Principles Of English Law Research Articles

Double Jeopardy, Autrefois Acquit and the Legal Ethics of the Rule Against Unreasonably Splitting a Case

Section 75 of the Criminal Justice Act (CJA) of 2003 overturned the principle in English law that a person cannot be retried for an offense of which he has been acquitted, recognizing advances in forensic science that uses modern analysis of DNA in adducing in evidence. The special plea of autrefois acquit can be overturned based on finding of compelling evidence after a previous acquittal of a suspect who can now be tried again for the same offense. The double jeopardy arises only after a lawful acquittal or autrefois convict of the accused for the first offense and these principles have allowed exceptions to the rule against double jeopardy developed by the courts. There is an analogous rule in common law courts based on the unreasonable splitting of the case when there is a severing of indictments which overrides the bar on the accused being retried for the same offense. This paper examines the difficulty of trying a defendant fairly in the English courts when the defense has pleaded an abuse of process and there is no clear overall argument for trial. This question needs an appraisal of legal ethics in criminal courts because a retrial of the accused on the same charge breaches the autrefois acquit doctrine, and severing of an indictment can cause the fair trial process to be undermined.

The Differences Made by the Transposition of the Consumer Sales and Guarantees Directive (1999) into English law: Could a case be made for extending the Changes to Non-Consumer Contracts?

It used to be a principle of English law that a seller or a party to a contract was not under a legal obligation to disclose to the buyer or the other party to the contract any facts relating to the contract, even if that fact “would have materially influenced” his decision to the contract. This principle was governed by the legal maxim of caveat emptor, i.e., let the buyer beware. The rle of caveat emptor ‘used’ to apply to a contract of sale of goods and other forms of contract except if the buyer could show that there was an express warranty of quality or there was fraud on the part of the seller. However, in relation to the sale of goods, which is the subject matter of this article, it may be argued that besides this known exception, the rule “has been tempered” by an implied condition in the common law that where the goods are sold by description, they shall be of merchantable quality “[answering] the description in the contract”. Although a purchaser could not benefit from this common law implied condition in the sale of specific goods, where he expressly demanded the goods for a particular purpose, there was an implied condition that the goods should be reasonably fit for that purpose.These common law rules applied even before the Sale of Goods Act 1893. Firstly, this article brings out and analyses, in terms of the sale of goods, some of the differences that have been affected by the transposition of the Directive on consumer sales and guarantees into English law through the 2002 Regulations, with emphasis on the key provisions of the Regulations, i.e., Reg. 3, 4, 5, and 15-16. Secondly, as these Regulations, as well as the changes they brought, aimed at protecting person “who deals as consumer” or consumers generally, this article argues whether or not a case could be made for extending these changes to non-consumer contracts. It may be interesting to note that, whereas the changes made by the 1994 Act were “plainly directed towards finding a formulation which is appropriate to the consumer as well as to commercial sales,”; the 2002 Regulations, on the other hand, are directed only to consumers.

The Pursuit of Happiness in the Founding Era: An Intellectual History

The Pursuit of Happiness in the Founding Era: An Intellectual History

Prinsip Isonomi di Indonesia: Filosofi, Makna, dan Perbandingan

The regulation of the principle of isonomy in Article 28D paragraph (1) of the 1945 Constitution of the Republic of Indonesia and its derivative laws without an explanation of its meaning has implications for misunderstanding what it means. This study seeks answers to the philosophical question and the meaning of the isonomy principle and compares it with the isonomy principle in English law which is based on the rule of law. Using theoretical research, three answers were obtained. The social contract which contains an agreement on the surrender of natural rights to enforce law by individuals to the state and places individuals in the same position and treatment in law enforcement by the state becomes a philosophy of isonomy principles. The principle of isonomy in Indonesia is based on distributive justice where equal treatment before the law means proportionality with regard to people's class, position, achievements, and functions of people in the social order. In English law, the principle of isonomy is based on commutative justice where all people regardless of class, position, social status or function, they are under the same law and justice.

The ‘one man company’ after Patel v Mirza: attribution and illegality in Singularis Holdings v Daiwa Capital Markets

This note discusses the UK Supreme Court’s decision in Singularis Holdings v Daiwa Capital Markets in the context of other recent decisions on corporate attribution and the illegality principle in English law. It particularly considers Daiwa’s implications for the relationship between the illegality doctrine and other legal principles in the wake of Patel v Mirza. The court employed a context-sensitive, teleological approach to attribution, one consequence of which was the conclusive consignment of the House of Lords’ decision in Stone & Rolls Ltd v Moore Stephens to irrelevance. It nonetheless privileges orthodox, pre-Patelian authority in the disposal of the case. The court’s approach suggests that Patel is perceived as the high-water mark for expansive, policy-sensitive understanding of the illegality principle, and that its disruptive potential is likely to be carefully constrained in future decisions of the Supreme Court.

