United Kingdom Supreme Court Research Articles

Vedanta Resources Plc and Another v. Lungowe and Others

In Vedanta v. Lungowe, the United Kingdom Supreme Court determined that civil claims for negligence brought by Zambian claimants against an English parent company (Vedanta) and its Zambian subsidiary (Konkola Copper Mines plc (KCM)) for damages experienced in Zambia can proceed in English courts. While framed as a domestic tort law case, the decision is significant for international efforts aimed at holding businesses accountable for their “negative impacts” on human rights. Writing for a unanimous Court, Lord Briggs's judgment hinged narrowly on the right of victims to access substantial justice. More broadly, Lord Briggs suggested that parent companies that hold themselves out in public disclosures as overseeing the human rights, environmental, social, or labor standards employed by their subsidiaries assume a duty of care to those harmed by the subsidiary. This suggestion has the potential to transform current corporate approaches to human rights due diligence and accountability.

A Comparative Study of the Political Question Doctrine in the Context of Political-System Failures: The United States and the United Kingdom

In 2019, the Supreme Courts of both the United States and the United Kingdom decided cases involving the political question doctrine. In Rucho v. Common Cause, the U.S. Supreme Court held that partisan gerrymandering claims raise inherently political questions because the Court was unable to discern judicially manageable standards for determining when a partisan gerrymander had gone “too far.” Whereas, in R v. The Prime Minister (“Miller”), the United Kingdom Supreme Court adopted a narrower view of the political question doctrine, unanimously ruling that although the case involved political actors and the royal prerogative, it did not present a political question. The Court then proceeded to decide the case on the merits, holding that the Prime Minister exceeded his authority in prorogating Parliament before the Brexit deadline. The response of the judiciary—whether to abdicate or to intervene—presents a study in stark contrasts. This paper evaluates Rucho by comparing the United States’ and United Kingdom’s respective political question doctrines through the lens of John Hart Ely’s representation-reinforcement theory of judicial review. According to Ely, the judiciary is uniquely competent to intervene like referees when one side gets an unfair advantage—not when the “wrong side” scores. Translated into legal theory, that means that when the political processes are undeserving of trust, either because certain groups are denied access or because representatives are operating in flagrant disregard of constituents’ interests, courts are fully capable of determining when the political branches have gone “too far.” Both cases illustrate why the Court’s duty to protect from state infringement individual liberties related to democratic participation is at its zenith when system failures denigrate the political process. In Rucho, the Court ignored this calling, abdicating its duty to intervene. Examining Miller reveals where the Court erred in Rucho: (1) Miller is an exemplar of the representation-reinforcement theory of judicial review, (2) Miller offers critical insights to contrast the Court’s approach in Rucho, and (3) Miller offers an example of “judicially manageable standards” for determining when a branch has exceeded the constitutional boundaries of its powers—a standard that the majority in Rucho so desperately seeks. At bottom, Rucho got it wrong—and Miller can help us see why.

A Sea Change in the Law of Contract Interpretation?

This article challenges the recent extrajudicial argument of Sir Geoffrey Vos, Chancellor of the High Court of England and Wales, that there has been a "distinct sea change" in the law of contract interpretation as a result of the United Kingdom Supreme Court's decisions in Rainy Sky SA v Kookmin Bank, Arnold v Britton and Wood v Capita Insurance Services Ltd. He suggests that these decisions have the effect that Lord Hoffmann's well-known restatement of the law in Investors Compensation Scheme Ltd v West Bromwich Building Society, particularly his Lordship's fourth and fifth principles, no longer represent the law. In his view, the position now is that a court must give the words of a contract their plain meaning except "in a most exceptional case or a case of obvious absurdity". However, Professor McLauchlan argues that Sir Geoffrey reads more into the decisions than is warranted by the Supreme Court's reasoning and that Lord Hoffmann's restatement has survived largely unscathed. In substance, the reasoning spelt out what was either explicit or implicit in the restatement in the first place.

