Court Of Appeal Decision Research Articles

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

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.

There is no Such Thing as a Sham Trust

The Court of Appeal decision in Official Assignee v Wilson is the leading New Zealand case on "sham trusts". Obiter, O'Regan and Robertson JJ held that for a sham trust to exist, the settlor and trustee must have a common intention to not create a trust. Post-Wilson, debate continues over the precise elements that render a trust a sham. The Law Commission suggested that the sham doctrine, as a means of analysing the validity of an express trust, may not be the best approach. A better starting point would be a return to the certainty of intention requirement. In arguing that the Law Commission's recommendation is correct, this article will discuss three legal issues: whether an express trust is a unilateral or bilateral transaction; whether the excluded evidence has always been part of the objective intention requirement; and whether the legislative and policy factors have made foreign trust law distinct from New Zealand trust law. Finally, this article will expand on the test proposed by the Law Commission.

An experimental look at reasonable suspicion and police discretion

PurposeThis study aims to demonstrate the need for further examination of legal judgments and the exercise of discretion in policing.Design/methodology/approachA factorial vignette survey with traffic stop scenarios based on US Court of Appeals decisions was administered to 396 police officers across six states. Officers were asked to indicate their assessment of the presence of reasonable suspicion and the likelihood that they would extend the stop for investigatory purposes.FindingsOfficers' reasonable suspicion judgments are significantly influenced by the vignette facts and align with court ruling expectations. However, even in the presence of reasonable suspicion, responses indicate a limited use of officer discretion to extend the stop.Originality/valueAnalyses of officer decision-making often rely on large datasets with easy indicators of location, officer demographics and citizen demographics, but rarely consider the facts of individual cases. This study suggests more experimental research is needed to consider the impact of case facts on officer judgments and discretionary activity.

The Third Circuit’s Scrambling of Precedent in Processed Eggs

In 2020, the Third Circuit upheld a judge’s decision that the rule of reason applied to a conspiracy among egg producers to limit production of eggs by agreeing on how they engaged in production and the disposition of some eggs. A jury had found that the agreement existed and that its intent was to restrain production, but based on the instructions from the court, it also found that these restraints were “reasonable.” On its face, this decision upends more than a century of case law holding that naked restraints of competition among competitors are illegal per se. One of the restraints involved an agreement to increase the size of the cages used for the hens laying eggs. The courts appear to have concluded that an agreement among competitors to increase cage size could be a lawful cartelistic conspiracy, despite the jury finding that the intent was to restrict production. The jury instructions themselves conflated the issues of whether there was a conspiracy to restrain the production of eggs and the issue of whether the conspiracy had in fact caused any reduction in production. Hence, although the Court of Appeals decision provides defendants a basis to claim that any justification for collusion should be considered, the specifics of the case suggest that the jury may have found that the conspiracy was ineffective and so caused no harm. Such a conclusion would be consistent with existing law.

Of Two Thirds Gender Rule and Supreme Court Composition: A Commentary on Court of Appeal Decision in Civil Appeal No 234 of 2017

Of Two Thirds Gender Rule and Supreme Court Composition: A Commentary on Court of Appeal Decision in Civil Appeal No 234 of 2017

An Update on Foreign Trusts under French Tax Law

In this article, the authors explain how trusts are treated under French law by both legislation and the French courts. In particular, the authors focus on the Court of Appeal decision in Clive-Worms (Case No. 19PA00458).

The Arbitrability of Family Disputes in Kenya: A Case Study of the Court of Appeal Decision in TSJ v SHSR (2019) eKLR

The Arbitrability of Family Disputes in Kenya: A Case Study of the Court of Appeal Decision in TSJ v SHSR (2019) eKLR

The Unholy Alliance between Court of Appeal and the Handmaiden of Justice: An Examen of Court of Appeal Decisions in Adjudicating Public Procurement Disputes

The Unholy Alliance between Court of Appeal and the Handmaiden of Justice: An Examen of Court of Appeal Decisions in Adjudicating Public Procurement Disputes

CLAIMS FOR PSYCHIATRIC INJURY IN THE WORKPLACE: AN ANALYSIS UNDER THE LAW OF NEGLIGENCE AND THE ISLAMIC PERSPECTIVE

In recent years, claims for damages for deliberately or negligently inflicted psychiatric illness have succeeded against employers in jurisdictions outside Malaysia. In the case of Mount Isa Mines v Pusey, the court decided that an employer’s duty of care towards the employees is not limited to cases of physical injury but also extended to cases of psychiatric injury. In order to claim damages for psychiatric injury, the law of torts requires the plaintiff to prove two elements: namely, reasonable foreseeability and proximity. This paper examines on the two elements as required under the law in the context of psychiatric illness in the workplace. The paper analyses cases from the UK, Malaysia and Australia, elaborating on how an employee can successfully bring an action against his/her employer for his/her psychiatric illness suffered at the workplace. The author employs doctrinal analysis from primary and secondary legal sources in arriving at the solutions to the above problem. This paper will significantly contribute to the existing literature by discussing the challenges faced by an employee in proving the conditions required by the law and its solutions to ensure that employee who suffered psychiatric illness or injury in the workplace has a redress under the law of negligence. This paper also considers the scenario from an Islamic perspective in order to shed light on the seriousness of the welfare of employee guaranteed by the religion. Having shown how divine revelation makes it incumbent on an employer to honour and respect his worker, and treat him in kindness, it will be further shown how two Court of Appeal decisions have paved the way to find employers negligent for causing distress to their employees’ mental health. This paper, thus illustrates yet another fine example of harmonisation between the two systems of law, that can come together to achieve the same end.

