Proprietary Rights and Insolvency

2016 ◽  
Author(s):  
Richard Calnan
Keyword(s):  
First Principles ◽  
Common Law ◽  
Case Law ◽  
Reference Source ◽  
Property Law ◽  
Privy Council ◽  
Current State ◽  
The Supreme Court ◽  
The Status ◽  
Court Of Appeal

This book explains how a creditor of an insolvent debtor can take priority over other creditors by claiming a proprietary interest in assets held by the debtor, and concentrates on the circumstances in which proprietary interests are created by operation of law or are implied from the arrangements between the parties. This is a subject of particular importance and difficulty in common law systems because of the changeable nature of equitable proprietary interests, and this book provides a clear and structured explanation of the current state of the law, with detailed reference to case law from England and Wales as well as Commonwealth jurisprudence, and suggests how it might be clarified and simplified by returning to first principles. The new edition considers a number of important developments which pertain to proprietary rights and insolvency. It evaluates the key decision of the Supreme Court in FHR European Ventures v Cedar Capital Partners. Although this has settled the question of whether constructive trusts extend to bribes, it has raised more general issues regarding the approach of the courts to the imposition of proprietary remedies, which the book explores. It also covers recent Privy Council and Court of Appeal decisions concerning constructive notice (Credit Agricole v Papadimitrou, Central Bank of Ecuador v Conticorp, and SFO v Lexi), as well as interesting issues concerning the new status of intangibles (Armstrong v Winnington) and the status of the anti-deprivation rule (Belmont Park v BNY). Proprietary Rights and Insolvency is a lucid and practical reference source on insolvency and property law.

The UK courts and EU law post-Brexit

2021 ◽  
Vol 20 (3) ◽  
pp. Christopher-Vajda
Author(s):  
Christopher Vajda
Keyword(s):  
Supreme Court ◽  
Transition Period ◽  
Case Law ◽  
Eu Law ◽  
National Courts ◽  
The Supreme Court ◽  
The Future ◽  
The Status ◽  
The Uk ◽  
Court Of Appeal

Following the expiry on 31 December 2020 of the ‘transition period’ under the UK/EU Withdrawal Agreement, the relationship between UK and EU law had changed. Whilst much EU legislation at that date will continue to apply in UK law as ‘retained EU law’ and judgments of the EU courts handed down before that date will remain binding on UK courts as ‘retained EU case law’, the Court of Appeal and Supreme Court can depart from that case law. Whilst EU court judgments handed down after that date are not binding on UK courts, they may be taken into account. This article considers both the status of EU retained case law and when the Supreme Court and Court of Appeal may depart from it, and the future of EU law that is not ‘retained EU case law’ and how judgments of the European Courts and national courts of its Member States may influence UK judges in the future.

Presumption of Marriage in Uganda

2020 ◽  
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Common Law ◽  
Case Law ◽  
African Countries ◽  
High Court ◽  
The Supreme Court ◽  
Living Together ◽  
Law And Legislation ◽  
Court Of Appeal

Abstract Case law, amongst other sources, shows that many people in Uganda are living together as husband and wife although they are not married. Unlike legislation in other African countries such as Tanzania and Malawi, in Uganda, the pieces of legislation governing marriages are silent on the issue of presumption of marriage. Likewise, unlike in Kenya and South Africa where legislation does not provide for presumption of marriage but courts have held that such a presumption exists based on long cohabitation, Ugandan courts, the High Court, and the Court of Appeal, have held that Ugandan law does not recognise marriage based on long cohabitation (marriage by repute). However, courts will presume the existence of a marriage where a marriage ceremony took place. Since 2003, attempts to enact legislation to provide for the presumption of marriage in Uganda have not been successful. In this article, the author argues that there is still room for the Supreme Court to hold, on the basis of common law, that Ugandan law recognises the principle of presumption of marriage. This recognition would also be in line with Uganda’s international law obligation as the Committee on the Elimination of Discrimination against Women has called upon States Parties to CEDAW to enact legislation giving effect to de facto unions. The author relies on case law and legislation from some African countries to suggest ways in which the Supreme Court could deal with the issue of presumption of marriage.

scholarly journals Extending The Scope Of Proprietary Remedies To Recovery Of Pure Profits From Successful Investment Of Bribes: The Endgame In Lister V Stubbs

