Pub Date : 2017-01-02DOI: 10.1080/14729342.2017.1311514
Joe Tomlinson
ABSTRACT In the recent Privy Council decision of United Policyholders Group v Attorney General of Trinidad and Tobago, Lord Carnwath supplied an interesting and helpful discussion of substantive legitimate expectations. This case note reflects on Lord Carnwath’s conclusions and how they speak to important current debates about the doctrine. In particular, it will be argued that Lord Carnwath’s conclusions provoke reflection on: (a) the status of the seminal Coughlan case in contemporary thinking about the doctrine; (b) how far claims about the advent of the protection of substantive expectations representing a worrying expansion of judicial power have been properly investigated; (c) whether it is necessary to reflect deeply on the theoretical basis of the principle; and (d) the defensibility of the ‘trend of modern authority’ to interpret the dicta in the Coughlan case ‘narrowly’.
{"title":"The narrow approach to substantive legitimate expectations and the trend of modern authority","authors":"Joe Tomlinson","doi":"10.1080/14729342.2017.1311514","DOIUrl":"https://doi.org/10.1080/14729342.2017.1311514","url":null,"abstract":"ABSTRACT In the recent Privy Council decision of United Policyholders Group v Attorney General of Trinidad and Tobago, Lord Carnwath supplied an interesting and helpful discussion of substantive legitimate expectations. This case note reflects on Lord Carnwath’s conclusions and how they speak to important current debates about the doctrine. In particular, it will be argued that Lord Carnwath’s conclusions provoke reflection on: (a) the status of the seminal Coughlan case in contemporary thinking about the doctrine; (b) how far claims about the advent of the protection of substantive expectations representing a worrying expansion of judicial power have been properly investigated; (c) whether it is necessary to reflect deeply on the theoretical basis of the principle; and (d) the defensibility of the ‘trend of modern authority’ to interpret the dicta in the Coughlan case ‘narrowly’.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"17 1","pages":"75 - 84"},"PeriodicalIF":0.0,"publicationDate":"2017-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2017.1311514","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48947313","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-01-02DOI: 10.1080/14729342.2017.1311513
Allan Beever
ABSTRACT This article examines the claim that assessment of the standard of care in the law of negligence utilises and must utilise considerations of utility. It argues that this position is mistaken. It also maintains that cases frequently thought to support this view do not do so. The article also examines the justice of appeals to utility in the relevant cases and examines the appropriate way to deal with emergency situations.
{"title":"Negligence and utility","authors":"Allan Beever","doi":"10.1080/14729342.2017.1311513","DOIUrl":"https://doi.org/10.1080/14729342.2017.1311513","url":null,"abstract":"ABSTRACT This article examines the claim that assessment of the standard of care in the law of negligence utilises and must utilise considerations of utility. It argues that this position is mistaken. It also maintains that cases frequently thought to support this view do not do so. The article also examines the justice of appeals to utility in the relevant cases and examines the appropriate way to deal with emergency situations.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"17 1","pages":"109 - 85"},"PeriodicalIF":0.0,"publicationDate":"2017-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2017.1311513","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45032505","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-07-02DOI: 10.1080/14729342.2017.1285103
J. Kothari, A. Ravi
ABSTRACT The last decade and a half have witnessed radical changes in the right to education in India. In 2002, a constitutional amendment codified the right to education as a fundamental constitutional right. The Right of Children to Free and Compulsory Education Act 2009 (RTE Act) was subsequently enacted to provide a statutory framework for this right’s realisation. These developments have, however, not been without controversy, particularly with respect to the RTE Act’s application to linguistic and religious minority schools. In this article, we analyse the consequences of two Supreme Court judgments that exempted all minority schools from the purview of the Act. We argue that the minority exemption has diluted the core of the RTE Act, which was envisioned as a law guaranteeing the right and access to quality education to all children in India. We then make recommendations aimed at stemming the unwelcome consequences of these judgments.
