English Law Research Articles

Revisiting British Malaya's Era: An Intriguing Historical Legal Analysis of Land Administration and Colonial Forestry

The land and forest administration system in Malaysia faces a complexity bias due to the misinterpretation of rules and legislation, leading to increased disputes. The reliance on British law for matters like land ownership amplifies this issue, and the intricacies of static and dynamic arrangements further compound the complexity. Previously, Malay rural land rights were based on usufructuary principles, but the colonial land alienation policy redefined unalienated land, land reserved for public purposes, and reserved forests as State Land. This study seeks to comprehensively review and analyse legal rules, cases, statutes, and regulations to understand ancient land law practices and the influence of British colonial land law on land administration. Conducted in Peninsular Malaysia, the study focuses on primary documents, cases, and critical analyses from three states: Perak, Penang, and Kelantan. The findings of the study highlight the contentious nature of land rights and autonomy in utilizing natural resources in Malaysia. The country inherits both formal and informal land tenure systems rooted in customary law, making dispute resolution challenging. The principal characteristic of ancient land law is based on a hypothetical model of the ancient customary land tenure system, encompassing different eras, missions, and principles. Significantly, the study reveals a direct and strong connection between colonial land law and current land law practices in the respective states. Additionally, Malaysia's land law has been influenced by Islamic law (Syariah) to some extent and blended with other ancient customary laws before the introduction of Torren in 1897.

The Legal Classification of Human Capital in ‘Markets, Hybrids and Hierarchies’

Abstract The growth in platform work in the digital economy has challenged the legal classification of human capital across ‘markets, hybrids, and hierarchies’ in the labour market. In comparing the trinary approach in English law with Singapore’s binary approach in determining worker status, the aim of this article is to consider how Singapore’s labour law should be restructured and hybrid workers should be accorded appropriate recognition in order to recalibrate the coordination-risk bargain between capital and labour. The coordination-risk bargain – as the key function of labour law in the regulation of hybrid workers – refers to the capacity of the firm to coordinate the allocation of labour inputs under non-standard employment arrangements in exchange for absorbing the social and economic risks of the worker’s subordination and dependence. On this basis, this article proposes a reformulation of the ‘limb (b) worker’ category under the UK Employment Rights Act 1996, which should form the basis of labour law reforms in Singapore towards a more sustainable form of capitalism.

Mark Bailey, After the Black Death. Economy, Society, and the Law in Fourteenth-Century England. Oxford, Oxford University Press 2021

Mark Bailey, After the Black Death. Economy, Society, and the Law in Fourteenth-Century England. Oxford, Oxford University Press 2021

Good Faith in English Contract Law: Should the Law Retreat?

English courts have traditionally adopted a highly restrictive approach when implying good faith terms in commercial contracts. However, a series of recent judgments has seemed to depart from this tradition. In this paper, first, I reinforce and expand upon arguments that doctrinal support for the implication of such terms is lacking. Second, I clarify why the semantic behaviour of ‘good faith’, contrary to what is typically claimed, does not amount to innocent context-sensitivity. I present a new account of what is distinctively objectionable about implying good-faith terms and also demonstrate its explanatory power. These results also inform the moral architecture of English contract law, suggesting that it should be more minimalist than it might have been thought. Good faith, Contract law, implication of terms, context-sensitivity, legal certainty.

Rethinking Directors’ Statutory Fiduciary Duties in the Commonwealth Caribbean: Should Sequana be Followed?

