Attribution in Company Law

In Bilta (UK) Ltd (in liquidation) v Nazir (No 2), the Court of Appeal held that the ex turpi causa defence was inapplicable by refusing to attribute the fraud of the directors and the sole shareholder to the company in connection with the company's claim against them and third party co‐conspirators. It is significant that the court has not only clarified the law in relation to attribution, but it did so by rejecting the majority's reasoning and endorsing the dissenting judgment in the House of Lords decision in Stone & Rolls (in liquidation) v Moore Stephens (a firm). This article evaluates the decision in Bilta by critically examining the fundamental principles and policies that apply to the three distinct circumstances under which corporate attribution should or should not take place.     

Ex Turpi Causa: Reformation not Revolution

Seldom has an area of law been so afflicted with uncertainties and contradictions as the illegality defence and rarely have judicial opinions been so sharply divided as in the Supreme Court decision in Patel v Mirza where nine Justices examined the issue of the correct approach to the illegality defence. Six of them endorsed the ‘range of factors’ approach, whereas three condemned it. This paper defends the majority's approach against the minority's criticisms but argues that refinements should be made to it in order to address the uncertainty that may arise from its application.     

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 Place of Wishes and Feelings in Best Interests Decisions: Wye Valley NHS Trust v Mr B

In Wye Valley NHS Trust v Mr B the Court of Protection decided that it was not in the best interests of Mr B to receive amputation surgery against his will, notwithstanding that he would die without the treatment. The judge met with Mr B in person and his best interests decision placed significant weight on Mr B's wishes and feelings. This case note considers this influential case in the context of ongoing debate about the place of wishes and feelings in best interests decisions under the Mental Capacity Act 2005. It considers the history of the best interests principle, its interpretation by the Supreme Court in Aintree University Hospitals NHS Foundation Trust v James, ongoing debates about its compatibility with Article 12 of the United Nations Convention on the Rights of Persons with Disabilities, and recent proposals by the Law Commission for statutory amendments to the Mental Capacity Act.     

Fog in the Gateway: Brownlie v Four Seasons Holdings Inc

In Brownlie v Four Seasons Holdings Inc, the UK Supreme Court for the first time addressed the meaning of ‘damage’ in the gateway for jurisdiction in tort cases under paragraph 3.1(9)(a) of Practice Direction 6B of the Civil Procedure Rules 1998. The issue has proven controversial with a number of first instance decisions asserting an expansive jurisdiction in such cases, departing from the traditional approach. In the event the Court decided the case on other grounds, but the extensive discussion of the issue (on which the Court was divided 3‐2) illustrates the stark divergence of opinion on the proper scope of and approach to the English courts’ adjudicatory authority. This note criticises the views advanced by the majority for endorsing the more expansive interpretation on the grounds that it fails to take account of the legislative history and applies an incomplete conception of justice in justifying its position.     

Remedies for Breach of Trust

The decision of the Supreme Court in AIB Group (UK) Plc v Mark Redler & Co confirms the approach taken by Lord Browne‐Wilkinson in Target Holdings Ltd v Redferns: where a trustee misapplies trust assets, a beneficiary is limited to a claim for equitable compensation for losses caused by the trustee's breach of duty. This seems to be a departure from traditional equitable doctrine, which held that the beneficiary could falsify the trustee's unauthorised disbursement and bring a claim for an ‘equitable debt’. This note considers the impact of the decision of the Supreme Court, and how the law regarding ‘equitable compensation’ might continue to develop.     

Closing the Floodgates on Privacy Class Actions: Lloyd v Google LLC

In Lloyd v Google LLC [2021] UKSC 50, the Supreme Court overturned the Court of Appeal's decision, which had allowed a claim under the Data Protection Act 1998 to proceed as a representative action under CPR 19.6. This is significant because the Court of Appeal's decision arguably paved the way for further data protection/privacy claims to be brought as opt-out ‘class actions’ using this procedure. This case note summarises the Supreme Court decision and assesses its implications for both the procedural law of collective redress and the substantive law of privacy in England. It argues that the Supreme Court's reasoning in relation to both of these areas is sound as a matter of precedent and statutory construction. As a matter of public policy, the decision is likely to re-enliven debate about the availability of collective redress in English law and whether the existing collective proceedings regime should be broadened.     

The Elective and Automatic Theories of Termination in the Common Law of the Contract of Employment: Conundrum Resolved?

