High Court Decision Research Articles

Adjudication enforcement: partial final determinations and insolvency

PurposeThe purpose of this paper is to examine two specific circumstances where UK courts may stay the execution of a judgment to enforce a statutory adjudication decision; where a final decision is sought on a discrete point; and where the winning party is insolvent. In this context, there is consideration of what a “binding” decision means for the purposes of Part II of the Housing Grants Construction and Regeneration Act 1996.Design/methodology/approachA black letter, doctrinal approach is adopted, using two High Court decisions as a focus for wider critical reflection.FindingsThe cases where a final determination on part of an adjudication decision is successful are rare and will depend on the facts. Despite some unorthodox recent decisions, the likelihood remains that parties will struggle to challenge part only of an adjudication decision. The leading case authorities support the underlying principle of the Construction Act insofar as adjudication decisions are binding and should be enforced or else the Court will impose punitive statutory interest on the debt. This principle applies even in cases where the adjudication decision is successfully challenged in such cases.Originality/valueThis paper also addresses two decisions given by Edwards‐Stuart J. in the High Court, both of which adopt a novel approach to the relevant issues, and hence this discussion of those approaches demonstrates originality.

Competition Law – Parallel imports – another view

The author discusses issues of brand ownership and distribution networks and the global market in the light of the High Court decision in the Davidoff case. Article by Tony Willoughby (Senior Partner, Willoughby & Partner) published in Amicus Curiae - Journal of the Institute of Advanced Legal Studies and its Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London.

Federalism and Tax Bonuses: Reflections in the Australian Context

Keynesianism is not new in Australia, and indeed has represented the economic orthodoxy for much of the post-World War II period. Commonwealth governments, of both major political persuasions, have been able to work within the existing constitutional framework to pursue Keynesian economic policies, more or less successfully, albeit with the occasional legal setback depending upon interpretations of the High Court of Australia. Recently, like many governments, the Australian Federal Government responded to the 2008 global financial crisis (GFC) by proposing a ‘stimulus package’ whereby Australian consumers would ‘spend their way out of the crisis’. The particular package proposed was also so-called a ‘tax bonus' to be paid to those who earned under a certain (relatively generous) amount per annum and had submitted their tax returns in the previous year, 2008. This package was to be at the ‘front end’ of the government's response to the crisis. Our paper explores some recent dilemmas for Australian federalism in the light of the High Court decision which decided that those ‘bonuses' were constitutional. Yet while the High Court in Pape v Commissioner of Taxation1 upheld the constitutionality of what was formally known as the ‘Tax Bonus for Working Australians’—seeing the federal ‘stimulus package’ as a response to a global financial crisis that is a matter of international concern—it did so only by a bare majority (a four to three decision) in the highest court. We suggest that a reappraisal of Australian federalism is pertinent given this narrow majority and in the light of a claim by prominent constitutional law scholar George Williams that Australia continues to manifest a form of ‘sick federalism’. This is an appraisal made only the more acute with the recent Australian federal election, which resulted in a hung parliament, for the first time since 1940: this followed a campaign with no mention of the complexities and niceties of modern federalism.

