scholarly journals CIVIL LITIGATION NEGLIGENCE AND THE MALAYSIAN ADVOCATE

2013 ◽  
Vol 20 (2) ◽  
Author(s):  
Baharuddeen Abu Bakar
Keyword(s):  
Public Policy ◽  
Common Law ◽  
The Other ◽  
Civil Litigation ◽  
The Public ◽  
Judicial Decisions ◽  
House Of Lords ◽  
The Difference ◽  
Court Of Appeal ◽  
Alternative Sanctions

Civil litigation negligence now stands on a surer footingfollowing cases from Canada, England and elsewhere which lay emphasis on theadversarial system rather than the structure of the profession, and immunityhas now been almost completely abolished by judicial decisions. In Malaysia,the basis of legal professional liability is expected to be re-aligned to beconsistent with the other common law countries that have abolished immunity.The questions that necessitate consideration are therefore acts that wouldconstitute negligence and those that are excusable, the relevant defences, and,of course, the alternative sanctions to civil litigation for this type ofnegligence. The fused nature of the profession in Malaysia, perceived to bemore burdensome to its members, raises the question of the appropriate standardof the duty of skill and care.(For the purposes of this article an ‘advocate’ refers to theMalaysian (and Singaporean) lawyer, who as a member of a ‘true fused’ profession,engages in litigation or ‘contentious business’ as defined in s. 3 of the LegalProfession Act 1976.) {The writer is of the firm view that criminal casesshould be considered separately from civil cases because of the difference inthe law of procedure relating to the preparation of a case for presentation incourt and the public policy considerations peculiar to each type of case asseen in the approach taken by the House of Lords in Arthur J.S. Hall vSimons in which separate judgments were delivered for each type of case.And in Rees v Sinclair [1974] 1 NZLR 180, a civil case, in whichthe New Zealand Court of Appeal did not consider the position in criminalcases.}

scholarly journals CIVIL LITIGATION NEGLIGENCE AND THE MALAYSIAN ADVOCATE

2012 ◽  
Vol 20 (1) ◽  
Author(s):  
Baharuddeen Abu Bakar
Keyword(s):  
Common Law ◽  
Civil Litigation ◽  
Criminal Cases ◽  
The Public ◽  
Adversarial System ◽  
Judicial Decisions ◽  
House Of Lords ◽  
The Difference ◽  
Court Of Appeal ◽  
Alternative Sanctions

Civil litigation negligence now stands on a surer footing following cases from Canada, England and elsewhere which lay emphasis on the adversarial system rather than the structure of the profession, and immunity has now been almost completely abolished by judicial decisions. In Malaysia, the basis of legal professional liability is expected to be re-aligned to be consistent with the other common law countries that have abolished immunity. The questions that necessitate consideration are therefore acts that would constitute negligence and those that are excusable, the relevant defences, and, of course, the alternative sanctions to civil litigation for this type of negligence. The fused nature of the profession in Malaysia, perceived to be more burdensome to its members, raises the question of the appropriate standard of the duty of skill and care.(For the purposes of this article an ‘advocate’ refers to the Malaysian (and Singaporean) lawyer, who as a member of a ‘true fused’ profession, engages in litigation or ‘contentious business’ as defined in s. 3 of the Legal Profession Act 1976.) {The writer is of the firm view that criminal cases should be considered separately from civil cases because of the difference in the law of procedure relating to the preparation of a case for presentation in court and the public policy considerations peculiar to each type of case as seen in the approach taken by the House of Lords in Arthur J.S. Hall v Simons in which separate judgments were delivered for each type of case. And in Rees v Sinclair [1974] 1 NZLR 180, a civil case, in which the New Zealand Court of Appeal did not consider the position in criminal cases.} 

