Legal Advice Privilege and its Relevance to Corporations

This article considers whether the rationale for legal advice privilege applies to corporations. It examines the rationale for legal advice privilege in the aftermath of the disagreement between the Court of Appeal and the House of Lords in the Three Rivers litigation, and argues that the rule of law rationale for advice privilege endorsed by the House of Lords is based largely on the needs and behavior of individuals. The paper examines the case for recognising advice privilege for corporations. Recent developments in corporate law and governance, especially in relation to directors' duties, have arguably reduced the need for a corporate privilege. Public and large private companies in particular already have sufficient incentives to obtain accurate legal advice about their affairs even without a privilege. There are also sound policy reasons for restricting the right of corporations to claim legal advice privilege given its costs to the administration of justice.     

Wielding Occam's Razor: Pruning Strategies for Economic Loss

The English Court of Appeal is currently faced with three analyticallydistinct approaches to the question of when one party owes anothera duty of care in respect of her economic interests, all ofwhich bear the authority of the House of Lords. Unable to choosebetween them, it has recently adopted a fourth approach combiningwhich combines them, in the apparent belief that the combinationwill eradicate any individual deficiencies. Against the backgroundof a recent case, the author argues that this is a holding strategyat best and methodologically deficient. He also challenges thecontinuing lip-service paid by courts to models of liabilitybased upon ‘assumptions of responsibility,’ examiningand criticising the causes of their persistence in the law inthe face of widespread academic criticism. Instead, the authorargues, the House of Lords should now clearly endorse a singlereasoning strategy to economic loss cases based on the three-stageapproach in Caparo Industries v Dickman. Properly understood,this approach offers the best prospect of facilitating consistentand transparent decision-making in the longer term.     

澳大利亚行政说明理由制度及其对我国的启发

澳大利亚行政说明理由制度包括普通法和制定法两类。在普通法上,行政说明理由制度还未成为一项普遍承认的原则,但是法院也有条件地承认其存在。在制定法上,澳大利亚的《司法审查法》和《裁判所法》对行政说明理由制度作了比较详细的规定。内容主要涉及两类:第一,提出行政说明理由申请需要具备三个实质性要件;第二,申请人必须遵守的程序要求。我国可以从立法和司法实践两方面借鉴澳大利亚的经验。     

The ECHR in Iraq: The Judgment of the House of Lords in R (Al-Skeini) v. Secretary of State for Defence

The House of Lords has held that the ECHR does not apply tothe acts of the UK armed forces in Iraq, except in their militaryprisons. More generally, the House has endorsed the positionthat the ECHR cannot apply to areas controlled by a state partyoutside the territories of the Council of Europe. The authordisputes the treatment of the European cases that led the Houseto this position, and criticizes the suggestions that the introductionof European human rights law was culturally inappropriate andeven unlawful under the regime of belligerent occupation.     

Judges and Politics: The Parliamentary Contributions of the Law Lords 1876–2009

There is a common perception that, prior to the exclusion of serving judges from the House of Lords in 2009, a ‘politics convention’ operated which required judges to avoid party‐political controversy and ensured that they contributed to debate only rarely. On this view, the presence of the Law Lords in parliament prior to 2009 presented a judicial independence and separation of powers problem in theory only. An examination of the contributions of serving Law Lords and other judicial peers to debates in the House of Lords from 1876–2009 (and retired judges from 1876–2015) reveals that the convention either did not exist or was frequently ignored. While most judges were infrequent participants in parliamentary debate, some were enthusiastic – a small number among the most active parliamentarians in the Lords. The most active judicial peers were conservative in their politics and the best predictor that a judge would be active in the House was an association with conservative politics or causes.     

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.     

The House of Lords and homeless people's rights

For the past 20 years, there has been legislation enshrining certain rights for homeless people. This essay is an assessment of the judiciary's role towards homeless people as far as it applies to the most senior court, the House of Lords. It describes the nature of those issues where the House of Lords have had the opportunity to discuss the operation of the homeless persons legislation. It also seeks to explore the reasons why the approach taken has been restrictive. The House of Lords has played an important part in interpreting the homeless rights legislation. The restrictive role of their Lordships is contrasted with other areas where the court has taken rather more generous perspectives on the rights of vulnerable people. It canvasses the various reasons why this should have occurred and notes that limited assistance can be gleaned from traditional approaches to this judicial task. It suggests that the concept of differential politicization throws useful light on the process.     

