scholarly journals Form and substance in contract damages

2019 ◽  
Vol 70 (2) ◽  
pp. 221-239
Author(s):  
David McLauchlan
Keyword(s):  
Supreme Court ◽  
Specific Reference ◽  
Breach Of Contract ◽  
Business Travel ◽  
The Supreme Court ◽  
American Law ◽  
Anglo American ◽  
Uk Supreme Court ◽  
The Uk ◽  
Court Of Appeal

This article discusses the role of form and substance in the modern law of contract both generally and with specific reference to the law of damages for breach of contract and, in particular, the decisions of the UK Supreme Court in Swynson Ltd v Lowick Rose LLP [2017] UKSC 32 and Fulton Shipping Inc of Panama v Globalia Business Travel SAU (The New Flamenco) [2017] UKSC 43. Although it was probably true to say when Atiyah and Summers wrote in Form and Substance in Anglo-American Law over 30 years ago that ‘the English law of contractual damages continues to be treated by judges and writers as governed by highly formal rules’, it would be wrong to describe the reasoning employed by judges in modern times when explaining, refining and applying these rules as highly formal. Particularly in appellate decisions, judicial reasoning is usually an amalgam of what the authors would describe as formal and substantive considerations. Indeed, the formal reason for supporting a decision may be preferred precisely because it provides the just or most convenient solution to the dispute, as in Swynson v Lowick Rose. In that case the Supreme Court overturned the decision of the majority of the Court of Appeal that denial of the damages claimed ‘would be a triumph of form over substance’, preferring the view of the dissenting judge who said that ‘the form here is the substance’. And, while the decision in The New Flamenco appears at first sight to rest on formal, arguably formalistic, reasoning, a closer reading reveals that substantive considerations influenced the outcome of the appeal.

Morrisons off the hook as employers welcome clarity on vicarious liability for data breach

2020 ◽  
Vol 15 (7) ◽  
pp. 504-506
Author(s):  
Emma Flett ◽  
Jenny Wilson ◽  
Rebecca Gover
Keyword(s):  
Supreme Court ◽  
Causal Chain ◽  
Cautionary Tale ◽  
Vicarious Liability ◽  
The Supreme Court ◽  
Protection Legislation ◽  
Uk Supreme Court ◽  
The Uk ◽  
Data Controller ◽  
Court Of Appeal

Abstract The UK Supreme Court has granted the appeal of supermarket chain WW Morrison Supermarkets plc (Morrisons), finding that the Court of Appeal had misunderstood a number of the governing principles of vicarious liability. Considering Morrisons’ liability afresh, the Supreme Court clarified that the motive and authorized acts of the wrongdoing employee are highly material to a finding of vicarious liability, whilst a causal chain of events is not. Whilst Morrisons’ victory is a welcome clarification on the law of vicarious liability, data controllers should take note: had Morrisons not been a sophisticated data controller paying particular attention to its obligations under data protection legislation, the outcome would likely have been more of a cautionary tale.

The UK courts and EU law post-Brexit

2021 ◽  
Vol 20 (3) ◽  
pp. Christopher-Vajda
Author(s):  
Christopher Vajda
Keyword(s):  
Supreme Court ◽  
Transition Period ◽  
Case Law ◽  
Eu Law ◽  
National Courts ◽  
The Supreme Court ◽  
The Future ◽  
The Status ◽  
The Uk ◽  
Court Of Appeal

Following the expiry on 31 December 2020 of the ‘transition period’ under the UK/EU Withdrawal Agreement, the relationship between UK and EU law had changed. Whilst much EU legislation at that date will continue to apply in UK law as ‘retained EU law’ and judgments of the EU courts handed down before that date will remain binding on UK courts as ‘retained EU case law’, the Court of Appeal and Supreme Court can depart from that case law. Whilst EU court judgments handed down after that date are not binding on UK courts, they may be taken into account. This article considers both the status of EU retained case law and when the Supreme Court and Court of Appeal may depart from it, and the future of EU law that is not ‘retained EU case law’ and how judgments of the European Courts and national courts of its Member States may influence UK judges in the future.

scholarly journals Judicial leadership on the UK Supreme Court

Legal Studies ◽  
2018 ◽  
Vol 38 (2) ◽  
pp. 191-220 ◽  
Author(s):  
Rosemary Hunter ◽  
Erika Rackley
Keyword(s):  
Supreme Court ◽  
Quantitative Data ◽  
Community Leadership ◽  
The Other ◽  
Three Dimensions ◽  
The Supreme Court ◽  
The Future ◽  
Uk Supreme Court ◽  
The Uk ◽  
Substantial Degree