2015 ◽  
Author(s):  
Aiman Nariman Mohd Sulaiman ◽  
Mohsin Hingun
Keyword(s):  
Hong Kong ◽  
Supreme Court ◽  
Common Law ◽  
Attorney General ◽  
Fiduciary Duty ◽  
Privy Council ◽  
Fiduciary Duties ◽  
The Supreme Court ◽  
Court Of Appeal ◽  
Harsh Reality

For more than a century Lister v Stubbs (1890) 45 Ch D 1 stood as authoritative Court of Appeal judgment denying the recovery of profits acquired from the successful investment of gains obtained in breach of fiduciary duties. The rule was rationalized on the basis that while the claimant was entitled to the proceeds so unlawfully obtained, he lacked any form of proprietary title to the profits accumulated by the defaulting fiduciary. The harsh reality of the rule produced an unfair outcome to the claimant and the Privy Council refused to apply it in Attorney-General for Hong Kong v Reid [1994] 1 AC 324. The rule also fell out of favour in other leading commonwealth jurisdictions and recently the English courts at all levels had the opportunity to reassess its relevance when the Supreme Court in FHR European Ventures LLP and others v Cedar Capital Partners LLC [2014] 4 All ER 79 consigned it to oblivion. The objective of this paper is to analyse the merits and the deficiencies of the rule and show how the judges of the English courts were prepared to act on policy ground, in comity with other common law jurisdictions in upholding justice in a borderless world. Keywords: breach of Fiduciary duty; Accounts of profits; Proprietary interests; Recovery of pure profits.

The Irish Supreme Court

2019 ◽  
Author(s):  
Dickson Brice
Keyword(s):  
Northern Ireland ◽  
Supreme Court ◽  
Common Law ◽  
Administrative Law ◽  
European Convention ◽  
European Union Law ◽  
Supreme Courts ◽  
The Supreme Court ◽  
The Status ◽  
Court Of Appeal

This book examines the jurisprudence of the Supreme Court of Ireland since its creation in 1924. It sets out the origins of the Court, explains how it operated during the life of the Irish Free State (1922-1937), and considers how it has developed various fields of law under Ireland’s 1937 Constitution, especially after the ‘re-creation’ of the Court in 1961. As well as constitutional law, the book looks at the Court’s views on the status and legal system of Northern Ireland, administrative law, criminal justice and personal and family law. There are also chapters on the Supreme Court’s interaction with European Union law and with the European Convention on Human Rights. The argument throughout is that, while the Court has been well served by many of its judges, who on occasion have manifested a healthy degree of judicial activism, there are still several legal fields in which the Court has not developed its jurisprudence as clearly or as imaginatively as it might have done. It has often displayed undue conservatism and deference. For many years its performance was hampered by its extreme workload, generated by its inability to control the number of appeals brought to it. However, the creation of a new Court of Appeal in 2014 has freed up the Supreme Court to act in a manner more analogous to that adopted by supreme courts in other common law countries. The Court’s future looks bright.

13. Voluntary manslaughter

2021 ◽  
pp. 540-588
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Common Law ◽  
Case Law ◽  
Self Control ◽  
The Other ◽  
Bodily Harm ◽  
Loss Of Self ◽  
Grievous Bodily Harm ◽  
Court Of Appeal ◽  
Partial Defences ◽  
Diminished Responsibility

Manslaughter is defined by common law as any unlawful homicide that is not murder. The offence is limited by murder at one extreme and accidental killing at the other. Manslaughter can be either ‘voluntary’ or ‘involuntary’. This chapter deals with voluntary manslaughter: this occurs when someone had the intention to kill or do grievous bodily harm, but relies on a partial defence to murder. The two partial defences considered in this chapter are loss of self- control and diminished responsibility (suicide pact is dealt with in Ch 15). This chapter scrutinizes the defences available to the accused and in particular the developing case law under the Coroners and Justice Act 2009 on loss of control and diminished responsibility, including the Supreme Court’s decision in Golds and the series of Court of Appeal cases since that decision.

2. Legal systems and sources of law

2020 ◽  
pp. 35-70
Author(s):  
Scott Slorach ◽  
Judith Embley ◽  
Peter Goodchild ◽  
Catherine Shephard
Keyword(s):  
International Law ◽  
Common Law ◽  
Civil Law ◽  
Case Law ◽  
Potential Effect ◽  
Legal Systems ◽  
Public And Private ◽  
England And Wales ◽  
The World ◽  
The Status

This chapter focuses on the sources of law in England & Wales, and is organised as follows. Section 2.1 describes the key jurisdictions relevant to lawyers in England and Wales. Section 2.2 deals with the issue of where the law comes from: sources of law. Section 2.3 reviews the development of the two ‘traditional’ sources of law in England and Wales: case law and statutes. Sections 2.4 and 2.5 consider the status and operation of EU and international law, including the potential effect of Brexit. Section 2.7 goes on to discuss public and private law, common law, and civil law, and other classifications used by lawyers. This is followed by a discussion of legal systems and their cultures across the world.

