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Journal Cover Cambridge Law Journal
  [SJR: 0.173]   [H-I: 3]   [161 followers]  Follow
    
   Hybrid Journal Hybrid journal (It can contain Open Access articles)
   ISSN (Print) 0008-1973 - ISSN (Online) 1469-2139
   Published by Cambridge University Press Homepage  [27 journals]
  • PRIVACY AND THIRD PARTIES TO CRIMINAL PROCEEDINGS
    • Authors: Arden; Dame
      Pages: 469 - 472
      Abstract: In Khuja (formerly PNM) v Times Newspapers Ltd. [2017] UKSC 49; [2017] 3 W.L.R. 351, the appellant (A) failed to obtain an injunction restraining two newspapers from publishing information given about him in a criminal trial in which he had been a third party. The defendants were charged with serious sex offences involving children. A feared that the public would associate him with those offences if the information was published. He claimed that publication would interfere with his and his family's private and family life. As against this, the open justice principle means that, wherever possible, proceedings should be heard in public and that there should be fair reporting of the proceedings. This principle carries great weight in the common law.
      PubDate: 2017-11-28T23:20:50-05:00
      DOI: 10.1017/S0008197317000691
      Issue No: Vol. 76, No. 3 (2017)
       
  • DEVOLUTION AND DISCRIMINATION BETWEEN CITIZENS UNDER ARTICLE 14 ECHR:
           PRESERVING LOCAL PROVISION
    • Authors: Cochrane; Leanne
      Pages: 472 - 475
      Abstract: Many women from Northern Ireland (NI) travel to England each year to pay for abortion services because of the limited availability of the service in NI. In R (on the application of A and B) (Appellants) v Secretary of State for Health (Respondent) [2017] UKSC 41; [2017] 1 W.L.R. 2492, the Supreme Court was asked whether it was unlawful for the Secretary of State for Health to have failed to make provision for abortion services free of charge under the National Health Service in England to women who are UK citizens usually resident in NI. The majority answered “no” and, on delivering the judgment, Lord Wilson (for the majority) described the Court as “sharply divided” on both the public law and human rights arguments that had been before it.
      PubDate: 2017-11-28T23:20:50-05:00
      DOI: 10.1017/S0008197317000708
      Issue No: Vol. 76, No. 3 (2017)
       
  • SAAMCO REVISITED
    • Authors: Thomson; Jeffrey
      Pages: 476 - 480
      Abstract: In Hughes-Holland v BPE Solicitors [2017] UKSC 21; [2017] 2 W.L.R. 1029, Mr. Gabriel lent £200,000 to a developer, Mr. Little. He had expected the money to be wholly employed by Mr. Little in developing a property. Mr. Little, however, used the advance to discharge borrowings secured on the property, and other liabilities. In the event, no development of any significance was carried out, the property was worthless and Mr. Gabriel's advance was lost.
      PubDate: 2017-11-28T23:20:50-05:00
      DOI: 10.1017/S000819731700071X
      Issue No: Vol. 76, No. 3 (2017)
       
  • BREACH OF DUTY: A DISAPPEARING ELEMENT OF THE ACTION IN NEGLIGENCE'
    • Authors: Goudkamp; James
      Pages: 480 - 483
      Abstract: All causes of action in tort, like all causes of action generally, are constituted by elements or ingredients. It is often the case that these elements are not crisply separated from each other. That is certainly so in relation to the cause of action in negligence, it having regularly been pointed out that none of its elements is self-contained. Denning L.J. took that view further than most. In Roe v Minister of Health [1954] 2 Q.B. 66, 86, he asserted: “you will find that the three questions, duty, causation, and remoteness, run continually into one another. It seems that they are simply three different ways of looking at one and the same problem.” More commonly it is accepted that although the various elements of the tort of negligence overlap, they nonetheless retain separate identities. Thus, determining whether the tort of negligence has been committed is not generally understood as requiring a single homogeneous enquiry but an analysis whereby one examines each element of the action seriatim in order to determine whether it is present. This conventional understanding was embraced by Lord Simons, delivering the advice of the Privy Council in Overseas Tankship (UK) Ltd. v Morts Dock & Engineering Co. Ltd. [1961] A.C. 388, 425, when he said: “It is, no doubt, proper when considering tortious liability for negligence to analyse its elements and to say that the plaintiff must prove a breach of duty owed by him to the defendant, a breach of that duty by the defendant, and consequent damage.”
      PubDate: 2017-11-28T23:20:50-05:00
      DOI: 10.1017/S0008197317000721
      Issue No: Vol. 76, No. 3 (2017)
       