Access to the Supreme Court – the English Approach

The United Kingdom Supreme Court (UKSC) is a relatively new supreme court, as it started to sit as recently as 2009. It is the statutory successor to the House of Lords’ judicial powers. The text sets out the following issues: the court’s jurisdiction, standing, permission to appeal requirements, substantive nature of appeals, tied decisions and reopening of appeals. Next, the author proceeds to examine the nature of the remedies avaible to it, and any restrictions that apply to them. The text demonstrates the UKSC’s wide-ranging appellate jurisdiction, which enables it to exercise the full range of powers of the courts from which appeals are made it. However, in the majority of cases, access to the UKSC is limited due to the Court’s focus on legal questions of general public importance. As a result of it, the UKSC deals with a small number of cases on an annual basis. Although the Court is not supposed to carry out a judicial review of legislative action, the author hints at a nascent movement towards establishing a US-style power to strike down legislation.

Family Law – Solidarity or Disarray?

Professor Gordon Anderson and labour law are synonymous in New Zealand. Gordon has provided a vision for the future of labour law. This article is offered in a similar spirit. It was prepared for a conference on "The Future of Family Law", held in Auckland on 20 September 2018 with distinguished guest, Lady Brenda Hale, President of the United Kingdom Supreme Court. The history of family law in New Zealand is full of remarkable landmarks. Many align with the rights of various groups: children, women, Māori, those with intellectual disabilities, LGBTI+ communities and abuse victims. If we dig deeper, we find that the various parts do not make a very coherent and harmonious whole. The law is tugged in different directions. This article draws on the concept of "family solidarity", refashioned for New Zealand purposes as "family and community solidarity". Could this help develop a unifying theme? Could it form the basis for future family law reform? Developments such as legislation on child poverty reduction, the Ministry for Children and relationship property law are briefly explored.

Oral Agreements, Implied Terms and the Context: Wells v Devani

Most business contracts are meant to be in writing, on standard terms. However, with the facilities of communications, businesspersons will talk business on the phone. With this, contentions will arise, whether they were only negotiating or had gone the distance and made a contract. If they have contracted, what are the terms of the contract? The case explores the judgement of the United Kingdom Supreme Court judgement, Wells v Devani, which is on the theme of oral contracts.

Ownership Retention Terms in Sale Contracts Gone Astray: PST Energy 7 Shipping v.O.W. Bunker Malta Limited

‘Title retention Clause’ was introduced in sale of goods contracts to prevent the transfer of ownership till the seller was fully paid. Exigencies of businesses have led to introduction of further clauses allowing the buyer to use or sub-sell the goods even before the transfer of ownership. The conflicting provisions, as the judgment of the United Kingdom Supreme Court in PST Energy 7 Shipping v O.W. Bunker Malta Limited brings out, changes the very character of the contract. The contract fails to be a contract of sale of goods depriving the parties of the valuable rights.

Between a rock and a hard place: no oral modification clauses after Rock Advertising v MWB

ABSTRACTFollowing the United Kingdom Supreme Court decision in Rock Advertising Ltd v MWB Business Exchange Centres Ltd on the issue of ‘no oral modification’ (NOM) clauses, we examine its implications for contractual variations. This article considers the reasons for finding NOM clauses legally effective in English law (a clause commonly included in commercial contracts). It further touches upon the way the law now favours transactional certainty over the protection of vulnerable parties, querying whether the legal certainty for commercial parties that arises as a consequence of giving effect to NOM clauses is as appealing as it may seem.

