Case report: Court of Appeal clarifies the law on downloading pornography from the Web

In the recent years the law courts had to deal with a considerable number of cases involving child pornography received or downloaded through the Internet.¹ Moreover, there has been a considerable number of appeals involving not only sentencing issues but also the interpretation provided to the making offences under section 1(1) of the Protection of Children Act 1978 (the 1978 Act) since the decision of the Court of Appeal in R v Bowden.² The Court of Appeal has now had an opportunity to explain the law. Yaman Akdeniz reports.     

Court of Appeal considers burden of proof in breach of confidence cases

The Court of Appeal considered the burden of proof where a copyof a product was allegedly made in breach of confidence andfound that, because the trial judge had not misdirected himself,it was not for the Court of Appeal to look at whether therehad been copying.     

Personal Religious Beliefs in the Workplace: How Not to Define Indirect Discrimination

In cases concerning indirect religious discrimination the claimant must demonstrate that an otherwise neutral measure has caused her to suffer a particular disadvantage because of her religion. In Eweida v British Airways the Court of Appeal held that personal religious beliefs which are not part of official religious dogma cannot be relied upon as the basis for a claim of indirect discrimination. I discuss, first, the reasoning of the Court of Appeal in Eweida; then I examine the way personal religious beliefs have been treated in other cases in Britain and in the United States; finally, I place the issue in a wider human rights framework.     

Consent to Treatment for Transgender Youth: The Next Chapter – Bell & Anor v The Tavistock and Portman NHS Foundation Trust & Ors

In September 2021, the Court of Appeal reversed the controversial decision of Quincy Bell v Tavistock and Portman NHS Trust in a victory for transgender rights. At first instance, the Divisional Court had set a high legal threshold for transgender children to attain Gillick competence to consent to treatment with puberty blockers – effectively restricting access to treatment for many. On appeal, the Court of Appeal held that children are capable in law of giving valid consent to treatment for gender dysphoria, and court authorisation would not be routinely required before children could access such treatment. This note considers the implications of the Court of Appeal decision for the law on minors and consent to medical treatment in the transgender health context.     

Patent procedure in England and Wales: the Streamlined Procedure meets resistance

The proposition by the English High Court in 2005 that the StreamlinedProcedure for dealing with patent actions should apply wheneverraised by a party to an action in the absence of convincingreasons to the contrary has been rejected by the Court of Appeal.     

More questions than answers? R v Human Fertilisation and Embryology Authority ex parte Blood The Times 7th February 1997

The recent Court of Appeal decision in R v Human Fertilisation and Embryology Authority ex parte Blood (1997), was an attempt to reconcile media driven support for a widow's desire to have a child using sperm obtained from her comatose husband immediately prior to his death. The Court of Appeal held that the written consent of the husband had not been obtained in respect to the storage of his sperm and this was contrary to the requirements of the Human Embryology and Fertilisation Act 1990. However in the present case it was right that once the sperm had been removed, it was preserved and stored pending a ruling as there appeared to be some uncertainty surrounding the situation. The Court also held that the Human Fertilisation and Embryology Authority had failed to exercise its discretion correctly in refusing to give Mrs Blood permission to export the sperm to Belgium where the written consent of the donor to storage of gametes is not required. The Court of Appeal stated that there was no question of a precedent being set as this was a unique situation which should not arise again in the future.     

2009年香港海商法判例综述

2009年期间,香港法院审理了一定数量的海商海事案件,案件领域包括提单运输、《汉堡规则》的解释、承运人在普通法下的责任、船舶碰撞和海上保险等。大部分案件在香港高等法院原诉法庭审结,部分上诉至香港高等法院上诉法庭,甚至香港终审法院。通过对若干代表性案件的描述和分析,一方面展现香港海商法判例的发展,另一方面有助于对中国内地海商法的比较研究。     

Comparative advertising is not trade mark infringement

The Court of Appeal has indicated that the use of a competitor'sregistered trade mark for comparative advertising is not trademark infringement.     

Justice, at last, in the archetypical patent entitlement dispute

The Court of Appeal has held that Cinpres was not estopped fromsucceeding in its entitlement claim, despite having failed inan earlier claim concerning the related application, and isthe rightful owner of a disputed European patent.     

Omnis definitio periculosa est: on the definition of the term "embryo" in the Human Fertilisation & Embryology Act 1990

In adopting a purposive interpretation of the definition of the term "embryo" in the Human Fertilisation & Embryology Act 1990, the Court of Appeal judgement in R(on the application of B. Quintavalle on behalf of Pro-Life Alliance) v. Secretary of State for Health effectively stifled democratic debate on the development of therapeutic cloning techniques. Instead of being evidence of the flexibility of of the statute to adapt to the rapid evolution of scientific techniques, the judgment bears witness to a certain dependence of the law on scientific criteria and moreover, raises the question of legitimate judicial function. Indeed, judges should not be seen to be deciding questions of social choice that should ultimately be decided through the democratic process. Although the purposive approach may be objectively justified, it is suggested that the appeal judges erred in their appreciation of the very purpose of the 1990 Act. It is argued that the Parliamentary debates in 1990 illustrate that the purpose of the 1990 Act does not go beyond the area of procreation and embryo research in this context. Consequently, it is claimed that no economy should have been made on a full democratic debate. By preventing such a debate, the Court of Appeal appears to admit that the law has become servile to the scientific, political and a fortiori economic, interests at stake.     

