scholarly journals CPR Pt 36—Enhanced Interest Should Not Function as Punitive Damages for Malicious Defence

2019 ◽  
Author(s):  
Vaclav Janecek
Keyword(s):  
Interest Rate ◽  
Common Law ◽  
Civil Procedure ◽  
Punitive Damages ◽  
The Future ◽  
Court Of Appeal ◽  
Made In

This note critically comments on the Court of Appeal’s decision in OMV Petrom SA v Glencore International AG. By introducing a penal element to the enhanced interest rate pursuant to CPR Pt 36, the Court of Appeal has extended the justificatory reasons for those awards beyond compensation. This note argues that Petrom-like awards should not be ordered in the future and that the Civil Procedure Rule Committee should amend the CPR accordingly. One issue is that the Petrom award was based on analogical application of the CPR, which implies that the Court of Appeal’s reasoning was in fact not governed by CPR Pt 36. Another issue is that the existing common law principles—as the next best source of law for the Court of Appeal’s decision—do not support the ruling either. This is because, first, the Petrom award was made in respect of the defendant’s malicious defence even though malicious defence does not constitute a common law tort. Secondly, the penal element in Petrom functioned as punitive damages even though the existing common law principles regarding punitive damages prevent courts from making such awards in similar cases.

13 Conclusion

2019 ◽  
Author(s):  
Dickson Brice
Keyword(s):  
Decision Making ◽  
Supreme Court ◽  
Common Law ◽  
Supreme Courts ◽  
Chief Justice ◽  
The Future ◽  
The Creation ◽  
Conference Papers ◽  
Court Of Appeal

This chapter attempts to sum up the conclusions that can be drawn about the Irish Supreme Court from the surveys and analyses in foregoing chapters. It highlights the constraints placed on the Court’s decision-making, especially its lack of power to turn away many appeals. Some of the Court’s principal achievements are reviewed but some of the opportunities it has failed to exploit are also referred to. The future of the Court is considered, especially in light of the creation of the Court of Appeal in 2014. Attention is given to the importance of strong leadership at the Chief Justice level and to the need for more public pronouncements from the judges in lectures and conference papers. Final remarks are made on how the Court compares to supreme courts in other common law countries.

My business is your business: the Court of Appeal’s decision in MN v OP

2019 ◽  
Vol 25 (7) ◽  
pp. 753-757
Author(s):  
Thomas Fletcher
Keyword(s):  
Legal Framework ◽  
Civil Procedure ◽  
Court Of Appeal ◽  
Made In

Abstract This article considers the decision of the Court of Appeal in England in MN v OP [2019] EWCA Civ 679 on the circumstances in which an anonymity order will be made in connection with an application under the Variation of Trusts Act 1958. It looks at the legal framework for the decision, in particular the basis for the contention that an analogy should be drawn with proceedings under Rule 21.10 of the Civil Procedure Rules, with the result that anonymity orders should be the norm. It then sets out the conclusion and reasoning of the Court of Appeal and provides some commentary on the possible ramifications of the decision for practitioners in England and other jurisdictions.

Re: AB (Termination of Pregnancy) [2019] EWCA CIV 1215: ‘Wishes and Feelings’ Under the Mental Capacity Act 2005

2020 ◽  
Vol 28 (3) ◽  
pp. 605-614
Author(s):  
Lisa Cherkassky
Keyword(s):  
Mental Disorder ◽  
Living Arrangements ◽  
Common Law ◽  
Pregnant Patient ◽  
Mental Capacity ◽  
Termination Of Pregnancy ◽  
Mental Capacity Act 2005 ◽  
The Future ◽  
Mental Capacity Act ◽  
Court Of Appeal

Abstract In Re: AB (Termination of Pregnancy), the Court of Appeal was asked to consider an assumption made about the future living arrangements of a pregnant patient, and the weight to be ascribed to her wishes and feelings when she had no real understanding of her predicament. This commentary explores the importance of taking into account the perspective of the patient, even if suffering from a mental disorder, and it will analyse the existing common law to show that the weaker the ability of the patient to form her own wishes and feelings, the more appropriate it would be to rely on the remaining evidence.

APPEAL PROCEEDINGS: HISTORY, THEORY, PRACTICE

2021 ◽  
Vol 11 (5) ◽  
pp. 107-139
Author(s):  
E.A. BORISOVA
Keyword(s):  
Civil Procedure ◽  
Appellate Court ◽  
Judicial Reform ◽  
Procedural Law ◽  
Judicial Practice ◽  
Procedure Code ◽  
Complex Approach ◽  
The Russian Federation ◽  
Court Of Appeal ◽  
Made In

History, theory, and court practice are the basis of judicial reform. If the Civil Procedure Code of the Russian Federation was created considering this with, but subsequent changes of the procedural law show the opposite. Changes of procedure in the appellate court are not an exception, and that is why for the last 10 years theoretical and practical problems of appeal proceedings have existed. The article aims to draw attention to the reasons of occurrence of these problems; mistakes made in the course of its solution; ways of error correction with due regard for experience of Russian civil procedure, achievements of the civil procedure doctrine, needs of Russian judicial practice; necessity of complex approach in reforming proceedings in the court of appeal instance.

When is a sale made “in the course of a business”?

