Senior Court Research Articles

Пределы усмотрения органов местного самоуправления в случае отмены административного акта в сфере градостроительства

The publication reviews the definition of the limits of discretionary power of local self-government bodies in the field of urban construction in case of autonomous cancellation of administrative act, which was previously issued. It was recognized that in the practice of Constitutional Court of Russian Federation and Supreme Court of Russian Federation in 2022 legal positions were formulated, connected to defining the limits of discretionary power of public administration body in case of cancellation or changes introduced into administrative act autonomously in compliance with the concept of trust protection. Summary of judicial practice materials allowed to set the perception of legal positions, which were formulated by Russian senior courts, courts when assessing the limits of discretionary power in the event of autonomous cancellation by act in the field of urban construction previously issued.

Informal Judicial Institutions—The Case of the English Judiciary

AbstractInformality has long been valued in England, and this is true of the political process as well as the institution of the judiciary. In both cases, it is assumed that the senior figures will have absorbed unwritten conventions and will by osmosis naturally understand their respective role in the UK constitution. Much is now starting to change, at least as far as the English judiciary is concerned. It is, first, argued that informal judicial institutions did not become redundant when the separation of powers was formally introduced with a program of modernization of the judiciary in the Constitutional Reform Act 2005. Selected illustrations of persisting informal judicial institutions are then discussed in relation to the deliberative processes in senior courts; to judicial selection and appointments; and to the disciplinary process. Second, informal judicial institutions are deeply connected with the UK constitutional tradition. The Brexit litigation laid bare the challenges of containing political behavior within certain boundaries, and the unwritten conventions which have bound the judiciary and the executive might now be instinctively understood and shared by only one of these two parties.

The Family Court – Contempt and Inherent Powers

This article honours the achievements of Professor ATH Smith both in New Zealand and abroad. Its focus is on aspects of the New Zealand Family Court. The law of contempt is now governed by the Contempt of Court Act 2019. The earlier leading case on the contempt powers of the Family Court is analysed, followed by the changes made by the 2019 Act and their implications for the Court. The discussion is on the basis that the Family Court does not have inherent powers to deal with contempt situations not covered by the statutory scheme. As a part of the District Court, its inherent powers are limited to matters of procedure: contempt is a substantive matter, not one of procedure. The article concludes by briefly raising the wider question of whether the distinction between the senior courts and the lower ones, such as the Family Court, is helpful.

Modern Slavery and the Commercial Activity Exception to Diplomatic Immunity From Civil Jurisdiction: The UK Supreme Court's Decision in Basfar v Wong

In Basfar v Wong a majority of the UK Supreme Court decided that the exploitation of labour in circumstances of modern slavery constitutes ‘exercising’ a ‘commercial activity’ for the purposes of the exception to diplomatic immunity contained in Article 31(1)(c) of the Vienna Convention on Diplomatic Relations. The case is the first time a senior court anywhere in the world has adopted such an interpretation of this provision and potentially opens up a new avenue for holding foreign diplomats accountable for exploiting domestic workers. Yet, the Court's reasoning also leaves unanswered some important questions. This note reviews the Supreme Court decision and its implications for the content and scope of the ‘commercial activity’ exception to diplomatic immunity. It also considers what the case might reveal about the Supreme Court's current attitude(s) to adjudicating complex questions of international law that potentially warrant breaking new ground.

Realizing the “Outwardly Regal” Vision in the Midst of Political Inactivity: A Study of the Epistolary Networks of Li Gang 李綱 (1083–1140) and Sun Di 孫覿 (1081–1169)

How did politically inactive members of the Song literati attempt to realize the Confucian “outwardly regal” vision by putting their political ideal into practice? To what extent did their social networks play a role in this process? This paper aims to examine these questions via a comprehensive investigation of the writings of two prominent political and literary figures who experienced the Northern–Southern Song transition, Sun Di 孫覿 (1081–1169) and Li Gang 李綱 (1083–1140). A close examination of the letters written to senior court officials by these figures during their periods of political inactivity reveals not only these writers’ political agendas but also their attempts to exert influence in the political arena—a manifestation of the “outwardly regal” notion—via their epistolary networks. Despite the fact that Li has been highly praised while Sun has been widely condemned by posterity, the two men employed similar strategies to curry favor with senior court officials, who turned out to be potential patrons and facilitated the subsequent political rehabilitations of these two men. Sun Di’s and Li Gang’s eagerness to resume public service indicates the opportunistic motives underlying their epistolary exchanges and the ungenuine claims of disinterest in the politics expressed therein. Such claims, I would argue, are rhetorical conventions that the two men employed to present themselves as virtuous Confucian gentlemen who continued to cultivate “a sage inside” even when they lacked the opportunity to exercise the “outwardly regal” vision.

