18. Co-ownership and third parties:

2015 ◽  
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Human Rights ◽  
Third Parties ◽  
European Convention ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter considers applications for sale of land held on trust, which are brought by third parties; typically creditors and trustees in bankruptcy of a beneficiary. The chapter explores the different legislation and rules that applies depending on whether the application is made by a creditor or a trustee in bankruptcy. In determining applications for the sale of a home, the court must have regard to the rights of those influenced by the sale under Art 8 European Convention on Human Rights (ECHR). Where the sale is discretionary, the courts have the opportunity to undertake a proportionality balance required to ensure compatibility of the sale with the ECHR. Where there is no discretion, however, questions of compatibility with the ECHR arise.

13. Defamation

Tort Law ◽  
2017 ◽  
Author(s):  
Jenny Steele
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
European Convention ◽  
England And Wales ◽  
Chilling Effect ◽  
Competing Interest ◽  
The Relationship ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter deals with the actions in defamation that protect reputation, paying particular attention to the relationship between the protected interest in reputation and the competing interest in freedom of expression. It first considers relevant provisions in the Defamation Act 2013, including the ‘serious harm’ criterion, before turning to the terms of Article 10 of the European Convention on Human Rights with regard to freedom of expression, with emphasis on the so-called chilling effect. It also discusses libel and slander as well as malicious falsehood, elements of a claim in defamation, defences available to the accused, and the jurisdiction of the courts of England and Wales to hear defamation claims. The chapter concludes by looking at parties who cannot sue in defamation.

14. Privacy

Tort Law ◽  
2017 ◽  
Author(s):  
Jenny Steele
Keyword(s):  
Human Rights ◽  
Private Information ◽  
Common Law ◽  
European Convention ◽  
Invasion Of Privacy ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Law ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter focuses on the emergence of a new action to protect privacy under the Human Rights Act 1998, with particular reference to unjustified publication of private information. It begins by considering whether privacy is a protected interest at common law and whether privacy must be recognised and given protection through the law of tort. It then examines the tools which have been used in the partial absorption of privacy as a protected interest in common law, citing the provisions of the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights. The controversies surrounding disclosure of private information and the power of injunctions are also considered, along with the issue of intrusion as an invasion of privacy.

scholarly journals The protection of confidential communication between a lawyer and a client in the case law of the European Court of Human Rights

2021 ◽  
Vol 93 (2) ◽  
pp. 479-493
Author(s):  
Dimitrije Đukić
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Case Law ◽  
Third Parties ◽  
European Convention ◽  
Human Right ◽  
Proper Functioning ◽  
European Court ◽  
The Right

Confidentiality of communication is a very important human right that gains in importance when the communication is conducted between a lawyer and a client. Namely, for a lawyer to be able to adequately represent their client, the client must be sure that the information they entrust to the lawyer will not reach third parties, i.e. that the communication will remain confidential. In this sense, protecting the confidentiality of communication between a lawyer and a client is very important not only for representing the client in each case, but also for the proper functioning of the legal system. This paper aims to establish which articles of the European Convention protect the right to a confidential communication between a lawyer and a client and how this communication is protected in practice by the European Court of Human Rights. The paper also examines whether it is possible to prescribe a measure by which such an important right as the right to privileged and confidential communication between a lawyer and a client could be limited and if so under what conditions.

22. Privilege

2020 ◽  
pp. 711-756
Author(s):  
Adrian Keane ◽  
Paul McKeown
Keyword(s):  
Human Rights ◽  
Third Parties ◽  
European Convention ◽  
Legal Advice ◽  
Relevant Evidence ◽  
Legal Professional ◽  
Settlement Negotiations

This chapter discusses several well-established principles whereby relevant evidence is excluded because of extrinsic considerations which outweigh the value that the evidence would have at trial. Three types of privilege are considered: (i) the privilege against self-incrimination (including statutory withdrawal of the privilege, compatibility with Article 6 of the European Convention on Human Rights, the compulsory production of pre-existing documents and materials, and substituted protection); (ii) legal professional privilege, which enables a client to protect the confidentiality of (a) communications between him and his lawyer made for the purpose of obtaining and giving legal advice (known as ‘legal advice privilege’) and (b) communications between him or his lawyer and third parties for the dominant purpose of preparation for pending or contemplated litigation (known as ‘litigation privilege’); and (iii) ‘without prejudice’ privilege, which enables settlement negotiations to be conducted without fear of proposed concessions being used in evidence at trial as admissions.

scholarly journals I. EUROPEAN COURT OF HUMAN RIGHTS AL-SKEINI AND OTHERS V UNITED KINGDOM (APPLICATION NO 55721/07) JUDGMENT OF 7 JULY 2011

2012 ◽  
Vol 61 (1) ◽  
pp. 301-312 ◽  
Author(s):  
Conall Mallory
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
European Convention ◽  
Military Operations ◽  
European Court ◽  
Security Operations ◽  
Grand Chamber ◽  
Academic Debate

The long anticipated judgment of the Grand Chamber of the European Court of Human Rights in the case of Al-Skeini and Others v United Kingdom1 provided a conclusion to years of academic debate regarding the application of the European Convention on Human Rights to United Kingdom military operations in Iraq.2 In question was the extent to which, if any, United Kingdom forces owed Convention obligations to Iraqi citizens when conducting security operations. For the Grand Chamber the case provided an opportunity to re-address the jurisdiction of the treaty under article 1.

21. Privilege

2018 ◽  
Author(s):  
Adrian Keane ◽  
Paul McKeown
Keyword(s):  
Human Rights ◽  
Third Parties ◽  
European Convention ◽  
Legal Advice ◽  
Relevant Evidence ◽  
Legal Professional ◽  
Settlement Negotiations

This chapter discusses several well-established principles whereby relevant evidence is excluded because of extrinsic considerations which outweigh the value that the evidence would have at trial. Three types of privilege are considered: (i) the privilege against self-incrimination (including statutory withdrawal of the privilege, compatibility with Article 6 of the European Convention on Human Rights, the compulsory production of pre-existing documents and materials, and substituted protection); (ii) legal professional privilege, which enables a client to protect the confidentiality of (a) communications between him and his lawyer made for the purpose of obtaining and giving legal advice (known as ‘legal advice privilege’) and (b) communications between him or his lawyer and third parties for the dominant purpose of preparation for pending or contemplated litigation (known as ‘litigation privilege’); and (iii) ‘without prejudice’ privilege, which enables settlement negotiations to be conducted without fear of proposed concessions being used in evidence at trial as admissions.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

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