{"title":"IS IT TIME TO KILL OFF HAMPSHIRE LAND","authors":"A. Alcock","doi":"10.5750/DLJ.V26I0.928","DOIUrl":"https://doi.org/10.5750/DLJ.V26I0.928","url":null,"abstract":"In the early development of English Company Law it was doubted whether a company could be deemed to have the necessary “malice or motive” for most criminal and many tortious liabilities. This view was rejected by the Privy Council in Citizens’ Life Assurance Co Ltd v Brown, which led to the concept of a company having attributed to it personally (as against vicariously) the thoughts and actions of its “directing mind and will”. This was famously explained in a further House of Lords decision, Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"367 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125622783","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 EFFECT OF ‘FAIRNESS’ ON PRE-NUPTIAL AGREEMENTS","authors":"Judith Bray","doi":"10.5750/DLJ.V26I0.932","DOIUrl":"https://doi.org/10.5750/DLJ.V26I0.932","url":null,"abstract":"Until the seminal judgment of Radmacher v Granatino pre-nuptial or pre-marital agreements were given limited weight in English law. Prior to this decision there had been considerable debate about the status in law of all nuptial settlements both pre and post marriage. The key question for Radmacher was whether pre-nuptial settlements should attract equal weight as agreements drawn up during the course of a marriage. In MacLeod v MacLeod the Privy Council finally resolved the issue with regard to post-nuptial settlements holding that agreements drawn up post marriage would carry weight when the court decides a claim for financial relief under s.25 Matrimonial Causes Act 1973. The English courts, unlike other jurisdictions, have always been reluctant to uphold agreements, which purport to deprive the court of its jurisdiction in deciding financial provision. There was also an underlying presumption that parties to a marriage did not intend their agreements to form legally binding contracts and finding adequate consideration within such agreements was often difficult unless the agreement is incorporated in a deed. The effect of the Supreme Court’s decision in Radmacher was not to reverse this approach. Pre-nuptial agreements were not made binding on the court but rather the court is invited to give weight to all nuptial agreements subject to certain safeguards. The subsequent decision in Luckwell v Limata gives guidance as to when the court will be prepared to deviate from pre-marital agreements even when the parties have been given independent legal advice and both parties are fully aware of the possible effect of such an agreement.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128158432","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":"HUMAN RIGHTS, ‘ARRANGED’ MARRIAGES AND NULLITY LAW: SHOULD CULTURE OVERRIDE OR INFORM FRAUD AND DURESS?","authors":"J. Scutt","doi":"10.5750/DLJ.V26I0.935","DOIUrl":"https://doi.org/10.5750/DLJ.V26I0.935","url":null,"abstract":"Nullity law in Australia and Fiji provides that marriages can be void on various grounds, including duress and fraud. Despite some differences, United Kingdom (UK) law says marriages can be void or voidable on similar grounds. Courts in each jurisdiction have granted annulment in cases of forced marriage where duress “threatens life and limb”. Courts now say lesser force or threats, including pressure to comply with religious or traditional duty, can nullify marriage. Yet courts continue to require high level force such as passport confiscation, physical abuse, threats of eviction from the family home, and economic harm. This, as with allegations of fraud which receive short shrift, results from returning to common law authorities decided before migration resulted in significant demographic changes, particularly regarding culture and religion. UK authority draws a distinction between “forced” and “arranged” marriages, saying nullity is granted rightly in cases of the former, yet because “culture” “sanctifies” the latter, refusing nullity is right. Yet is this distinction valid? Should such marriages be recognised by Australian, Fijian and UK courts as contracted with full and free consent of the parties? An exploration of contemporary cases against the common law background to fraud and duress as nullity grounds indicates that allowing culture to be the measure denies women’s (and sometimes men’s) entitlement to contract marriage with full and free consent according to international human rights law.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122016346","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 STORY OF RAPE: WRONGDOING AND THE EMOTIONAL IMAGINATION","authors":"B. Watt","doi":"10.5750/DLJ.V26I0.929","DOIUrl":"https://doi.org/10.5750/DLJ.V26I0.929","url":null,"abstract":"This is a response to John Gardner’s article – The wrongness of rape. It claims that Gardner is fundamentally or radically wrong; not by attacking his careful and well-constructed argument from the ‘inside’ – by attempting to demonstrate some logical flaw in his argument – but by attacking his world-view. He shows us a world which simply does not accord with reality as perceived in our everyday lives by most, or all, of us. Whilst many philosophers, and certainly most philosophers of law, analyse the world in the way exemplified by Gardner, it is to be hoped that they reserve this analysis to their professional lives and do not make the mistake of thinking that it is connected with reality. For them reason prevails with emotion being relegated to the status of a mere ‘epiphenomenon’; whilst, for most of us, our emotional life is at least as important as our rational life. This article is an invitation to Gardner and others to make a ‘paradigm shift’ in the sense proposed by Thomas Kuhn. Kuhn, in his explanation of the history of cosmology, showed how in order to explain the observed motion of the planets increasingly complicated systems of circular orbits were used (consisting of cycles, epicycles, epi-epicycles and so forth). These complex systems of orbits were used to explain the motion of the planets round the sun because people refused to believe that the planets could move in anything other than perfect circles. However, as the observational data grew it became clear that no system of circular orbits, no matter how complex, could explain the observations. When Johannes Kepler advanced the work of Nicolas Copernicus, Tycho Brahe and Galileo Galilei and showed that the orbit of Mars could be best modelled by showing that it was elliptical, the problem was solved. Similarly, it is averred that no system of purely rational explanation, such as that advanced by Gardner, can explain the wrongness of rape. The explanation needs to start from a different position by explicitly including emotion in the explanation.