Knowing assistance—a plea for help

Legal Studies ◽  
1992 ◽  
Vol 12 (3) ◽  
pp. 332-348
Author(s):  
Helen Norman
Keyword(s):  
Third Party ◽  
House Of Lords ◽  
The Law ◽  
Court Of Appeal

The recent refusal by the Appeal Committee of the House of Lords to grant leave to appeal to their Lordships' House in the case of Agip (Africa) Ltd v Jackson means that an opportunity has been lost to clarify the law with regard to the liability of a third party who helps a fiduciary commit a breach of trust. The difficulty is further compounded when one bears in mind that the ultimate appeal in Lipkin Goman v Karpnale did not involve one of the original defendants, Lloyds Bank, whose liability for enabling the gambling-addicted solicitor to sustain his predilection by cashing cheques for him was considered only by Alliott J and the Court of Appeal.

scholarly journals Culpability, Kingston and the Law Commission

2010 ◽  
Vol 74 (5) ◽  
pp. 434-471 ◽  
Author(s):  
Cath Crosby
Keyword(s):  
Justice System ◽  
Criminal Liability ◽  
Character Theory ◽  
Criminal Offence ◽  
Pragmatic Approach ◽  
House Of Lords ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission ◽  
Do So

This article considers the basis upon which a person should be held to be criminally liable, and to do so, it is necessary to examine the leading theories of character and choice that underpin the State holding a person to be culpable of a criminal offence, i.e. the link between culpability and fault. The case of R v Kingston1 is used to examine the application of these leading theories and it is observed that choice theorists would not excuse such a defendant from criminal liability even though his capacity to make a choice to refrain from law breaking was made extremely difficult by external factors beyond his control. Only character theory could possibly offer exculpation in such circumstances on the basis that the defendant acted ‘out of character’ and his deed did not deserve the full censure and punishment of the criminal law. The Court of Appeal in R v Kingston would have been prepared to excuse, but the House of Lords, and most recently the Law Commission have adopted a pragmatic approach to the involuntarily intoxicated offender. This case serves as a reminder that while justice is the aim of the criminal justice system, it is not an absolute standard.

Company Directors: Duties, Liabilities, and Remedies

2017 ◽  
Keyword(s):  
Case Law ◽  
Third Party ◽  
Court Decisions ◽  
Cayman Islands ◽  
Market Abuse ◽  
Company Directors ◽  
The Law ◽  
The Uk ◽  
Law And Legislation ◽  
Court Of Appeal

This is a new edition of the established authority on the law relating to directors of companies incorporated under the UK Companies Acts. The new edition features all important developments in the law including the Small Business, Enterprise and Employment Act 2015 which improves transparency (including requiring directors to be natural persons unless exceptions apply), simplifies company filing requirements, clarifies the application of general duties to shadow directors, modernises directors’ disqualification and reforms insolvency law to facilitate proceedings where there has been wrongdoing. There has been a wealth of new case law relevant to directors’ duties before the English courts, all of which are analysed and explained, including the Supreme Court decisions in Prest v Petrodel Resources, Jetivia v Bilta (UK), FHR European Ventures v Cedar Capital Partners and Eclairs Group v JKX Oil & Gas, the Court of Appeal decisions in Smithton Ltd v Naggar and Newcastle International Airport v Eversheds as well as the important High Court decisions in Universal Project Management Services v Fort Gilkicker, Madoff Securities International v Raven and the wrongful trading case, Re Ralls Builders. Non-UK cases are also analysed including Weavering Macro Fixed Income Fund Ltd v Peterson in the Cayman Islands’ Court of Appeal and the 2016 decision of the Hong Kong Court of Final Appeal Chen v Jason. In keeping with developments in case law and legislation the book now includes expanded coverage of multiple derivatives claims, directors’ exposure to third party claims and a new chapter on civil remedies for market abuse. The third edition is a complete reference work on the law relating to company directors and is the first port of call for all serious corporate lawyers and scholars on this subject.