6. The Doctrine of Judicial Precedent

2019 ◽  
pp. 160-195
Author(s):  
James Holland ◽  
Julian Webb
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Case Law ◽  
Stare Decisis ◽  
Legal Principles ◽  
Legal Problems ◽  
The Supreme Court ◽  
Pure Case ◽  
The Impact ◽  
Court Of Appeal

This chapter examines the use of case law to solve legal problems. In the study and practice of law we seek to analyse legal principles; and the ‘principles’ in English law are derived from pure case law or from case law dealing with statutes. The discussions cover the idea of binding precedent (stare decisis); establishing the principle in a case; the mechanics of stare decisis; whether there are any other exceptions to the application of stare decisis to the Court of Appeal that have emerged since 1944; whether every case has to be heard by the Court of Appeal before it can proceed to the Supreme Court; precedent in the higher courts; other courts; and the impact of human rights legislation.

Medical Law and Ethics

2018 ◽  
Author(s):  
Jonathan Herring
Keyword(s):  
Case Law ◽  
Medical Law ◽  
Legal Principles ◽  
Codes Of Practice ◽  
Reality Check ◽  
Law And Ethics ◽  
The Supreme Court ◽  
Feminist Perspectives ◽  
The Law ◽  
Court Of Appeal

Medical Law and Ethics covers not only the core legal principles, key cases, and statutes that govern medical law, but also explores the key ethical debates and dilemmas that exist in the field to ensure that the law is firmly embedded within its context. The title highlights these debates, drawing out the European angles, religious beliefs, and feminist perspectives which influence legal regulations. Other features such as ‘a shock to the system’, ‘public opinion’, and ‘reality check’ introduce further sociological aspects, contributing to the way in which the subject is approached. This new edition also includes coverage of new Codes of Practice issued by the Human Tissue Authority and the changes in the structure of the NHS. It also outlines important case law developments on the law on mental capacity and euthanasia, including the Charlie Gard litigation, the decision of the Supreme Court in Montgomery, and the Court of Appeal in Conway.

scholarly journals TESTAMENTARY FREEDOM REAFFIRMED IN THE SUPREME COURT

2017 ◽  
Vol 76 (3) ◽  
pp. 499-502 ◽  
Author(s):  
Brian Sloan
Keyword(s):  
Supreme Court ◽  
Royal Society ◽  
Case Law ◽  
Moral Claim ◽  
Her Family ◽  
The Supreme Court ◽  
The Will ◽  
Cruelty To Animals ◽  
First Time ◽  
Court Of Appeal

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]).

The King Reports and the common law in South Africa

2020 ◽  
Vol 11 (2) ◽  
pp. 167-172
Author(s):  
J. Michael Judin
Keyword(s):  
South Africa ◽  
Design Methodology ◽  
Common Law ◽  
Bill Of Rights ◽  
Content Type ◽  
The Supreme Court ◽  
Task Team ◽  
The Common ◽  
Court Of Appeal

Purpose This paper aims to discuss the King Reports and Codes and the development of South Africa’s common law. The role of developing the common law is explicitly recognised in the Constitution, as is the obligation to give effect to the spirit, purport and objects of the Bill of Rights. With decisions of the Supreme Court of Appeal being based on the King Code, the King Code is now an integral part of South Africa’s common law. Design/methodology/approach When the task team drafting King IV commenced their work, one of the important issues raised with Mervyn King, as Chairman, was the challenge to ensure that King IV was aligned to the now firmly entrenched common law principles taken from King I, King II and King III. It is believed that this has been achieved and it is hoped that King IV (and the subsequent King Reports that will inevitably follow because the corporate milieu keeps changing) continues to enrich South Africa’s common law. Findings The King Reports and Codes have been made part of South Africa’s common law. Originality/value This paper fulfils an identified need to study the King Report and Code, as it relates to South Africa’s common law.

Sign in / Sign up

Export Citation Format

Share Document