The scope and nature of directors’ duties has been the subject of much judicial and academic debate. In the recent BTI 2014 LLC v. Sequana SA decision, the UK Supreme Court firmly established the creditor duty in English company law. This paper proposes to examine the basis and nature of the duty including its Commonwealth origin. The focal point of this paper is to determine the question of whether such a creditor duty would be accepted as existing by courts in the Commonwealth Caribbean. In providing the answer to that question, this article makes reference to numerous Canadian cases in which the question was answered and many scholarly works which advocate against the creditor duty. Commonwealth, Commonwealth Caribbean, Directors’ Fiduciary Duty, Creditor Duty, BTI 2014 LLC v. Sequana, Companies Act

The Term "Information" in English-Language Dictionaries

The article covers the study of the issue of the origin and interpretation of the meanings of the term information based on entries in English-language dictionaries. Primary attention is paid to the content of entries in law dictionaries and encyclopedias of English-speaking countries. The issue is part of the problem of etimology and semantics of the term information. The article describes the methodology for selecting sources for analysis, comparative characteristics of sources. Based on the presented dictionary and encyclopedia entries, a conclusion is made about the interpretation of the term information that is typical for English law dictionaries. The results of the study can be used in legislation to clarify the meaning of individual definitions, in legal practice to clarify international documents, in expert activities for the interpretation of legal texts, as well as in the educational process for the training of philologists and lawyers.

Contextualising the Concept of Parental Responsibilities and Child Protection in a Legal Pluralistic Nigeria

The concept of parental responsibility has obviously been coined in the English legal system. The significance of the concept appears to reside in its practicality. This paper aims to analyse the concept of parental responsibility in the Nigerian context. The paper seeks to determine whether parental responsibility can be effectively excised in Nigeria. Although it is characterised by its practicality in terms of guarantees of child protection in a legal system, the complexity of the Nigerian legal system could generate some contextual paradoxes. Hence this paper attempts to determine the possible paradoxes in the context of the Nigerian legal system, that is underpinned by legal pluralism, and explore the new paradigms. .

Reframing the English Foreign Act of State Doctrine

This article proposes a way to reframe the English foreign act of State doctrine. The doctrine is an established rule of English common law but its contours and application remain ill‐defined, despite the Supreme Court's restatement in Belhaj v Straw. The doctrine in its current form emerges from the accretion of precedents over some 350 years, but still lacks a unifying framework bringing its different strands together. This article argues that English courts should reframe the doctrine by reference to the distinction between elements of a rule that are embedded in its definition, called ‘limitations’, and elements of a rule that exist separately from it, called ‘exceptions’. This distinction has been developed in legal philosophy to classify the elements of wrongs as definitional elements, constitutive of liability, and defences, defeating liability. Reframed according to this distinction, the English foreign act of State doctrine can be streamlined into one, single rule, instead of the three rules set out in Belhaj v Straw. This reframing has implications for the doctrine's characterisation as one of justiciability, abstention or restraint, and its compatibility with the duty to do justice, including under the European Convention on Human Rights.

Delegation and Directors' Reliance on the Performance of Others – A Companies Act 2008 Analysis in the Light of International Best Practices

South Africa has included in the Companies Act 71 of 2008 (the Act), provisions dealing with directors' delegation and reliance on the performance of others for their (the directors') own performance. In keeping with their role of managing the affairs of the company in terms of section 66(1) of the Act, directors must make decisions in the best interests of the company. Given the company board's strategic role in the company governance, as opposed to the day-to-day management done by the executive management, directors must rely on the performance of others to fulfil their role. These "others" include professional experts and company employees who can either provide guidance/specialist advice or to whom the board may delegate certain powers and authority to perform certain functions geared towards providing the board with a basis for decision-making. This article in the main interrogates the question whether South Africa has now established globally competitive legal standards of directors' delegation and reliance on the performance of others in line with company law reform objectives prior to 2008. One such objective is ensuring compatibility and harmonisation of the new company law with the best practice jurisdictions internationally as a way of promoting the global competitiveness of the South African economy. In this respect this article examines relevant laws in two foreign jurisdictions to provide a comparative aspect to the relevant South African company law aspects. First the article very briefly examines English law, which provides South Africa with its common law heritage of the duty of care, and it is argued that reliance and delegation relate to the irreducible minimum standard of care and the standard to exercise independent judgment. An examination of Australian statutory provisions on reliance and delegation is followed by a critical evaluation of reliance and delegation in section 76(4)(b)-(5) of the Companies Act 2008. It is concluded that South Africa has established globally competitive principles of reliance and delegation. Nonetheless, there are gaps in statutory reliance and delegation provisions under the Act, and lessons can be drawn from the best practices in Australian statutory and case law. Firm suggestions are made on how the gaps can be plugged and how the legal standards can be further tightened to enhance the global competitiveness of South African company law.