The Failures of Liberal Constitutionalism in Israel

Notions of equality have long posed a normative problem for liberal theory. What stance should the liberal take toward the failure of the political system to remedy the seemingly inevitable inequitable distribution of socioeconomic wealth and resources? This question squarely highlights one of the ironic paradoxes associated with the confluence of liberalism and constitutionalism, because both are simultaneously necessary and incompatible with each other for at least one germane reason — collective self-government, representative institutions, and individualism can operate to produce unegalitarian relationships between disparately situated groups in a given society, which can in turn substantially harm the project of political (as well as economic) equality.Israel presents a remarkable examination on the relationship between liberal theory and equality. First, Israel is commonly described as the only democracy in the Middle East. Because the common assumption is that Israel’s political system holds natural affinities with Western democratic tradition, it would seem safe to assume that what is meant is Israel’s liberal democracy. Yet the tension between its contradictory values — a “Jewish” state and a “liberal state — has continue to generate intense controversy. This essay proceeds from the contention that Israel embodies an ethnic “democracy,” in which the dominant Jewish majority control State functions with the aim of advancing peculiar demographic, religious, security and cultural norms, often at odds with the rights and freedoms of its Arab minority population.Second, the status of this Arab minority in Israel continues to present one of the most intense and intricate issues in Israeli society. The reality is that 1.2 million Arab citizens of Israel (18.5% of the population) do not enjoy equal access with Jewish citizens to state resources. Geographical inequality in the distribution of services follows ethnic lines, negatively affecting Arab communities which tend to be disadvantaged in relation to the rights and economic security enjoyed by relatively well-off Jewish communities. Governmental policies also continue to offer preferential treatment for residents of some of the Jewish settlements on West Bank territory. Although The Basic Law: Human Dignity and Liberty is widely considered a mini-bill of rights by Israeli legal scholars, it does not enumerate a right to equality; on the contrary, it exclusively emphasizes the character of the state as a Jewish state. This can partly be attributed to the lack of “constitutional” (i.e., legal) guarantees for economic and social rights to minorities in Israel. Part I examines Israel’s democratic and legal structure. Ultimately, the discussion concludes that the idea of a Jewish state is squarely incompatible with protection of minority rights — a central tenet of constitutionalism. This discussion thus suggests why Israel cannot claim to comply with democratic liberal norms while simultaneously privileging one ethic group over another. The pairing “Jewish” and “democratic” both codifies discrimination against non-Jewish citizens and impedes realization of full guarantees for political and socioeconomic equality.The political implications of this argument are substantial. First, as mentioned, it critically calls into question the democratic nature of the State of Israel. Second, it strongly questions popular Western conception that views Palestinians and Israelis as equal, symmetrically balanced parties. To this end, Part II analyzes three important Israeli High Court decisions that grapple with complex issues relating to discrimination and (in)equality. In short, the so-called Israeli “constitutional” structure has largely remained unresponsive to its Arab minority. Because the peculiar “liberal” form of Israeli governance long praised by liberal scholars has not resolved the troubling divergence between a rights-based jurisprudence and continued economic and institutional discrimination against Arab-Israelis,entrenching civil liberties and socioeconomic equality in Israel requires not only formal legal codification but also the creation of the conditions for political willingness.

Irreconcilable Differences? Article 8 ECHR and Irish Law on Non-Traditional Families

While the concept of de facto family life has been a feature of the jurisprudence of the European Court of Human Rights for over three decades, Irish law has always had a somewhat uneasy relationship with the concept. At a constitutional level, Irish law clearly places the marital family on a pedestal and excludes non-marital families from recognition. However, case law in the 1990s showed a willingness by the courts to indirectly recognize de facto families when applying legislation on guardianship, custody and access. Two recent High Court decisions, concerning international child abduction and the rights of a lesbian couple as against a sperm donor, saw a more radical approach adopted, but an appeal from one of these saw the Supreme Court decisively reject the concept of the de facto family. This paper will examine the boundaries of the definition of family life under Article 8 of the ECHR and assess whether Irish law, which provides limited recognition to non-traditional families, can be reconciled with Convention obligations.

Court Enforces Exchange of Information Request in respect of a Non-Taxpayer

This article reports on a recent High Court decision in which a request under the exchange of information provisions in the Australia-South Africa Income Tax Treaty (1999) were enforced regarding a non-resident who is not a taxpayer in South Africa. It is understood that the case has been appealed and the final decision is, therefore, still awaited.

The Legal Concept of Charity and its Expansion after the Aid/Watch Decision

This paper provides the reader with an insight into the legal analysis of the concept of ‘charity’ and ‘charitable purpose’. This discussion is important in light of the 2010 High Court decision in Commissioner of Taxation v Aid/Watch Incorporated. It begins with an overview of the historical development of ‘charity’ as a legal concept. It then considers how this concept has been interpreted in the context of taxation law and in particular focuses on the arguments for and against a restriction of advocacy and political lobbying by charities. It concludes with an analysis of the Aid/Watch Case and how this may be applied in the future to other charitable entities.

Identifying the Relevant Level of a Society in Australian Native Title Claims

Many of the outstanding native title claims across Australia were originally conceptualised in terms of the level at which rights and interests in land were exercised by groupings of claimants at a range of scales, rather than the level at which the body of law and custom legitimating those rights and interests was held and reproduced. Claimants, Native Title Representative Bodies (NTRBs) and respondent parties have continued to struggle with reconciling the various levels at which Aboriginal groups coalesce and become differentiated from one another. Since the Yorta Yorta High Court decision in 2002, Indigenous Australians claiming native title under the Native Title Act 1993 (Cth) have had to demonstrate that their current ‘society’ is the same society as that which existed at the time of colonisation. Since the rights and interests in land and waters that can be recognised under the Native Title Act are said to stem from the ‘laws and customs’ of the society that was in existence at sovereignty, much hinges on how ‘society’ is understood. What emerges strongly from the ethnographic record is that traditional Aboriginal societies contracted and expanded in different contexts. In this paper, I argue that defining native title societies in a way that adequately acknowledges this fact does not seem to be precluded by the Native Title Act or by subsequent case law judgments on this question.1