Did the Colombian Constitutional Court foresee the conditions for implementing Articles 18 to 23 of the Directive (EU) 2019/790?

... For an article that relates to the implementation of Directive (EU) 2019/790 on copyright in the digital single market (the ‘EU Directive’),1 the title of this piece might, to some, raise a nonsensical question. Hopefully, however, they would concede that this is a useful exercise to demonstrate that the principles supporting one key aspect of the EU Directive have already been identified by a senior court in another jurisdiction. This article seeks to highlight possible parallels between Colombia’s copyright law and constitutional jurisprudence and the newly harmonized regulation of contractual relationships between authors and rightholders in EU copyright law, enshrined in Articles 18 to 23 of the EU Directive. It argues that, because of the commonalities identified, the EU Directive may provide a possible model for reform Colombian copyright law to protect more adequately the interests of authors who are often the weaker party in contracts relating to copyright works.

‘Time’ in Refugee Status Determination in Australia and the United Kingdom: A Clear and Present Danger from Armed Conflict?

Abstract ‘Time’ plays an important role in refugee status determination (RSD) because whilst fear must be current, the fear relates to present or future risk. This article examines the role of time in RSD and how time impacts upon the granting of refugee protection. Thus it concentrates on the test of a ‘well-founded fear’ in article 1A(2) of the Refugee Convention. Claims from persons fleeing armed conflict raise particular challenges because of the fluidity, unstable conditions, and protracted character of conflicts. Furthermore, the unpredictable nature of conflict means that people are, at times, already fleeing from harm that might well eventuate in the future but that is not yet current. Drawing on jurisprudence of the senior courts and appeal tribunals in Australia and the United Kingdom (UK), the article shows how these have long engaged with considerations of time in refugee matters. In determining who qualifies for refugee protection, courts and tribunals look backwards and forwards. Hidden within this process are assumptions about time that lie – almost invisibly – at the heart of the protection regime. When assessing whether a person has a ‘well-founded fear’ of being persecuted, the courts in Australia and the UK embrace a future-looking approach; a ‘clear and present danger’ is not required. The timeframe is that of the ‘reasonably foreseeable future’, situated somewhere between the ‘not too remote’ and the ‘present or immediate future’. This necessarily contains a degree of predictive speculation, understood to mean an exercise in prediction falling short of fact-finding. To be sure, foreseeability and certainty of risk are not to be conflated. Yet, at times, conflation between the two has occurred (by courts and tribunals), leading to exclusionary practices and outcomes. This has been the case, for example, where the situation in the country of origin was relatively stable but nevertheless fluid, meaning that while there could be a significant risk in the future, the risk was low at the time the decision was made. Considering that armed conflict continues to be the main driver for people claiming refugee protection in Australia and the UK, how senior courts and appeal tribunals understand and apply the timeframe of reasonable foreseeability in fluid situations (between peace and conflict) is key. This article highlights some best practices in that regard, including ensuring that this timeframe does not expand and contract with the apparent certainty or uncertainty of a situation.

Significant UK Environmental Law Cases 2021–22

Abstract This article comments on significant UK environmental law cases for the period 1 April 2021 to 31 March 2022. It begins with an overarching introduction focussing on the standard of review in environmental claims in the public law context and drawing attention to tension on the domestic bench on matters of approach. It then addresses a selection of significant cases in the fields of climate change (both inside and outside the environmental impact assessment regime), strategic environmental assessment, habitats, species, discretion under section 31(2A) of the Senior Courts Act 1981, representative actions under CPR Rule 19.6, waste, licensing and human rights.