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127023643","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":"TOWARDS THE REASONABLE ACCOMMODATION OF RELIGIOUS FREEDOM","authors":"Peter Smith","doi":"10.5750/DLJ.V26I0.934","DOIUrl":"https://doi.org/10.5750/DLJ.V26I0.934","url":null,"abstract":"The Court of Appeal’s decision in Mrs Mba’s case is notable because: (a) it rejects the qualitative evaluation of her Sabbatarian belief as a “core component” of Christianity in assessing for the purposes of domestic anti-discrimination legislation the proportionality of her employer’s requirement for her to work Sundays; (b) it continues to keep minimal the size of the group required to show group disadvantage; and (c) per Elias LJ and Vos LJ, it finds the assessment of group disadvantage to be incompatible with Article 9 when the ECHR is engaged. The case represents the continued move from a group to an individual focus, and is welcome: it better protects personal religious freedoms. The logical conclusion is for domestic law to oblige employers to reasonably accommodate religious rights via a sui generis legal mechanism.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"67 6","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131451208","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 LEGISLATIVE VETO FROM THE PERSPECTIVE OF THE KOSOVO CONSTITUTION","authors":"V. Morina","doi":"10.5750/dlj.v26i0.877","DOIUrl":"https://doi.org/10.5750/dlj.v26i0.877","url":null,"abstract":"The Constitution of Kosovo has established a number of mechanisms for the separation of powers and reciprocal checks and balances among which is the President’s authority to return legislation for reconsideration. However, the interaction between the President and the Assembly on matters confronting the legislative veto has unveiled a number of constitutional ambiguities and inconsistencies which rendered involvement of the Constitutional Court necessary to define further the constitutionally-contemplated powers of the President for returning legislation for reconsideration. The article analyses the Presidential legislative veto from the prospect of the 2008 Kosovo Constitution. Through constitutional interpretation and practical cases this article seeks to examine more closely the structural and the functional aspect of the Presidential legislative return statements in post-status Kosovo.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131068013","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":"CONSUMER CAPTURE AND THE LEGAL SERVICES ACT 2007","authors":"Tim Sinnamon","doi":"10.5750/DLJ.V26I0.926","DOIUrl":"https://doi.org/10.5750/DLJ.V26I0.926","url":null,"abstract":"It is now nearly 7 years since the Legal Services Act 2007 (LSA) was brought onto the statute books. It is now 5 years since the major provisions of the Act became effective. For those unfamiliar with the Act, it is a blockbuster piece of legislation which in its entirety runs to 214 sections (covering 120 pages) and 24 Schedules which make up the remainder of the total 389 pages.The LSA 2007 sought to fundamentally recalibrate the regulation of the legal services market. To achieve this, the Act introduced a new tier of oversight regulation, above the then existing regulators of legal services. This new oversight regulator, called the Legal Services Board (LSB) is armed with an arsenal of statutory powers. The LSA 2007 also established a new ombudsman in the form of the Office of Legal Complaints.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122530196","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":"LESSONS FROM GERMANY: SHOULD UK LEGISLATION CIRCUMNAVIGATE OR CIRCUMVENT THE ISSUE OF MALE CIRCUMCISION?","authors":"K. Dyer","doi":"10.5750/DLJ.V25I1.622","DOIUrl":"https://doi.org/10.5750/DLJ.V25I1.622","url":null,"abstract":"Recent Court Action in Cologne Germany has seen rapid response from the German Government, with the German Parliament passing new legislation confirming the lawfulness of ritual circumcision. However there are questions as to whether German Parliament has done enough This case note looks at the background to the case and considers the ethical implications of this case in parallel to current activity in the UK. The author makes recommendations to minimum legal requirements to current English law in this respect.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"218 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127607398","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 Public Law Dimension of Public Authority Liability","authors":"T. Cornford","doi":"10.5750/dlj.v25i1.623","DOIUrl":"https://doi.org/10.5750/dlj.v25i1.623","url":null,"abstract":"In this paper I endorse the basic assumption that informed the Law Commission’s consultation paper on Administrative Redress of 2008, namely that the problem of administrative liability in English law can only be understood by examining both its tortious and its public law dimensions and that a satisfactory solution would involve a form of liability that straddled the public/private divide. In support of this view, I advance a rationale for a form of liability that involves reparation for harms resulting from acts unlawful as a matter of public law and argue that the form of liability that the rationale supports would inevitably impinge upon the territory currently occupied by the law of tort. I then proceed to criticise the views of scholars who have recently argued that a satisfactory law of public authority liability can be arrived at by the use of the concepts of orthodox tort law alone.","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126621774","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":"PIERCING THE VEIL – A DODO OF A DOCTRINE?","authors":"A. Alcock","doi":"10.5750/DLJ.V25I1.785","DOIUrl":"https://doi.org/10.5750/DLJ.V25I1.785","url":null,"abstract":"In the course of the 2012/13 legal year, the Supreme Court has had to consider the doctrine of piercing the corporate veil twice, in VTB Capital plc v Nutritek International Corpn (VTB), and more recently in Prest v Petrodel Resources Ltd (Prest). On both occasions, the Court was in effect asked to remove the whole doctrine from English Law, but narrowly failed to do so, begging the question, does the doctrine really serve any purpose now? Let me start with Prest .","PeriodicalId":382436,"journal":{"name":"The Denning Law Journal","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130491392","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}
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