Section 994 of the Companies Act 2006 and the Primacy of Contract

The Court of Appeal's decision in Fulham Football Club (1987) Ltd v Richards & Anor is both of interest and significance. By embracing the idea of the parties’ ability to ‘contract out’ of their statutory right to petition the court for relief under section 994 of the Companies Act 2006 (the so‐called ‘unfair prejudice’ remedy), their Lordships have not only contrived to stunt the future development of unfair prejudice as a minority shareholder remedy but, and more importantly for the purposes of this case note, their decision has reasserted and extended the contractual analogy in modern UK company law.     

Expert systems and the law

ABSTRACT

The project discussed here involved an online debating activity between intellectual property (IP) law students in Egypt and the UK, using a closed group on Facebook. The aim was to harness freely available online social media technology to create a space in which valuable discussions and learning could take place. We showed that Facebook can be a powerful educational tool to encourage active learning and usefully connect learners across continents. In enabling the exchange of views between students in different jurisdictions, Facebook provides exposure to different cultures and different perspectives as well as different legal cultures and different legal systems, while also, importantly, enabling participants to identify commonalities. This debate focused on IP law, which is of increasing international importance, and specifically on the topic of access to medicines, which is highly contentious. Through the activity, students learned that they need not only to learn the law, but also to appreciate the socio-cultural and political complexity underlying policy issues in different jurisdictions. On reflection, the Facebook debate definitely enhanced the study of IP law through an interesting and enjoyable international, intercultural activity, led by staff and students, which successfully extended the classroom experience.     

Privacy,anonymity and liability: Will anonymous communicators have the last laugh?

In this paper, the author sets out the way in which the UK approach to privacy protection is able to extend its reach to anonymous postings. Whilst anonymity might sometimes be seen as one of the essential characteristics of communicating on-line, it does not provide an impenetrable veil of protection in respect of a privacy violation claim. Instead, there are avenues available to identify anonymous communicators, which have implications both for internet freedom and jurisdiction in cyberspace. In the UK, our common law has not denied bloggers, or other on-line contributors, anonymity per se. However, it will be argued that recent UK judgments represent a warning to anonymous communicators that they can be held liable for what they post on-line and that naivety is no defence at law. Whilst on-line platforms allow people to effectively become journalists; to become publishers, as familiar users, they should become more aware of the consequences of their on-line postings and appreciate that they will not be able to escape from the application of third party disclosure orders. However, as these are not without their problems, it is possible that anonymous communicators may have the last laugh.     

The impact of Brexit on the careers of EUI law graduates

ABSTRACT

This paper raises some questions about the possible impact of the UK leaving the European Union on the career pathways of mobile and internationally oriented PhD graduates interested in an academic career in law, with particular reference to the specific case of the European University Institute (EUI). It first addresses some of the reasons for the popularity of the UK academic job market as a destination for EUI law graduates and then considers the potential impact of Brexit on these factors. While a number of factors have made the UK an attractive market for these highly mobile young scholars, their mobility means that should the balance shift, other countries may replace the UK as top choice.     

Surveillance and identity management: Migrant perspectives on UK Biometric Residence Permits

The identity card for foreign nationals - now known as the Biometric Residence Permit (BRP) - was first introduced in November 2008. Following the May 2010 UK general election, the newly formed Conservative-Liberal Democrat Coalition government announced that the scheme would not be extended to UK citizens. To date, over 300,000 BRPs have been issued to UK foreign nationals - a group of non-EEA migrants that include international students, visiting scholars and entrepreneurs. In this paper, we draw on findings from interviews conducted with policymakers, advocacy groups, Higher Education administrators and foreign nationals - between March and December 2010 - to highlight some policy issues arising from the continued roll-out of the BRPs to this migrant group. We conclude by arguing that, although interviewees raised few objections to the BRPs in principle, cardholders were concerned about being unfairly ‘targeted’ for additional surveillance and remained unclear about the true purpose of the BRP. We identify a number of areas for further policy development.     

Reflecting on Brexit: migration myths and what comes next for EU migrants in the UK?