Surprisingly, there are no official authoritative series of law reports in England to equate with the Queen’s Printers copy of an Act of Parliament. The Stationery Office is responsible for publishing revenue, immigration and social security law cases. However, traditionally, law reports remain in the hands of private publishers. Today, there are numerous, often competitive, private publishers. Although there are no official series of law reports, the courts do respect some reports more than others. A long established, conventional rule is that a law report, if it is to be accepted by the relevant court as an authority, must be prepared by and published under the name of a fully qualified barrister. The greater accuracy of modern reporting, and the vetting by judges, necessitates longer delays before the cases are published. Also, the Law Reports only cover 7% of the cases in the higher courts in any given year. Interesting issues are: (a) who selects which cases to report? (b) how are they selected? Editors select the cases for inclusion in the series of law reports. These are highly trained lawyers, well acquainted with precedent and the likely importance of cases. During the past 150 years publishers of law reports have been generalists or specialists. Some law reports are annotated, particularly for the use of practitioners, others left without annotations, introductions, etc. In addition to reported cases, the Supreme Court Library contains thousands of files of unreported cases. In 1940, the Lord Chancellor’s Department prepared a report: The Report of the Law Reporting Committee. The Committee considered that, after editors had made their choices, ‘What remains is less likely to be a treasure house than a rubbish heap in which a jewel will rarely, if ever, be discovered’ (p 20). (Note the poetic language that forcefully carries the point.) Of course, today, there is a vast range of electronic retrieval systems for accessing details of thousands of unreported cases. This has caused its own problems and there was a legitimate concern that courts would be inundated with cases that did not really contain any new law, but which had been retrieved from electronic sources. In the case of Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 AC 192, the House of Lords took the step of forbidding the citation of unreported cases of the civil division of the Court of Appeal without special leave. The rule remains, however, that to be an accepted version that can be quoted in court the report must have been prepared and published by a barrister. When law students read law reports they must ask: (a) is this report the most authoritative version available? (b) are there fuller versions? (c) if unreported, does this case add to the law? Figure 4.2, below, sets out the types of reports available for the law student to consult.

2012 ◽  
pp. 78-79
Keyword(s):  
Law Students ◽  
Retrieval Systems ◽  
House Of Lords ◽  
The Supreme Court ◽  
Legitimate Concern ◽  
The Law ◽  
Law Student ◽  
Law Reports ◽  
Court Of Appeal ◽  
Vast Range

scholarly journals Rape Trials and Sexual History Evidence

2017 ◽  
Vol 81 (5) ◽  
pp. 367-392 ◽  
Author(s):  
Clare McGlynn
Keyword(s):  
Research Data ◽  
Sexual History ◽  
Third Party ◽  
Law Reform ◽  
Considerable Debate ◽  
Rape Trials ◽  
The Law ◽  
Court Of Appeal

Despite repeated legislative attempts to restrict the use of sexual history evidence in rape trials, it continues to be admitted in many cases, causing considerable debate and leading to further attempts to reform the law. In this light, this article examines afresh the admissibility of sexual history evidence in rape trials. It focuses particularly on evidence relating to persons other than the accused (third-party evidence), following the recent controversial judgment of the Court of Appeal in R v Ched Evans where such evidence was introduced. The justifications for restricting sexual history evidence are considered, as well as research data on how often it is being used. Following an analysis of the current law, the article concludes that urgent reform is needed and a number of law reform options are examined.

scholarly journals The good character ‘backstop’: directions, defeasibility and frameworks of fairness

Legal Studies ◽  
2020 ◽  
Vol 40 (4) ◽  
pp. 675-693
Author(s):  
Richard Glover
Keyword(s):  
Criminal Trials ◽  
European Court ◽  
Jury Verdicts ◽  
House Of Lords ◽  
Character Evidence ◽  
The Law ◽  
Grand Chamber ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

