Court Of Appeal Decision Research Articles

Disguised Returns of Capital - An Arm's Length Approach

Disguised Returns of Capital - An Arm's Length Approach

Restraint of Trade: A Singapore Perspective

The position in Singapore with regards to restraint of trade clauses in employment contracts is largely similar to the position in the United Kingdom. Nonetheless, while the authorities in the United Kingdom are divided on the validity of “non–poaching of employees” type of restraint of trade clauses, the very recent Singapore Court of Appeal decision of Man Financial (S) Pte Ltd v Wong Bark Chuan, David has endorsed the validity of such clauses whole heartedly after an extensive review of authorities from the United Kingdom, Hong Kong and Australia. In addition the court in Man Financial (S) Pte Ltd v Wong Bark Chuan had the opportunity to consider several other related issues such as the significance of the fact that the employee was specifically paid for entering into the restrictive covenant, the significance of the fact that the employee had expressly agreed to the restrictive covenant and the significance of fact that the employee received legal advice in relation to the restrictive covenant.

Anatomy of a spectrum policy court decision

This month's column reviews a recent U.S. Court of Appeals decision that considered a pectrum policy matter that the Federal Communications Commission (FCC) had decided. This matter should be of interest to readers because it shows how a transparent regulatory system works with a system of checks and balances. Also, many members of this multinational society either work in the United States or develop products for sale in the U.S. market, and thus their work is affected by such decisions.

Court of Appeal can overrule itself to follow the EPO: UK adopts EPO stance on second medical use claims

The UK Court of Appeal has held that a patent may be granted for the use of a pharmaceutical in the manufacture of a medicament where the novelty lies in a new dosing regime. The Court of Appeal can overrule earlier Court of Appeal decisions in order to follow the settled practice of the EPO. An invention that was obvious before the priority date can become non-obvious at the priority date.

The Future in International Perspective: The Ombudsman as Agent of Rights, Justice and Democracy

IN the first of this series of four articles (Vol. 61 No. 1, 2008, 206–215) I referred to the ‘venerable and international pedigree’ of the Ombudsman institution and to its origin in Sweden in the first decade of the nineteenth century. I want in this final article to return to that international scene, to set the main themes of previous articles in that wider context and to use that international dimension as a pointer towards possibilities and limitations domestically in the UK. To begin, let me recount the main themes that have emerged so far. I have tried to suggest that the role of Ombudsman is of constitutional importance in the UK and that due recognition of that constitutional role is especially salient at a time when the Government, through its The Governance of Britain White Paper, its draft Constitutional Renewal Bill and its proposed Bill of Rights and Responsibilities, is inviting fresh reflection on our constitutional arrangements. The creation of the new Equality and Human Rights Commission and of the integrated Administrative Justice and Tribunals Council are other relevant local developments; the Court of Appeal decision in respect of my occupational pensions report, the Law Commission's consultation on public law remedies and the publication of the draft NHS Constitution add further spice to the mix.

Liability for Failure by Police to Detain Potentially Suicidal and Dangerous Persons

The author scrutinises the ramifications of the important decision by the majority of the Victorian Court of Appeal in Kirkland-Veenstra v Stuart [2008] VSCA 32 against the backdrop of the New South Wales Court of Appeal decision in Hunter Area Health Service v Presland [2005] NSWCA 33. He argues that in principle the imposition of civil liability upon police officers who fail to take a potentially suicidal or dangerous person pursuant to their statutory powers for examination or assessment is an appropriate accountability mechanism likely to improve the quality of policing in the public interest.

THE LIABILITY OF 'FUNCTIONAL PUBLIC AUTHORITIES' FOR BREACH OF ECHR RIGHTS: THE HOUSE OF LORDS ENDORSES A PALPABLE GAP IN HUMAN RIGHTS PROTECTION

In Y.L. and Others v. Birmingham City Council and Others (Secretary of State for Constitutional Afflairs intervening), the House of Lords had its first opportunity since the Court of Appeal decision in R. v. Leonard Cheshire Homes, ex parte Heather and Others (Leonard Cheshire) to consider whether the provision of residential care services by a privately owned care home constituted a ‘function of a public nature’ within the meaning of section 6(3)(b) of the Human Rights Act 1998 (HRA), thereby subjecting the care home to public law duties to act compatibly with rights in the European Convention of Human Rights (ECHR). In answering that question the majority in the House of Lords followed the restrictive approach of the Court of Appeal in the Leonard Cheshire case. Thus, focusing predominantly on the implications of a generous interpretation of section 6(3)(b) for local authority contractors in the residential care market, the majority refused to accept that in drafting section 6(3)(b) HRA, government had intended that providers of a wide range of publicly funded health and welfare services would be subject to positive obligations to act compatibly with the ECHR rights, whether services were provided in the private or public sectors.