{"title":"A battle of rights: the right to education of children versus rights of minority schools","authors":"J. Kothari, A. Ravi","doi":"10.1080/14729342.2017.1285103","DOIUrl":"https://doi.org/10.1080/14729342.2017.1285103","url":null,"abstract":"ABSTRACT The last decade and a half have witnessed radical changes in the right to education in India. In 2002, a constitutional amendment codified the right to education as a fundamental constitutional right. The Right of Children to Free and Compulsory Education Act 2009 (RTE Act) was subsequently enacted to provide a statutory framework for this right’s realisation. These developments have, however, not been without controversy, particularly with respect to the RTE Act’s application to linguistic and religious minority schools. In this article, we analyse the consequences of two Supreme Court judgments that exempted all minority schools from the purview of the Act. We argue that the minority exemption has diluted the core of the RTE Act, which was envisioned as a law guaranteeing the right and access to quality education to all children in India. We then make recommendations aimed at stemming the unwelcome consequences of these judgments.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"16 1","pages":"195 - 218"},"PeriodicalIF":0.0,"publicationDate":"2016-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2017.1285103","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"59821154","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-07-02DOI: 10.1080/14729342.2016.1274128
Kenny Chng, Yihan Goh
ABSTRACT This note argues that the English Court of Appeal decision of MWB Business Exchange Centres Ltd v Rock Advertising Ltd is a significant modification of the present understanding of consideration with respect to agreements to accept part-payments of a debt and to perform pre-existing duties, and that the preferred way forward for the development of the law should be judicial intervention by the Supreme Court to reconcile the logical inconsistencies between Foakes v Beer and Williams v Roffey Bros & Nicholls (Contractors) Ltd.
{"title":"A renewed consideration of consideration: MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2016] EWCA CIV 553","authors":"Kenny Chng, Yihan Goh","doi":"10.1080/14729342.2016.1274128","DOIUrl":"https://doi.org/10.1080/14729342.2016.1274128","url":null,"abstract":"ABSTRACT This note argues that the English Court of Appeal decision of MWB Business Exchange Centres Ltd v Rock Advertising Ltd is a significant modification of the present understanding of consideration with respect to agreements to accept part-payments of a debt and to perform pre-existing duties, and that the preferred way forward for the development of the law should be judicial intervention by the Supreme Court to reconcile the logical inconsistencies between Foakes v Beer and Williams v Roffey Bros & Nicholls (Contractors) Ltd.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"16 1","pages":"323 - 332"},"PeriodicalIF":0.0,"publicationDate":"2016-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2016.1274128","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"59820976","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-07-02DOI: 10.1080/14729342.2016.1276277
Steve Hedley
By many accounts, unjust enrichment is well-developed as an aspect of private law, distinct from property, contract and tort. But the reasons justifying it are not. The modern scholarship gives elaborate accounts describing the law, but has nothing substantial to offer as to why the law is there—or, indeed, whether it should be there at all. Charlie Webb’s Reason and Restitution: A Theory of Unjust Enrichment, recently published by Oxford University Press, now seeks to fill this gap. His conclusion is a striking one: while it is right that we have such a law, the reasons for it have nothing to do with unjust enrichment, and rather a lot to do with property, contract and wrongs. The idea that there is a distinct set of reasons, additional to those motivating the rest of private law, turns out to be an illusion.
{"title":"What is ‘unjust enrichment’ for?","authors":"Steve Hedley","doi":"10.1080/14729342.2016.1276277","DOIUrl":"https://doi.org/10.1080/14729342.2016.1276277","url":null,"abstract":"By many accounts, unjust enrichment is well-developed as an aspect of private law, distinct from property, contract and tort. But the reasons justifying it are not. The modern scholarship gives elaborate accounts describing the law, but has nothing substantial to offer as to why the law is there—or, indeed, whether it should be there at all. Charlie Webb’s Reason and Restitution: A Theory of Unjust Enrichment, recently published by Oxford University Press, now seeks to fill this gap. His conclusion is a striking one: while it is right that we have such a law, the reasons for it have nothing to do with unjust enrichment, and rather a lot to do with property, contract and wrongs. The idea that there is a distinct set of reasons, additional to those motivating the rest of private law, turns out to be an illusion.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"16 1","pages":"333 - 345"},"PeriodicalIF":0.0,"publicationDate":"2016-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2016.1276277","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"59821014","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-07-02DOI: 10.1080/14729342.2016.1276768
Nicolas Kyriakides
ABSTRACT The average length of a first instance civil trial in Cyprus is approximately two years. The article identifies the elements of Cypriot civil litigation that contribute to lengthy and costly trials despite the recent amendments to the Cypriot Civil Procedure Rules. It then examines the civil procedure reforms that took place in England and Wales in the last twenty years and examines whether and to what extent they can provide inspiration for a thorough reform in Cyprus law.
