Facticity

2020 ◽  
pp. 899-916
Author(s):  
Paul Daly
Keyword(s):  
Judicial Review ◽  
Traditional Approach ◽  
Common Law ◽  
Comparative Perspective ◽  
Evolutionary Path ◽  
England And Wales ◽  
Factual Error ◽  
Administrative Action ◽  
The Common ◽  
The Law

This chapter analyses, from a comparative perspective, the law of judicial review of administrative action as it relates to factual error. The analyses is conducted in four common law jurisdictions (Australia, Canada, England and Wales, and Ireland), which have a ‘filial relationship’ as part of the common law tradition of controlling administrative action through the ordinary courts. The chapter outlines the traditional approach to judicial review of factual error in the four jurisdictions, characterized by limited judicial oversight of issues of fact. Next, the chapter describes the recent evolution in the law of judicial review of factual error. Although the evolutionary path has not led to the same destination in each jurisdiction, there has been increased judicial willingness to examine alleged factual errors in judicial review proceedings. However, the factors which have influenced the evolution of the law are different in each jurisdiction.

Understanding Administrative Law in the Common Law World

2021 ◽  
Author(s):  
Paul Daly
Keyword(s):  
Future Development ◽  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
Administrative Action ◽  
The Core ◽  
The Common ◽  
The Law ◽  
Pluralist Approach ◽  
Core Features

This book has three goals: to enhance understanding of administrative law; to guide future development of the law; and to justify the core features of the contemporary law of judicial review of administrative action. Around the common law world, the law of judicial review of administrative action has changed dramatically in recent decades, accelerating a centuries-long process of incremental evolution. This book offers a fresh framework for understanding the core features of contemporary administrative law. Through comparative analysis of case law from Australia, Canada, England, Ireland and New Zealand, Dr Daly develops an interpretive approach by reference to four values: individual self-realisation, good administration, electoral legitimacy and decisional autonomy. The interaction of this plurality of values explains the structure of the vast field of judicial review of administrative action: institutional structures, procedural fairness, substantive review, remedies, restrictions on remedies and the scope of judicial review, everything from the rule against bias to jurisdictional error to the application of judicial review principles to non-statutory bodies. Addressing this wide array of subjects in detail, Dr Daly demonstrates how his pluralist approach, with the values being employed in a complementary and balanced fashion, can enhance academics’, students’, practitioners’ and judges’ understanding of administrative law. Furthermore, this pluralist approach is capable of guiding the future development of the law of judicial review of administrative action, a point illustrated by a careful analysis of the unsettled doctrinal area of legitimate expectation. Dr Daly closes by arguing that his values-based, pluralist framework supports the legitimacy of contemporary administrative law which although sometimes called into question in fact facilitates the flourishing of individuals, of public administration and of the liberal democratic system.

Unjustified Enrichment in Comparative Perspective

2006 ◽  
pp. 968-1002
Author(s):  
Daniel Visser
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Comparative Perspective ◽  
The Future ◽  
The Common ◽  
English Law ◽  
The Law ◽  
Level Of Understanding ◽  
Unjustified Enrichment

Unjustified enrichment confronted both civil and common lawyers with thinking which was often completely outside the paradigm to which they had become accustomed. The recognition of unjustified enrichment as a cause of action in its own right in English law created a new arena of uncertainty between the systems. This article argues that comparative lawyers can make an important contribution to the future of the fractured and fractious world of unjustified enrichment. It may help to uncover the enormous wealth of learning of which both the common law and the civil law are the repositories, and so bring the same level of understanding to the law of unjustified enrichment which has, over the years, been achieved between the systems in regard to contract and tort.

Time for an English Commercial Code?

1997 ◽  
Vol 56 (3) ◽  
pp. 516-536
Author(s):  
Dame Mary Arden
Keyword(s):  
Common Law ◽  
Law Reform ◽  
England And Wales ◽  
Commercial Code ◽  
Unique Experience ◽  
The Common ◽  
Systematic Development ◽  
The Law ◽  
Lord Chancellor ◽  
Law Commission

Parliament has imposed on the Law Commission the duty to review the law of England and Wales “with a view to its systematic development and reform, including in particular the codification of [the] law … and generally the simplification and modernisation of the law”. There are a number of points which flow from this. First, as a body which reviews great swathes of the common law to see if they require to be modernised or simplified, the Law Commission has a unique standpoint from which to view the strengths and weaknesses of the common law method. Second, it has unique experience of law reform and the Parliamentary process. Third, in discharge of its functions, it has an interest in seeing that, if codification is appropriate, a recommendation to that effect is made to the Lord Chancellor. It need not be the Law Commission which carries out the recommendation, and indeed the Law Commission could not carry out a project purely of its own initiative.

scholarly journals Lies, Collateral Lies and Insurance Claims: The Changing Landscape in Insurance Law