Denying Foreign State Immunity on the Grounds of the Unavailability of Alternative Means

Granting immunity from suit to a foreign state or an international organisation, deprives the plaintiff of access to court and appears incompatible with the rule of law. Since the European Court of Human Rights judgment in Waite v Germany (1999), the availability of alternative means for dispute settlement has been emphasised in the context of international organisation immunity. However in the case of foreign state immunity, this approach was not taken by the European Court of Human Rights in Al-Adsani v United Kingdom (2001) nor by the House of Lords in Jones v Ministry of the Interior of Saudi Arabia (2006). Likewise, foreign state immunity would be granted under the UN State Immunity Convention of 2004, regardless of whether there are alternative means. This Convention, rather than enhancing the rule of law, could lead to its attenuation. That several of these cases involve immunity in cases of torture sharpens their sensitivity.     

Caring for the Disabled? New Boundaries in Disability Discrimination

The scope of the disability-related less favourable treatment provisions of the Disability Discrimination Act 1995 has been reduced by the House of Lords in a housing case, London Borough of Lewisham v Malcolm , while the European Court of Justice has taken a broad approach to disability discrimination and carers within the EC Framework Directive in Coleman v Attridge Law . In discussing both cases, this note suggests that the pre- Malcolm approach to identifying the comparator in disability-related discrimination claims should prevail in the employment context, in view of the obligations under the EC Framework Directive.     

House of Lords simplifies the law on patent entitlement

The House of Lords has held that, to claim entitlement to another'spatent or patent application, a person need only prove thathe was the inventor of the subject-matter of the patent, anddoes not also need to invoke ‘some other rule of law’as required previously by the Court of Appeal in Markem v Zipher[2005] RPC 31.     

Indeterminacy,Disagreement and the Human Rights Act: An Empirical Study of Litigation in the UK House of Lords and Supreme Court 1997–2017

This article explores the impact of the Human Rights Act 1998 on the decision making of the House of Lords (UKHL) and the UK Supreme Court (UKSC). How does Convention rights content vary across areas of law in the UKHL/UKSC? Are some judges more likely than others to engage in Convention rights discourse? Is judicial disagreement more common in cases with higher levels of Convention rights discourse? A robust method of answering questions of this nature is developed and applied to decisions of the UKHL/UKSC, showing that the Convention rights content of decisions has varied over time and over substantive areas of law. Higher levels of human rights discourse are associated with greater levels of disagreement. A benchmarked measure of human rights content is developed to show the effect of the particular judge on the human rights content, illustrating the indeterminacy in human rights discourse and how its deployment can be contingent on judicial attitudes.     

Assisted suicide and human rights

The case of R (Pretty) v. Director of Public Prosecutions, gave the House of Lords the opportunity to comment on the issues surrounding the application of the European Convention on Human Rights to the crime of assisted suicide in the case of the terminally ill. A conservative approach was taken in relation to both this issue and indeed in relation to the possibilities of judicial control of the Law Officers of the Crown.     

REVIEWS

Final Appeal —A Study of the House of Lords in its Judicial Capacity . By Louis Blom -Cooper and Gavin Drewry . Company Law and Capitalism . By Tom Hadden . Gore -Browne on Companies , 42nd edition. By A. J. Boyle The Protection of the Minority Shareholders in a Limited Company . By Hendrik Prins .     

Driving with the Handbrake On: Competition Class Actions under the Consumer Rights Act 2015

This paper examines the new class action procedure for competition cases established by the Consumer Rights Act 2015. It examines whether the legislation and the procedural rules for the Competition Appeal Tribunal address the failures of previous procedures, focusing on three issues in particular i) the treatment of conflicting interests amongst class members ii) the rules on certifying collective proceedings; and iii) rules on funding. It argues that while the Act is a considerable improvement on what preceded it, the safeguards adopted will act as a drag on meritorious and unmeritorious claims alike, and as such there is likely to be continued under‐enforcement of competition law.     