Constituent power and Carl Schmitt's theory of constitution in Kenya's constitution-making process

The decade-long constitutional reform process in Kenya spans two phases. The first ended with a High Court decision that the constitution-making process was unconstitutional because it failed to provide an opportunity for the exercise of constituent power by the Kenyan people. In the second phase Parliament sought to shield substantive questions of constitutional design from the reach of the constituent power. Drawing on Carl Schmitt’s constitutional theory, this article argues that although paradoxical, such treatment of the constituent power is theoretically coherent. Reading Schmitt’s theory closely reveals that, despite himself, Schmitt accepts limitation of the constituent power where the nature of law and liberal constitutionalism demand it. The article does not apply Schmitt’s constitutional theory, so much as read it against itself to suggest that it bears close resemblance to Fuller’s and Dworkin’s jurisprudence. At the same time, the article seeks to understand the Kenyan constitutional reform process, and ultimately questions whether the limitations placed on the constituent power in Kenya are consistent with theoretically acceptable limitations.

Compensation for Surrender of a Right: The Income Tax and VAT Implications - A Case Note

In this article, the author examines recent South African High Court decisions regarding whether monies received by a taxpayer for the early termination of an exclusive right to distribute whisky were, for income tax purposes, capital or revenue and, separately for VAT purposes, consideration for the supply of services.

Separating the Church from State: The Kenyan High Court's Decision in Jesse Kamau and 25 Others v Attorney General (Judgment of 24 May 2010)

AbstractSection 66 of the 1963 Kenyan Constitution established the Kadhi's courts with the jurisdiction to determine “questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion”. 26 Christians petitioned the High Court and argued that section 66 was unconstitutional because it, inter alia, violated the principle of separation of Church and state. The court found in their favour and held that Kenya is a secular state, that section 66 violated the doctrine of separation of state and Church, and that it was discriminatory and contrary to section 82 of the constitution which prohibits discrimination. This note gives the facts of the case, the issues before the court and the court's decision. It also analyses the court's decision.

Tactical Balancing: High Court Decision Making on Politically Crucial Cases

This article advances a new account of judicial behavior: the thesis of tactical balancing. Building on existing models of judicial decision making, the thesis posits that high court justices balance a discrete set of considerations—justices' ideologies, their institutional interests, the potential consequences of their rulings, public opinion, elected leaders' preferences, and law—as they decide important cases. Variation in a high court's balancing of those considerations as it decides different cases leads it to alternate between challenging and endorsing the exercise of government power. The way in which high courts carry out this “tactical balancing” reflects their broader strategy for prioritizing the different roles they can play in a polity, and thus has significant implications for the rule of law and regime stability in developing democracies. The thesis is illustrated through a detailed analysis of the Brazilian high court's rulings on cases concerning crucial economic policies (1985–2004).

Media monitoring services: Meltwater or meltdown?

The recent High Court decision in Newspaper Licensing Agency Limited & Others –v- Meltwater Holdings BV, Meltwater News UK Limited and Public Relations Consultant Association Limited considered whether there could be copyright in headlines and short extracts from newspaper articles. It also dealt with the issue of whether any such copyright would be infringed if the recipients/end users of on line media monitoring services used the links provided as part of that service (containing the headlines and extracts) to access the actual article itself. This was with reference to sections 17, 18 and 23 of the Copyright, Designs and Patents Act 1988 (CDPA). The fair dealing and temporary copying exceptions to infringement in terms of sections 30 and 28 of the CDPA respectively were considered along with the potential defences of implied licence and derogation from grant. The 2010 Infopaq decision of the European Court of Justice (Case C-5/08 Infopaq International v. Danske Dagblades Foening [2010] FSR 495) and also the Information Society Directive (Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society) formed part of the court's deliberations. The case decided that headlines and extracts of newspaper articles can be a freestanding original work in terms of the CDPA and that none of the exceptions or defences argued applied. This meant that certain activities constituted infringement of any such copyright in them. In particular accessing such materials via links could be infringement and /or in breach of terms and conditions on publisher's sites. The implications of this decision are potentially of huge commercial impact on the media monitoring industry who are appealing it and on their customers who will potentially be at risk of action by the Newspaper Licensing Agency (NLA) if they have not taken a suitable licence. It may well require them to change their business model in future and raises policy concerns about how strictly the law has been applied here. The article summarises the arguments in the case and points out its implications for companies which provide media monitoring services and their customers. Unless the decision is overturned on appeal such customers will now require to ensure that they have appropriate NLA licences in place or they could be in breach of copyright law. The article will consider the practical implications of the decision more generally as well as for such companies and their customers.

