically focuses on the Federal Court of Appeal's decision in <i>Canada v. Paletta</i>, arguing that courts have inappropriately broadened the scope of the wilful blindness doctrine while insufficiently addressing the aspect of gross negligence. The author advocates for a narrower application of wilful blindness, consistent with other areas of law, and an expanded interpretation of gross negligence. This approach, through the incorporation of a "cluster of ideas" framework, would provide greater certainty and fairness for taxpayers, tax practitioners, and the Canada Revenue Agency in determining culpability for false statements and omissions. The author proposes a novel analytical framework for the interpretation of subsection 163(2), considering factors such as risk and consequences, wilful intent, culpable inadvertence, and departure from a standard of care. This framework is designed to guide courts in assessing taxpayers' conduct with a more balanced approach that more closely aligns with Parliament's legislative intent. Finally, the author underscores the importance of maintaining a clear distinction between wilful blindness and gross negligence in tax law, suggesting that this clarity will enhance the competitiveness and predictability of Canada's tax system, and better guide taxpayers in managing tax-related risks.

Article: The Subtle Knife of Separability: Legal Fictions of Consent to Arbitration and the Problem of Conditions Precedent

The seminal House of Lords decision in Fiona Trust is best known for setting out the ‘one-stop shop’ presumption vis-à-vis the construction of arbitration clauses. Just as important, but often overshadowed, is the requirement it lays down that a challenge to the validity of the arbitration agreement nestled within a surrounding contract must be directed specifically to the arbitration agreement; a challenge that is merely ‘parasitic’ to a general challenge to the surrounding contact will not suffice to impeach the arbitration agreement. This article suggests that this dimension of Fiona Trust in fact requires the acceptance of a legal fiction in relation to the parties’ consent to the arbitration agreement (the ‘Legal Fiction of Untainted Consent’, or ‘LFUC’), which ought properly to be recognized. This article then considers the recent Court of Appeal decision in The Newcastle Express, which involved a challenge to the existence of the arbitration agreement premised upon a condition precedent to the existence of the surrounding contract remaining unfulfilled. This article argues that a modified version of the LFUC (the ‘Legal Fiction of Complete Consent’, or ‘LFCC’) can potentially apply to such ‘condition precedent’ cases, and concludes by conceptualizing and defending a potential LFCC doctrine. arbitration, agreement, separability, validity, fiction, consent

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.

Round-up of English patent litigation 2023

Abstract 2023 saw 15 decisions, concerning 22 patents, in inter partes proceedings in which patent infringement and/or validity was in issue. 6 patents were held to be valid and infringed, 9 not to be infringed and 9 to be invalid, all but 3 on the ground of obviousness. 2023 also saw 6 Court of Appeal decisions in such proceedings, in 3 of which the trial judge was reversed on validity - in two cases in favour of the patentee.

Recognising form through function in the context of integrating the bride requirement in customary marriages in South Africa

In previous scholarship we argued how the state and courts have tended to favour a formal or definitional approach to customary marriages in South Africa, leaving vulnerable parties, particularly women, not adequately protected. In this article we focus on a new approach emerging from the courts, particularly relating to the integration of the bride as a requirement for the validity of a customary marriage. While we affirm the courts' emerging approach regarding integration, we take issue with the language used by the courts, particularly that relating to the word 'waiver'. In considering the recent South African Supreme Court of Appeal decisions on integration, and the High Court decisions that have followed, we believe the courts are in fact not waiving the requirement, but recognising that the requirement of integration may be met in another way. In considering these cases, although the court does not explicitly rely on Ramose's 'social acceptance' thesis as to the validity of law, we believe that adopting this approach will do much to assuage concerns about courts ignoring custom. More importantly, Ramose's 'social acceptance' theory gives credit to living customary law as a legal system which, as widely observed, promotes the very values on which the Constitution is founded. We also believe that Ramose's approach is a much more balanced approach in this context than a typically Western approach that promotes certainty over the protection of vulnerable parties, and represents the very evolving nature of living customary marriage laws and practices.

