Court Of Appeal Research Articles

Comment on the the Court of Appeal of Antwerp’s Decision in “Photos of Shower Drains”

Comment on the the Court of Appeal of Antwerp’s Decision in “Photos of Shower Drains”

AAFS (Victorian branch) Symposium: Science and Medicine in the Courts—Learning from the wrongful conviction of Kathleen Folbigg

ABSTRACT Kathleen Folbigg spent 20 years in jail, wrongly convicted for smothering her four infant children. An unprecedented second judicial Inquiry found they died naturally. New genetic and psychiatric evidence unlocked the wrongful conviction, but it was always questionable. A Symposium held by the AAFS (Victorian Branch) detailed the timeline of the numerous events, then identified and discussed the issues. What were the failings and why were they missed? What part did expert witnesses, judges and lawyers play in this wrongful conviction? Did the prosecution appeal to misogyny? How did the first Inquiry get it so wrong? How did it fail to correctly understand the genetics? Was Ms Folbigg treated disrespectfully, and if so, what did that mean about fact finding? How did the failures of disclosure affect the original conviction and its various appeals? What explains the NSW Court of Appeal’s decision to reject an appeal based on jury misbehaviour during Ms Folbigg’s trial? Should we be more careful about the language we use in criminal trials? There was general agreement that the frailties of Kathleen Folbigg’s convictions were readily visible from the beginning. Will the criminal justice system learn the lessons that emerge from this case?

The partial abolition of the rule in Hollington v Hewthorn in Seychelles and the admissibility of criminal convictions in civil trials: Analysing s. 29 of the Evidence Act

Section 29(1) of the Seychelles Evidence Act provides that a criminal conviction is admissible in civil proceedings as evidence that the person who was convicted committed the offence in question. Thus s. 29(1) partially reverses the rule in Hollington v Hewthorn. Section 29(2) of the same Act provides that ‘[i]n a trial, other than in a civil trial for defamation, in which by virtue of this section a person…is proved to have been convicted of an offence by or before a court in the Republic, he shall be taken to have committed that offence unless the contrary is proved.’ The Supreme Court held that s. 29 ‘imported’ s. 11 of the United Kingdom Civil Evidence Act (1968) ‘into our laws’. In this article, the author demonstrates how courts have interpreted s. 29. He also suggests ways in which s. 29 could be interpreted to deal with foreign convictions. He argues that notwithstanding s. 29, the Hollington Rule is still applicable to earlier civil findings. Thus the findings of a court in earlier civil proceedings are inadmissible in subsequent civil proceedings. In Esparon v Philo, the Court of Appeal, the highest court in Seychelles, interpreted s. 29(2) in a manner that creates room for the argument that a person who challenges the admissibility of his conviction in civil matters has to prove his/her innocence. It is argued, inter alia, that the Court's decision should not be interpreted as imposing this very high threshold. It is enough if he proves that the person's trial was a miscarriage of justice.

Good appellate practice means explaining decisions: how the overuse of one-word affirmances harms US patent law

Abstract The US Court of Appeals for the Federal Circuit issues one-word decisions under Local Rule 36 in roughly one-third of the patent appeals it hears. Although US law allows for one-word decisions, they should be rare because parties, reviewing courts and the public need transparency in decisions; explaining decisions promotes accuracy and quality in decision-making and helps prevent inconsistent legal outcomes. The Federal Circuit issues many more one-word affirmances than other US Courts of Appeals, which disparately affects patent law, and needs to be addressed to avoid increasing unclarity in the law.

Forensic and legal medicine in Chile: Cinderella without a prince.

Forensic medicine is of enormous importance in the functioning of contemporary justice systems worldwide. Therefore, in order to characterize the current state of medicolegal and forensic activity in Chile, a non-systematic review of the biomedical and legal literature on the subject was carried out. An analysis of open sources of information was also incorporated, including the National Registry of Individual Health Care Providers, the latest public accounts of the Forensic Medical Service, relevant background information available on the active transparency portal of that institution, exempt resolutions included in the "Chile Law" database (of the Department of Legislative and Documentary Services of the Library of the National Congress) and the lists of judicial experts appointed by the Courts of Appeals of the country for the biennium 2024 to 2025. We note that Chile maintains an unacceptable historical debt in terms of academic development and training of qualified professionals in forensic matters. Likewise, national scientific productivity in this field is practically null. Currently, forensic medicine is the medical specialty with the deepest shortage of professionals nationwide. Consequently, as in the early part of the last century, medical expert opinions are frequently performed by professionals untrained in forensic medicine. This scenario, taking into account the attitudes of certain lawyers and judges (detailed in the article), increases the risk of a miscarriage of justice. National public policies must take urgent action to address the deficits and provide solutions.