  • INTERPRETATION AND RECTIFICATION IN AUSTRALIA
    • Authors: Davies; Paul
      Pages: 483 - 486
      Abstract: Both interpretation and rectification continue to pose problems. Difficulties are compounded by blurring the boundary between the two. In Simic v New South Wales Land and Housing Corporation [2016] HCA 47, the High Court of Australia overturned the decisions of the lower courts which had held that performance bonds could be interpreted in a “loose” manner in order to correct a mistake. However, the documents could be rectified in order to reflect the actual intentions of the parties. This decision should be welcomed: the mistake was more appropriately corrected through the equitable jurisdiction than at common law. Significantly, the concurring judgments of French C.J. and Kiefel J. highlight that the law of rectification now seems to be different in Australia from the law in England. It is to be hoped that the English approach will soon be revisited (see further P. Davies, “Rectification versus Interpretation” [2016] C.L.J. 62).
      PubDate: 2017-11-28T23:20:50-05:00
      DOI: 10.1017/S0008197317000733
      Issue No: Vol. 76, No. 3 (2017)
       
  • THE “UNITARY EXERCISE” OF CONTRACTUAL INTERPRETATION
    • Authors: Havelock; Rohan
      Pages: 486 - 489
      Abstract: LORD Hoffmann's famous “restatement” of the principles of contractual interpretation in Investors Compensation Scheme v West Bromwich Building Society [1998] 1 W.L.R. 896, 912–13, was heralded as a “quiet revolution” (McLauchlan (2000) 19 N.Z.U.L.R. 147, at 148) in that it appeared to overthrow the legalistic approach of the past. That approach, often associated with the “plain meaning rule” (Bank of New Zealand v Simpson [1990] A.C. 182 (PC), 189) involved giving effect to the expressed meaning of the text, which (limited exceptions aside) could not be contradicted by the relevant background (or matrix of fact). By contrast, the approach in ICS mandated the Court to search for the apparently intended meaning by consulting the relevant and admissible background in all cases. The ICS approach rapidly became dominant, and indeed orthodox, across multiple jurisdictions. However, in a series of judgments commencing with Re Sigma Finance Corporation [2009] UKSC 2; [2010] 1 All E.R. 571, the Supreme Court of the United Kingdom has gradually moved away from the approach in ICS (albeit without expressly overruling it) and emphasised the importance of giving effect to the natural and ordinary meaning of the words used, in combination with other factors (see especially Marley v Rawlings [2014] UKSC 2; [2014] 2 W.L.R. 213, at [18]–[19]; Arnold v Britton [2015] UKSC 36; [2015] A.C. 1619, at [14]–[23]). This return to a more traditional approach to interpretation vindicates sustained criticism of the validity of the ICS approach in principle and practice (see e.g. Staughton [1999] C.L.J. 303; Berg (2006) 122 L.Q.R. 354; Buxton [2010] C.L.J. 253).
      PubDate: 2017-11-28T23:20:50-05:00
      DOI: 10.1017/S0008197317000745
      Issue No: Vol. 76, No. 3 (2017)
       