The ‘one man company’ after Patel v Mirza: attribution and illegality in Singularis Holdings v Daiwa Capital Markets

This note discusses the UK Supreme Court’s decision in Singularis Holdings v Daiwa Capital Markets in the context of other recent decisions on corporate attribution and the illegality principle in English law. It particularly considers Daiwa’s implications for the relationship between the illegality doctrine and other legal principles in the wake of Patel v Mirza. The court employed a context-sensitive, teleological approach to attribution, one consequence of which was the conclusive consignment of the House of Lords’ decision in Stone & Rolls Ltd v Moore Stephens to irrelevance. It nonetheless privileges orthodox, pre-Patelian authority in the disposal of the case. The court’s approach suggests that Patel is perceived as the high-water mark for expansive, policy-sensitive understanding of the illegality principle, and that its disruptive potential is likely to be carefully constrained in future decisions of the Supreme Court.

THE NEW FRENCH LAW OF CONTRACT

AbstractThe article analyses the recent reform of contract law in France. The section of the Civil Code on the law of contract was amended and restructured in its entirety last year. The revised section came into force on 1 October 2016. The article considers its main innovations and compares them with the corresponding principles of English law and some contract law international instruments, mainly the UNIDROIT Principles and the Principles of European Contract Law. The article also assesses whether the new provisions achieve their stated aim of rendering French contract law more accessible, predictable, influential abroad and commercially attractive.

Sports arbitration agreements under review: should they be considered invalid under English national law?

Arbitration agreements are currently an internationally much disputed topic. Especially the validity of sports arbitration agreements has been under review by academics in the aftermath of the Pechstein case in Germany. However, to date no English court has explicitly examined the validity of sports arbitration agreements on the grounds of the structural imbalance between athletes and sports federations. This article takes a step in that direction and considers whether principles of English law should render sports arbitration agreements invalid. It, therefore, analyses the legal doctrines of restraint of trade, duress, undue influence, unconscionable bargain and public policy. It concludes that none of these doctrines invalidate sports arbitration agreements per se. Nevertheless, other than the issues analysed in this article, English courts would also need to consider the particular arbitral tribunal’s procedural rules, as well as competition law and art. 6 ECHR.

LOST ON PENALTIES

FREEDOM of contract is a fundamental principle of English law, but it is of course qualified by numerous protective regimes, some common law, most statutory nowadays, which protect vulnerable parties from untrammelled, unequal free bargaining. It is, quite rightly, exceptional for an experienced commercial party, negotiating at arm's length and with the benefit of specialist professional advice, to succeed in invoking such a regime to escape being bound by what he freely agreed. Yet, in Cavendish Square Holdings BV v Makdessi [2013] EWCA Civ 1539, this was precisely the controversial result.

Re the Shinorvic Trust: equity develops with modern standards and mores

Re the Shinorvic Trust: equity develops with modern standards and mores

Has the Landmark Supreme Court Decision in Jones v. Kaney Changed the Role of Expert Witnesses for the Better, for the Worse, or in Fact Not at All?

In 2011 the Supreme Court of the United Kingdom ruled that expert witnesses no longer enjoyed civil immunity from negligence actions. This immunity had formed part of our legal system for over four centuries and had been regarded as a fundamental principle of English law. The removal of such a highly regarded and influential principle has been met with criticism, and understandably so.As a result of Jones v. Kaney, an expert witness is now open to negligence actions from his or her client if his or her negligent evidence causes loss. The decision has sparked a range of debates within both the academic and professional communities with much speculation made as to the implications of the decision. Some have argued that it will fundamentally change the way expert witnesses operate in our legal system, for the worse rather than the better. Others have argued to the contrary and have looked on at the decision favourably, as it allows for litigants to seek a remedy where previously none were available.In an attempt to discover the effects, or likely effects, the role of the expert witness and the former doctrine of immunity were first considered. An in-depth analysis of the decision itself subsequently followed in an attempt to ascertain the reasoning for abolishing the immunity. Finally, a collection of the academic commentary was gathered and analysed and the consistently propounded concerns discussed. Further primary and secondary research was carried out involving the two key expert witness organisations, the Academy of Experts and the Expert Witness Institute, in a bid to ascertain whether the speculated implications were in fact consistent with the reality.What can be extrapolated from the research is that a lot of the initial concerns raised were relatively unfounded. The research gathered from the two expert witness organisations proved very useful in painting a clearer picture of the practical effects of the decision. This in turn allowed for the more significant implications to be pinpointed. They are: the concerns relating to Jointly Instructed Experts and issues relating to professional indemnity insurance. These are real concerns that ought to be addressed sooner rather than later.With only one year gone since the decision was made it was hardly surprising to find that not many concerns have transpired. Interpretation of the case since judgement was made has been very limited. However, a case of this nature does have the potential to have effects down the line, say in five or ten years. It is argued that litigation against experts will be an inevitability. Expert witnesses, perhaps anticipating this, have now sought methods of rebuilding their defences. Such subsequent events have created more points of query and may be possible areas of research and discussion in the future.