The concept of the proper method of protection when challenging the decisions of subjects of authority in administrative proceedings

The article reveals the meaning of the concept of the proper method of protection when challenging the decisions of the subjects of authority in administrative proceedings. The article examines judicial practice regarding the selection and application of the proper method of legal protection, highlights the relationship between such categories as the proper method of legal protection and the effective method of legal protection. It is concluded that, when appealing against the decisions of the subjects of authority, the appropriate method of defense is one that does not contradict the law, corresponds to the circumstances of the case and the purpose of judicial protection, and is also effective in disputed legal relations and will lead to effective protection of the violated right, freedom or interest . It is substantiated that the proper method of protection must meet the following criteria: sufficiency, enforceability, not to violate the rights or interests of other persons, not to contradict the law. Attention is drawn to the fact that the provisions of the Constitution of Ukraine, the European Convention on Human Rights and the practice of the European Court of Human Rights are the basis for determining the appropriateness of the chosen method of protection in the aspect that it does not contradict the law and ensures effective protection of the rights, freedoms and interests of the person in the event of an appeal decisions of subjects of power. The article reveals that the courts, when assessing the appropriateness of the chosen method of protection when challenging the decisions of the subjects of power, must also determine its effectiveness at the same time. It is proved that the courts, evaluating the appropriateness of the method chosen by the plaintiff to protect the violated rights, freedoms and interests when appealing the decisions of the subjects of authority, must also determine whether this method is effective, choosing the appropriate and effective method of protection, the court must be guided by the rule of law and the principle proportionality, which means that the choice and application of the method of protection of rights, freedoms and interests when challenging the decisions of subjects of power must be justified, justified and proportionate to the offense. It is concluded that the court should not reject the claim only because the method of defense chosen by the plaintiff is not provided for by law. In such cases, the courts should proceed from the general principles of protection of rights, freedoms and interests set forth in the Constitution of Ukraine and the Convention on the Protection of Human Rights and Fundamental Freedoms, the practice of the European Court of Human Rights.

Critical Review of the Court of Appeal Decision in Onujabe v Idris

Critical Review of the Court of Appeal Decision in Onujabe v Idris

INTERNAL CONTROL IN THE PUBLIC SECTOR IN INDONESIA: A CASE STUDY OF STATE TAX RECEIVABLES MANAGEMENT

Abstract— This research focuses on the Internal Control System (SPI) in managing tax collection at the Directorate General of Taxes (DGT). This study is concerned with the effectiveness of internal control in the public sector, especially on the revenue administration of the central government, which is also stated in the Audit Agency (BPK) report. Internal control is vital to maintain the reliability of financial information in an organization. The method used is qualitative, using The DGT as a case study. The novelty of this research lies in its focus on the tax receivable from both internal and the auditor's points of view. Interviews were conducted with the DGT, the Financial Audit Agency (BPK), and the Inspectorate General (Inspektorat Jenderal/Itjen). Data comes from the Central Government Financial Statements (Laporan Keuangan Pemerintah Pusat/LKPP) and Audit Reports (Laporan Hasil Pemeriksaan/LHP). The results of this study show that the SPI in managing tax collection is good, but there is still room for improvement. It is expected that some recommendations for improving the SPI, such as improving the issuance of letters for the implementation of tax receivables to be entirely through the system, limiting the materiality of collecting tax receivables, maximizing tax collections, especially those that will expire, adding an early warning system to detect overdue collections, faster solving suspend data, and data integration, especially with the tax court for appeal decisions and commercial courts for registration of tax receivables to curators.
 Keywords: Audit Report; Central Government Financial Report (LKPP); Internal Control System; Tax Receivables.

Analyzing the Ratio Decidendi: Court of Appeals Decision Reversing District Court’s Ruling in an Election Process Dispute

In practice, the General Election process disputes must be brought before the State Administrative Court. Decision Number 757/Pdt.G/2023/PN Jkt.Pst exceeded its jurisdictional limits. This is because the Central Jakarta District Court ruled over the dispute when it did not have the authority. The decision was revoked by decision Number 230/Pdt/2023/PT DKI due to its violation of applicable regulations regarding absolute competence. The legal basis for this revocation has been underscored in Article 470 of Law Number 7 of 2017 concerning General Elections and Article 25 of Law Number 48 of 2009 concerning Judicial Power. This study aims to determine the legal principle of decision Number 230/Pdt/2023/PT DKI, which overturned the Central Jakarta District Court's decision regarding the dispute over the General Election process. The research methodology utilized in this inquiry is normative legal research incorporating a statutory, conceptual, and case-based approach. The legal materials utilized include primary legal materials, such as laws, regulations, and court decisions, and secondary legal materials, including legal books, research journals, and theses pertinent to the research area. The findings indicate that the verdict issued by the DKI Jakarta High Court Judges' Panel was justified. As part of the Supreme Court's voorpost function, the Court of Appeals is responsible for addressing judicial technical and administrative matters that arise at the initial level.

