Southampton Student Law Review 2011 volume 1, issue 1 5 Southampton Student Law Review University of Southampton School of Law Published in the United Kingdom By the Southampton Student Law Review School of Law University of Southampton SO17 1BJ In affiliation with the University of Southampton School of Law All rights reserved. Copyright© 2011 University of Southampton. No part of this publication may be reproduced, transmitted, in any form or by any means, electronic, mechanical, recording or otherwise, or stored in any retrieval system of any nature, without the prior, express written permission of the Southampton Student Law Review and the author, to whom all requests to reproduce copyright material should be directed, in writing. The views expressed by the contributors are not necessarily those of the Editors of the Southampton Student Law Review. Whilst every effort has been made to ensure that the information contained in this journal is correct, the Editors do not accept any responsibility for any errors or omissions, or for any resulting consequences. The Editors wish to thank Dr. Oren Ben Dor, Dr. Alun Gibbs and Ms Johanna Hjalmarsson. © 2011 Southampton Student Law Review ISSN 2047 - 1017 This volume should be cited (2011) 1 S.S.L.R. Editorial Board 2011 Editor Harry East Associate Editors Ross W Martin Emma Nottingham Thomas Webber Editorial Board Semande Ayihongbe Aysegul Bugra Dingjing Huang Haedong Jeon Assad Khan Konstantinos Kofopoulos Miao Li Ioanna Magklasi Siven Pillay Rungien Meixian Song Valerio Torti Jingbo Zhang Academic Advisors Dr. Oren Ben Dor Dr. Alun Gibbs Ms Johanna Hjalmarsson The editors wish to thank all members of the University of Southampton School of Law who have helped in the creation of this volume Table of Contents Foreword ............................................................................................................. i Professor Natalie Lee Articles Exploring the Collective mea culpa: Reconciliation Between Nations and Populations .......................................................................................................... 1 Josh Boughton Pure Economic Loss in Negligence: Has England got it wrong? Does Australia have it right? ............................................................................ 20 Marilena Stylianou Compensation Culture: A Storm in a Coffee Cup ............................................ 45 Harriet Ann Williams Birks and the Absence of Basis Approach ...................................................... 69 Clive Bow Out with the Old, in with the New? Comparing the 1992 US Horizontal Merger Guidelines with the 2010 US Horizontal Merger Guidelines ............ 80 Alison Knight A False Hope?: A Critical Evaluation of the Difference made by the Human Rights Act to those who Rent Homes ................................................. 93 Victoria Ferguson Straight through Certainty and Out the Other Side: Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 and Proprietary Estoppel ........................................................................................................... 105 Charlotte Groom Case Comment Case comment: Re T (a child) (surrogacy: residence order) [2011] EWHC 33 (fam) ................................................................................................................ 111 Emma Woolley 2011 Undergraduate Dissertations The Problem with Reasonable Force: Rebalancing the Law in Favour of the Householder by Adopting Alternative Jurisdictional Approaches ..... 117 Edward Smith Does a Rose by any Other Name Smell as Sweet? A Discussion of Whether Perfume can be Protected under Intellectual Property Law from Smell-a– Likes, and Whether it Should be? .................................................................... 146 Jasmin Eames Pirates… A Charterers‟ Peril of the Sea? ........................................................ 169 Giulia Argano Foreword It is my very great pleasure to be Head of the Law School at the inauguration of the Southampton Student Law Review. One of only a few other student law reviews in the United Kingdom, this new publication is both managed and written by students associated with the University of Southampton. It is the brainchild of Ross W. Martin, an accelerated LLB student from the United States, and was spearheaded by Harry East, one of our current postgraduate research students, without whom this volume would not exist. Emma Nottingham was instrumental in gathering submissions, especially by running a contest for the best case comment, while Thomas Webber contributed by editing articles. It is intended as a showcase for some of the very best work produced by students in the Law School at the University of Southampton as well as a forum for them to present their ideas outside the confines of pieces of work set for assessment purposes. By encouraging submissions from undergraduate and postgraduate taught students as well as research students, this can only contribute to the research culture of the School. The student law review is something that has a long tradition in the United States, where editors of reviews from the leading law schools can expect their editorial position to assure them of employment as law clerks in the highest courts or in the top firms in the country. I hope that, in time, the Southampton Student Law Review will not only contribute greatly to the education of students reading Law at Southampton by encouraging discussion of some of the most difficult legal issues of our time, but also that it will be read by a wide audience that includes potential employers and will become recognised as a serious publication. A unique feature of our undergraduate programme, final year students are required to write a 10,000 word dissertation on a subject of their choice, with supervision being provided by an academic member of staff. This element in the degree programme is designed to promote independent research by the students, building upon the foundations of the first two years of the LLB. The initial issues of the Review will include the seven best undergraduate dissertations from 2011, which are testament to the research skills and independence of thought that characterise our graduates. The task of the student editorial board to keep up the momentum of the first two issues will be an onerous one, but they can be assured of a helping hand from my academic colleagues in the Law School. I wish all those currently involved with the Southampton Student Law Review, and those who will become involved in future years, great success with this new and exciting publication. Professor Natalie Lee, Barrister Professor of Tax Law Head of the Law School, University of Southampton July 2011 S.S.L.R. Exploring the Collective mea culpa Vol. 1 Exploring the Collective mea culpa: Reconciliation Between Nations and Populations Josh Boughton The „apology‟ is an important weapon in any politician‟s armoury of political rhetoric. In order to cultivate reconciliation, politicians are quick to deliver sincere apologies for wrongs that they, their governments, or their nation have committed. By considering two recent political apologies, this article seeks to explore how apologies can legitimately function on behalf of a nation. David Cameron‟s apology to the relatives of the victims of „Bloody Sunday‟ provides us with an opportunity to revisit the debate that was provoked in 2008 with Kevin Rudd‟s apology to Australia‟s „Stolen Generations‟. By considering these apologies, this article explores the way in which collective apologies can be explained and supported. The author submits that all citizens of a nation can legitimately participate in a collective apology through experiencing a sense of national responsibility. The author further submits that this responsibility is founded on privilege: being privileged enough to be able to enjoy the triumphs in your nation‟s history means that you must also accept the failures. The author concedes that while apologies can be effective in reconciling relationships and ameliorating the present, they must not be overestimated; they cannot exist in a vacuum. Apologies must be accompanied by additional factors in order to function as effective vehicles for reconciliation and justice Introduction pologies are an integral part of modern social discourse; from the brief „sorry‟ that we offer as we brush past another individual to the more A sincere „I am sorry for the way I acted‟. Aside from their role as a basic social mechanism, apologies have been used in recent years to embody a much more profound political purpose. Apologies have been employed by numerous politicians to express regret and remorse for wrongs that they, their government, or their nation have committed. For example, Prime Minister Kevin Rudd‟s apology to Australia‟s Aboriginal population in relation to the „Stolen Generations‟ attracted a great deal of attention from indigenous and non-indigenous Australians alike. More recently, the notion of the apology as a method of reconciliation was brought to the forefront of public attention with David Cameron‟s apology to the relatives of the victims of „Bloody Sunday‟. This high profile and very public example provides a new opportunity to examine the question of whether apologies issued on behalf of 1 [2011] Southampton Student Law Review Vol. 1 groups can support the process of reconciliation after mass atrocity and conflict. This article intends to assess the effectiveness of the „collective apology‟ as a mechanism