1999 ◽  
Vol 58 (2) ◽  
pp. 265-293
Author(s):  
L.S. Sealy
Keyword(s):  
The Future ◽  
The Subject ◽  
Court Of Appeal ◽  
Made In

IN the days (not so long ago) when there were typewriters in solicitors' offices, there was much speculation whether the sale by a solicitor of a typewriter which was no longer required would be caught by the provisions in section 14 of the Sale of Goods Act that impose conditions as to quality and fitness upon a “business” seller. There was no real room for doubt so far as the original Act of 1893 was concerned, where the relevant subsections referred to goods “of a description which it is in the course of the seller's business to supply” (s. 14(1)) and to “a seller who deals in goods of that description” (s. 14(2)). Plainly, our solicitor was not within either subsection. But when section 14 was revised (and subsection (1) confusingly renumbered so that it became subsection (3)), these formulae were discarded and replaced by the wording: “Where the seller sells goods in the course of a business”–which is plainly wider. This reform was introduced by the Supply of Goods (Implied Terms) Act 1973 and later consolidated into the Sale of Goods Act 1979 that is currently in force. Remarkably, the scope of the new provision has not been the subject of any judicial consideration for over two decades; but the Court of Appeal has now given a firm ruling in Stevenson v. Rogers [1999] 1 All E.R. 613, with the consequence that any redundant typewriters disposed of by solicitors in the future will be deemed sold “in the course of a business”.

Penerapan Konsep Kota Pintar dengan Cara Penerapan ERP (Electronic Road Price) di Jalan Ibu Kota DKI Jakarta

2020 ◽  
Vol 5 (1) ◽  
pp. 13
Author(s):  
Arman Syah Putra
Keyword(s):  
Erp System ◽  
The Road ◽  
Road Price ◽  
The Future ◽  
Pros And Cons ◽  
Made In

The problem raised in this research is the implementation of ERP (Electronic Road Price) which will be applied in several street corners of the capital of Jakarta, many pros and cons that will occur in its application, ranging from its licensing to its application in the field, socialization to users the road in the capital is very important to do because it will directly intersect with motorized motorists in the capital of Jakarta, in its application also must be considered using what tools are best placed in every corner of the capital to help smooth the system to be applied, in this research the author will provide suggestions and frameworks so that the implementation of the ERP system (Electronic Road Price) can be carried out right away, with the suggestions that have been made are expected to influence the policies that will be made in terms of ERP (Electronic Road Price) in the future.

The Africanisation Of South African Civil Procedure: The Way Forward

2020 ◽  
Vol 6 (1) ◽  
Author(s):  
Fawzia Cassim ◽  
Nomulelo Queen Mabeka
Keyword(s):  
Common Law ◽  
Civil Procedure ◽  
African Culture ◽  
Legal Proceedings ◽  
Seventeenth Amendment ◽  
Procedural Law ◽  
Lower Courts ◽  
The Law ◽  
Court Proceedings ◽  
The Impact

Civil procedure enforces the rules and provisions of civil law.  The law of civil procedure involves the issuing, service and filing of documents to initiate court proceedings in the superior courts and lower courts. Indeed, notice of legal proceedings is given to every person to ensure compliance with the audi alteram partem maxim (“hear the other side”). There are various rules and legislation that regulate these court proceedings such as inter alia, the Superior Courts Act, 2013, Uniform Rules of Court, Constitution Seventeenth Amendment Act, 2012 and the Magistrates’ Courts Act of 1944. The rules of court are binding on a court by virtue of their nature.  The purpose of these rules is to facilitate inexpensive and efficient legislation. However, civil procedure does not only depend on statutory provisions and the rules of court.  Common law also plays a role. Superior Courts are said to exercise inherent jurisdiction in that its jurisdiction is derived from common law.  It is noteworthy that whilst our rules of court and statutes are largely based on the English law, Roman-Dutch law also has an impact on our procedural law. The question thus arises, how can our law of civil procedure transform to accommodate elements of Africanisation as we are part and parcel of the African continent/diaspora? In this regard, the article examines the origins of Western-based civil procedure, our formal court systems, the impact of the Constitution on traditional civil procedure, the use of dispute resolution mechanisms in Western legal systems and African culture, an overview of the Traditional Courts Bill of 2012 and the advent of the Traditional Courts Bill of 2017. The article also examines how the contentious Traditional Courts Bills of 2012 and 2017 will transform or complement the law of civil procedure and apply in practice once it is passed into law.

Udział biegłego w postępowaniu egzekucyjnym w sytuacji określonej w art . 853 k.p.c.– zagadnienia wybrane w ujęciu historycznym

2016 ◽  
pp. 117-128
Author(s):  
Monika Dziewulska
Keyword(s):  
Historical Perspective ◽  
Civil Procedure ◽  
Court Expert ◽  
Current Code ◽  
Made In

The author explains the institution of a court expert in enforcement proceedings, describing problems in historical perspective, primarily referring to the regulations contained in the Code of Civil Procedure of 1932. Particular attention is given to the regulations contained in Article 853 of the current Code of Civil Procedure, by submitting proposals under at the legislature for the introduction of the obligation probable allegations made in the complaint to estimate the movables of the debtor or creditor as well as the need for the appointment of an expert by a bailiff if the bailiff does not have knowledge in a particular field and can not independently make estimates.

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