The Dutch Court of Appeal Rules on Fundamental Transfer Pricing Questions Regarding a Business Reorganization

This article describes an Amsterdam Court of Appeal Court Case of 11 July 2024 concerning transfer pricing, with regards to a business reorganization. The case highlights the necessity for taxpayers to meticulously document all aspects of a reorganization, ensuring alignment with the OECD Guidelines and proactively addressing potential valuation disputes. This ruling serves as a pivotal reminder for multinational enterprises to prepare robust transfer pricing analyses to withstand scrutiny and avoid adverse tax adjustments.

Intermediate Appellate Courts and the Doctrine of Precedent: Lendlease Corporation Ltd v Pallas

The High Court of Australia appeal in Lendlease Corporation Ltd v Pallas raises a novel question of precedent: what approach should an intermediate appellate court (‘IAC’) take when faced with competing IAC authorities? The cases reveal that different approaches have been adopted: deferring to the home jurisdiction, favouring the most recent decision, and approaching the issue afresh. The principled answer to this question must be informed by the modern concept of a single Australian common law and the corollary rule that an IAC should not depart from a decision of another IAC on an issue of national operation unless convinced that the earlier decision is ‘plainly wrong’. It is argued that if Court B has found a decision of Court A to be plainly wrong, should the issue come before Court A again for determination, it is not open for Court A to defer to its previous decision or consider the matter afresh. In an integrated judicial system of equals working together to achieve a common goal, consistency demands that Court A give heightened deference to the decision of Court B.

A right to live without stigma? Examining negative stereotyping, negative messages, and Article 8 of the European Convention on Human Rights

Abstract The purpose of this paper is to examine the contours of evolving jurisprudence on offensive expression and negative messages, and to suggest that it can best be understood by reference to the concept of stigma. At the European Court of Human Rights, there appears to have been an increasing willingness to recognise the harm of offensive expression through an interpretation of Article 8 of the European Convention on Human Rights, but the reach of this case law remains uncertain. In particular, while some cases associate negative expression with negative stereotyping, not all of these cases do, and there are potential conflicts with freedom of speech. In the domestic context, these issues recently arose in a significant case from the Court of Appeal, R (Crowter) v Secretary of State for Health and Social Care. In this case, the appellants argued that a legal provision sends a negative ‘message’, through the negative stereotyping of disabled people, but this ‘message’ is implicit, rather than explicitly articulated. While these developments raise important questions about the future evolution of case law, we propose that a focus on stigma can more clearly highlight the harms involved.

Recognising foreign solvent proceedings under the UNCITRAL Model Law on Cross-Border Insolvency: the Singaporean approach in Ascentra Holdings, Inc v SPGK Pte Ltd [2023] 2 SLR 421

To promote cooperation among stakeholders in different jurisdictions to facilitate coordinated insolvency proceedings, the United Nations Commission on International Trade Law (UNCITRAL) adopted the Model Law on Cross-Border Insolvency (MLCBI) in 1997. The MLCBI harmonises certain procedural aspects of the cross-border insolvency process, though states may choose to make modifications when adopting the MLCBI in their own legal systems. This was completed in Singapore in 2017, and the Singapore Model Law (SML) can now be found in the Third Schedule to the Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed) (IRDA 2018). One topic that has been the subject of much debate internationally is whether foreign solvent proceedings can be recognised under the MLCBI or the corresponding provisions in various jurisdictions: the Nevada Bankruptcy Court first answered this question in the affirmative, but this was explicitly rejected by the High Court of England and Wales (EWHC) in Re Sturgeon Central Asia Balanced Fund Ltd (in liquidation) (No 2) (Re Sturgeon). In Ascentra Holdings, Inc (in official liquidation) v SPGK Pte Ltd (Ascentra), the Singapore Court of Appeal (SGCA) held that foreign proceedings concerning solvent companies may be recognised under the SML. This commentary addresses the salient points of the SGCA's judgment and highlights the positive impact of this gradual harmonisation of the approaches taken in different jurisdictions to the MLCBI. Through a comparative analysis of the conflicting Re Sturgeon decision, three additional justifications based on the preparatory documents pertaining to the MLCBI, relevant authorities in the UK and a purposive reading of the MLCBI are provided for the approach in Ascentra. It is contended in closing that these reasons support the argument for definitively overruling the Re Sturgeon decision in the UK.

