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

ILLEGALITY AND RESTITUTION EXPLAINED BY THE SUPREME COURT

2017 ◽  
Vol 76 (01) ◽  
pp. 18-22
Author(s):  
Anthony Grabiner
Keyword(s):  
Supreme Court ◽  
The Supreme Court ◽  
The Law ◽  
Law Student ◽  
Court Of Appeal

IN the Court of Appeal in Patel v Mirza [2014] EWCA Civ 1047; [2015] Ch. 271, Gloster L.J., in sympathy with the “hapless law student”, said of the illegality concept “it is almost impossible to ascertain … principled rules from the authorities relating to the recovery of money or other assets paid or transferred under illegal contracts” (at [47]). The Supreme Court ([2016] UKSC 42; [2016] 3 W.L.R. 399) has clarified the law in many respects. In other respects, it may have created some new uncertainties and no diminution in work for inventive lawyers and some of their more dubious clients.

scholarly journals RELIANCE, FORMALITIES AND THE MODE OF ACCEPTANCE OF AN OFFER Pillay v Shaik 2009 4 SA 74 (SCA)

Obiter ◽  
2021 ◽  
Vol 32 (2) ◽  
Author(s):  
C-J Pretorius ◽  
R Ismail
Keyword(s):  
Supreme Court ◽  
Private Company ◽  
Legal Question ◽  
Opposite Conclusion ◽  
The Supreme Court ◽  
The Law ◽  
Law Reports ◽  
Court Of Appeal ◽  
Close Corporation

In Pillay v Shaik (2009 4 SA 74 (SCA)), the Supreme Court of Appeal was confronted with a situation which tends to feature in the law reports more frequently than one would expect, and that is where a party to a transaction involving the sale of immovable property reneges on an apparent agreement by invoking some form of technicality (in casu the lack of a signature on a contractual document) as a bar to the proper conclusion of the contract. Usually, where immovable property is sold directly to a purchaser, section 2(1) of theAlienation of Land Act 68 of 1981 applies and provides that no alienation of land will be of any force or effect unless contained in a deed of alienation signed by the parties, or by their agents acting on their written authority. Failure to comply with this provision renders an alienation of land void. Where, however, immovable property is held in the name of a close corporation or private company merely the members’ interests or shares are transferred to the purchaser, but the purchaser still indirectly gains control over the property owned by the juridical entity. The present matter dealt with the latter type of situation and the legal question was whether the sellers had accepted a signed, written offer made by the purchasers despite the fact that the sellers had not in turn signed the contractual documents. The Natal Provincial Division (Shaik v Pillay 2008 3 SA 59 (N)) found that contractual liability did not lie for want of compliance with a party-imposed signature formality, whereas the Supreme Court of Appeal applied the reliance theory to reach the opposite conclusion in the circumstances. The respective approaches of these two courts are diametrically opposed giving rise to some interesting issues on doctrinal as well as policy levels. 

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.

Transforming the Law on Psychiatric Lesions

2021 ◽  
Vol 2021 (2) ◽  
pp. 253-271
Author(s):  
Emile Zitzke
Keyword(s):  
Supreme Court ◽  
Expert Witnesses ◽  
The Supreme Court ◽  
Psychological Harm ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Delict ◽  
Court Of Appeal ◽  
Made In

In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.

scholarly journals The Law Regarding Pension Interest in South Africa has been settled! Or has it? With Reference to Ndaba v Ndaba (600/2015) [2016] ZASCA 162

2017 ◽  
Vol 20 ◽  
pp. 1
Author(s):  
Motseotsile Clement Marumoagae
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
High Court ◽  
The Supreme Court ◽  
Golden Opportunity ◽  
The Law ◽  
Court Of Appeal

This article reflects on the law relating to pension interest in South Africa. In particular, it assesses whether the Supreme Court of Appeal in Ndaba v Ndaba had adequately clarified how this area of law should be understood. In light of the inconsistent approaches from various divisions of the High Court, it has not always been clear how the courts should interpret the law relating to pension interest in South Africa. In this paper, aspects of this area of law which have been clarified by the Supreme Court of Appeal are highlighted. This paper further demonstrates aspects of this area of law which the Supreme Court of Appeal did not settle and would potentially be subject to future litigation. This paper is based on the premise that while Ndaba v Ndaba is welcomed, the Supreme Court of Appeal nonetheless, missed a golden opportunity to authoritatively provide a basis upon which the law relating to pension interest in South Africa should be understood. 

The Origins of the Re Hastings-Bass Rule

2015 ◽  
Author(s):  
Michael Ashdown
Keyword(s):  
Supreme Court ◽  
Present State ◽  
Practical Importance ◽  
Future Application ◽  
Precise Nature ◽  
The Supreme Court ◽  
The Future ◽  
The Law ◽  
The Many ◽  
Court Of Appeal

The present state of the law must now be treated as authoritatively set out by Lord Walker in Pitt v Holt, and to a lesser but still important extent by the earlier judgment of Lloyd LJ in the Court of Appeal in the same case. This chapter, however, is concerned with the earlier development of the Re Hastings-Bass doctrine. Its purpose is to establish the doctrinal legitimacy of the rule in Re Hastings-Bass as an aspect of the English law of trusts. Whilst this is primarily of academic and theoretical concern, in view of the Supreme Court’s reformulation of the law into its present shape, it is also of practical importance. In particular, the future application of the doctrine to novel situations will depend upon understanding the precise nature and scope of the rule propounded by the Supreme Court. That decision cannot simply be divorced from the many decided cases which preceded it, and from its place in the wider compass of the law of trusts.

12. Theft

2020 ◽  
pp. 356-406
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Civil Law ◽  
The Supreme Court ◽  
The Law ◽  
Definition Of ◽  
Court Of Appeal

This chapter examines the law governing theft. It considers the extent to which the criminal law of theft conflicts with civil law concepts of property; whether it is possible to steal property that belongs to oneself; the types of property that may be stolen; and the extent to which it is possible to provide a definition of ‘dishonesty’. The test for dishonesty has been fundamentally altered by the Supreme Court and the Court of Appeal, developments which are analysed in this chapter.

The Nature of the Re Hastings-Bass Duty

2015 ◽  
Author(s):  
Michael Ashdown
Keyword(s):  
Supreme Court ◽  
Future Development ◽  
The Supreme Court ◽  
The Future ◽  
The Law ◽  
Matters Of Concern ◽  
Court Of Appeal ◽  
Relevant Consideration ◽  
Two Alternatives

Lord Walker’s analysis in Pitt v Holt in the Supreme Court accords in all essential respects with the reasons put forward in Chapter 3 to prefer a duty (‘weak’) rather than results-oriented (‘strong’) account of the Re Hastings-Bass rule, as does the approach adopted by Lloyd LJ in the Court of Appeal, which Lord Walker expressly endorses. Yet Lord Walker’s judgment does not yet provide a wholly comprehensive basis for the future development of the law. There remain a number of loose ends, arising predominantly from issues not specifically before the court in Pitt, but which have been matters of concern in earlier Re Hastings-Bass cases, including: how a ‘relevant consideration’ is defined; the significance of establishing that the trustees ‘would’ or ‘might’ have acted differently, in view of Lord Walker’s refusal to choose between these two alternatives; the specific problems arising from the use of professional advisers, and in cases concerning tax liability and pension trusts. These matters are addressed in detail in chapters 5 to 8. But in order to do this it is first necessary to clarify the juridical nature of the ‘duty of consideration’ upon which Lord Walker’s analysis depends.

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.

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