The Denning Law Journal最新文献

{"title":"‘Not My Employee, Not My Liability’","authors":"C. D. Silva","doi":"10.5750/DLJ.V32I1.1917","DOIUrl":"https://doi.org/10.5750/DLJ.V32I1.1917","url":null,"abstract":"In April 2020, the Supreme Court in WM Morrison Supermarkets plc v Various Claimants [2020] and Barclays Bank plc v Various Claimants [2020] overturned the decisions of the Court of Appeal in applying the law regarding vicarious liability of employees and others (and deciding in both cases that the defendant companies were not liable for the acts in question). The scope of responsibilities which the employment relationship brings, together with an awareness among many businesses of the classification worker, along with the more familiar employed/ self-employed status, makes an examination of the outcomes and potential impact of these cases of wide, practical interest for those running businesses, large or small. The review concluded that there had been no dramatic change in the law but that the cases provide a measure of comfort to employers in something of a common-sense view being taken as to the scope of vicarious liability. They also add to the body of case law, helping to ensure that future issues can more clearly be reasoned out of court, with the detailed steer on the application of legal principles which a Supreme Court judgment provides.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"408 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131990649","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}

{"title":"Owens v Owens: A Most Curious Case","authors":"F. Burton","doi":"10.5750/DLJ.V32I1.1916","DOIUrl":"https://doi.org/10.5750/DLJ.V32I1.1916","url":null,"abstract":"The combination of the long Brexit delays, largely unwelcome General Election, a change of leadership and Cabinet composition in the Conservative government and finally the coronavirus has between them resulted in a long pause in expected reforming legislation which is much needed in Family Law, including the initial loss of the Divorce Dissolution and Separation Bill 2019, generated in 2019 by the failure of Mrs Owens’ ’ Supreme Court appeal in the now notorious case of Owens v Owens. While this was immediately hailed by the media as justification for urgent reform of the Law of Divorce in England and Wales – on the grounds that English law was almost alone in modern liberal jurisdictions in lacking a No Fault Divorce regime – clearly this has now been overtaken by subsequent events. \u0000While it may be factually accurate that England and Wales does not have such a regime for dissolution of marriage without fault and by consent (at least without satisfying the inconvenient condition of waiting for the two-year delay necessary for a decree on the basis of two years of separation and consent), and perhaps should have one for the reason stated, the failed Owens appeal has absolutely no jurisprudential connection with any urgency for reform of the law in order to secure such a decree at all. This is because the legal profession has been effectively obtaining divorces under the present law for over 40 years, and, notwithstanding Owens, has been continuing to do so since 2018, albeit with the caveat that drafting must be undertaken with extreme care to be sure to avoid a repeated debacle. Nevertheless, on account of the age of the present statute, legal, political and social theorists of course have strong arguments for a No Fault addition to the existing Matrimonial Causes Act 1973 or even for replacing the existing provisions of that statute altogether. \u0000However this is because the present statute is itself a re-enactment and consolidation of the original Divorce Reform Act 1969 which led the post-WWII reforms creating our current Law of Divorce, so is well past its ‘sell-by date’, but not because it does not work in modern times. If anything, and especially with the assistance of s76 of the Serious Crime Act 2015, s 1(2)(b) of the 1973 Act works entirely consistently with present philosophy, that is, as marriage is a partnership of equals there is no place for any form of domestic abuse within it. \u0000In fact Mrs Owens thus could (and arguably should) have obtained her divorce on the existing basis, pursuant to s 1(2)(b) of the 1973 Act, namely on that of her husband’s ‘behaviour’. Thus, as indeed hinted by Lady Hale in her paragraph 50 of the Supreme Court judgment, which she added to the agreed text set by Lord Wilson, there was clear evidence of the alleged ‘authoritarian, demeaning and humiliating conduct over a period of time’, which in law was capable of founding a decree, and there was existing case law supporting this in the case of Livingstone-S","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"113 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133566647","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}