Extending Statutory Protection to Action Short of Dismissal for Participating in Industrial Action: The Supreme Court on the Right to Strike in Secretary of State for Business and Trade v Mercer

ABSTRACT The Supreme Court in Mercer v Secretary of State for Business and Trade found there was a violation of the right to strike, under article 11 ECHR, when there is no legal protection against detriment short of dismissal for taking part in industrial action. Section 146 Trade Union Labour Relations Consolidation Act (‘TULRCA’) 1992, as currently construed, does not cover this situation. While the Supreme Court agreed with the Court of Appeal that it would not be appropriate to use section 3 Human Rights Act (‘HRA’) 1998 to re-interpret section 146 TULRCA in a Convention-compliant way; unlike the Court of Appeal, the Supreme Court issued a rare declaration of incompatibility under section 4 HRA. It is suggested in this note that Mercer is significant for two main reasons. First and foremost, Mercer is significant for the Supreme Court’s recognition of, and finding of, a violation of, the right to strike. Second, Mercer contributes to the wider debate about the interplay between sections 3 and 4 HRA. The final part of the note reflects on the Supreme Court’s interpretation of Strasbourg case law whereby the Court in Mercer found article 11 ECHR requires stricter protection in this respect for public authority workers.

Dismissing the blanket approach of interdicting strike brutality: A discussion of Commercial Stevedoring Agricultural and Allied Workers' Union and Others v Oak Valley Estates (Pty) Ltd and Another [2022] ZACC 7

This matter concerns an attempt by the employer to interdict unidentified workers in the cause of a strike that turned violent and resulted in damage to the property of the employer. The issue before the Constitutional Court was, can an employer facing unlawful conduct committed during a protected strike interdict employees participating in that strike without linking each employee to the unlawful conduct? This note will do as Theron J did in starting the judgment by discussing the facts of the case, going into detail about what the Labour Court and the Labour Appeal Court found. The note will also engage in a detailed discussion about the judgment of Theron J.

Implications of the initial braidwood v. Becerra ruling for colorectal cancer outcomes: a modeling study.

The Affordable Care Act (ACA) eliminated patient cost-sharing for USPSTF recommended services. However, if the US Court of Appeals for the Fifth Circuit fully upheld a US District Court ruling in Braidwood Management v. Becerra, 666 F. Supp. 3d 613 (N.D. Tex 2023), cost-sharing for USPSTF recommendations made after ACA passage would have been reinstated for over 150 million people. The case could still reinstate cost-sharing for colorectal cancer (CRC) screening for ages 45-49 years and for polyp removal during (diagnostic) colonoscopy across all ages. Using the MISCAN-Colon model, we simulated the potential impact on CRC outcomes, assuming early-onset CRC trends, and lower screening participation. An 8-percentage-points decline in screening participation could increase CRC incidence by 5.1%, and CRC mortality by 9.1%, with slightly lower costs due to increased cost-sharing. Larger decreases in screening participation can result in higher costs from increased incidence and delayed diagnoses.

Policy and organisational learning in judicial reform: evidence from Italy

The Italian judicial system is well-known for its substandard performance by comparison with its European peers. In this article, we analyse the implementation of an important reform of the Italian judicial system designed and implemented in the context of the National Recovery and Resilience Plan funded by Next Generation EU. The reform, launched in February 2022, involves the introduction of a new organisational structure (The Office for the Trial) staffed with 16,500 newly appointed judicial assistants, representing an increase of about one third of the total judicial workforce employed in Italy. By leveraging the concepts of policy and organisational learning (OL), we show that variation of the modes of policy learning observed in implementation design is linked with variation in the organisational models adopted by different judicial offices to implement the reform. Then, by connecting organisational models to OL and focusing on the performance of five selected sections within the Court of Appeal of Milan, we show that organisational models informed by reflexivity are associated with better performance than models informed by hierarchy. The study contributes to scholarship on policy and OL, as well as providing a first, albeit limited and exploratory, empirical evaluation of a strategic public sector reform.