2018 ◽  
Vol 22 (2) ◽  
pp. 237-265
Author(s):  
Baris Soyer
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Insurance Fraud ◽  
England And Wales ◽  
Insurance Law ◽  
Significant Challenge ◽  
The Common ◽  
Utmost Good Faith ◽  
The Law ◽  
Definition Of

Determining the scope of the fraudulent claims rule in insurance law has posed a significant challenge for the courts, particularly in the last two decades. In the shadow of the doctrine of utmost good faith, the law in this area has developed in an uncompromising fashion introducing draconian remedies against an assured who submits a fraudulent claim. The Supreme Court's most recent intervention has provided much needed guidance on the state of the law. This article, taking into account the fact that in other areas of law more proportionate remedies have gradually been introduced, discusses the boundaries of the fraudulent claims rule in insurance law as it applies in England and Wales and Scotland. Considering that the insurers might be tempted to introduce fraudulent claims clauses into their contracts to expand the common law definition of insurance fraud at the claims stage, this article also evaluates the wording of such clauses often used in practice and concludes that they lack the desired clarity.

The Common Law Legal Tradition: First Things First

2021 ◽  
pp. 15-22
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Civil Law ◽  
Primary Source ◽  
Case Law ◽  
The United States ◽  
Public Law ◽  
Legal Tradition ◽  
The Common ◽  
The Law

This chapter explains briefly the origins and development of the common law tradition in order to better understand the rise of judicial review in the seven common law countries discussed in this volume. The common law legal tradition is characterized historically, in public law, by limited, constitutional government and by forms of judicial review of the constitutionality of legislation. In private law, the common law tradition is characterized by judge-made case law, which is the primary source of the law, instead of a massive code being the primary source of the law. The common law tradition is also characterized by reliance on the institution of trial by jury. Judges, rather than scholars, are the key figures who are revered in the common law legal tradition, and this is one of the key things that distinguishes the common law legal tradition from the civil law legal tradition. The common law legal tradition emphasizes judicial power, which explains why it has led to judicial review in the countries studied in this volume. It is the prevailing legal tradition in the four countries with the oldest systems of judicial review of the constitutionality of legislation: the United States, Canada, Australia, and India. Thus, judicial review of the constitutionality of legislation in these four countries is very much shaped by common law attitudes about the roles of judges.

Legislative Reform of Judicial Review of Commonwealth Administrative Action

1978 ◽  
Vol 9 (1) ◽  
pp. 42-70 ◽  
Author(s):  
John Griffiths
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Legislative Reform ◽  
Administrative Action ◽  
The Common

Over the last three years the Commonwealth has enacted four statutes with the aim of overcoming some of the deficiencies which exist at common law in the reviewing of administrative action. These are the Administrative Appeals Tribunal Act 1975 (Cth), the Administrative Appeals Tribunal Amendment Act 1977 (Cth), the Ombudsman Act 1976 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth). This article examines in detail the Administrative Decisions (Judicial Review) Act 1977 (Cth) in order to determine whether the common law rights and remedies have been improved.

Reforming the Law of Unfitness to Plead in England and Wales

2018 ◽  
Author(s):  
Miranda Bevan ◽  
David Ormerod
Keyword(s):  
Common Law ◽  
Legal Framework ◽  
Criminal Trial ◽  
Law Reform ◽  
Criminal Trials ◽  
Significant Development ◽  
England And Wales ◽  
The Common ◽  
The Law ◽  
Draft Bill

This chapter reviews the legal framework in England and Wales for dealing with defendants in criminal trials who are ‘unfit to plead’, and considers efforts to reform the legal test and procedures. The chapter offers a critique of the present law governing fitness to plead and its failure to reflect modern-day trial processes and psychiatric understanding. It examines law reform proposals made over recent decades and how these have failed to produce significant development in the common law. It focuses in particular on the Law Commission’s recent report and draft Bill in 2016. That report seeks to provide a fair and effective process for those who are unable to participate effectively in their criminal trial and to ensure that defendants’ rights are respected.

Torts and Other Wrongs

2019 ◽  
pp. 1-26
Author(s):  
John Gardner
Keyword(s):  
United States ◽  
New Zealand ◽  
Common Law ◽  
Tort Law ◽  
The United States ◽  
Common Cause ◽  
England And Wales ◽  
The Common ◽  
The Law

This chapter focuses on the law of torts, not in the United States, but in other major common law jurisdictions (England and Wales, Canada, Australia, and New Zealand) in which tort cases are normally adjudicated by judges sitting without juries. It considers the so-called classical interpretation of the common law of torts by John Goldberg and Ben Zipursky, and how they tend to equivocate on an important point of law in a way that puts them at odds with some writers with whom they would do better to make common cause. It suggests that this equivocation is where the law of the United States parts company with the law in the rest of the common law world. The problem, an English lawyer might then teasingly say, is with American tort law rather than with the Goldberg and Zipursky rendition of it.

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