Recent legal developments

Abstract

THE CASE of R (Pretty) v. Director of Public Prosecutions, gave the House of Lords the opportunity to comment on the issues surrounding the application of the European Convention on Human Rights to the crime of assisted suicide in the case of the terminally ill. A conservative approach was taken in relation to both this issue and indeed in relation to the possibilities of judicial control of the Law Officers of the Crown.     

Finger in the Dyke or the Floodgates Stemmed? Sections 29–40 of the Employment Act 2002

This article considers Sections 29–40 of the Employment Act 2002 in the context of post-War developments in labour relations culminating in the National Industrial Relations Court. It considers the development of Employment Tribunal which rather than being the last resort intended by the legislators, has become the first resort of complainants, often for trivial matters by employees; or by employers taking an extremely broad view of Gross Misconduct by employees. Due to the volume of cases and the shortage of Chairs, cases are constantly delayed and postponed. The article posits that these are the principle reason behind the framing of Sections 29–40 of the Employment Act 2002 which introduced a new Section 9(1)(a) into the Employment Tribunals Act 1995. This has given the Chair of an Employment Tribunal the authority to strike out a weak case at a Pre-Hearing Review that will strike the case out once and for all at this juncture. The aim is to encourage employers to have proper procedures and for employees to follow them. This article suggests that in fact the reforms will have the opposite effect; that they have introduced another layer of legal complexity which will further increase the number of cases brought before the Employment Tribunal.     

The Territorial Scope of Employment Legislation and Choice of Law

Traditionally, the determination of the territorial scope of the statutory rights conferred by employment legislation forming part of English law has been regarded as an issue entirely disconnected from the choice‐of‐law process. Indeed, this view formed the basis of the key decision addressing the problem of territoriality, Lawson v Serco, decided by the House of Lords in 2006. After presenting the current state of the law with regard to the territorial scope of employment legislation, this article takes a critical look at Lawson v Serco. It is argued that the ‘European’ choice‐of‐law rules must have a greater importance for determining the territorial scope of employment legislation and, consequently, that the approach pursued in Lawson v Serco is no longer correct, if it ever was, and should not be followed in the future.     

Gillick v West Norfolk and Wisbech Area Health Authority

England's Court of Appeal, Civil Division, ruled that parents had the right to prevent a physician at the local health authority from prescribing contraceptives to girls under the age of 16 without parental consent. Since a girl was legally incapable of giving valid consent in other matters before that age, neither could she give valid consent to contraception or abortion. A doctor who provided contraception or abortion treatment to a girl under 16, except in an emergency or with permission of the court, would infringe on the legal rights of the parents. An appeal was taken to the House of Lords.     

Strasbourg,the House of Lords or Elected Politicians: Who decides about rights after Re P?

In Re P , the House of Lords decided that art 14 of the Adoption (Northern Ireland) Order 1987 which prohibited unmarried couples from being eligible to adopt, violated articles 8 and 14 of the European Convention on Human Rights. Apart from its significance for adoption law and anti-discrimination law, Re P is also important in understanding the constitutional role of the courts under the Human Rights Act 1998 (HRA). Re P recognizes that if Strasbourg has determined that an issue falls within states' margin of appreciation, this does not prevent municipal courts from enforcing those rights. This comment will discuss the meaning and scope of the courts' obligation under section 2 of the HRA, the status of the rights protected by the HRA and the appropriate role of the courts in a rights dispute which is subject to moral, social, religious or political controversy.     

The Law Lords and Human Rights

This article presents an empirical analysis of the impact of the Human Rights Act on the House of Lords. Drawing on a database of judgments from 1994 to 2007, changes in judgment‐giving behaviour are identified by charting patterns of agreement and dissent across different categories of case. Voting records are also examined in order to identify whether significant differences exist between individual Law Lords in their approach to human rights cases.