A Typology of Advance Statements in Mental Health Care

A Typology of Advance Statements in Mental Health Care

Judging National Security Post‐9/11: An Empirical Investigation

Many people believe that when national security is threatened, federal courts should defer to the government. Many other people believe that in times of crisis, citizens are vulnerable to a kind of “panic” that leads to unjustified intrusions on liberty. But to date, there is little information about what federal courts have actually done in this domain, especially in the period after the attacks of September 11, 2001. On the basis of a comprehensive study of relevant courts of appeals decisions in the aftermath of those attacks, this essay offers four findings. First, the invalidation rate is about 15 percent – low, but not so low as to suggest that federal courts have applied a broad rule of deference to government action. Second, the division between Republican and Democratic appointees is comparable to what is found in other areas of the law; contrary to reasonable expectations, there is no significant “compression” of ideological divisions in this domain. Third, and perhaps most strikingly, no panel effects are apparent here. Unlike in the vast majority of other areas, Republican and Democratic appointees do not appear to vote differently if they are sitting with Republican or Democratic appointees. Finally, judicial behavior cannot be shown to have changed over time. The invalidation rate is not higher in recent years than it was in the years immediately following the 9/11 attacks. Explanations are ventured for these various findings, with particular reference to the absence of discernible panel effects.

Sentencing Offenders with Impaired Mental Functioning R v Verdins, Buckley and Vo [2007] VSCA 102; (2007) 169 A Crim R 581 Maxwell P, Vincent and Buchanan JJ

The Victorian Court of Appeal decision in R v Verdins, Buckley and Vo [2007] VSCA 102; (2007) 169 A Crim R 581 provides both a synthesis of the evolving law in Australia on the relevance to sentencing of impaired mental functioning and a restatement of important issues of principle. It liberalises the circumstances in which such information can impact upon sentencing to the advantage of the offender and clarifies when psychiatric symptomatology, amounting to a 'mental disorder' within the terms of a DSM or ICD definition, or falling short of a frank diagnosis, can be used in the sentencing process. It constitutes Australia's most sophisticated and subtle analysis of the relationship between impaired mental functioning and sentencing.

Orientalism and the Foreign Sovereign: Today I am a Man of Law

It is nearly an article of faith in literary criticism and legal scholarship that Western considerations of Eastern societies demonstrate the drive toward, as Edward Said put it in Orientalism, “dominating, restructuring, and having authority over the Orient.” This essay revisits that question of West and East in two of its most prominent guises: medieval literature and modern law. It does so be examining two narratives, the first of which is Chaucer’s “Man of Law’s Tale,” a piece of Canterbury Tales related by an English lawyer that expressly measures the stature of a governing monarch in the Muslim world against concepts of sovereignty embraced by Christianity. The second narrative is the First Circuit Court of Appeals decision in Ungar v. Palestinian Authority, a piece of judicial writing that expressly measures the stature of a governing administration in the Arab world against the concept of sovereignty embraced by an American court applying international law. It is the aspiration of this paper that by setting a 14th century story up against a 21st century judgment, significant portions of Western thought dealing with non-Western societies can be canvassed at once, and that the ‘orientalism’ thesis about the West’s perceptions of the East can be put to the test.

Enforcement of Arbitral Awards where the Seat of the Arbitration is Australia — How the Eisenwerk Decision Might Still be a Sleeping Assassin

This article examines the enforcement of foreign awards in Australia. It identifies and explains the difference between a “foreign award” and “international arbitration award,” observing it is a somewhat surprising but potentially significant distinction. The article then moves to consider the consequences of the distinction with particular reference to the Australian arbitral landscape. Australia has dual arbitration regimes operating at the state and federal level. Particular attention is given to the still controversial Queensland Supreme Court of Appeal decision in Australian Granites Ltd. v. Eisenwerk Hensel Bayreyth Dipl-Ing Burkhardt GmbH. The article concludes by promoting a line of interpretation that will effectively allow subsequent courts to avoid the potentially disastrous effects the Eisenwerk decision may yet still wreak.

Panel Composition and Voting on the U.S. Courts of Appeals Over Time

Studies of the the U.S. Courts of Appeals increasingly have moved beyond studying the voting behavior of judges in isolation from their panel colleagues and toward an approach that takes into account how panel composition can affect both individual judicial decisions and, as a result, the final decisions of three-judge panels. This paper makes two contributions to this burgeoning literature on panel composition and panel effects in the Courts of Appeals. I present the first assessment of the rates of various panel configurations over time on the Courts of Appeals, based on the partisanship of judges. I show that while long stretches of single-party control of the presidency in the first half of the 20th century often led to low degrees of panel heterogeneity, more frequent turnover of White House control in the last half-century has helped ensure that a majority of panels are composed of at least one judge from each party. Second, this paper presents the first longitudinal analysis of the relationship between panel composition and judicial behavior. Examining aggregate patterns in Courts of Appeals decisions from 1961 to 2002, I show that the difference in voting between unified Republican and unified Democratic panels is a relatively recent phenomenon, and only appeared beginning in the 1980s. Similarly, the existence of panel effects is also a recent development, exists mostly among Democratic appointees to the bench, and not Republican appointees. These results have important positive and normative implications for the study of the Courts of Appeals and for proposals to reform panel selection procedures.