  • INDIRECT ENRICHMENT IN THE SUPREME COURT
    • Authors: Shah; Rajiv
      Pages: 490 - 492
      Abstract: A customer purchases services from a supplier to which VAT at the applicable rate is added but VAT was not actually due. Is the customer able to recover these payments by bringing an unjust enrichment claim against the Revenue and Customs Commissioners' “Yes”, answered the Court of Appeal, on the basis that as a matter of “economic reality” the Commissioners were enriched at the expense of the customers, and that such an enrichment was unjust because VAT was not actually due. Lord Reed, giving the unanimous judgment of the Supreme Court, reversed that decision: Investment Trust Companies (In Liquidation) v Revenue and Customs Commissioners [2017] UKSC 29; [2017] 2 W.L.R. 1200. The customers did not have an unjust enrichment claim against the Commissioners because their enrichment was not “at the expense of” the customers.
      PubDate: 2017-11-28T23:20:50-05:00
      DOI: 10.1017/S0008197317000757
      Issue No: Vol. 76, No. 3 (2017)
       
  • RETURNING TO CLARITY AND PRINCIPLE: THE PRIVY COUNCIL ON STACK v DOWDEN
    • Authors: Roche; Juanita
      Pages: 493 - 496
      Abstract: In Marr v Collie (Bahamas) [2017] UKPC 17, a Board of the Privy Council comprising Lord Neuberger, Lady Hale, and Lords Kerr, Wilson, and Sumption has interpreted Stack v Dowden [2007] UKHL 17; [2007] 2 A.C. 432 in a way that many may find surprising. However, on close examination Marr is a clear and correct interpretation of Stack, dispelling misunderstandings by returning to its ratio.
      PubDate: 2017-11-28T23:20:50-05:00
      DOI: 10.1017/S0008197317000769
      Issue No: Vol. 76, No. 3 (2017)
       
  • COMMUNICATION TO THE PUBLIC AND ACCESSORY COPYRIGHT INFRINGEMENT
    • Authors: Angelopoulos; Christina
      Pages: 496 - 499
      Abstract: In recent judgments, the Court of Justice of the European Union (CJEU) has been developing its interpretation of the notion of “communication to the public”. This forms one of the exclusive rights of copyright holders that have been harmonised by the InfoSoc Directive (Directive 2001/29/EC (OJ 2001 L 167 p.1)). As was established in 2006 (Case C-306/05, Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles, ECLI:EU:C:2006:764, at [31]), despite the lack of an explicit definition in that directive, the notion of a “communication to the public” must be given “an autonomous and uniform interpretation” throughout the EU. This finding initially resulted in the creation of a considerable amount of uncertainty for national courts. The gradual accumulation of information through subsequent CJEU judgments has begun to bring some clarity, while also raising new questions.
      PubDate: 2017-11-28T23:20:50-05:00
      DOI: 10.1017/S0008197317000770
      Issue No: Vol. 76, No. 3 (2017)
       
  • TESTAMENTARY FREEDOM REAFFIRMED IN THE SUPREME COURT
    • Authors: Sloan; Brian
      Pages: 499 - 502
      Abstract: The case now known as Ilott v The Blue Cross [2017] UKSC 17 was the first time that the Inheritance (Provision for Family and Dependants) Act 1975 was considered at the highest judicial level. The Court of Appeal ([2015] EWCA Civ 797, noted in [2016] C.L.J. 31) had significantly enhanced the award given to an estranged and “disinherited” but needy daughter (Heather Ilott) at the expense of the charities (the Blue Cross, Royal Society for the Protection of Birds and Royal Society for the Prevention of Cruelty to Animals) who were the principal beneficiaries under the will of her mother, Melita Jackson, leaving her with £143,000 out of the £486,000 estate primarily to purchase the council house in which she and her family were living. The Supreme Court unanimously allowed the charities’ appeal, restoring Judge Million's original £50,000 order. Giving the lead judgment, Lord Hughes reasserted the centrality of testamentary freedom in English law, emphasised the importance of the Act's limitation to “reasonable financial provision” for maintenance for non-spouse/civil partner applicants (s. 1(2)(b)), and held that a need for maintenance was a necessary but not sufficient condition for a successful claim. He approved previous case law in holding that maintenance could not “extend to any or everything which it would be desirable for the claimant to have” (at [14]), but was not limited to “subsistence” either (at [15]). He also confirmed that the focus of the correct test under the 1975 Act is not on the behaviour of the testatrix, but opined the reasonableness of her decision may still be a significant consideration, as may the extent of any “moral claim” even if that is not a “sine qua non” (at [20]).
      PubDate: 2017-11-28T23:20:50-05:00
      DOI: 10.1017/S0008197317000782
      Issue No: Vol. 76, No. 3 (2017)
       