'Blocking' progress: the Irish High Court decision in EMI v UPC

In this article the author provides a detailed analysis of the decision in the Irish High Court judgment in EMI v UPC, concerning the three strikes policy. The author includes an analysis of the data protection and privacy issues, the technology required for implementation of a three strikes policy by ISPs and a review of the origins of the Irish and European legislation relating to internet service provider liability for copyright infringement.

Precedent in Civil Law and International Law: An Overview

Precedent is one of the main features of common law systems. It is the practice whereby decisions of higher courts are binding on lower courts in similar cases. But what is the status of precedent or decided cases of higher courts in Continental European countries where civil law system is followed? What is the practice of the International Court of Justice and the Panels as well as the Appellate Body of the WTO? The findings of this work are that in Continental Europe, especially France, Germany, and Spain, judicial decisions are not considered as a source of law in theory but it occurs as a practical matter. The practice of the International Court of Justice is that judicial decisions are not binding but are taken into consideration. The practice of Panels and Appellate Body of the WTO is similar to that of the World Court.

What Do You Do With a High Court Decision You Don't Like? Legislative, Judicial and Academic Responses to Gambotto v. WCP Ltd.

The decision of the High Court of Australia in Gambotto v. WCP Ltd. was both controversial and widely debated. Some saw the decision as radically altering the balance of power in corporate law by granting minority shareholders extensive new powers to prevent the compulsory acquisition of their shares and thereby impeding commercial transactions that would benefit companies. There was also concern that the principles developed by the High Court for compulsory acquisition of shares undertaken by way of amendment of the corporate constitution would apply to other forms of compulsory acquisition, and corporate law more generally, again impeding many types of corporate transactions. We analyse the responses to the High Court decision. The decision had the potential to have a significant influence on Australian corporate law and the way corporate transactions involving compulsory share acquisitions are conducted. In particular, Gambotto was considered in more than 50 subsequent judgments giving many judges the opportunity to extend the Gambotto principles into new areas. We show that the responses to Gambotto were largely negative. Initial commentary in the media and subsequent academic commentary was mostly critical. Almost uniformly, courts decided that the principles should not be extended. Parliament responded by enacting new provisions in the corporations legislation facilitating the compulsory acquisition of shares and limiting the application of Gambotto. We document how courts and Parliament responded to a decision they did not like – a decision that had the potential to have major implications for corporate law and commercial transactions. We also analyse Gambotto by placing it in the broader political context of the role of the High Court at the time of the decision. Gambotto was decided when the High Court was in a period of unprecedented judicial activism. Subsequently, the High Court retreated from this judicial activism and we observe similarities in how other courts restricted the application of Gambotto.

The Australian Market Perception Of Goodwill And Identifiable Intangibles

The Australian Market Perception Of Goodwill And Identifiable Intangibles

The Implications of the Cheque Issuing Date in Light of Trade Law Provisions and the High Court Decisions: A Comparative Study between Jordanian and English Law

Having explored the importance of the cheque issuing date in light of both the Jordanian Trade Act and the Bills of Exchange Act provisions as well as, the judiciary’s point of view in both Jordan and the UK, it is worth mentioning that the cheque issuing date is a compulsory part only under the Jordanian Trade Act, Section 228. In this section, the cheque date is a basic required element and its omission will result in the cheque being invalidated as a commercial instrument. In addition, the Jordanian Trade Act does not include any exceptions to the above, unlike the position taken by the Bills of Exchange Act where omissions of the date would not necessarily invalidate the cheque.

Exclusion of Evidence: DPP (Walsh) v Cash

In the arena of improperly obtained evidence the Irish courts have, for some time, operated one of the strictest, if not the strictest, exclusionary rules in the common law world where evidence is obtained in breach of constitutional rights. Through an interesting and intricate series of cases beginning in the mid-1960s with People (AG) v O’Brien [1965] IR 142 on to People (DPP) v Kenny [1990] 2 IR 110, and beyond, the legal basis for exclusion was established, considered and reconsidered. This case-note discusses the High Court and Supreme Court decisions in the latest in the line of such cases, DPP (Walsh) v Cash [2007] IEHC 108 (28 March 2007), [2010] IESC 1 (18 January 2010) and considers its impact on suspect rights and policing in the Irish pre-trial process.

Human agency, historical inevitability and moral culpability: Rewriting black-white history in the wake of Native Title

A study showing that black-white relations in Van Diemen's Land, especially in Pallittorre country, were complex and problematic is presented. A historical debate accompanying the High Court's Mabo decision and the subsequent Native Title Act 1993 is one way of controlling the memories that nourish national consciousness and thus shapes the future.