AbstractThis paper examines judicial leadership on the UK Supreme Court. It does not confine itself to the formal roles of the President and Deputy President. Rather, building on existing categories of judicial leadership, including administrative, jurisprudential and community leadership, it considers the contributions of all 12 Justices. In so doing, it provides a significant compilation of quantitative data on the activities of the Justices of the Supreme Court both on and off the bench from the the Court's inception in 2009 to the end of the 2014-2015 legal year. From this, we suggest that while a number of the Justices engaged in one or two broad forms of leadership – with Lady Hale in particular demonstrating a substantial degree of leadership across all three dimensions – at the other end of the spectrum, at least on the measures used in this paper, a significant minority did not. In the light of this, and the significant number of recent and forthcoming retirements from the Court, the paper concludes by considering the implications of our findings for the future of the Court. We argue that these retirements will result in gaps in both formal and informal judicial leadership, and it is vital that these gaps are filled by appointees who are capable of, and prepared to step up to, diverse and varied forms of judicial leadership.

scholarly journals Dishonesty

2019 ◽  
Vol 48 (1-2) ◽  
pp. 5-14
Author(s):  
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
The Supreme Court ◽  
The Subject ◽  
Alumni Association ◽  
Uk Supreme Court ◽  
The Uk ◽  
Obiter Dictum

This article provides an exposition and assessment of the UK Supreme Court judgment in the case of Ivey v Genting Casinos (UK) Ltd. It identifies the Supreme Court’s reconsideration, obiter dictum, of the test of dishonesty in civil and criminal law. This term is used in particular in offences such as those set out in the Theft Act 1968. Prior to the Supreme Court’s intervention, the leading case was R v Ghosh [1982] EWCA Crim 2. However, the Ghosh test in that case has been the subject of significant criticism in the academy and elsewhere, and some such critiques are discussed in the Supreme Court judgment. This article, which considers these developments, was first delivered as the Bristol Alumni Association Lecture on 23 February 2018.

scholarly journals ABORTION IN NORTHERN IRELAND AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS: REFLECTIONS FROM THE UK SUPREME COURT

2019 ◽  
Vol 68 (2) ◽  
pp. 477-494
Author(s):  
Bríd Ní Ghráinne ◽  
Aisling McMahon
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Northern Ireland ◽  
Supreme Court ◽  
International Law ◽  
European Convention ◽  
The United Kingdom ◽  
The Supreme Court ◽  
Uk Supreme Court ◽  
The Uk

AbstractOn 7 June 2018, the Supreme Court of the United Kingdom (UKSCt) issued its decision on, inter alia, whether Northern Ireland's near-total abortion ban was compatible with the European Convention of Human Rights (ECHR). This article critically assesses the UKSC's treatment of international law in this case. It argues that the UKSCt was justified in finding that Northern Ireland's ban on abortion in cases of rape, incest, and FFA was a violation of Article 8, but that the majority erred in its assessment of Article 3 ECHR and of the relevance of international law more generally.

scholarly journals Collective proceedings in the Competition Appeal Tribunal: taking stock and looking ahead

2019 ◽  
Vol 18 (3) ◽  
pp. 104-115
Author(s):  
Ricky Versteeg ◽  
Alexandra Malina
Keyword(s):  
Supreme Court ◽  
Policy Implications ◽  
Collective Actions ◽  
Appellate Courts ◽  
The Past ◽  
The Supreme Court ◽  
Opportune Time ◽  
The Uk ◽  
Key Aspects ◽  
Court Of Appeal

A new collective actions regime for competition damages claims was introduced in the UK in 2015. Although seven proposed collective proceedings have been brought since that time, none have, as yet, continued beyond the certification stage, and no further cases are likely to proceed to a full certification hearing pending an appeal to the Supreme Court in the Merricks v Mastercard proceedings in 2020. It is, therefore, an opportune time to take stock of the new regime. This article explores the development of the regime to date, considers what lies ahead, and assesses the overall status and progress of the regime. It is suggested that the forthcoming Supreme Court appeal in Merricks provides a welcome opportunity both to build on the significant progress that has already been made on a number of key aspects of the new regimen over the past four years, and to redress some of the legal and policy implications of the recent Court of Appeal judgment in the Merricks proceedings, which risk undermining the important ‘gatekeeping’ function afforded to the Competition Appeal Tribunal under the legislation. The UK collective proceedings regime ought to then be on a strong footing to resume, albeit its development will remain necessarily iterative and cumulative as further important aspects of the new regime are considered by the CAT and appellate courts over the coming years.