The Penalty Doctrine: Reformulating New Zealandds Regime Against Penalty Clauses

The penalty doctrine is a long-standing rule in contract law which allows the court to render specific terms in a contract unenforceable. However, the orthodoxy of the doctrine has recently come under fire in a series of decisions from the High Court of Australia and the United Kingdom Supreme Court. Quite contentiously, the two jurisdictions have differed in their approaches to reform. With this background, New Zealand has been left in the inevitable position of deciding which approach to follow, or whether it will carve its own path. I argue the Australian and the United Kingdoms’ approaches should not be followed. The most robust option for reform would be to abolish the doctrine in the commercial context completely, and preserve it only for parties who suffer from an inequality of bargaining power. Such an approach would best serve the current needs of the legal system and marketplace.

Restitution Under an Illegal Contract: A Scots Law Perspective on Patel v. Mirza

Abstract: The illegality doctrine is an area where Scottish materials are sparse and conflicting. There have therefore been calls for law reform in Scotland, even along the lines of the United Kingdom Supreme Court (UKSC) decision in Patel v. Mirza. Moreover, Patel is already being mentioned with approval in Scottish courts and texts, and this suggests that any case which comes after it is likely to follow it closely.

Miller: Legal and Political Fault Lines

The argument I will advance in this extended note on the United Kingdom Supreme Court’s decision in R (Miller) v Secretary of State for Exiting the European Union is that the decision and its aftermath can be usefully understood by reference to three fault lines: between form and substance (Part I); between the old constitution and the new constitution (Part II); and between political accountability and legal accountability (Part III). The decision and the academic debate the litigation provoked revealed that British lawyers are deeply divided about how to resolve important questions about the relationship between Parliament, the executive and the courts. And the legislative response to Miller reveals that the fault lines can operate differently in a political context than they do in a legal context (Part IV). Drawing the fault lines I have described and using them as analytical tools achieves three objectives. First, using the fault lines as analytical tools enhances the legal community’s understanding of Miller by placing the resolution of the issue relating to the triggering of Article 50 in a broader context. The litigation raised important questions about the way British lawyers understand their constitution, in particular, how to accommodate constitutional innovations such as EU membership, referendums and devolution. Second, illustrating that important tensions are to be found in the decision of the majority of the Court. For instance, on the juridical effect of triggering Article 50, substance trumped form, but when it came to the impact of triggering Article 50 on the devolution arrangements, form trumped substance; the ‘constitutional’ nature of the 1972 Act weighed heavily in the balance, but other constitutional innovations, such as referendums and devolution, exerted next to no weight at all; and although the executive’s political accountability as a matter of constitutional convention was deemed to be insufficient justification for avoiding parliamentary authorisation for the triggering of Article 50, the enforcement of constitutional conventions relating to devolution was left entirely to political actors. The fault lines thus expose important tensions in the reasoning of the Miller majority. Third, demonstrating that these fault lines are political as well as legal. The relationship between form and substance, old and new and political and legal shaped Parliament’s response to Miller just as much as it shaped the judgments of the Court and the first-instance courts. In the political arena, interestingly, form triumphed over substance, the referendum result carried decisive weight, and confidence about the effectiveness of conventional methods of parliamentary oversight of the executive outweighed concerns about the need for legal protection of the interests of individuals or Parliament. This does not represent an additional criticism of the judges. I mean only to highlight how the legislative response to Miller demonstrates that, under Britain’s constitutional arrangements, legal and political actors do not respond in the same way to the same stimuli. This phenomenon may not be unique to Britain, but if so, Miller is a striking example that ought to be of interest to constitutional lawyers in other jurisdictions.

Two Doctrines of the Unwritten Constitution

United Kingdom Supreme Court – Brexit – European Communities Act 1972 – British unwritten Constitution – Theories of the unwritten Constitution – Royal prerogative – Constitutional instruments – Higher law – Process of withdrawal from the European Union – Rule of recognition – H.L.A. Hart – A.V. Dicey – John Finnis – ‘Rule of recognition’ – Theory of sovereignty – Common law Constitution – John Laws

Brewing Up Reasons

IT is trite law that good reasons must be given to justify infringements of fundamental rights protected by the European Convention on Human Rights, as incorporated into domestic law by the Human Rights Act 1998. But what reasons can one count as good reasons? In Re Brewster's Application [2017] UKSC 8; [2017] 1 W.L.R. 519, the United Kingdom Supreme Court addressed the question of how much deference courts should afford to post hoc rationalisations of decisions challenged for non-compliance with the Convention. The answer given by Lord Kerr, with whom Lady Hale, Lord Wilson, Lord Reed and Lord Dyson agreed, is interesting in its own terms and may have implications outside the confines of the Convention.