Driving Irritation: Thailand's Supreme Court and the English Roots of Corporate Criminal Liability

AbstractIn Thailand, the concept of corporate criminal liability is commonly identified with significant theoretical and practical uncertainties. Only limited attention, however, has been devoted to the notion's historical roots in English legal transfers. This article examines the relevant legislation, court cases, academic literature, and other records. It carves out the continuous English influence on Thai corporate crime doctrine and highlights the legal irritation that occurred along the way. It argues that irritation was not automatic but driven by the Supreme Court, whose choices were shaped by decades of English impact on Thai legal education and practice. The article thereby highlights the dynamics between legal transfers and local drivers of legal development. It expands the growing research on the continued relevance of English law in Thailand and concludes with an outlook on the future of Thai corporate crime doctrine.

Equity Perfecting an Imperfect Gift of Shares: A comparative study on the rulings of the Malaysian federal court and English common law

The aim of this paper is to ascertain how the latest Malaysian apex court apply English trust law for equity to perfect an imperfect gift of shares as encapsulated in the leading case of Pennington v Waine. A comparative research methodology reveals that there must be detrimental reliance on the part of the donee of shares, which cannot be justified from the perspective of company law. It must also be unconscionable for the donor of shares to deny the donee and this subjective test is too wide and confers the court's unfettered discretion to perfect an imperfect gift.

Intentionally Encouraging or Assisting Others to Commit an Offence: The Anatomy of a Language Crime

Since at least as far back as the infamous Derek Bentley case of the 1950s in which an unarmed 19-year-old was convicted and executed for murder based on his alleged uttering of the words let him have it to his gun-wielding accomplice, the issue of incitement has been positioned firmly as an object of interest for forensic linguists. An example of a language crime—i.e. an unlawful speech act (as reported by Shuy in Language crimes: The use and abuse of language evidence in the courtroom, Wiley Blackwell, Hoboken, 1993) the features of incitement—formalized as intentionally encouraging or assisting others to commit an offence in the law of England & Wales under section 44 of the Serious Crime Act 2007 (https://www.legislation.gov.uk/ukpga/2007/27/contents)—have been widely debated by linguists and legal scholars alike. This paper draws on two webinars hosted by The Hunting Office in August 2020, which were subsequently leaked by the Hunt Saboteurs Association. Featuring senior figures from the hunting community addressing a nationwide audience of hunt masters, the webinars led to a police investigation and subsequent prosecution and conviction of one of the main speakers, Mark Hankinson, for encouraging or assisting others to commit an offence under the Hunting Act 2004. In this paper I explore what, linguistically, is meant by encouraging or assisting. Through corpus-assisted pragmatic and discourse analyses I interrogate the webinars to address the question of how precisely Hankinson implied his encouragement of illegal hunting with dogs. The phenomena of collocation and semantic prosody are crucial for understanding how such meanings came to be attached to the contributions Hankinson makes to the webinars. Moreover the paper will examine the contributions of other speakers and demonstrate that the same incriminating linguistic patterns in Hankinson’s talk are also evident in that of those who were not prosecuted.

Localization Construction of Directors'Liability Insurance System

As an insurance to reduce the company's business risks caused by directors' misconduct, the directors' liability insurance system has not fully demonstrated its function and shows signs of acclimatization. From the perspective of comparative law, the author examines the institutional background and functional evolution of directors' liability insurance in the United States, the former doubts and adaptations in the British law, and the continuation and evolution in the German law, which provides enlightenment for exploring the dilemma of directors' liability insurance system in China and the way to improve it. Directors' liability insurance is not an isolated insurance law adjustment content, and China lacks systematic substantive rules and procedural implementation mechanisms for directors' obligations. The Company law has laid a legal foundation for directors' liability insurance to play its function, supplemented by lower level norms such as regulations at the regulatory level, and gradually expanded the scope of applicable subjects of directors' liability insurance to all types of company directors and executives. Then from the level of insurance law system, the localization of directors' liability insurance clauses is realized, and the unification of the main clauses of the contracts of various insurance companies is promoted, which provides a feasible way to perfect the directors' liability insurance system in our country.