Chasing the Dragon: trust assets caught by the divorce courts

The recent Court of Appeal decision in Charman v Charman [2007] EWCA Civ 503 provides the latest analysis of the courts' approach in apportioning assets in ‘big money’ divorce cases and pays particular attention to the treatment of assets settled into offshore trusts.

Additional payments under construction contracts

Parties to a construction contract who wish to increase the sum payable under the contract face legal problems. Such transactions are manifest in a promise by the principal or head contractor to pay more. According to traditional contract theory, a promise is not enforceable unless supported by consideration, that is, the party making the promise receives something tangible in return. The courts have attempted to define circumstances where promises that do not strictly comply with this requirement would be enforceable. The issue arose in the English Court of Appeal decision of Williams v. Roffey Bros & Nicholls; the solution, there proposed, depended on the application of subjective tests that are unworkable in the construction industry. Equally, the High Court of Australia in Walton Stores v. Maher proposed a solution that leaves the parties in doubt as to their position. The law as it presently stands is reviewed and the recommendation made that the original contract be replaced by one confirming the new price. Otherwise the consideration requirement needs to be satisfied by a new promise in exchange for the promised additional payment.

The classification of private foundations for US federal income tax purposes

The classification of private foundations for US federal income tax purposes

Supported living — The legal and regulatory issues

AbstractThis review discusses the legal aspects of supported and assisted living and the regulation and deregulation of care homes in conjunction with the Care Standards Act 2000, Department of Health Guidance published in August 2002, the 'Alternative Futures' case heard by the Care Standards Tribunal in 2003 and by the Court of Appeal in 2005. The House of Lords has now decided that it will not hear any further appeal in this case, so the Court of Appeal decision is binding. In the meantime, CSCI have issued interim guidance but further guidance is awaited urgently from the Department of Health. The Joint CSCI/Healthcare Commission report published in July 2006 revealing abuse in 'supported living' houses in Cornwall which should in fact have been registered as care homes brings into sharp focus the need to assess whether supported living houses throughout England should be registered as care homes if personal care is provided together with accommodation.

Understanding Debt Subordination and the Rule in Cherry v. Boultbee: Re SSSL Realisations

A debt subordination may in general take two forms, viz., contractual subordination and turnover subordination. A contractual subordination occurs where, by agreement between a debtor and a creditor, debts owed to the creditor are to rank below other debts of the debtor. A turnover subordination (which may or may not involve a trust) requires the junior creditor, on the insolvency of the debtor, to turn over to the senior creditor all recoveries received by the junior creditor in respect of the junior debt. Where a trust is utilized, this technique is also called trust subordination. The English Court of Appeal decision in Re SSSL Realisations has confirmed that is valid, binding and enforceable. If necessary, the court would enforce it by injunction. Furthermore, a properly drafted trust subordination will not become a security interest. While championing the enforceability of contractual subordination especially in case of insolvency, the Court of Appeal made no mention of some age-old arguments that contractual subordination is of doubtful validity because it infringes the principle of pari passu distribution. In light of this decision, it is no longer credible to claim that the pari passu principle is fundamental in insolvency practice. This decision also confirms that a subordination agreement is unlikely to be liable to disclaimer by a liquidator of the subordinated creditor. The court also took the opportunity to restate how the rule in Cherry v. Boultbee interacts with corporate insolvency law. In brief, the rule in Cherry v. Boultbee holds that that a person cannot share in a fund in relation to which he is also a debtor without first contributing to the whole by paying his debt. While the court made a commendable effort to restate this equitable rule, some aspects of the restatement are dubious. In particular, it failed to consider the rule's compatibility with the contractual setting and failed to engage fully the very authorities it purportedly relied upon. Instead, it rolled out self-serving numbers to underscore its answer to a purportedly unprecedented question of principle.

Entitlement disputes

Three issues stem from the Court of Appeal decision in Markem, namely the need for a cause of action outside of section 7 of the Patents Act 1977 (the Act); the role that validity can play; and the status of the claims in determining the inventive concept.

Court of Appeal decision on the Design Directive shades Animal from Oakley's designs

Court of Appeal decision on the Design Directive shades Animal from Oakley's designs