they are called the appellants, and again lost. They then appealed to the House of Lords, where they also lost. There was a lot of money at stake: the difference between the £201.60 that the seeds cost as awarded by the Court of Appeal or the £90,000+ that the trial judge awarded. Consider, for a moment, what you have read and what you know so far. Does it seem fair to you that George Mitchell won? If so, why? If not, why not? So far we have considered: (a) Procedural history. (b) Facts. (c) The operative rules of law: • It is known that both common law rules and statutory rules are relevant to the case. • Further, it is known that if the common law rules are found to apply in the seller’s favour he still has to jump the hurdle presented by the statutory rules. • Recall, if there is a clash between common law rules and statutory rules, the statutory rules prevail. (d) A verbatim account of the two issues in the case (however, these are probably not fully comprehended yet, despite Figures 4.13 and 4.14, above!): • It is clear that Lord Bridge will argue through each of the issues. • If the appellants succeed in issue 1 they may still fail overall if they fail over issue 2. (Can you understand why? The answer is in the first sentence of text setting out ‘the second issue’. See Figure 4.14, above.) • Logically, one would expect Lord Bridge to commence with the arguments over issue 1, the common law issue, as this is the gateway to an argument over issue 2 which will only take place if issue 1 is decided in the appellant’s favour (and this is contentious limitation clause what he does). (e) Understanding the clause. This is set out in Figure 4.15, below. Until all of these matters are linked and understood it is not possible to fully comprehend the reasoning in the case. Now take time to consolidate the information we have so far and return to the judgment of Lord Bridge, concentrating on his arguments concerning issue 1 (Appendix 1, p 310, para 3). 4.5.2.5 Stage 4: breaking into Lord Bridge’s speech You will have already read Lord Bridge’s speech by now. It is also now appreciated that the arguments in this case are quite complex and the initial method of breaking into the text for understanding is to look at each paragraph. Paragraphs are intended to convey a new idea. So each paragraph represents an idea or a cluster of ideas. Careful ordering of paragraphs is essential in a piece of writing if a sense of progression is to be maintained. Therefore when reading for understanding a précis of each paragraph begins the process of understanding.

2012 ◽  
pp. 100-100
Keyword(s):  
Common Law ◽  
Text Setting ◽  
Trial Judge ◽  
House Of Lords ◽  
Stage 4 ◽  
The Common ◽  
The Difference ◽  
Court Of Appeal ◽  
Initial Method

Scenarios as Tools of the Scientific Imagination: The Case of Climate Projections

2021 ◽  
Vol 29 (1) ◽  
pp. 36-61
Author(s):  
Michael Poznic ◽  
Rafaela Hillerbrand
Keyword(s):  
Scientific Community ◽  
Climate Science ◽  
The Other ◽  
Climate Projections ◽  
Public Realm ◽  
The Public ◽  
Other Hand ◽  
The Difference ◽  
The One ◽  
Scientific Imagination

Climatologists have recently introduced a distinction between projections as scenario-based model results on the one hand and predictions on the other hand. The interpretation and usage of both terms is, however, not univocal. It is stated that the ambiguities of the interpretations may cause problems in the communication of climate science within the scientific community and to the public realm. This paper suggests an account of scenarios as props in games of make-belive. With this account, we explain the difference between projections that should be make-believed and other model results that should be believed.

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.

Philosophers and Public Policy

Worldview ◽  
1971 ◽  
Vol 14 (4) ◽  
pp. 14-16
Author(s):  
Bernard Murchland
Keyword(s):  
Public Policy ◽  
The Other ◽  
Public Forum ◽  
The Public ◽  
Political Obligations ◽  
Professional Philosopher ◽  
Political Implications ◽  
The Social ◽  
Social Scene

When I first began to study philosophy, there was not much concern with its political implications. One thought of philosophers as being a few removes from the public forum, concerned with loftier matters, operating far from the untidiness of the social scene in a cool oasis where the imagination could play and consciousness unfold at its own pace. It was a pure world, to be sure, and the purist view is by no means an obsolete one. Just the other day I heard a well-known philosopher in heated argument with a campus activist say that the responsibilities of a professional philosopher end with his profession, that his political obligations qua philosopher were nil.

Damages in Equity—A Study of Lord Cairns' Act

1975 ◽  
Vol 34 (2) ◽  
pp. 224-252 ◽  
Author(s):  
J. A. Jolowicz
Keyword(s):  
Present Status ◽  
Common Law ◽  
House Of Lords ◽  
Court Of Appeal

When, if ever, may a court award damages to a plaintiff whose case sounds only in equity, not in law? In Hooper v. Rogers an award of damages in respect of a nuisance which had not yet resulted in any relevant damage was upheld by the Court of Appeal. In Wrotham Park Estate Co. Ltd. v. Parkside Homes Ltd. Brightman J. awarded substantial damages for breach of a restrictive covenant to the successors in title of the covenantee against the successors in title of the covenantor. In Wroth v. Tyler damages for the non-performance of a contract for the sale of a house were assessed by reference to the value of the house at the date of the hearing, not the date of breach. In none of these cases could the decisions have been justified on common law principles alone and all are in fact founded upon the Chancery Amendment Act 1858, commonly known as Lord Cairns' Act. Yet in Redland Bricks Ltd. v. Morris, while the Court of Appeal considered that an elaborate discussion of that Act was necessary and, indeed, differed in opinion as to the result of its application to the circumstances of the case, the House of Lords, through Lord Upjohn, dismissed the matter briefly and categorically with the observation that Lord Cairns' Act had nothing whatever to do with the principles of law applicable to the case. The time seems ripe for an examination of the meaning and present status of the Act.