{"title":"What Are the Legal Mechanisms for Seeking Solutions to Disparities in the Delivery of Care in the NHS and Where Does Liability Lie?","authors":"A. Farrukh","doi":"10.5750/DLJ.V32I1.1918","DOIUrl":"https://doi.org/10.5750/DLJ.V32I1.1918","url":null,"abstract":"This review deals with the potential role of Commissions and Inquiries into delivering a just service to patients from ethnic minorities. It takes as an example the experience of people with inflammatory bowel disease and the National Health Service in the United Kingdom. Although there are many legal safeguards, the avenues open to groups of patients who experience discrimination, are limited and generally ineffective. Government inspired responses such as Commissions and Inquiries are inadequate and not fit for purpose.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114969470","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}

{"title":"Apologies and the Legacy of an Unlawful Application of Terra Nullius in Terra Australis","authors":"Stephen Pitt-Walker","doi":"10.5750/DLJ.V32I1.1922","DOIUrl":"https://doi.org/10.5750/DLJ.V32I1.1922","url":null,"abstract":"The use of the legal fiction, terra nullius, as it was erroneously applied to Terra Australis, Australia, as a legal doctrine, supported the British colonial power’s right to settle that territory. Since then, many unspoken (as well as acknowledged) acts of structural and direct violence have been perpetrated against the First Nations population in Australia via the imposition, and later ‘reception’, of the legal system and laws of England, as well as the dominant socio-political system, that represented the British Crown.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"115 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126976751","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}

{"title":"Beneficial Ownership of the Family Home","authors":"M. Pawlowski, James P. Brown","doi":"10.5750/DLJ.V32I1.1920","DOIUrl":"https://doi.org/10.5750/DLJ.V32I1.1920","url":null,"abstract":"The aim of this article is to review and critically analyse the English law relating to common intention constructive trusts in the context of the family home. In particular, it seeks to show how the English courts have addressed the question of establishing and quantifying the parties’ beneficial shares in both sole and joint ownership cases. The writers also seek to compare the English approach with the way in which such questions have been answered by the Australian courts. The primary purpose of this comparison is to consider what lessons (if any) can be learnt from the Australian model.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126842330","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}

{"title":"Legal Education and the Reproduction of Hierarchy: A Contemporary Asian Reading of a Seminal Text","authors":"Andra le Roux-Kemp","doi":"10.5750/DLJ.V32I1.1919","DOIUrl":"https://doi.org/10.5750/DLJ.V32I1.1919","url":null,"abstract":"Law schools are peculiar places occupied by, dependent on, associated with, and exerting influence on a myriad of institutions and stakeholders. From law students’ efforts at mastering the allusive skill of legal reasoning to the challenges both tenured and untenured academic staff face in the neoliberalist higher education model where the legal profession and the consumers of the law school product exert increasing – and sometimes even impossible – demands, law schools and its populace have always been contested, hierarchical and image-conscious spaces. Indeed, as Ralph Shain noted in the Journal of Ideology in 2012, “[a]nyone who has suffered through law school would be grateful to have a good polemic against the institution”. This article offers such a polemic against legal education in the Hong Kong Special Administrative Region. Over a period of four years, a selection of postgraduate law students from one of the (three) higher education institutions responsible for legal education and training in Hong Kong were asked to reflect upon their legal studies and future roles as legal professionals with reference to the 1983 self-published pamphlet by Duncan Kennedy, entitled “Legal Education and the Reproduction of Hierarchy: A Polemic Against the System”. Kennedy’s essay offered a critical analysis of the role of legal education in American social life at that time, and the manner in which it reproduced hierarchy in law, legal education, the legal profession, as well as in society generally. The narratives informing this article show that almost 40 years subsequent the publication of Kennedy’s text, and in a jurisdiction with an altogether different social context and facing its own political turmoil and civil rights’ aspirations, many parallels can be drawn with what Kennedy had observed in 1983. Part I of this article sets the scene with a detailed overview of the legal education and training landscape of the Hong Kong Special Administrative Region from a legal-historical perspective to date. The discussion and analysis * Associate Professor in Law, Lincoln Law School, University of Lincoln (United Kingdom); Member of the International Centre for Higher Education Management (ICHEM), University of Bath (United Kingdom). E-mail: alerouxkemp@lincoln.ac.uk","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128386929","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}