  • THE SHIFTING SANDS OF UK TAX LAW
    • Authors: Mulley; Guy
      Pages: 502 - 506
      Abstract: When the law is confusing, when the efforts of HM Revenue & Customs (“HMRC”) seem ineffective and when an impecunious state needs higher tax yields, what better time could there be for the Supreme Court to invoke the populist battle cry “tax avoidance” and to head for the “right” decision' Perhaps, it is respectfully suggested, when the (reasoning) means can justify the (judgmental) ends.
      PubDate: 2017-11-28T23:20:50-05:00
      DOI: 10.1017/S0008197317000794
      Issue No: Vol. 76, No. 3 (2017)
       
  • REASON AND AUTHORITY IN ADMINISTRATIVE LAW
    • Authors: Grant; James
      Pages: 507 - 536
      Abstract: In judicial review of administrative action, the pivotal distinction between decisions about “jurisdiction” (for the reviewing court) and “the merits of the case” (for the administrative decision maker) is a source of much confusion. This article argues that jurisdiction should be understood as the scope of legitimate authority, the best theory of which is Joseph Raz's service conception of authority. As well as explaining how to determine jurisdiction, this article explains that a legitimate authority's intra-vires decision “pre-empts” the reviewing court's judgment on the merits, and that the concept of jurisdiction precludes any standard of reasonableness for reviewing a legitimate authority.
      PubDate: 2017-11-28T23:20:50-05:00
      DOI: 10.1017/S0008197317000599
      Issue No: Vol. 76, No. 3 (2017)
       
  • SECTION 61 OF THE TRUSTEE ACT 1925: A JUDICIOUS BREACH OF TRUST'
    • Authors: Haley; Michael
      Pages: 537 - 565
      Abstract: This article is concerned with s. 61 of the Trustee Act 1925. It will analyse the origins, design and modern day operation of the jurisdiction to relieve a trustee from personal liability following a breach of trust. It will revisit the threshold conditions of honesty, reasonableness and fairness and, in the context of mortgage fraud, contend that this exculpatory jurisdiction ought not extend to the bare commercial trust that exists between the mortgagee and its solicitor. Defects, uncertainties and shortcomings associated with s. 61 will also be addressed.
      PubDate: 2017-11-28T23:20:50-05:00
      DOI: 10.1017/S0008197317000629
      Issue No: Vol. 76, No. 3 (2017)
       
  • THE NATURE AND SIGNIFICANCE OF THE RIGHT TO BODILY INTEGRITY
    • Authors: Herring; Jonathan, Wall, Jesse
      Pages: 566 - 588
      Abstract: This article seeks to explain and explore the concept of bodily integrity. The concept is often elided with autonomy in the case law and the academic literature. It argues that bodily integrity is non-reducible to the principle of autonomy. Bodily integrity relates to the integration of the self and the rest of the objective world. A breach of it, therefore, is significantly different to inteference in decisions about your body. This explains why interference with bodily integrity requires justification beyond what will suffice for an interference with autonomy. It also explores how this understanding of bodily integrity assists in understanding disability, gender and separated bodily material.
      PubDate: 2017-11-28T23:20:50-05:00
      DOI: 10.1017/S0008197317000605
      Issue No: Vol. 76, No. 3 (2017)
       