This article considers the potential impact of Brexit on the family and welfare entitlement of EU migrants living in the UK and of UK migrants living in other EU Member States. Whilst the vast majority of those campaigning for the UK to leave the EU (publicly at least) argued in favour of those already present in the UK at the time of the referendum having their status protected, the government has been considerably less vocal in its support for this outcome. As such, EU migrants living in the UK presently face considerable uncertainty as to their own and their families’ future legal status and entitlement to welfare rights. The article will expose some of the evidential and legal gaps in the assertions made about EU migrants’ socio economic entitlement with a view to providing a more informed, legally accurate appraisal of how the Brexit negotiations could unfold.     

Anticipatory refusals and the action of 'wrongful living'

After years of debate, opinion among bioethicists and medical lawyers seems to have accepted that anticipatory refusals of medical treatment can, and furthermore should, be accorded the same legal status as contemporaneous refusals. But what would be the legal repercussions for a medic who treated an incompetent patient in contravention of such a directive? What remedies would be available to the claimant whose life had been extended contrary to his express wishes? This issue has never been explicitly addressed by the UK courts, but this paper looks at some of the conclusions and inferences we can perhaps draw from other, possible analogous areas of law. It also considers several North American cases that have addressed this issue, and asks what lessons we can learn therefrom.     

BREXIT,democracy and the rule of law

This article employs the image of the antisyzygy, the yoking of opposites, as an analytical tool to understand the dynamic and unresolved tensions built into the very idea of the European Union. It describes the EU as a forming a supranational constitutional space which does not supersede nation states, but instead seeks to preserve their specific identities while promoting and protecting the fundamental values they are called upon to embody as liberal constitutional democracies. The article then critically examines constitutional developments in the UK subsequent to its decision to leave the European Union and suggests that, paradoxically, it may have been the European Union which held the post-War post-imperial United Kingdom together and, without it and outside it, we may anticipate the UK's imminent dissolution into its original constituent nations – Brexit leads inexorably to BreUK-up.     

Rights and Resources—Libertarians and the Right to Life

The author addresses Robert Nozick's claim that: “The particular rights over things fill the space of rights, leaving no room for general rights to be in a certain material condition.” Hence Nozick insists that rights are violated if citizens are compelled to contribute to others' welfare, however urgent their needs may be. The author argues that it is characteristic of libertarian theories that they invoke the moral sanctity of private property against welfarist or egalitarian conceptions of social justice. Nozick's version of the libertarian critique has three conceptual pillars–“right,”“thing” and “space.” On that basis Nozick claims that talk of welfare “rights” can be condemned on the plane of rights. This is true, Nozick maintains, even of “the right to life.” The author contends that this argument fails. It equivocates over the idea of “rights”; and it misconceives crucial features of property. Nozick deploys exclusive “domain rights,” whilst attacking “important‐interest rights.” His historical‐entitlement theory fails as a justification of private property. The author argues that, so far as material objects are concerned, private property institutions depend upon trespassory rules which do not impose morally binding obligations unless basic needs are catered for. Furthermore, private property institutions also comprise monetary resources to which the spatial metaphor of exclusive rights does not apply. Holdings vested in any particular person at any particular time are stamped, morally, with a mix of contestable and mutable property‐specific justice reasons. Hence it is fallacious to suppose that ownership rights together exhaust all normative space over “things.” The major objection to speaking of everyone's having a right to various things such as equality of opportunity, life, and so on, and enforcing this right, is that these “rights” require a substructure of things and materials and actions; and other people may have rights and entitlements over these. [≡] The particular rights over things fill the space of rights, leaving no room for general rights to be in a certain material condition. (Nozick 1974, 238)     

Fiduciary Duty under the Microscope: Stewardship and the Spectrum of Pension Fund Engagement

UK pension fund trustees’ interpretations of their fiduciary duties may shape pension fund approaches to corporate stewardship and engagement envisioned by the UK Stewardship Code. Data from interviews with pension fund trustees, executives, investment intermediaries and pensions experts reveals interpretive pluralism of the concept of fiduciary duty in the area of pension funds. This article develops a model identifying the spectrum of pension fund engagement, linking interpretations of fiduciary duty to intensity and methods of engagement in practice. The findings help disambiguate the concept of ‘Fiduciary Duty’, highlighting the practical challenges of Stewardship Code application. These insights are relevant to the ongoing revisions of the Stewardship Code and policy clarifications of the nature of fiduciary duty by the UK Financial Conduct Authority. The paper encourages trustees, regulators and others to consider what role pension fund trustees should have in stewardship, which may not be directly relevant to their fiduciary duties as trustees.     