{"title":"THE NIGERIAN SUPREME COURT AND THE POLITICAL QUESTION DOCTRINE","authors":"Ekokoi Solomon","doi":"10.2139/ssrn.3516899","DOIUrl":"https://doi.org/10.2139/ssrn.3516899","url":null,"abstract":"This paper examines the attitude of the Supreme Court of Nigeria towards the political question doctrine. It interrogates the decisions of the Court in selected landmark cases involving political questions since the First Republic to the Fourth Republic which commenced in 1999. The paper identifies three core approaches espoused by the Court in cases involving political questions – the deference approach, the necessity approach and the avoidance approach. This paper argues that in a constitutional democracy, it is inevitable – considering that the Court is both a political and a legal institution – that the Court, like in other jurisdictions such as Germany, India, South Africa and the United States, will be called upon to adjudicate cases involving political questions. As such, the paper recommends that the Court openly asserts the ‘politicality’ of its decisions, whether they are predicated on the need to defer to the political branches, exigency/necessity or to avoid the political questions brought before it.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125579845","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}

{"title":"EVALUATION OF THE RULE OF LAW AS A PRE-REQISITE TO THE RIGHT TO DEVELOPMENT IN AFRICA","authors":"A. Joshua, Simisola Akintoye","doi":"10.5750/DLJ.V31I1.1717","DOIUrl":"https://doi.org/10.5750/DLJ.V31I1.1717","url":null,"abstract":"Africa faces myriads of challenges one of which is the need for development; as a result, development is a critical issue in Africa. The apparent disparity and inequity of the global economic system in the aspect of international economic development, conspicuous particularly on the Africa continent has dominated academic discourses since the era of the decolonization of the undeveloped countries. One of the direct consequences of this was the evolution of right-based approach to development agenda which have implications for democracy and the rule of law; two elements that have suffered serious setbacks in almost all African countries.  This paper examines the extent to which the effective enforcement of the rule of law in African countries can aid the human rights based approach to development in order to deliver meaningful improvements to the African development crisis. It starts by highlighting the evolution of the rights based approach to development agenda with a view to clarifying the meanings of the “right to development”. It further examines the import of the doctrine of rule of law, its relationship to the rights-based approach to development agenda and the theoretical underpinnings of both concepts. The paper continues to assess the position of the rule of law in African countries now, and its implications for the realization of the Right to Development (RTD), domestically (in each African country), regionally (and possibly sub-regionally).It is the argument of this paper that although, the African human rights-system, particularly the African Charter of Human and People’s Rights was the first enforceable document to contain the right to development, thereby making the African continent to be the first in conceiving it, yet one of the major reasons why development has eluded African over a considerable period of time until now is abysmal failure of the Rule of Law.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"30 11","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120985049","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}

{"title":"‘Show Me Your Horse and I Will Tell You Who You Are’: Brexit, A Chance to Acknowledge Animal Sentience in Law","authors":"Jessica L. Horton, Jonathan Merritt","doi":"10.5750/DLJ.V31I1.1791","DOIUrl":"https://doi.org/10.5750/DLJ.V31I1.1791","url":null,"abstract":"This article is written to explore the current position of the concept of animal sentience in UK animal welfare law. This is based on research carried out since 2017 but there have been political and legal developments which bring the issue to the fore now, chiefly these are concerned with Brexit and the EU definition of animal sentience contained in the Lisbon Treaty. At time of writing, however, there could scarcely be less certainty about the likely final outcome of the United Kingdom’s endeavours to exit the European Union.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"288 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124245988","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}

{"title":"Legal Practitioners as Potential Money Launderers: Beneficial Ownership Transparency and PEPs: Solicitors Regulation Authority v Sharif (2019)","authors":"J. Hatchard","doi":"10.5750/DLJ.V31I1.1794","DOIUrl":"https://doi.org/10.5750/DLJ.V31I1.1794","url":null,"abstract":"Legal practitioners enjoy a high degree of credibility and trust. With this comes vulnerability. For example, a solicitor’s trust account may be used by criminals through which to launder their proceeds of crime.1 The need to maintain public confidence in the profession remains of paramount importance and it follows that substantial reputational harm can occur where there is a risk that legal practitioners are being used (wittingly or otherwise) to facilitate money laundering.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130164185","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}