Brexit and environmental law in England: where are we now?

Maintaining strong standards of environmental protection was used as arguments by both leave and remain campaigns during the Brexit referendum. Some argued that Brexit would lead to the decimation of environmental protection in the UK, whereas others argued that it would be an excellent opportunity to improve upon the environmental standards upheld in the European Union. This commentary focusses on the progress made in England surrounding environmental principles, the introduction of the Office for Environmental Protection, and plans to remove retained EU environmental law, with the aim of answering whether environmental protection has improved in the UK since Brexit.

The Forgotten History of Bankruptcy, 1543–1624

ABSTRACT This article examines the foundations of bankruptcy law in England. Rather than looking at the bankruptcy statutes that were aimed at fraudulent insolvent debtors, it analyses debt settlements of honest insolvent debtors awarded by the court of Chancery between 1543 and 1628. It shows that these agreements were not only aimed at relieving creditors, but also financially rehabilitated debtors if they had become insolvent for reasons beyond their own control. Most debt settlements in the period were awarded following a bill of conformity procedure, in which a minority of creditors could be forced to agree to a settlement. Up to 1621 it was standard practice for debt settlements to include financial rehabilitation. The Chancery ordered delay of payment, part and full discharges of debts or alternative payment plans. Political struggles and fraudulent practices in the early 1620s ended this highly pragmatic practice, which was only to be restored centuries later.

Categorical confusions: gender and the colonial construction of the ‘Chinese Buddhist’ in Burma

British law in colonial Burma separated the legal personhood of imperial subjects by religious status. However, colonial law failed to clarify boundaries around religious categories. This lack of clarity was amplified when the court was forced to consider how to apply Buddhist law between different Buddhist communities, like the Chinese and Burmese. Owing to differences in how marriage, divorce, succession, and other rights are handled in Chinese- versus Burmese legal traditions, recognition as either Chinese or Burmese carried significant weight. Through a historical anthropology of Chinese-Burmese Buddhist family law in colonial Burma, this article argues that the British colonial judiciary’s failure to appreciate connections between Burmese and Chinese Buddhists produced novel legal segregations of mixed communities. Further, this categorical splitting was generated along gendered lines, where judicial acceptance of men’s claims of Chinese separateness disenfranchised native, mixed, and migrant women who sought to foreground their connections to Burma.

The governing law of contribution claims: looking beyond Roberts v SSAFA

The governing law of claims for contribution, where the applicable law of the underlying claim is a foreign law, has long posed a knotty problem in English private international law. The Supreme Court's decision in Roberts v Soldiers, Sailors, Airmen and Families Association considered this issue in the context of the common law choice of law rules. This article considers the decision in Roberts and claims for contribution falling within the scope of the Rome II Regulation, the Rome I Regulation as well as the Hague Trusts Convention. It is argued here that claims for contribution arising out of the same liability should be considered as “parasitic” on the underlying claim and should prima facie be governed by the applicable law of the underlying claim.