Material adverse change and material adverse effect provisions: construction and application

This article examines the rules and principles of English law surrounding the construction and operation of material adverse change and material adverse effect provisions, with a particular focus on financing transactions. Such clauses raise a number of interesting issues of contract law and contractual interpretation; one of the key issues being the meaning and scope of “material”. It is argued that materiality ought to be interpreted in the context of the particular agreement and the transaction as a whole, without ignoring the remedial consequences that are to be triggered by the relevant provision. Numerous other issues that arise for consideration in relation to material adverse change and material adverse effect clauses are also critically examined.

Winner of the SLS Annual Conference Best Paper Prize 2010: ‘Veritas non est defamatio’? Truth as a defence in the law of defamation

Despite the limited exception introduced by statute in 1974, the principle that truth is and ought to be a complete defence to all actions in defamation is typically regarded as self-evident in modern English law. The fact that England stands here against not only the whole of the civilian tradition but also a number of common-law jurisdictions suggests, however, that it is not. This paper, after surveying the history of the principle in English law and the debates that it has spurred in the past, argues that English law is right on this question, but needs to understand more cogently why. This, in turn, requires an examination of the interests protected by the cause of action. It is only if we accept that it is, and is solely, reputation founded in character that the defence of veritas will be secured.

The judicial development of the Roman-Dutch doctrine of parental authority in South African law

AbstractThe Roman-Dutch doctrine of parental authority differed markedly from the parallel doctrine in English common law, particularly in relation to the balance of power between parents and generally in relation to illegitimate children. This paper traces the judicial development of the Roman-Dutch doctrine by the South African courts and focuses on two important turning points, at which the unnecessary adoption of principles of English law resulted in a departure from Roman-Dutch principles. The product of this judicial development was a doctrine of parental authority that differentiated sharply between legitimate and illegitimate children, and greatly impeded the capacity of judges to apply the 'best interests' principle in disputes concerning the latter.

Shareholders’ Remedies: In Search of Consistency of Principle in English Law

Under English law, the primary remedies available to minority shareholders with a grievance are a derivative action or a claim for 'unfair prejudice' under section 459 of the Companies Act 1985. The relationship between these two remedies, and in particular whether section 459 can be used to 'outflank' the derivative action, has been a topic of debate for some time. In practice, shareholders, even in situations whereby they are adversely affected by the breach of the directors' duties, are more inclined to pursue the section 459 remedy. In many ways, the section 459 is a more flexible and useful remedy to minority shareholder than derivative actions. The presence of this remedy and the unclear interaction between the two remedies projects an uneasy shadow, which in turn affects the viability of derivative actions. Several questions arise with respect to the interrelationship between the two remedies, particularly in light of recent developments: (1) Should the derivative action be dispensed with in favour of a single form of action, making identification of the type of wrong less significant? (2) Alternatively, if it is necessary to maintain a clear division between personal and corporate actions and accordingly both forms of action should be retained, should the derivative action be applicable to corporate wrongs and the unfairly prejudicial conduct action solely reserved for personal wrongs? Or should it be possible to obtain a corporate remedy by means of a section 459 petition? And if so, at what price? The purpose of this article is to inquire into these intriguing questions, and in particular, assess the arguments in favour and against assimilating the derivative and section 459 actions into a single provision. The article is organised as follows. Section II briefly examines the history of section 459. Subsequently, the arguments of assimilating the derivative and section 459 actions into a single provision are assessed. Section III evaluates the merits for demarcation of the two remedies. As will be seen, the assimilation of these two remedies should be resisted. Accordingly, Section IV explores the measures that can be introduced to clarify and simplify the uneasy interaction between the two remedies. Section V concludes.