BREWING UP REASONS

IT is trite law that good reasons must be given to justify infringements of fundamental rights protected by the European Convention on Human Rights, as incorporated into domestic law by the Human Rights Act 1998. But what reasons can one count as good reasons? In Re Brewster's Application [2017] UKSC 8; [2017] 1 W.L.R. 519, the United Kingdom Supreme Court addressed the question of how much deference courts should afford to post hoc rationalisations of decisions challenged for non-compliance with the Convention. The answer given by Lord Kerr, with whom Lady Hale, Lord Wilson, Lord Reed and Lord Dyson agreed, is interesting in its own terms and may have implications outside the confines of the Convention.

Starbucks (HK) Case Note: The Ambiguous Limb of Goodwill and the Tort of

This article looks at the United Kingdom Supreme Court's decision in the case of Starbucks (HK) Ltd v British Sky Broadcasting Group PLC (Starbucks). In this case Lord Neuberger reaffirmed that the traditional "hard-line approach" is the applicable test for the goodwill limb under the tort of passing off in the United Kingdom. This approach maintains that in order to succeed in a claim for passing off, the claimant must show that they have goodwill in the form of business and customers in the jurisdiction. A significant reputation among a sufficient section of the prospective purchasing public within the jurisdiction (the "soft-line approach") was held to be insufficient. This article critically analyses Lord Neuberger's reasoning in favour of the traditional hard-line approach. It is found that his approach was out of touch with modern commercial reality. In conclusion, it is argued that Lord Neuberger did not strike the appropriate balance between the competing public interests in protection and competition, and it is contended that he should have adopted the more factually inquisitive soft-line approach. This would have brought the United Kingdom into line with what is arguably the more dominant and justifiable trend in other common law jurisdictions, thereby avoiding the enduring uncertainty which is likely to follow this decision.

Wilkinson v Downton After Rhodes and its Future Viability in New Zealand

This article analyses the tort in Wilkinson v Downton, commonly referred to as intentional infliction of emotional distress, in light of the United Kingdom Supreme Court's decision in Rhodes v OPO. After considering the three base elements of the Rhodes Court's newly reformulated tort, and giving a brief introduction to the New Zealand equivalent, the article suggests the law in this area is in need of further clarification and reform. The Rhodes formulation, while useful, does not go far enough in securing a viable future for the tort in light of the developments in negligence and privacy. The article justifies the tort's independence and suggests reforms to its elements in this respect. In particular, it concludes that the conduct element ought to be based on a "reasonable target" test, and the consequence element ought to be modified to allow recovery for damage amounting to severe emotional distress outside the range of ordinary human experience.

The Judicial Individuality of Lord Sumption

This article offers a perspective from the United Kingdom (‘UK’) on the position of an individual judge, in order to illuminate the dynamics of judging on a final court of appeal. My aim is to examine the jurisprudence of Lord Sumption, a Justice of the United Kingdom Supreme Court (‘UKSC’). We shall see that, on precedent, Lord Sumption JSC’s view is essentially a conservative one, which perhaps ties into his Lordship’s views on judicial self-restraint more broadly. By ‘conservative’ in this context, I mean cautious about change, rather than any grander political claim.