Cross-fertilisation of Constitutional Ideas

2013 ◽  
Author(s):  
Petra Butler
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Case Law ◽  
Bill Of Rights ◽  
House Of Lords ◽  
The Supreme Court ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Uk Supreme Court ◽  
The Uk

This chapter discusses the New Zealand courts' jurisprudence in regard to the interpretative provisions — sections 4, 5, and 6 — of the New Zealand Bill of Rights Act 1990. It not only gives an overview of the relevant New Zealand case law but also compares the courts' approaches to those of their UK counterparts, in particular the UK Supreme Court (formerly, the House of Lords) in regard to section 3 of the UK Human Rights Act 1998. It is argued that the perceived difference in the approaches can be explained by different contexts rather than different methodology. The chapter thereby questions the view held in New Zealand that the UK courts, and especially the Supreme Court, are more activist than the New Zealand courts.

scholarly journals RATIONALISING ANTICIPATORY BREACH IN EXECUTED CONTRACTS

2016 ◽  
Vol 75 (1) ◽  
pp. 18-21
Author(s):  
Yihan Goh ◽  
Man Yip
Keyword(s):  
Supreme Court ◽  
Anticipatory Breach ◽  
English Law ◽  
Uk Supreme Court ◽  
The Uk ◽  
Court Of Appeal ◽  
Conceptual Difficulties

RATIONALISING the doctrine of anticipatory breach is notoriously difficult. This may explain the complete lack of attempt by the UK Supreme Court to address its conceptual difficulties in its recent judgment in Bunge SA v Nidera BV [2015] UKSC 43; [2015] 3 All E.R. 1082. It is therefore of interest that the Singapore Court of Appeal in The “STX Mumbai” [2015] SGCA 35; [2015] 5 S.L.R. 1 explained why the doctrine of anticipatory breach can be applied to executed contracts (in the sense of being fully executed by the innocent party). Whilst anticipatory breach applies similarly under English law, the English courts have never considered the underlying justification, save to say in a case with a partially executed contract that “it would be very strange and hardly unworkable” if the innocent party had to wait until the time for performance (Moschi v Lep Air Services Ltd. [1973] A.C. 331, 356, per Lord Simon).

scholarly journals Breakthrough in Parent Company Liability

2021 ◽  
Vol 18 (5) ◽  
pp. 714-748
Author(s):  
Cees van Dam
Keyword(s):  
Climate Change ◽  
Supreme Court ◽  
Third Parties ◽  
Parent Company ◽  
District Court ◽  
The Hague ◽  
Uk Supreme Court ◽  
The Uk ◽  
Parent Companies ◽  
Court Of Appeal

Two English and two Dutch cases have recently clarified the (potential) liability of parent companies vis-à-vis third parties in relation to damage caused by their subsidiaries. They concern the decisions of the UK Supreme Court in Vedanta v Lungowe and Okpabi v Shell, the Hague Court of Appeal in Oguru v Shell and the Hague District Court in Milieudefensie v Shell (climate change case).

scholarly journals Collective Proceedings for Damages in UK Competition Law Case Comment to the Judgment Merricks v Mastercard [2019] EWCA Civ 674

2019 ◽  
Vol 12 (19) ◽  
pp. 245-257
Author(s):  
Kathryn McMahon
Keyword(s):  
Supreme Court ◽  
Competition Law ◽  
Class Actions ◽  
Opt Out ◽  
Legal Test ◽  
Uk Supreme Court ◽  
The Uk ◽  
Court Of Appeal

Merricks v Mastercard [2019] is the first action under the newly developed ‘opt-out’ collective proceedings regime for aggregate damages under UK competition law to be considered by the UK Court of Appeal. It is significant for both the level of damages (£14 billion (€16 billion)) and the clarification of the legal test at the certification stage for the suitability for an aggregate award: the method for calculation of the aggregate damages and the sufficiency of evidence. The Court’s lowering of these thresholds importantly opens the door to future class actions and reasserts the importance of collective proceedings as a valuable means of redress for competition law infringements. The decision has now been appealed to the UK Supreme Court where these issues may be further clarified and resolved.

Sign in / Sign up

Export Citation Format

Share Document