AbstractThis paper examines the law on good character evidence in criminal trials through a discussion of the important but under-analysed case of Hunter, in which a five-judge Court of Appeal sought to clarify the law on good character directions to the jury. However, it is argued here that the judgment conflicts with the leading House of Lords decision in Aziz. The paper considers how the court misinterpreted the law and, in particular, the defeasible nature of the rule in Aziz and the impact of the Criminal Justice Act 2003. As a result, the circumstances in which a good character direction will be provided have diminished significantly. It is argued that this has important implications for the right to a fair trial, as good character directions act as a ‘backstop’ against miscarriages of justice. They also form a vital part of the ‘framework of fairness’ considered necessary, in lieu of reasoned jury verdicts, by the Grand Chamber of the European Court of Human Rights in Taxquet v Belgium. Accordingly, it is contended that Aziz rather than Hunter should be followed so that, where there is evidence of good character, a direction is normally provided as a matter of law.

The Tort of Conspiracy and Civil Secondary Liability

1990 ◽  
Vol 49 (3) ◽  
pp. 491-514 ◽  
Author(s):  
Philip Sales
Keyword(s):  
House Of Lords ◽  
Narrow View ◽  
The Law ◽  
Secondary Liability ◽  
Court Of Appeal

The litigation in Metall und Rohstoff A.G. v. Donaldson Lufkin & Jenrette Inc. appeared to herald a much-needed review by the House of Lords of the torts of conspiracy to injure by lawful and unlawful means. Since that will not now take place, the law will for the present remain as the Court of Appeal in Metall und Rohstoff has interpreted the decision of the House of Lords in Lonrho Ltd v. Shell Petroleum Co. Ltd. (No. 2). The purpose of this article is to argue that there is an important division in principle between the tort of conspiracy to injure another by lawful means and the tort of conspiracy to injure by unlawful means, and that the rules governing liability for the former tort should be different from, and more limited than, the rules governing liability for the latter tort. Thus recent authority is questioned on the basis that the law in this area was properly set out in the older cases, but for reasons which lie buried and are not always expressly articulated in them. It will be the thrust of this article that the narrow view of the scope of conspiracy to injure by unlawful means which appears in the speech of Lord Diplock in Lonrho v. Shell (No. 2), as interpreted after full argument in the Court of Appeal in Metall und Rohstoff, is mistaken, and that the House of Lords (when eventually it has the opportunity to review these two decisions) should revive the distinction which existed between conspiracy to injure by lawful means and conspiracy to injure by unlawful means prior to 1982.

, cases such as White v Jones will not come to be regarded as actions in contract, since it must be the contract between the relevant contracting parties which expressly or impliedly confers a benefit on the third party and, in White v Jones, it was the will, rather than the contract which conferred the relevant benefit. The second question above asks if T can seek to rely on a defence contained in the contract between A and B in an action brought against him by A or B. Typically, such cases will involve the question of whether T is entitled to the protection of an exemption clause. Many commercial transactions involve many parties. Typical examples include international trade dealings under which there is a complex of relations between the buyer, seller, carrier and other parties involved in the process of shipment of a cargo. Similarly, many contracts entered into for the purposes of the construction of a building or a ship may involve a number of subcontractors as well as the party commissioning the work and the main contractor. These multipartite relationships are often difficult to explain in terms of traditional rules of the law of contract which appear to treat the two-party contract as the norm. Where exemption clauses are concerned, a simple application of the doctrine of privity of contract would suggest that a third party cannot claim the benefit of such a provision if it is part of a contract between two other parties. If a firm of stevedores, employed by a carrier to unload a cargo, negligently damages goods carried under the terms of a contract of carriage made between the consignor of goods and the carrier, the question may arise whether the stevedore, in an action brought by the purchaser of the cargo, can claim the benefit of an exclusion clause in the contract between the consignor and the carrier which purports to protect both the carrier and the stevedore. Commercial reality suggests that if the risk of loss or damage to a cargo has already passed to the buyer then he should be insured against that risk. Accordingly, since there is likely to be a valid insurance policy covering the risk of damage in the course of unloading, it makes commercial sense for the stevedores to be able to claim the protection of the exemption clause. However, a rigid application of the doctrine of privity of contract in this type of case would mean that the stevedores could be sued for the damage to the cargo despite the fact that the buyer was insured against that risk. The commercial reality approach suggests that there should be a doctrine of vicarious immunity under which the third party may rely upon an exemption clause in a contract to which he is not a party, provided it is the intention of all concerned that the benefit should be extended to such a person. However, the doctrine of vicarious immunity was later rejected by the House of Lords in Scruttons Ltd v Midland Silicones Ltd, where the