Commercial Common Sense in Contract Interpretation: Observations on the Court of Appeal in Technix v Fitzroy and The Malthouse v Rangatira

The contemporary principles of contract interpretation require courts to have regard to a number of factors to determine the meaning of a contract, including the plain meaning of the express contractual language, the contract's context, and commercial common sense. These principles superseded the narrower plain meaning rule, which directed courts to interpret contracts in a manner largely consistent with the plain and ordinary meaning of their express words. Since their manifestation some 20 years ago, these principles have undergone change, development and elaboration to the extent that some commentators now claim the approach to contract interpretation more closely resembles the former plain meaning rule, with courts giving "primacy" to the words of the contract in order to deliver "commercial certainty". This article argues that while courts must give primacy to the express contractual language, that does not mean courts should maintain an unwavering loyalty to the plain meaning of those words, even if their meaning is clear. Courts that adopt this approach, referred to by some as the "conservative approach", risk obscuring the true meaning of a contract that can only be obtained through the careful balancing of a contract's internal and external factors, including commercial common sense. This article demonstrates the problem with the "conservative approach" through the analysis of two Court of Appeal decisions, and argues that courts should not overstate the circumstances in which departure from the plain meaning of a contract should occur.

Causing or inciting sexual activity with persons who have a mental disorder.

Richard Griffith, Senior Lecturer in Health Law at Swansea University, discusses the implications of a Court of Appeal decision that considers the scope of the Sexual Offences Act 2003, section 39, in relation to care workers.

Protecting National Security by Breaking the Law? Prerogative, Statute and the Powers of MI5

The Court of Appeal decision in Privacy International v Foreign Secretary (2021) found lawful the long‐secret policy governing the purported authorisation and commission of criminal offences as part of the work of MI5 and its informants. The Court found MI5 had a public law power to engage in such criminality, historically under the royal prerogative and more latterly as an implied power under the Security Service Act 1989. The authors argue that these findings threaten serious damage to core constitutional principles, including the rule of law and settled understandings of the prerogative and its relationship with statute. They postulate a much narrower implied legal power under the 1989 Act, authorising only the making of representations to the CPS on whether it would be in the public interest to prosecute. This would provide a narrow path for MI5 officers and their informants to avoid legal jeopardy for activities core to its mission.

The Dissident Voice—Union Treatment of Perceived Disloyalty

The variety of themes and messaging in a union campaign are as wide as the imagination can travel. Some themes, however, are more common than others. One recurring theme is that of union discipline. The constitution and by‐laws of a labor organization often contain language about “trials” of and “fines” against members found to have been disloyal to the union cause. This is usually located somewhere in the fine print of documents that can span a hundred or more pages which very few voters will read. Management, however, should be prepared to inform employees of the very real threat that they could find themselves tried and fined by a union should they decide to vote one in. A real world example of such union punishment was recently highlighted by a U.S. Court of Appeals decision in Barger v. United Brotherhood of Carpenters and Joiners of America, Index No. 19‐3852 (6th Cir, June 25, 2021).

M.C. v. Antelope Valley Union High School District (2017): Implications for Special Educators

Five days after the U.S. Supreme Court handed down its ruling in Endrew F. v. Douglas County School District, the U.S. Court of Appeals for the Ninth Circuit issued a decision in M.C. v. Antelope Valley Union High School District. This important decision involved a student who was being served under the Individuals with Disabilities Education Act (IDEA). The student was blind and required a high level of support in all academic areas. The case addressed important issues regarding parental participation throughout the Individualized Education Program (IEP) process and the school district’s obligation to implement the IEP. This column (a) examines this decision by providing the facts of the case, including the decisions at the due process hearing level, U.S. district court, and U.S. Court of Appeals; (b) explores the ruling by the court of appeals decision; and (c) discusses implications of this decision for special education administrators and teachers.

The Debut of the Administrative State in New York: The Court of Appeals Decision that Affirmed Legislative Delegation

The Debut of the Administrative State in New York: The Court of Appeals Decision that Affirmed Legislative Delegation

Trusts and jurisdiction clauses—Crociani revisited Ivanishvili, Bidzina and others v Credit Suisse Trust Ltd [2020] SGCA 62

Abstract In the recent Singapore Court of Appeal decision of Ivanishvili, Bidzina and others v Credit Suisse Trust Ltd, the court analysed the effect of a forum administration clause in the trust context, holding that while the clause in question was a jurisdiction clause, it was not an exclusive jurisdiction clause governing the dispute between the trustees and beneficiaries.

Jurisdiction over Non-signatories, the Irreconcilable Approaches of French and English Courts Case Note on: (i) English Court of Appeal Decision of 20 January 2020 and (ii) Paris Court of Appeal Decision of 23 June 2020

Jurisdiction over Non-signatories, the Irreconcilable Approaches of French and English Courts Case Note on: (i) English Court of Appeal Decision of 20 January 2020 and (ii) Paris Court of Appeal Decision of 23 June 2020

Tax consequences of setting aside a voidable transaction on the ground of mistake

Abstract This article considers whether there is, as has been widely assumed until now, a general principle that, if a voidable transaction is avoided by an order of the court (for example, on grounds of mistake or under the Hastings-Bass rule), the order operates retrospectively for all purposes, including fiscal purposes. It discusses whether the Court of Appeal decision in Clark v HMRC [2020] EWCA Civ 204 throws doubt on the existence and ambit of such a principle. It also explores how the principle operates where the court imposes terms on the rescission of a transaction, such as a requirement that one or more of the parties enters into a fresh transaction, or where there have been intervening transactions between the voidable transaction and the order rescinding it.