PROBLEMS OF JUDICIAL ACTS REVIEW IN THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

The work is devoted to studying the problems of reviewing court decisions of lower courts by the Supreme Court of the Republic of Kazakhstan. This article examines the control of higher courts over lower courts' activities in the system to ensure the rule of law in case consideration and decision-making. The procedure of reviewing judicial decisions by a higher court that have become effective and those that are not effective in the order of cassation and supervisory review, as well as representations of the President of the Supreme Court, and protests of the Prosecutor General of Kazakhstan, are investigated. Problems of citizens' implementation of their constitutional rights to judicial protection and appeals against court decisions are highlighted. The grounds for reviewing judicial acts that have entered into force, the range of subjects entitled to apply for review, criteria for the admissibility of appealing judicial acts as well as procedure for preliminary consideration of complaints and protest by a judge alone is shown. The analysis of these issues allows us to conclude that the current grounds and procedure for reviewing judicial decisions of the appeal and cassation courts based on the submissions of the Chairman of the Supreme Court and the Attorney General of the Republic of Kazakhstan firstly hinder the realization of citizens' constitutional right to judicial protection, including the right to appeal against judicial decisions, and secondly prevent the formation of consistency in judicial practice. The lack of guidance to lower courts on reviewing judicial decisions by way of cassation and supervision has once again convinced courts of their inability to achieve consistency in the interpretation and application of law, as well as failure to contribute effectively to citizens' exercise of the right to justice. The paper provides a critical analysis of judges, lawyers, and legal experts on the current process for the Supreme Court of the Republic of Kazakhstan to review appeals and cassation court decisions. At the end of the paper, the author draws conclusions and makes suggestions regarding the enhancement of the constitutional right to judicial protection and uniformity in court practice.

Master planning ‘as a verb’: enforcing participatory planning through the Brazilian courts

ABSTRACT Brazil is well-known for participatory planning praxis anchored on the right to the city and federal legislation. Yet little is known about how the right to participation materializes through the courts. Focusing on the right to participation beyond legislative and executive branches, we analyze jurisprudence on participatory planning through decisions in two state courts of appeal. We illustrate higher court magistrates’ awareness about the right to participate despite disregard of procedural participation in other instances. Seeing master planning ‘as a verb’, the contentious meaning of participation in the judiciary is intertwined with the standing of master plans in city governance.

Audit from a Hemodialysis Facility in a small town in Punjab

Patients with advanced Chronic Kidney Disease ultimately require Renal Replacement Therapy. In the absence of widespread availability of renal transplant, dialytic therapies remain the last court of appeal for most of the patients with CKD V. Hemodialysis remains the most common form of dialytic therapy utilized by the patients. Since the governmental support for dialysis has increased in the recent years, now the therapy is also available in smaller cities and towns. This is commendable since it reduces the financial burden of patients associated with travelling to larger cities twice a week to receive dialysis therapy. These centers in smaller towns have their own profile of problems to deal with. Here we present our data collected from hemodialysis centre in a small city of Pakistan.

When Socialist Chinese Law Meets Common Law Interpretation: Mandatory Sentencing and Mitigation Under the Hong Kong National Security Law

Abstract In HKSAR v Lui Sai Yu [2023] HKCFA 26, the Hong Kong Court of Final Appeal (CFA) delivered its first judgment on the mandatory sentencing regime under the newly introduced National Security Law (NSL). Adopting a common law approach to interpreting the NSL, the CFA held that mitigating factors not listed in the NSL cannot bring about a sentence below the minimum prescribed by the relevant provision. In this article, we propose an alternative approach to interpreting the NSL. We argue that, contrary to the CFA’s rejection of any reference to Mainland Chinese laws in constructing the NSL, both a common law purposive approach and the principle of ‘convergence, compatibility and complementarity’—one of the working principles in the enactment of NSL—would support such reference. The implications of our proposed approach would be to (i) recognize that the sui generis nature of the NSL, being a Chinese national law applied in its Special Administrative Region of Hong Kong, necessitates the consideration of relevant Chinese legal norms; and (ii) allow for a broader range of mitigating factors—those recognized by both Hong Kong common law and Mainland Chinese law—to be applied to the minimum sentencing regime in the interest of fairer and more principled outcomes for defendants.

Which law should govern the ‘arbitrability’ of a dispute in England?

Abstract This article considers, from an English law perspective, the question of which law should govern the arbitrability of a dispute. The focus of the article is on the position preaward as opposed to postaward, which is expressly addressed by the New York Convention. The article analyses this question in light of the decision of the Singapore Court of Appeal in Anupam Mittal v Westbridge Ventures II Investment Holdings, the only authoritative treatment of the relevant issues by a common law jurisdiction. In Anupam, the court concluded that a composite approach to the law applicable to the arbitrability of a dispute should apply, requiring a dispute to be arbitrable under both the law of the seat of arbitration and the law applicable to the arbitration agreement. The authors suggest that a composite approach to the issue of arbitrability should not be followed in England. Instead, English law should apply the more orthodox approach of looking to the law of the seat. An approach that looks to the law of the arbitration agreement would be particularly detrimental to English arbitration law given the decision of the UK Supreme Court in Enka v Chubb. It underlines the need for reform of the Arbitration Act 1996 to address some of the well-known problems caused by Enka and which could be expanded by the additional focus on the law applicable to the arbitration agreement provided by Anupam.