A Global Community of Courts? Modelling the Use of Persuasive Authority as a Complex Network

There is a growing discussion in the legal literature of an emerging global community of courts composed of a network of increasing judicial dialogue across national borders. We investigate the use of foreign persuasive authority in common law countries by analyzing the network of citations to case law in a corpus of over 1.5 million judgments given by the senior courts of twenty-six common law countries. Our corpus of judgments is derived from data available in the vLex Justis database. In this paper we aim to quantify the flow of jurisprudence across the countries in our corpus and to explore the factors that may influence a judge’s selection of foreign jurisprudence. Utilization of foreign case law varies across the countries in our data, with the courts of some countries presenting higher engagement with foreign jurisprudence than others. Our analysis shows that there has been an upward trend in the use of foreign case law over time, with a marked increase in citations across national borders from the 1990s onward, potentially indicating that increased digital access to foreign judgments has served to facilitate and promote comparative analysis. Not only has the use of foreign case law generally increased over time, the factors that may influence the selection of case law have also evolved, with judges gradually casting their research beyond the most influential and well-known foreign authorities. Notwithstanding that judgments emanating from the United Kingdom (chiefly from the courts of England and Wales) constitute the most frequently consulted body of jurisprudence, we find evidence that domestic courts favor citing the case law of countries that are geographically proximal.

일월수 다라니 주머니의 조형성과 발원 기록을 통한 시기감정

The pouch for the Sutra embroidered with a sun and moon design in the Seoul Museum of Craft Art was designated as National Folklore Cultural Heritage No. 42 in 1979 because of its delicate embroidery and prayer words. This study focused on the fact that the Sutra pouch is a Bokjangnang(ensouling pouch hung on Buddhist paintings), and examined the formative characteristics and symbolism of each constituent element of the pouch. Close examination revealed that the embroidery of the sun and moon, expressed by the three-legged crow and the jade rabbit, replaced the Sanskrit script found on the 18th century Bokjangnang. The lotus embroidery uses the sacred lotus flower motif. Specifically, blue and purple lotus flowers, symbols of wisdom and enlightenment, are embroidered in addition to the red lotus flower. Unprecedented long decorative strings and triangle ornaments appear on the Sutra pouch, and textile patterns and weaving features of the 19th century are evident in the fabrics used for its decorative strings. The most essential basis for identifying the era of the Sutra pouch is the records on the front and back of the pouch. Through comparison with records from Bokjangnang hung on Buddhist paintings and embroidery from similar periods, and considering the fact that the prayer was by a Sanggung(senior court lady) born in 1789, the year of Kiyu, the pouch is estimated to have been made in the mid-19th century.

Les publications des experts médicaux : l’exemple de l’anesthésie-réanimation

Forensic expertise becomes dominant in our society. Several reports questioned the competence of medical experts. We analysed the scientific competence of the 136 experts in Anaesthesia, Intensive Care and Emergency Medicine from senior courts in France. For that purpose, we made the choice of the H-Index and the number of scientific publications as markers of quality, using Google Scholar and PubMed databases. Thirty-five percent of experts have an H-Index equal to zero and 27 % never published. Out of the 104 experts who published at least one scientific article, 27 (26 %) did not publish for at least 10 years. The present study illustrates the great heterogeneity of the medical expert population regarding our criterions of judgement. This questions the selection and the operating mode of legal experts. There is a major difference with the selection process performed by the French Conciliation and Compensation Commissions. We propose that the official scholarly societies should be consulted during the appointment process.

Why Fair Procedures Always Make a Difference

AbstractSection 31(2A) of the Senior Courts Act 1981 (as inserted by the Criminal Justice and Courts Act 2015) requires judges to refuse relief in judicial review of administrative decisions if it is ‘highly likely’ that the conduct complained of did not make a significant difference to the outcome of the decision. The strongest justification for this ‘Makes No Difference’ principle is provided by a ‘narrow instrumental view’ of fair procedures, according to which their value lies only in their producing the correct outcome. This conception of procedural fairness, however, is impoverished and flawed as a matter of political morality. Fair procedures reflect a conception of citizens as participants in their own governance and play an important communicative role in democratic legal orders. Inasmuch as it leaves no room for these aspects of the value of fair procedures, the Makes No Difference principle embodied in section 31(2A) is pro tanto unjust.