Subject matter of copyright protection in the UK: a road map to effectuating statutory reform

The statutory framework governing the protection afforded various copyright subject matter in the UK, despite the predictability afforded by its closed list, has come under intense criticism over the last decade or so, with many scholars citing the need for urgent reform. Indeed, given the adverse range of responses in this regard, the question arises as to whether the UK should move towards a system that more closely resembles that of other Commonwealth Countries, such as Canada and Trinidad and Tobago, where a non-exhaustive or open list of protected works is provided for.     

Mock-juror reactions to multiple interview presentation and rapport-building

ABSTRACT

In the UK and some US states, video-recorded investigative interviews of child victims/witnesses can be presented in court as the child’s evidence-in-chief. However, there is scarce advice or research on the effect that presenting different sections of the interviews may have on juror perceptions of the child’s testimony. Two aspects of testimony presentation are examined here: first, whether to show the rapport-building phase of the interview, and second, the presentation of multiple interviews (i.e. more than one interview with the same child). Participants (n?=?103) informed they were watching two interviews of the same child separated by a week had more positive perceptions of the child’s testimony than those informed they were watching just one extended interview with a ten-minute break. Also, those watching the rapport-building phase had less positive perceptions of the child’s testimony than those who did not watch this phase. Participants’ perceptions of the interviewer and their case progression decisions were mainly not related to the above presentational differences. Thus, (i) mock-jurors were not inherently biased against multiple interviews and (ii) decisions regarding whether or not to show the rapport-building phase in court may have significant effects on jurors’ perceptions of the child and their testimony.     

Scientia potentia est: Making threats of copyright infringement

There has been much debate in the UK as to whether copyright law should have an unjustified threats provision similar to that found in UK patent, trade mark, and registered design law. Unjustified threats provisions for copyright law exist in other commonwealth jurisdictions, such as Australia and India. We argue that all of the existing unjustified threats provisions in the UK are too narrow in their scope. Threats more generally have played a significant role in the development of copyright law, and a provision aimed at ‘unjustified’ threats may paradoxically restrict discourse about the scope of copyrights. We therefore suggest that the best way to proceed is not just to introduce an unjustified threats provision but instead to make clearer what is, and is not, protected by copyright.     

Aggressive/intrusive behaviours,harassment and stalking of members of the United Kingdom parliament: a prevalence study and cross-national comparison

Politicians suffer intrusive and aggressive behaviours from members of the public, often lone actors fixated on personal grievances. Few explorations of intrusive behaviours towards politicians have been published; their results are not directly comparable. We surveyed intrusive/aggressive behaviours towards UK members of parliament (MPs); our survey instrument was then administered to MPs at three other parliaments (Queensland, New Zealand, and Norway), providing a cross-national, four-site comparison. 239 MPs completed the UK survey. This 38% response rate produced prevalence rates remarkably similar to the other sites, New Zealand having an 84% response rate. 81% of UK MPs had experienced one or more of the 12 behaviours specified, the mean being five. 18% had been subject to attack/attempted attack, 42% to threats to harm and 22% to property damage. In 53% of respondents, experiences met definitions of stalking or harassment. This has implications for the provision of risk assessment and management.     

“Hand-to-mouth” citizenship: decision time for the UK Supreme Court on the substance of Zambrano rights,EU citizenship and equal treatment

UK benefit rules strip Zambrano residence rights, for UK national children and their third country national primary carers, of equal treatment entitlement. These rules are challenged in a case pending before the UK Supreme Court. This piece argues that Zambrano creates an EU-citizenship-based right to reside which necessarily entails equal treatment. UK national children in Zambrano families fall within the scope of EU law so are not prevented by the wholly internal rule from claiming equal treatment with EU national children in Teixeira families. And they are protected by equal treatment as a general principle of EU law, which requires equal treatment with other UK national children. The justifications for automatic unequal treatment put forward before, and accepted with alacrity by, the Court of Appeal, are poorly reasoned and ill-matched with the rules in question – most notably because Zambrano families may have strong connections with the UK. A CJEU reference is likely; a Zambrano right is the right to reside in the Union – it is the right to have EU rights. The substance of EU citizenship is at stake.     