{"title":"Civil procedure reform in Cyprus: looking to England and beyond","authors":"Nicolas Kyriakides","doi":"10.1080/14729342.2016.1276768","DOIUrl":"https://doi.org/10.1080/14729342.2016.1276768","url":null,"abstract":"ABSTRACT The average length of a first instance civil trial in Cyprus is approximately two years. The article identifies the elements of Cypriot civil litigation that contribute to lengthy and costly trials despite the recent amendments to the Cypriot Civil Procedure Rules. It then examines the civil procedure reforms that took place in England and Wales in the last twenty years and examines whether and to what extent they can provide inspiration for a thorough reform in Cyprus law.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"16 1","pages":"262 - 291"},"PeriodicalIF":0.0,"publicationDate":"2016-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2016.1276768","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"59821051","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-07-02DOI: 10.1080/14729342.2016.1274034
W. Fotherby
ABSTRACT This article defends the British courts against charges of colonialism in determining challenges brought to the British Government’s direct intervention in the administration of its overseas territories. Primarily from the analysis of three sets of cases (Christian v R [2007] 2 AC 400 (PC), R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] 1 AC 453 (HL), and R (Misick) v Secretary of State for Foreign & Commonwealth Affairs [2009] EWHC 1039 (Admin), [2009] EWCA Civ 1549), I argue that the courts have adopted a sensitive approach to questions of how these territories are governed—little different to the one employed in the domestic context—that appropriately safeguards the rights of territory citizens from British Government overreach.
本文为英国法院在裁决英国政府直接干预其海外领土管理的挑战时反对殖民主义指控辩护。主要通过对三组案例的分析(Christian v R [2007] 2 AC 400 (PC)， R (Bancoult)诉外交和联邦事务大臣(No . 2) [2009] 1 AC 453 (HL)， R (Misick)诉外交和联邦事务大臣[2009]EWHC 1039 (Admin)， [2009] EWCA Civ 1549)，我认为，法院对如何治理这些领土的问题采取了一种敏感的做法——与在国内情况下采用的做法几乎没有什么不同——适当地保护领土公民的权利，使其免受英国政府越权的影响。
{"title":"The overseas territories and the British courts","authors":"W. Fotherby","doi":"10.1080/14729342.2016.1274034","DOIUrl":"https://doi.org/10.1080/14729342.2016.1274034","url":null,"abstract":"ABSTRACT This article defends the British courts against charges of colonialism in determining challenges brought to the British Government’s direct intervention in the administration of its overseas territories. Primarily from the analysis of three sets of cases (Christian v R [2007] 2 AC 400 (PC), R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] 1 AC 453 (HL), and R (Misick) v Secretary of State for Foreign & Commonwealth Affairs [2009] EWHC 1039 (Admin), [2009] EWCA Civ 1549), I argue that the courts have adopted a sensitive approach to questions of how these territories are governed—little different to the one employed in the domestic context—that appropriately safeguards the rights of territory citizens from British Government overreach.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"16 1","pages":"292 - 322"},"PeriodicalIF":0.0,"publicationDate":"2016-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2016.1274034","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"59820968","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-07-02DOI: 10.1080/14729342.2017.1281631
Brian Sang YK
ABSTRACT Kenya’s 2010 Constitution departs from its predecessor by extending the reach of its Bill of Rights to the private sphere of legal relations. It applies horizontally to private law and conduct, thereby binding private actors both directly and indirectly. This bears significant implications for fundamental rights enforcement in Kenya, which has long been influenced by the common law and where the previous bill of rights did not expressly bind private actors. Focusing on both pre- and post-2010 case law, this article analyses the horizontal effect of constitutional rights in Kenya and highlights the constraints of the common law-based vertical application on the effective enforcement of constitutional rights against private actors. It also provides some critical insights into the consequences of constitutionalising the horizontality of fundamental rights. In addition, on the basis of comparative experiences, it offers proposals for determining the extent to which constitutional rights should impact private legal relations.