Interim Measures in the Civil Proceedings in England: the Concept and Certain Types

Introduction: the legal institutions aimed at creating conditions for the efficiency of justice are now the subject of attention in the field of civil proceedings. This includes the institution of interim measures. The legal regulation of interim measures in the civil proceedings in England has been actively developing for several decades and today is of considerable interest to business, science and legal practice. The purpose of the research is to analyze the concept and features of the legal regulation of the main types of interim measures that can be of interest for forming the ideas about the possibilities of development of the Russian civil process. The obtained research results are based on the analysis of the normative provisions of Civil Procedure Rules 1998, the Senior Courts Act 1981, relating to the powers of the courts, the grounds and procedure for applying interim measures in the civil proceedings. The examples of judicial practice and the opinions of the researchers and practitioners are considered. The paper considers the general features of the legal institutions of interim measures in England and Russia and the peculiarities of understanding the legal possibilities of interim measures in the civil proceedings in England. Conclusions: the experience of England in solving the issues of ensuring the efficiency of civil remedies is of interest for both Russian legal science and practice. The study shows that there are specific features of the approach to the functioning of interim measures. This includes a fairly large amount of judicial discretion, a preliminary guarantee of compensation for the defendant’s losses, and mostly voluntary enforcement of the court requirements. The legal experience of England may be of interest for discussing the ways to improve the domestic procedural regulation of interim measures.

Comparing the institutional constructive trust with the remedial constructive trust

Abstract The concept of the Institutional Constructive Trust was first recognised in Australia in 1907 by the most senior court, i.e. the High Court of Australia, in Black v S Friedman & Co. This arose in a decision involving stolen funds. Its importance was addressed in the State of Victoria in Nolan v Nolan where what was in issue involved the Limitations Act of the State of Victoria. It must be appreciated that in the Commonwealth of Australia, State Acts can, and sometimes do, differ. In 1985, in Muschinski v Dodds, Deane J of the Australian High Court placed different emphasis on the court’s ability to recognise and construe such a trust and gave it the imprimatur of “Remedial Constructive Trust”. The latter, whilst adopted in New Zealand and Canada, has had what might fairly be described as its critics in the UK and, indeed the UK Supreme Court in FHR European Venture LLP v Cedar Capital Partners LLC has stated at [47] that the remedial constructive trust is not part of the law of the UK.

Vrienden van vroeger

Abstract Time-honoured friends. French influence on the formation of the princely court of Louis Bonaparte, king of Holland In 1806, at Napoleon’s behest, Louis Bonaparte suddenly became the foreign king of a former republic. Confronted with the problem of finding competent and trustworthy senior court dignitaries in this alien environment, he initially resorted to appointing French friends and confidants. Louis’ choice was far from unique: his crowned relatives elsewhere, by necessity, opted for the same solution. This article reconstructs the early household composed by Louis and compares it to the households in the other satellite states. The juxtaposition not only highlights Napoleon’s constant interference in nominations, but also reveals some inconsistencies in the Emperor’s attitude. In addition, it emphasizes the marked impact of local conditions. Contrary to the situation in the other Napoleonic kingdoms, no Frenchmen entered the government posts in Holland, yet they dominated in senior court office. The comparison also helps to explain the remarkably rapid disappearance of French court dignitaries from Holland, prompting the ‘Dutchification’ of the king’s entourage familiar from earlier historiography.

Sharing Resources: J.F. Fasch, J.S. Bach and Princely Funeral Music at the Courts of Anhalt-Zerbst and Anhalt-Köthen

This article investigates how the two musically most active courts in Anhalt, Köthen and Zerbst, shared human and musical resources during the first half of the eighteenth century. Emphasis will be placed on princely funeral music or Trauermusik, an important symbol of courtly representation of power during the late Baroque period. As a genre, it signalled the end of J.S. Bach’s tenure as ‘Kapellmeister in absentia’ of Anhalt-Köthen when his former employer, Prince Leopold, died in 1729. It also marked the beginning of a long-term business relationship between the Köthen court and J.F. Fasch (1688–1758). Even though a formal contract does not seem to have been preserved, the Kapellmeister of Anhalt-Zerbst composed no fewer than thirty occasional pieces for the court of Anhalt-Köthen between 1732 and 1756. A plethora of archival documents preserved in Dessau and Zerbst help contextualize the spectacle-like nature of princely funeral music premiered at these two sister courts. While funeral cantatas were performed during elaborate princely memorial services in both Köthen and Zerbst, Fasch’s ‘Hochfürstliche Capelle’ was also involved in public memorial events held at the Gymnasium Illustre, i.e., the University of Anhalt based in Zerbst. The article concludes with two case studies that examine primary sources related to the funerals of Prince August Ludwig’s late wife in 1732 and Prince August Ludwig in 1755. Evidently, Fasch not only took over Bach’s duties as ‘Kapellmeister in absentia’ but also served as the Oberhofkapellmeister (senior court Kapellmeister) of Anhalt for nearly a quarter of a century.