Forensic Law in Hypoglycaemia-3

“Environmental Enrichment” (EE) is a proven alternative therapy for Type 2 diabetes related complications. EE preserves the Purkinje cells in the brain. The latter is a promising therapy for prevention of diabetes related mental disorders. Sensory nerves are at higher risk of damage in the hyperglycemic milieu leading to diabetic neuropathy. Patients lose sensation in their lower extremities making them vulnerable to injury because they do not feel the pain, which is a warning sign of tissue damage. That can lead to catastrophic outcomes because with high blood glucose, wounds get difficult to heal. Gas gangrene and tissue necrosis develop, leading to the only resort being amputation and life change challenge. Early diagnosis of diabetes is nevertheless crucial in prolonging the onset of diabetes and its complication. To date many candidate early biomolecules have been reported which are promising early indicators for diabetes. However, advancement in this field of research has not been reported. Holistically diet, lifestyle, mental health and clinical treatment of Diabetes and Thyroid Disease, including Addison’s Disease, plays an important role in patient welfare. Tragically many patients die young or go through life suffering from the old Victorian Stigma of being tainted by having to treat an uncurable illness. This is not a joke as suggested in September 2006 in ignorance by a Hertfordshire Insurance Broker describing Diabetes with Neuroglycopenia as a Joke and Nonsense. This caused Obstructed Justice in Law of a critical life-threatening complication of Diabetes and Endocrinology Disease in Hypoglycaemia Unawareness and now in 2023 Otitis Externa and Osteomyelitis as disclosed in a tragic young law student death with likely clinically undiagnosed Otitis Externa and Osteomyelitis. A patient requiring clinician prescribed Insulin justifies clinical respect and understanding in English Law which has been misunderstood since 1994 with sad consequences in this investigation. Today in recovering and managing the COVID-19 Pandemic of 2020 we move forward with new welfare ideas. It is a delight to be able to share some latest work for future research based on 44 years T1 Diabetes experience complimented by Purkinje Cell environmental welfare.

Change of position as defence to unjust enrichment claims: Stories from Hong Kong

The recent decision of the Hong Kong High Court (the ‘HKHC’) in Credit One Finance Limited v Yeung Kwok Chi & Others is worthy of the attention of the common law world. The HKHC followed a ‘but for’ test developed by English courts and established that reliance on receipt of enrichment is not a necessary ingredient of the change of position defence. This case not only marks itself the first Hong Kong case discussing the role of reliance in the change of position defence but also offers a comparative study of the laws of unjust enrichment in the common law world. As observed by this note, this case also reflects an underlying divergence between, on the one hand, English and Hong Kong laws of unjust enrichment and, on the other hand, the law of unjust enrichment in Australia in terms of the change of position defence. In addition to the clarification of the legal position, this case comes with practical implications for innocent defendants in receipt of benefits and serves as an important reminder to financial institutions on the importance of anti-money laundering and fraud investigations.

THE INCOMPATIBILITY OF THE DEFENCE OF PROVOCATION AND ALIBI: A CASE REVIEW OF THE STATE V. OGUNBOYO RICHARD (UNREPORTED) CHARGE NO HAD/80C/2017

Provocation and alibi are two of the defences available to a defendant under the English Law albeit they operate at a cross road in that the availability of one depicts the non legal availability of the other to a defendant facing allegation of crime. By its intrinsic nature, a defendant who relies on the defence of provocation has explicitly admitted both the mens rea and actus reus of the offence alleged but denied malice aforethought. In contradistinction however, alibi is an outright defence of non-participation in the offence on the ground that the defendant was elsewhere when the offence took place. The jurisprudential rational behind the defence of alibi is the impossibility of simultaneous physical presence of the defendant at two different locations. It is noteworthy to stress that the defence of alibi enjoys qualified application while considering parties to offences as a defendant need not be physically present to be culpable where he has either acted as accessory before the fact or accessory after the fact in which case, his physical presence at the scene of the alleged offence is of no moment before attracting criminal responsibility. This study examined the two irreconcilable defences of provocation and alibi through a case review with intent to unveiling whether or not a defendant can be availed of the defence of provocation in the same case where the defence of alibi earlier set up by him fails. This study however, concluded that both alibi and provocation cannot exonerate or sustain defences for the defendant at the same time because they are contrasting defences that cannot go together. The study also concluded that in applying the ingredients of the defence to the fact in issues, none of the ingredient must be left in isolation or wrongly applied to justify a defence for the defendant.