  • CONTRACTING FOR SELF-DENIAL: ON ENFORCING “NO ORAL
           MODIFICATION” CLAUSES
    • Authors: Morgan; Jonathan
      Pages: 589 - 615
      Abstract: “No oral modification” (NOM) clauses should be enforced in English law. Parties should be permitted to impose formality requirements upon themselves. Entire agreement clauses are (rightly) enforced and this provides a compelling parallel. The reasoning of two Court of Appeal decisions holding NOM clauses unenforceable is critically analysed. The extent to which NOM clauses should be defeasible by estoppel and unfair terms legislation is considered.
      PubDate: 2017-11-28T23:20:50-05:00
      DOI: 10.1017/S0008197317000630
      Issue No: Vol. 76, No. 3 (2017)
       
  • COST OF CURE DAMAGES AND THE RELEVANCE OF THE INJURED PROMISEE'S INTENTION
           TO CURE
    • Authors: Rowan; Solène
      Pages: 616 - 641
      Abstract: The article focuses on whether, when considering whether to award cost of cure damages, the courts take account of what the injured promisee to a breach of contract does, or intends to do, with his damages award, and whether or not they should take account of it. This issue has given rise to divergent approaches and some confusion in the cases. The article seeks to shed new light on the issue and considers possible ways of resolving the confusion.
      PubDate: 2017-11-28T23:20:50-05:00
      DOI: 10.1017/S0008197317000666
      Issue No: Vol. 76, No. 3 (2017)
       
  • FROM WEDNESBURY UNREASONABLENESS TO ACCOUNTABILITY FOR REASONABLENESS
    • Authors: Wang; Daniel
      Pages: 642 - 670
      Abstract: Over the last decades, rationing of medical treatment in the National Health Service (NHS) has moved from implicit to being increasingly explicit about what is being denied and about the procedures and reasons for such decisions. This article argues that the courts have had an important role in this process. By applying a heightened scrutiny of rationing decisions, courts have forced health authorities to make better-informed decisions and to take procedural justice more seriously to comply with, respond to and avoid judicial review. The analysis in this article reveals that litigation has contributed to incremental, but significant and enduring, changes in a social policy. It also offers insights to the paradoxes of judicial accountability in health care policies.
      PubDate: 2017-11-28T23:20:50-05:00
      DOI: 10.1017/S0008197317000617
      Issue No: Vol. 76, No. 3 (2017)
       
  • Damages and Human Rights. By Jason N.E. Varuhas [Oxford: Hart Publishing,
           2016. lii + 499 pp. Hardback £95.00. ISBN 978-1-84946-372-0.]
    • Authors: Tugendhat; Michael
      Pages: 671 - 674
      PubDate: 2017-11-28T23:20:50-05:00
      DOI: 10.1017/S0008197317000575
      Issue No: Vol. 76, No. 3 (2017)
       
  • Current Issues in Succession Law. Edited by Birke Häcker and Charles
           Mitchell [Oxford: Hart Publishing, 2016. xxxiii + 280 pp. Hardback
           £70.00. ISBN 978-1-78225-628-1.] Passing Wealth on Death:
           Will-Substitutes in Comparative Perspective. Edited by Alexandra Braun and
           Anne Röthel [Oxford: Hart Publishing, 2016. xix + 381 pp. Hardback
           £75.00. ISBN 978-1-84946-698-1.]
    • Authors: Sitkoff; Robert
      Pages: 674 - 677
      PubDate: 2017-11-28T23:20:50-05:00
      DOI: 10.1017/S0008197317000654
      Issue No: Vol. 76, No. 3 (2017)
       
  • Law and the New Logics. Edited by H. Patrick Glenn and Lionel D. Smith
           [Cambridge University Press, 2017. xiv + 285 pp. Hardback £85.00. ISBN
           978-110-710695-6.]
    • Authors: Mar; Maksymilian
      Pages: 678 - 680
      PubDate: 2017-11-28T23:20:50-05:00
      DOI: 10.1017/S0008197317000563
      Issue No: Vol. 76, No. 3 (2017)
       
 
 
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