Trustees’ Indemnities and Fiduciary Duties: The High Court Appeal in Naaman v Jaken Properties Australia Pty Ltd

The High Court of Australia appeal in Naaman v Jaken Properties raises the question whether a successor trustee owes a ‘fiduciary duty’ to the former trustee to not destroy, jeopardise or diminish the former trustee’s right of indemnity over trust assets. That question arises to determine whether third parties are liable to account in equity as knowing recipients of property dissipated to frustrate the former trustee’s indemnity. It is argued in the appeal that the successor trustee holds the trust assets on express trust for the former trustee to the extent of the former trustee’s indemnity. That conclusion does not account for the variety of equitable interests. Three main points emerge. First, a current trustee has a ‘beneficial interest’ in trust assets only in a superficial sense. Second, upon transfer, that ‘beneficial interest’ is not ‘retained’ by the former trustee; the entitlement of a former trustee over the trust fund changes, and becomes analogous to a charge over a fund. The language of ‘beneficial interest’ in each case is misleading and should be eschewed. Third, it is unnecessary to ask, for the purposes of Barnes v Addy liability, whether any ‘duty’ owed by a successor to a former trustee is a ‘fiduciary duty’.

Review of foreign experience of professional adaptation of war veterans

Problem setting. After the end of the war, most of the veterans will be an economically active stratum of the population, who will need active support from the state when reintegrating into civilian life, but in return will be able to benefit the country by remaining active subjects of the national economy. The preservation and development of this potential is critically important both for the post-war recovery of Ukraine and for the establishment of social justice in relation to defenders. The study of foreign experiences is an important step in order to learn effective practices that can be adapted and applied to the Ukrainian context. Despite the fact that the experience of other countries does not always fully correspond to Ukrainian realities, it contains useful lessons and methods that can be modified to solve the specific challenges that Ukraine faces. Analysis of recent researches and publications. Such domestic researchers as V.P. Kokhan, A.S. Kolisnyk, O.V. Shapovalova, V.I. Sheverdina, T. Zakharina, V.K. Malolitneva, R.A. Jabrailov. M. Bazaeva studied foreign experience using the example of the USA. At the same time, there is no comprehensive overview of foreign policy regarding the support of veterans and their reintegration into civilian life in domestic works. Purpose of research is to carry out a general review of foreign experience in issues of support for veterans using the example of the USA, EU, Germany, France and Great Britain. Article`s main body. The article examines the issue of professional adaptation of veterans as a key element in the successful reintegration of military personnel into civilian life. It outlines the experiences of the United States, the European Union, Germany, France, and the United Kingdom to identify effective veteran support practices that could be adapted to the Ukrainian context. The focus is on the legal and organizational aspects of veteran policies, including legislative support and the involvement of both governmental and non-governmental organizations in the outlined area. The article concludes that the United States has a well-developed system of veteran support, primarily driven by the Department of Veterans Affairs (VA). Special attention is given to the functioning of the U.S. Court of Appeals for Veterans Claims (CAVC). It is suggested that the establishment of a similar specialized judicial body could be an important step for Ukraine to effectively protect veterans’ rights in the post-war period. The article highlights the absence of unified legislation on veterans within the European Union. Nevertheless, it emphasizes the role of pan-European non-governmental organizations in this field, such as the European Confederation of Veterans. The legal and institutional framework for veteran policies in specific EU member states, particularly Germany and France, is also discussed. Special attention is given to the experience of the United Kingdom, which aspires to have the most advanced veteran support system. It is noted that the strategic approach to veteran policy, particularly through the Veterans’ Strategy Action Plan 2022-2024, provides long-term legal certainty for veterans and enhances the effectiveness of state policy. Conclusions and prospects for the development. The article underlines that professional adaptation of veterans is a critical precondition for successful post-war recovery in Ukraine and the preservation of veterans’ economic activity. The use of foreign experience, particularly the creation of specialized judicial bodies, the development of national veteran support strategies, and the active involvement of non-governmental organizations, could become a subject of further discussion aimed at finding the optimal path for building an effective veteran support system in Ukraine.