Brexit: Legal and Political Fault Lines

The argument I will advance in this extended note on the United Kingdom Supreme Court’s decision in R (Miller) v Secretary of State for Exiting the European Union is that the decision and its aftermath can be usefully understood by reference to three fault lines: between form and substance (Part I); between the old constitution and the new constitution (Part II); and between political accountability and legal accountability (Part III). The decision and the academic debate the litigation provoked revealed that British lawyers are deeply divided about how to resolve important questions about the relationship between Parliament, the executive and the courts. And the legislative response to Miller reveals that the fault lines can operate differently in a political context than they do in a legal context (Part IV). Drawing the fault lines I have described and using them as analytical tools achieves three objectives. First, using the fault lines as analytical tools enhances the legal community’s understanding of Miller by placing the resolution of the issue relating to the triggering of Article 50 in a broader context. The litigation raised important questions about the way British lawyers understand their constitution, in particular, how to accommodate constitutional innovations such as EU membership, referendums and devolution. Second, illustrating that important tensions are to be found in the decision of the majority of the Court. For instance, on the juridical effect of triggering Article 50, substance trumped form, but when it came to the impact of triggering Article 50 on the devolution arrangements, form trumped substance; the ‘constitutional’ nature of the 1972 Act weighed heavily in the balance, but other constitutional innovations, such as referendums and devolution, exerted next to no weight at all; and although the executive’s political accountability as a matter of constitutional convention was deemed to be insufficient justification for avoiding parliamentary authorisation for the triggering of Article 50, the enforcement of constitutional conventions relating to devolution was left entirely to political actors. The fault lines thus expose important tensions in the reasoning of the Miller majority. Third, demonstrating that these fault lines are political as well as legal. The relationship between form and substance, old and new and political and legal shaped Parliament’s response to Miller just as much as it shaped the judgments of the Court and the first-instance courts. In the political arena, interestingly, form triumphed over substance, the referendum result carried decisive weight, and confidence about the effectiveness of conventional methods of parliamentary oversight of the executive outweighed concerns about the need for legal protection of the interests of individuals or Parliament. This does not represent an additional criticism of the judges. I mean only to highlight how the legislative response to Miller demonstrates that, under Britain’s constitutional arrangements, legal and political actors do not respond in the same way to the same stimuli. This phenomenon may not be unique to Britain, but if so, Miller is a striking example that ought to be of interest to constitutional lawyers in other jurisdictions.

Marine insurance – collateral lies: when lies are not fraud

Purpose The purpose of this study is to review the reasoning of the judgment of the United Kingdom Supreme Court in Versloot Dredging BV and another (Appellants) v. HDI Gerling Industrie Versichering AG and Others (Respondents) [2016] UKSC 45 in finding that there is no remedy or sanction for the use of fraudulent devices (so-called “collateral lies”) in insurance claims and to consider potential implications for underwriters. Design/methodology/approach The methodology is a typical case law analysis starting from case facts and the reasoning with short comments on legal implications. Findings Despite no sanction provided by law for the use of fraudulent devices, the room still opens for the underwriters to stipulate the consequence of using the fraudulent devices by the express term in the insurance contract. Research limitations/implications The main implication from the judgment is that underwriters are likely to incur more investigating costs for insurance claims. Originality/value This work raises awareness of the marine insurance industry (especially underwriters) as to the approach of the English law towards the use of fraudulent devices.

Property in Bribes Revisited in a Cross-Disciplinary Perspective

Taking its point of departure from the decision of the United Kingdom Supreme Court in FHR European Ventures, this article seeks to bring cross-disciplinary perspectives to bear on the question whether an agent should hold the bribe he has received on constructive trust for his principal. Economising models are employed and the results interpreted by reference to the Calabresi and Melamed tripartite scheme of property rule, liability rule and inalienable right. The results are at least three-fold. First, an effective legal rule responding to the problem of harm caused by corruption must recognise and take account of differences between competitive and non-competitive environments and auditing or monitoring possibilities. Second, a property rule fails to do that. Third, ignoring such endogenous and exogenous variables, it overestimates or underestimates the harm suffered by victims of corruption.