A clash of appeals over patentability

In Duns Licensing, the Technical Board of Appeal (TBA) of theEPO has delivered an opinion that expressly criticizes the decisionof the Court of Appeal for England and Wales in Macrossan/Aerotel[2007] RPC 7.     

Possession of cannabis legal for now

In two recent rulings the Ontario Court of Justice threw out charges of possession of cannabis contrary to section 4(I) of the Controlled Drugs and Substances Act (CDSA). The courts found that the accused in each case had been charged with an offence not known to law. Parliament never re-enacted the CDSA section prohibiting simple possession of cannabis (marijuana) after it was struck down by the Ontario Court of Appeal in the Parker case.     

Validity challenge does not give rise to estoppel in subsequent infringement proceedings

The Court of Appeal has held that opposition proceedings beforethe UK Trade Marks Registry do not give rise to an estoppelpreventing a validity challenge as a defence to later proceedingsfor infringement.     

Guilt and Innocence in the Criminal Justice System: A Comment on R (Mullen) v Secretary of State for the Home Department

The House of Lords upheld the Secretary of State's right to deny compensation under section 133 of the Criminal Justice Act 1988 and the ex gratia scheme to Mullen, whose conviction for conspiracy to cause explosions had been quashed by the Court of Appeal solely by reference to actions by the authorities (securing his illegal deportation to the UK) that constituted an abuse of process, without impugning the fairness of his trial or the accuracy of the verdict The note discusses the different judgments in the House of Lords and the Court of Appeal in terms of their implications for the respective roles of legal and political systems in determining guilt and innocence. In particular, the note explores the nature of the legal principle of the presumption of innocence as it operates in the context of successful appeals.     

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.     

Judicial Independence, Judicial Promotion and the Enforcement of Legislative Wealth Transfers—An Empirical Study of the New Zealand High Court

This paper investigates the Landes-Posner thesis on judicial independence using data on public law decisions in which the government was the defendant decided in the New Zealand High Court over the period 1958–2001. We use survival analysis to examine whether successive New Zealand governments have promoted judges from the High Court to the Court of Appeal (which stands above the High Court) on the basis of political considerations, the quality of the judge's decision-making or both. Our findings suggest that the quality of decision-making has generally been important. Consistent with the weak form of the Landes-Posner hypothesis we find no evidence that governments have used their powers to punish judges who decided cases against them. On the contrary, we find some support for the strong form of the Landes-Posner thesis that governments positively use their powers to secure judicial independence.     

Professional disciplinary proceedings against expert medical witnesses

Witnesses in legal proceedings are protected from civil liability based on their evidence. This immunity is founded on public policy considerations, particularly the belief that witnesses would be less willing to provide full and frank evidence if they were at the risk of civil proceedings based on their evidence. But witness immunity now appears to be subject to an important qualification. The English Court of Appeal has confirmed that witness immunity does not prevent the commencement of professional disciplinary proceedings against an expert witness. In General Medical Council v Meadow [2006] EWCA 1390 the court upheld a disciplinary complaint made against an expert medical witness, even though the complaint was based on that doctor's witness evidence. The Court of Appeal reasoned that the underlying purpose of professional disciplinary proceedings, which is to protect the public, could sit comfortably with witness immunity. The result seems to be that people unhappy with witness evidence cannot sue the witness but can make a professional disciplinary complaint. This apparent gap in witness immunity is important to all professionals who might give evidence.     

Diluting the evidence required to show unfair advantage and detriment?

The Court of Appeal for England and Wales has asked the ECJwhether it is sufficient, for a finding of a link and/or unfairadvantage and/or detriment, that the earlier mark is uniqueand famous and calls to mind the later mark on dissimilar goods.     

MWB Business Exchange Centres Ltd: The Practical Benefit Doctrine Marches On

In MWB Business Exchange Centres Ltd v Rock Advertising Ltd the Court of Appeal held that when an ongoing contract is varied so that one party's obligation to pay money is reduced, the variation is binding as long as the other party receives a practical benefit. In doing so, the Court of Appeal effectively confined the rule in Foakes v Beer to one‐off payments. This raises serious questions about the continued survival of Foakes v Beer. On the other hand, the Court of Appeal ensured that Foakes v Beer would not be killed off via equity by moving away from the suggestion in Collier v P & M J Wright (Holdings) Ltd that an agreed part‐payment of a debt by a debtor will always raise an estoppel preventing the creditor from demanding the remainder of the debt.     

United Kingdom: HIV-positive asylum seeker denied judicial review of removal decision

The High Court of Justice had dismissed an application for a judicial review of a decision by immigration officials not to grant the applicant leave to remain in the UK on the basis of her HIV status. In December 2002, the Court of Appeal denied the applicant permission to appeal the High Court's decision, reasoning that an appeal under section 65 of the Immigration and Asylum Act, already initiated, would be more appropriate and advantageous.