{"title":"The reach of the bill of rights into personal legal relations in Kenyan constitutional law and jurisprudence","authors":"Brian Sang YK","doi":"10.1080/14729342.2017.1281631","DOIUrl":"https://doi.org/10.1080/14729342.2017.1281631","url":null,"abstract":"ABSTRACT Kenya’s 2010 Constitution departs from its predecessor by extending the reach of its Bill of Rights to the private sphere of legal relations. It applies horizontally to private law and conduct, thereby binding private actors both directly and indirectly. This bears significant implications for fundamental rights enforcement in Kenya, which has long been influenced by the common law and where the previous bill of rights did not expressly bind private actors. Focusing on both pre- and post-2010 case law, this article analyses the horizontal effect of constitutional rights in Kenya and highlights the constraints of the common law-based vertical application on the effective enforcement of constitutional rights against private actors. It also provides some critical insights into the consequences of constitutionalising the horizontality of fundamental rights. In addition, on the basis of comparative experiences, it offers proposals for determining the extent to which constitutional rights should impact private legal relations.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"16 1","pages":"235 - 261"},"PeriodicalIF":0.0,"publicationDate":"2016-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2017.1281631","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"59821095","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-07-02DOI: 10.1080/14729342.2017.1281643
E. Cameron
ABSTRACT This is the text of the 2015 Bram Fischer Memorial Lecture, delivered at Rhodes House, Oxford, on 16 June 2015. These Memorial Lectures honour Bram Fischer QC, a South African lawyer who defended Nelson Mandela and other leaders of the liberation movement when on trial for their lives, and who himself died in imprisonment in 1975. The 2015 Lecture discusses Fischer’s moral heroism, but also the compromises he made as a result of his involvement in an unjust legal system. It concludes by reflecting on Fischer’s dissent against that system, and against the Afrikaner establishment of which he was part, and the lessons this has for us today. The Lecture is reproduced here with the kind permission of its organisers, Lord Joel Joffe and Prof Nic Cheeseman, and appears as it was delivered, with only minor editorial changes.
{"title":"Fidelity and betrayal under law","authors":"E. Cameron","doi":"10.1080/14729342.2017.1281643","DOIUrl":"https://doi.org/10.1080/14729342.2017.1281643","url":null,"abstract":"ABSTRACT This is the text of the 2015 Bram Fischer Memorial Lecture, delivered at Rhodes House, Oxford, on 16 June 2015. These Memorial Lectures honour Bram Fischer QC, a South African lawyer who defended Nelson Mandela and other leaders of the liberation movement when on trial for their lives, and who himself died in imprisonment in 1975. The 2015 Lecture discusses Fischer’s moral heroism, but also the compromises he made as a result of his involvement in an unjust legal system. It concludes by reflecting on Fischer’s dissent against that system, and against the Afrikaner establishment of which he was part, and the lessons this has for us today. The Lecture is reproduced here with the kind permission of its organisers, Lord Joel Joffe and Prof Nic Cheeseman, and appears as it was delivered, with only minor editorial changes.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"16 1","pages":"346 - 360"},"PeriodicalIF":0.0,"publicationDate":"2016-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2017.1281643","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"59821142","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-01-02DOI: 10.1080/14729342.2016.1244452
B. H. Simamba
ABSTRACT Many countries in the British Commonwealth do not recognize proportionality as a general ground for judicial review. In the Cayman Islands, a British Overseas Territory, the 2009 Constitution provides that decisions of public authorities must, among other things, be proportionate. In the United Kingdom, by virtue of the Human Rights Act 1998 (‘HRA’), domestic courts must take into account Strasbourg jurisprudence, which applies the proportionality principle in cases involving the European Convention on Human Rights. This article examines the extent to which proportionality may have become, if at all, a general ground for review in the Cayman Islands. The answer to this question is likely to influence the interpretation of other constitutions (and statutes in general) in the Commonwealth which have codified some aspects of judicial review. The extent to which the HRA is relevant to the interpretation of human rights provisions in the British Overseas Territories is also considered.
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