If a party to an employment contract commits a repudiatory dismissal or resignation, it has long been unclear whether the other party has the option either to terminate or affirm the contract (the elective theory) or whether the former's breach operates to bring the contract of employment to an end (the automatic theory). The recent decision of the Supreme Court in Société Générale (London Branch) v Geys has finally resolved this question. By a majority, the Supreme Court held that the elective theory also applies in the context of a wrongful repudiation of the employment contract by express dismissal or resignation. This note examines the significance of Geys in the context of the common law of the contract of employment and evaluates whether a number of related issues surrounding the breach and termination of the employment contract have been resolved.     

‘Yeah but,no but’ – Pinnock and Powell in the Supreme Court

This note considers the Supreme Court decisions in Manchester CC v Pinnock and Hounslow LBC v Powell. It is argued that there are a number of remaining outstanding questions around proportionality, including: deference; section 89, Housing Act 1980; procedural issues; ‘publicness’; and the future landscape.     

Thirty Years of Social Science in Supreme Court Criminal Cases*

The Supreme Court early took note of extralegal, “social science” materials in Muller v. Oregon (1908), and a half-century later made specific reference to social science authorities in the famous footnote 11 of Brown v. Board of Education (1954). Since Brown, much has been written about the Supreme Court's use of social science research evidence, but there has been little systematic study of that use. Those writing on the subject commonly focus on areas of law such as jury size, where social science has been used, and have generally assumed that social science information has been utilized in Supreme Court decisions with increasing regularity. Surprisingly little is known, however, about either the justices' baseline use of social science authorities, or many other aspects of their uses of social science information. The focus here is on the citation of social science research evidence in a sample of 240 criminal cases decided during the 30 years between the Supreme Court's 1958 and 1987 Terms. The resulting portrait contributes to a fuller understanding of the justices' use of social science materials, and may ultimately help promote more effective utilization of social science research evidence in Supreme Court decisions.     

The Heathrow Case in the Supreme Court: Climate Change Legislation and Administrative Adjudication

In R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd the UK Supreme Court allowed an appeal against the Court of Appeal's decision that there had been a series of legal errors in the designation of the Airport National Policy Statement. This case note analyses the case from an ‘internal’ doctrinal perspective and argues that the Supreme Court could have engaged more explicitly with the legal issues that arise from climate change legislation for administrative law adjudication. For courts to adjudicate well in such circumstances they need to be prepared to develop administrative law doctrine, particularly in light of the issues of integrating climate change into public decision-making and of scientific/policy uncertainty which lie in the background of climate change legislation.     

Unfair Contract Terms,Unfair Prices and Bank Charges

This note considers how the Unfair Terms in Consumer Contracts Directive 1993 draws the line between the review of unfair contract terms and the review of unfair contracts (and, in particular, unfair prices) in the context of two cases concerning bank charges: Abbey Life plc v The Office of Fair Trading (2009) (the Bank Charges case) in the UK Supreme Court and Case 484/08 Caja de Madrid (2010) in the European Court of Justice. The note explains the proper question to be addressed by a court for this purpose under article 4(2) of the Directive and criticises the Supreme Court's approach to the interpretation of article 4(2) and its application of the UK regulation implementing this article to the circumstances in the Bank Charges case.     

A Purposive Approach to Employment Protection or a Missed Opportunity?

This note discusses how far the Supreme Court judgment in Autoclenz Ltd v Belcher and others provides grounds for a purposive interpretation of the contract of employment for employment protection purposes, or whether its scope is limited to the specific issue of considering the validity of boilerplate contractual terms. The author reflects on the approach taken by the Supreme Court and how far issues of inequality and substantive fairness within employment relationships have been addressed. The note concludes that whilst the judgment has extended the context of facts to be considered to include a consideration of relative bargaining power, this in itself does not extend to a consideration of substantive fairness nor does it clarify the standards that should apply to a fair employment relationship.     

Confronting Religion: Veiled Witnesses,the Right to a Fair Trial and the Supreme Court of Canada's Judgment in R v N.S.

The Supreme Court of Canada's decision in R v N.S. is significant because the majority seems to endorse an understanding of confrontation that assumes a defendant's right to a fair trial is imperilled by a witness who seeks to give evidence while wearing the niqab. The case is of interest because it permits reflection upon the interrelationship between the right to a fair trial and the right to confront witnesses enshrined in Article 6 of the European Convention on Human Rights. Given that the European Court of Human Rights conceptualises confrontation in epistemic terms, it is argued that it would be unlikely to find that a conviction based upon evidence from a niqab‐wearing witness would infringe the right to a fair trial. This note examines the value of demeanour evidence and whether the majority in R v N.S. was correct that the abrogation of the ability to assess demeanour evidence necessarily undermines trial fairness.     