A Targeted Outsider's Right to Challenge Local Winding-Up Proceedings PricewaterhouseCoopers v Saad Investments Co Ltd 2014 UKPC 35 (10 November 2014), 2014 1 WLR 4482 (PC)

The problem in this case was that the Cayman liquidators, frustrated by the unhelpfulness of the company’s previous auditors in supplying documents and information to help them get to the bottom of the company’s problems, then obtained a winding-up order in Bermuda, the auditors’ home jurisdiction, to have them examined. The auditors appealed successfully to the Privy Council in London to have the winding-up stayed. The facts and the reasoning of this senior court are described, and then critically discussed in this case comment. The auditors were erroneously added to the statutory list of persons who may apply to the court for the stay of the winding-up proceedings. Still, the decision may be supported for the finding that, on the particular facts of the case, the auditors had standing to challenge the winding-up application because the Bermudian court of first instance had no jurisdiction under the relevant statutes and the auditors were the direct targets of the application to wind up the company and examine them. The outcome of the decision carries important implications for the development of company law in England and Bermuda, and for the corresponding company law in South Africa, where the decision is of persuasive authority.

Re JS (A Child) (Disposal of Body: Prospective Orders)

Children – Orders with respect to children – Arrangements after death – 14-year-old child terminally ill with cancer – Legally unable to make a will – Desiring cryo-preservation of body after death – Desiring that estranged father not see her body – Estranged father disagreeing with daughter’s wishes – Mother supporting daughter’s wishes – National Health Service trust agreeing to allow team of cryonics volunteers immediate access to body at time of death – Whether court to order mother to be solely responsible for arrangements after daughter’s death – Whether daughter’s wishes to be adhered to – Senior Courts Act 1981, s 116(1)

A Targeted Outsider's Right to Challenge Local Winding-Up Proceedings: PricewaterhouseCoopers v Saad Investments Co Ltd 2014 UKPC 35 (10 November 2014), 2014 1 WLR 4482 (PC)

The problem in PricewaterhouseCoopers v Saad Investments Co Ltd 2014 UKPC 35 (10 November 2014), 2014 1 WLR 4482 (PC) was that the Cayman liquidators, frustrated by the unhelpfulness of the company's previous auditors in supplying documents and information to help the liquidators get to the bottom of the company's problems, then obtained a winding-up order in Bermuda, the auditors' home jurisdiction, to have them examined. The auditors appealed successfully to the Privy Council in London to have the winding-up stayed. The facts and the reasoning of this senior court are described, and then critically discussed in this case comment. The auditors were erroneously added to the statutory list of persons who may apply to the court for the stay of the winding-up proceedings. Still, the decision may be supported for the finding that, on the particular facts of the case, the auditors had standing to challenge the winding-up application because the Bermudian court of first instance had no jurisdiction under the relevant statutes and the auditors were the direct targets of the application to wind up the company and examine them. The outcome of the decision carries important implications for the development of company law in England and Bermuda, and for the corresponding company law in South Africa, where the decision is of persuasive authority.

At what point does what’s mine become yours? A critical analysis of the current law on common intention constructive trusts and cohabitation

This article examines the current state of the law in relation to the use of common intention constructive trusts to determine disputes arising from the breakdown of relationships between cohabiting, non-married couples. It is clear that there is a need to protect vulnerable parties to a relationship and to maintain certainty with regard to property ownership, but this is a difficult balance to strike. This examination has been conducted by analysing the key cases that have been heard in the senior courts in relation to this matter since the landmark ruling of the House of Lords in Stack v Dowden almost ten years ago. This has identified three key issues with the current state of the law: (1) judicial confusion over whether the existence of beneficial shares in property should be imputed or implied by the courts; (2) the creation of unrealistic expectations as to the reliance that the court will place on non-financial contributions to a relationship; and (3) practical and evidential difficulties caused by its implementation. Further analysis of the Cohabitation Rights Bill suggests that it is unlikely to overcome any of these issues because it seeks to increase, rather than reduce the role of the courts. This article concludes that the law should be simplified such that couples are allocated the same portion of the beneficial interest in the property as their legal interest unless they expressly declare otherwise.