scholarly journals KEDUDUKAN DISSENTING OPINION DALAM PERKARA TINDAK PIDANA KORUPSI

2018 ◽  
Vol 2 (2) ◽  
pp. 203-217
Author(s):  
Dewi Ratnasari Rustam
Keyword(s):  
Rule Of Law ◽  
Freedom Of Speech ◽  
The Other ◽  
Court Ruling ◽  
The Rule Of Law ◽  
The Public ◽  
Other Hand ◽  
Difference Of Opinion ◽  
The Law ◽  
The Difference

Dissenting opinion is the difference of opinion between the Tribunal judges who handle certain a matter with other judges of the Tribunal dealing with certain cases. Dissenting opinion does not have the force of law because it cannot be the Foundation for the inception of the award. Dissenting opinion itself is an aspect of the law that need to be examined in order to prevent the formation of false opinion among the public. So, nowadays have started to formed the perception that dissenting opinion was an engineering law, instead of enforcing the rule of law but rather media that gave the opportunity for the defendant in corruption regardless of criminal trapping; but on the other hand is a form of difference of opinion and the independence of the judges as the metre is guaranteed by the provisions of the law; that the importance of dissenting opinion in the Court ruling was the judge's opinion be weighted, in an attempt of law appeal or cassation; as an indicator to determine the career judge, as an attempt to avoid the practice of corruption, Collusion and Nepotism (KKN) and the judicial mafia; as a real step towards the transparency of judicial democratization; the judiciary; and kemandiarian the judge require the freedom of speech.

scholarly journals Consumer Dispute Resolution: A Comparative Study between Indonesia and Common Law System Countries

2017 ◽  
Vol 8 (3) ◽  
pp. 327-333
Author(s):  
Keyword(s):  
Dispute Resolution ◽  
Low Cost ◽  
Common Law ◽  
The Other ◽  
Anglo Saxon ◽  
Law System ◽  
Presidential Decree ◽  
Small Claims ◽  
The Difference ◽  
Small Claims Court

Abstract Since 2001, based on the mandate of Article 49 paragraph (1) of Law no. 8 of 1999 on Consumer Protection, BPSK (Badan Penyelesaian Sengketa Konsumen/Consumer Dispute Resolution Institution) has been established based on Presidential Decree No. 90/2001 on the establishment of BPSK in several cities in Indonesia. In some countries that embrace the Anglo Saxon legal system, consumer dispute cases are resolved by an institution called The Small Claims Court (SCC) and The Small Claims Tribunal (SCT). The difference in settlement through three institutions is that BPSK is a formal institution which resolves small disputes with low-cost, but does not limit the size of the lawsuit filed by consumers. On the other hand, SCT provides clear restrictions on claims that can be filed by consumers. At the completion done by SCC, the assemblies that resolved the case come from active and retired judges, while in BPSK the assemblies come from government, businessman and consumer with different backgrounds.

20. Public policy

2018 ◽  
Author(s):  
Adrian Keane ◽  
Paul McKeown
Keyword(s):  
Public Policy ◽  
Public Service ◽  
Public Interest ◽  
Civil Litigation ◽  
Criminal Cases ◽  
The Public ◽  
Admissible Evidence

The public interest in efficient and fair trials may be seen as underlying the rules of disclosure in civil litigation, whereby a litigant is obliged to make pre-trial disclosure of the documents on which he relies and the documents that adversely affect his own case or adversely affect, or support, another party’s case, even though such documents may not be admissible evidence at the trial. There is also a public interest in enabling material to be withheld where its production would harm the nation or the public service. Where these two kinds of public interest clash and the latter prevails over the former, relevant and otherwise admissible evidence is excluded at trial. Such material is said to be withheld by reason of ‘public interest immunity’. This chapter discusses the development of the modern law on public interest immunity; the scope of exclusion on grounds of public policy; and related procedural issues in civil and criminal cases.

Cheating the public revenue

2000 ◽  
Vol 59 (1) ◽  
pp. 42-45
Author(s):  
Graham Virgo
Keyword(s):  
Tax Evasion ◽  
Common Law ◽  
The Public ◽  
The Common ◽  
Public Revenue ◽  
Court Of Appeal

THE line between legitimate tax mitigation and illegitimate tax evasion may be a fine one but if it is crossed the consequences can be serious, since tax evasion can constitute the common law offence of cheating the public revenue. The nature of this offence was considered by the Court of Appeal in R. v. Dimsey; R. v. Allen [1999] S.T.C. 846.

Sign in / Sign up

Export Citation Format

Share Document