On the Relations between Agent and Principal: Angove's Pty Ltd v Bailey

In Angove's Pty Ltd v Bailey the Supreme Court faced ‘two important and controversial questions of commercial law’: whether an agent's authority could ever be ‘irrevocable’, and whether the receipt of money by an imminent insolvent could ever give rise to a constructive trust of that sum. It answered both in the affirmative, albeit subject to heavy qualifications. This note supports these conclusions in principle, however it will argue that the court's reasoning, especially in answering the second question, leaves much to be desired. In particular, it ignored the central role of fiduciary law in regulating the conduct of agents.     

Taking Abortion Rights Seriously: Whole Woman's Health v Hellerstedt

In Whole Woman's Health v Hellerstedt the Supreme Court of the United States passed down its most important decision on abortion for just under a decade. By a majority of 5‐3, the Court ruled that two provisions in a Texas law regulating abortion on grounds of women's health were constitutionally invalid, placing a ‘substantial obstacle’ in the way of women seeking to exercise their right to abortion. This comment delineates the key ways in which the Court's application of the standard of constitutional review under Planned Parenthood v Casey (1992) to the Texas provisions marks a landmark development for the protection of the constitutional right to abortion established in Roe v Wade, not the least by making clear that state abortion regulations which cite ‘women's health’ justifications should not pass constitutional review where those justifications lack a credible factual basis.     

Tinkering with the Machinery of Death: An Analysis of Juror Decision-Making in Texas Death Penalty Trials During Two Statutory Eras

The Texas death penalty statute originally approved by the United States Supreme Court in Jurek v. Texas (1976) was legislatively amended as a result of the Court’s decision in Penry v. Lynaugh (1989). The changes were intended to focus on increasing jurors’ ability to give mitigating effect to evidence in sentencing. Using data from the Capital Jury Project, we compared juror comprehension of sentencing guidelines, punishment responsibility, and deliberations in sentencing among a sample of 123 Texas jurors who deliberated under the Jurek and Penry statutes. In each area, we found that the amended statute failed to guide capital juror decision-making as intended.     

Insurance Fraud and the Role of the Civil Law

Two UK Supreme Court decisions have considered insurance fraud. The first, Versloot Dredging BV v HDI‐Gerling Industries Versicherung (The DC Merwestone), concerned the use of a fraudulent device being harnessed to support a legitimate claim which, in the view of the majority, was an area of insurance law in need of re‐evaluation. The second, Haywood v Zurich Insurance Co, concerned the use of fraud to increase the settlement paid by the insurer and whether an insurer, which suspects fraud but has nevertheless chosen to settle a claim, is entitled to set aside the settlement under the tort of deceit where it subsequently discovers proof that it was in fact fraudulent. This case note examines not only the legal implications of the decisions and their likely impact on industry practice, it also focuses on the broader issue of the proper province of the civil law and whether general deterrence can be justified as a proper objective where the criminal law is deficient in punishing fraud because of its higher standard of proof.     

Marriage and Divorce in the Supreme Court and the Law Commission: for Love or Money?

The case note considers the impact of the Supreme Court decision in Radmacher v Granatino regarding pre‐nuptial and other classes of nuptial agreement, together with recent proposals of the Law Commission for reform of the law relating to marital property agreements generally. It explores in particular the question of what, if any, core obligations of marriage cannot – or should not – be excludable by agreement.     

The End of Innocence: Open Justice,Free Speech and Privacy in the Modern Constitution – Khuja (formerly PNM) v Times Newspapers Limited

This case note explores the issue of open justice considered by Khuja (formerly PNM) v Times Newspapers Limited in the Supreme Court and argues that the current law is confused and incoherent. Far from settling the debate, it is suggested that the decision further undermines some of the key assumptions underpinning the current approach, especially in the light of the compelling and humane minority judgment. This leaves the area ripe for reconsideration in general terms. This note challenges many of the formulaic slogans and rhetoric in previous case law as well as suggesting that the meaning of open justice has been lost in current discourse. After summarising the facts, this note sets out the majority and minority judgments, before analysing some of the conceptual difficulties raised – particularly those of open justice, privacy, presumption of innocence and freedom of speech.