From watchdog to sneak: the UK's new trade mark notification regime

Legal context: This article discusses the move from ex officio refusal of trademark applications based on relative grounds, to a notificationregime. The order making power for this derives from Section8 of the Trade Marks Act 1994. Owners of qualifying earlier registered rights, in respect ofwhich registration of the subject application would be consideredto lead to a likelihood of confusion, will be notified of thelater subject application, and must decide for themselves whetherto oppose. Key points: The article examines the justification for such a shift, interms of the need for a proper evidence and submission basedevaluation of the respective marks, as well as the need to takeall market factors into account in any evaluation. It also addressesthe legal and cultural shift entailed in such a change. Finally,the article attempts to set out three objective measures bywhich an evaluation of success could be measured. Practical significance: The change will affect all those who already have, or will have,registered trade mark rights in the UK. The author's concernin particular is for those who will be receiving notificationletters and what their response might be - given that many willbe unrepresented. The author also believes that more notificationswill be sent out than marks that are currently ‘cited’.     

Student-led law reviews: what every UK law school needs?

In the United States (US) student-run law reviews have long offered students the opportunity to develop their skills as editors and members of a publication team and to engage with new legal research. With law ordinarily taught as a three-year postgraduate degree, these reviews are normally staffed by a postgraduate editorial team. Similar efforts in the United Kingdom (UK) have largely been short-lived. Some venerable academic journals, such as the Cambridge Law Journal, started their lives as student-centred projects, but academics soon assumed control of the process because of the variable quality of undergraduate editing. This false start proved difficult to recover from, but a spate of newly founded student law reviews in the last decade suggests that these publications have increasing traction in UK legal education. This article evaluates the challenges and potential benefits of these efforts to translate US practice into UK law schools in light of the experience of creating and maintaining the North East Law Review, a student-led periodical based at Newcastle University which publishes student-generated content based on high-quality coursework submissions. This process potentially enhances the assessment process, with the student editorial team preparing essays for publication and student authors re-engaging with their work in light of feedback. Publishing such essays furthermore allows all students to benchmark their own work against excellent coursework performance.     

Attribution and the Illegality Defence

In Jetivia SA v Bilta (UK) Ltd (in liquidation) all seven judges of the Supreme Court affirmed the decision of the Court of Appeal by holding that the illegality defence could not be raised as a defence against the claim made by the company because the wrongdoing of the directors and shareholder cannot be attributed to the company. Although all the judges unanimously agreed on the outcome of the case, their reasoning concerning the approach to attribution and the different circumstances under which attribution should or should not take place differed. Further, the Supreme Court was divided on the issue of the correct approach to the illegality defence.     

The impact of cuts in legal aid funding of private family law cases

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) made deep cuts to legal aid in the UK from April 2013, withdrawing state aid from almost all private family law cases. The paper is based on the findings of a micro-study of solicitors and Citizens Advice Bureaux (CABx) in Kent and London to investigate the impact of LASPO cuts on their work. The findings suggest that: legal aid firms have closed or merged; legal aid work is often partially carried out in solicitors’ own time; ‘unbundled’ services for litigants in person (LIPs) are increasingly common; and family cases are being complicated and extended by the new ubiquity of the LIP. Respondents suggest that litigants may increasingly be ‘giving up’ on pursuing their cases, with clear implications for financial justice and contact with children. Further research is needed into the financial and affective impact of the cuts and the distribution of losses and difficulties between genders. The study, however, suggests the likelihood of post-separation poverty, debt and capital losses increasing in the post-LASPO environment, and that firms and CABx are having to find various methods of dealing with clients abandoned by the state.     

Trade Unions, Human Rights and the BNP

The Trade Union and Labour Relations (Consolidation) Act 1992,section 174, bars trade unions from (amongst other things) excludingor expelling individuals on grounds of their membership of apolitical party. An issue has arisen about whether trade unionscan exclude or expel individuals who are members of the BritishNational Party (BNP). This article questions whether the currentrestrictions are consistent with international treaties ratifiedby the UK, and considers the human rights claims of the tradeunion and the ‘unwanted’ individuals.