1995 ◽  
pp. 772-772
Keyword(s):  
International Trade ◽  
Third Party ◽  
Simple Application ◽  
Insurance Policy ◽  
The Third ◽  
House Of Lords ◽  
The Will ◽  
The Law ◽  
The Third Party ◽  
Privity Of Contract

incompleteness of the building work gave rise to difficulties. Normally, the rule is that an assignee will not be allowed to recover any more than the assignor could have done. As a result, it was argued on behalf of the builders that the council could not sue in respect of incompleteness since the bank was not liable for any incompleteness. The Court of Appeal, however, rejected this argument holding that the bank could have recovered substantial damages from the defendants, apparently on the basis that this case was covered by the principle established in Lenesta. However, it would appear that there are differences between Darlington Borough Council v Wiltshier and Lenesta since, in the earlier case, it was assumed to be a requirement that the original contracting parties always envisaged a transfer of property in the thing which was the main subject matter of the contract. In contrast, in the Darlington case, ownership of the land remained with the council throughout. Steyn LJ’s reasoning in this case seems to be based more on pragmatic grounds than on a strict application of legal principle, since he makes the point that, but for an application of the principle in Lenesta, an otherwise meritorious claim would have disappeared down a legal black hole, but this was a black hole created by the parties themselves due to the clause relieving the bank of any liability for incompleteness. In any case, it has been established by the House of Lords in Alfred McAlpine Construction Ltd v Panatown Ltd that if a party has a valid claim under some other rule of law, the Lenesta exception will not apply. The relations between third party and promisee

1995 ◽  
pp. 769-769
Keyword(s):  
Black Hole ◽  
Rule Of Law ◽  
Subject Matter ◽  
Third Party ◽  
Main Subject ◽  
House Of Lords ◽  
Legal Principle ◽  
Borough Council ◽  
Court Of Appeal

Alternative Elements and Included Offences

1984 ◽  
Vol 43 (2) ◽  
pp. 290-305
Author(s):  
Glanville Williams
Keyword(s):  
House Of Lords ◽  
The Law ◽  
Court Of Appeal

The Decision of the House of Lords in Clarence Wilson alters the law of included offences, but the extent of its impact is unclear. The decision is of unhappy importance not only as a disconcerting specimen of the functioning of our final court of appeal but also because of its possibly serious effect on the. theory of indictments. It has been subjected to devastating criticism by Professor Smith, and awkward questions upon it have been raised by Mr. Emmins. This article will seek both to underline the criticisms by a closer examination of the opinion and to suggest a more limited interpretation of it than has previously been considered.

Res Ipsa Loquitur: The Australasian Experience

1954 ◽  
Vol 12 (1) ◽  
pp. 118-132
Author(s):  
D. P. O'Connell
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Burden Of Proof ◽  
House Of Lords ◽  
Difference Of Opinion ◽  
The Subject ◽  
The Law ◽  
Court Of Appeal ◽  
Res Ipsa Loquitur

Dr. T. Ellis Lewis in this Journal in 1951 discussed the operation of the maxim res ipsa loquitur in relation to the burden of proof and proposed certain conclusions. So thorough was his analysis of the question that one would hesitate to intrude upon the field but for the fact that the problems posed by his article and specifically left open by the House of Lords in Barkway's case have recently been considered by the New Zealand Supreme Court and Court of Appeal. A frank difference of opinion on the nature of res ipsa loquitur manifested itself in each court, and hence no excuse is offered for advancing this discussion, which can only be complementary to that of Dr. Ellis Lewis. Advantage will be taken of the opportunity to consider the Australian contributions to the subject. There is perhaps too little awareness in England that many of the academic battles of the law are regularly being fought out in the Australian and New Zealand courts.

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