Bordering in the archives: An investigation into a digital archive of the Irish asylum and refugee determination

Creating borders and borderlands is a key role of the contemporary state. Drawing on an investigation of the Irish state bordering complex determining asylum and refugee claims in Ireland, this article illustrates the importance of the actions of individual state agents and the cultures of practice in state agencies in bordering and statecraft. Building on scholarship studying the state, I conceive of statecraft as cultures of practices, understood within a feminist geopolitical framework. Studying these cultures of practice reveals the ways state agencies and state agents produce knowledge and how they work within complex power-geometries of social and political geographies. I investigate the Irish asylum determination process using an archival ethnography methodology to encounter an online archive of refugee appeals decisions in Ireland. This article shows one result of this encounter: a published database of asylum decision patterns and practices of the refugee appeals tribunals and of individual Tribunal members issuing decisions to people seeking asylum in Ireland. I argue this approach: (1) addresses real needs for systematic evidence of practice of Tribunal members, as requested by asylum seekers and legal representatives; (2) investigates cultures of practice in decision-making bodies in the asylum complex of the Irish state; (3) and shows the importance of archives of asylum decision-making in the state practice of bordering and statecraft. Analysis shows an asylum determination culture heavily dependent on who is doing the deciding, the decision-maker assigned is a major element in outcomes of asylum claims. I also propose a framework for identifying statecraft and bordering as the collective project of groups and individuals embedded within the state; this framework provides productive and systematic evidence of bordering and the ways individuals and groups go about doing statecraft in the asylum determination process.

MEDIASI SEBAGAI ALTERNATIF PENYELESAIAN SENGKETA PAJAK

Tax disputes between tax collectors (fiscus) and taxpayers in Indonesia are a phenomenon that occurs in the process of collecting taxes by the government of the Republic of Indonesia represented by the Ministry of Finance through the Directorate General of Taxes. Tax disputes generally start from tax inspections, objections to the results of the examination, appeals and reviews of appeal decisions in the Supreme Court. Thus, in almost every process of verification, examination, tax objections where it is a process and procedure for collecting taxes by the fiscus there is a potential for disputes with the taxpayer. For this reason, an efficient and effective dispute resolution process is needed in the sense that it is in accordance with the principle of tax collection that is simpler, faster, cheaper and provides a sense of justice for taxpayers. For this reason, an efficient and effective dispute resolution process is needed in the sense that it is in accordance with the principle of tax collection that is simpler, faster, cheaper and provides a sense of justice for taxpayers. This can be done if there is a breakthrough and "political will, especially for the government or tax authorities in this case the Ministry of Finance represented by the Director General of Taxes. Considering that there has been tax reform with the issuance of Law No.7 of 2021 regarding the Harmonization of Tax Regulations with various implementing regulations, it is also necessary to reform tax dispute resolution in the future considering that the development of tax dispute resolution in various countries has been socialized by the issuance of tax dispute resolution regulations through mediation, which in Indonesia has not implemented this. The effectiveness of resolving disputes through mediation in general in various European, African and Asian countries has shown good results in state revenue from taxes, although there are still some obstacles. The writing of this thesis uses the library method and observations in the field of interactions that occur between fiscus and taxpayers both at the stage of tax inspection, objections and lawsuits or appeals and pays attention to several practices of resolving tax disputes through mediation in various countries outside Indonesia, especially in Australia and the United Kingdom with alternative settlements called Alternative Dispute Resolution (ADR). In this thesis, it is conveyed about the rights and obligations of taxpayers regarding the steps and procedures that must be taken in the process of examination, objections and appeals / lawsuits, as well as proposals and alternatives to resolving tax disputes through mediation. Alternative dispute resolution (ADR) known as Mediation in Indonesia needs to be researched, especially by the Government, Taxpayers and researchers to then be applied in the process of resolving tax disputes in Indonesia as has been applied in general courts where before a trial is carried out Mediation efforts can be taken before the trial process is carried out. This mediation is proposed because each party will focus on resolving tax disputes that are faster, cheaper and achieve a win win solution for both taxpayers and taxpayers

The immigrant versus the state: The marginal contribution of tribunal judges to administrative justice

AbstractAdministrative tribunal judges determine rights and entitlements regarding bureaucratic decisions. In immigration appeal cases, they review negative decisions of permanent residency acquisition and family reunification. Based on an analysis of all immigration appeal decisions in Canada’s Quebec province over a period of twenty-three years, we find that tribunal judges confirm the bureaucratic decision in the vast majority of cases, noting the migrants’ inability to meet the annual income requirements, and rarely reverse the decision in favour of migrants. Documenting the marginal contribution of tribunal judges to promoting administrative justice, this article contributes to the debate on whether and how courts can advance immigrants’ rights.