The Carbolic Smoke Ball

The Carbolic Smoke Ball was an early purpose-made dry powder inhalation device whose promotion led to a landmark court case which established an important principle of English law. The Carbolic Smoke Ball was patented in England in 1889 by a Frederick Augustus Roe, as a ‘device to facilitate the distribution, inhalation, and application of medicated powders’ [1], although in some of its promotional literature it was described as ‘a new American remedy’ (Figure 1). The original patent describes ‘a composite hollow ball or receptacle of india rubber ... having an orifice provided with a porous or perforated disc or diaphragm ... through which when the ball or receptacle is compressed, the powder will be forced in a cloud of infinitesimally small particles resembling smoke’. It appears from trade catalogues that two different forms were marketed. The author has in his possession a version which is a rounded ball-shaped vessel with a flattened bottom and short neck, black in appearance, but actually made from very dark green glass. The smoke ball’s contents were composed of a mixture of glycyrrhiza and white hellebore (Veratrum vide) together with a tarry residue that provided the odour of carbolic acid [2]; carbolic inhalations had become fashionable for the treatment of various chest ailments, including tuberculosis, since Lister’s development of a carbolic acid spray to prevent sepsis following surgery [3]. It was promoted by the Carbolic Smoke Ball Company of Hanover Square, London, as a positive cure for a variety of respiratory tract ailments including colds, hay fever, catarrh, asthma, bronchitis, and influenza – as well as neuralgia and headache. The cost of each device was 10 shillings (£0.50); it could be refilled for a further 5 shillings. It was stated to be used by a wide section of the titled classes, as well as the actors Henry Irving and Ellen Terry. It was an advertisement in the Pall Mall Gazette in 1891 which led to the Carbolic Smoke Ball Company’s appearance in court [4]. The advertisement in question differed from that illustrated here, in offering a reward of £100 to any person contracting influenza or a cold after having used the Carbolic Smoke Ball according to the printed directions. Mrs Carlill (often misprinted Carhill or Cahill) purchased and used a smoke ball as directed, but contracted influenza nonetheless. Her husband (a solicitor by training) requested the advertised compensation of £100 on her behalf, but was ignored by the manufacturers, so sued them. The case (Carlill vs The Carbolic Smoke Ball Company) came to court in 1892, in which year advertisements containing the £100 offer were still appearing in the national press (for example, The Graphic) [2]. The defence argued variously that the claim was a bet within the meaning of the Gaming Act; that the offer was merely

SITUATIONS WHERE LIABILITY WILL ARISE UNDER CIVIL LAW IN ENGLAND AND WALES WHEN BANKS AND OTHERS HANDLE PROCEEDS OF CORRUPTION

The Committee has considered the present state of English civil law in relation to remedies available to victims of money laundering. We summarise here the relevant rules and principles of English law. See ‘Summary of the current legal position’ below.

Learning the law

Dismay and disappointment! These emotions characterised the reactions of a large group of young students questioned recently on their feelings at the end of the first lesson in a course on General Principles of English Law. Dismay at the mass of material which, clearly, had to be digested and assimilated if the subject was to make sense, even at an elementary level. Disappointment at the somewhat arid nature of the subject content which seemed totally removed from the exciting picture of the legal process painted so often by fiction writers and the news media. So it is for many students of the law who must come to terms with its difficulties. There are no short cuts to competence in legal studies; so texts which hold out to the reader a promise that the law will be made easy, or that its essential features will be clarified in ten simple lessons, can give no more than a sketchy outline of some few topics. A difficult journey lies ahead of the young student, whether the goal be ONC/D, HNC/D with a law content, or the law examinations of the professional bodies. But the journey can be made much easier, much more enjoyable, once the inescapable rigours are accepted and precautions taken to mitigate their severity.

The Influence of Insurance on the Award of Damages

Sec. 55(1)(b) of the Civil Wrongs Ordinance, 1944, which deals with compensation for the tortious death of a person, prescribes: “Provided that, in assessing such compensation—(i) any sum paid or payable on the death of the deceased under any contract of assurance or insurance, …shall not be taken into account.”This provision is taken from sec. 52(1)(b) of the Cyprus Civil Wrongs Law, 1932(s. 53(1)(b) of the 1950 edition of the Laws of Cyprus) and goes back to sec. 1 of the English Fatal Accident (Damages) Act, 1908 (now sec. 2 of the Fatal Accident Act, 1959).There is a more general provision in sec. 65 of the local Ordinance (sec. 86 of the New Version): “In assessing any compensation payable by reason of any civil wrong any sum paid or payable under any contract of assurance or insurance in connection with such civil wrong shall not be taken into account.”This section reproduces sec. 62 (sec. 63) of the Cyprus Law, and an explanation given of that provision states that “this incorporates the general principle of English Law”.

Communications in the teaching of general principles of English law

Communications in the teaching of general principles of English law