DOCSLIB.ORG

Judicial Diversity

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text

Load more

Cambridge Journal of International and Comparative Law Publication Copyright and open-access policy The Cambridge Journal of International The CJICL is an open-access publication gov- and Comparative Law is an open- erned by our publishing and licensing agree- access publication available online at ment. Any commercial use and any form of <http://www.cjicl.org.uk>. Each volume con- republication of material not covered by the sists of two or more general issues and a spe- cial issue examining the jurisprudence of the applicable license is subject to the express per- UK Supreme Court. mission of the Editors-in-Chief. Editorial Policy Contact information All submissions are subject to a double-blind Cambridge Journal of International and Com- peer-review editorial process by our Aca- parative Law demic Review Board and/or our Editorial Faculty of Law, 10 West Road Team. Cambridge, CB3 9DZ Submissions United Kingdom The journal accepts the following types of manuscript: E-mail: [email protected] (i) Long Articles between 6,000 and 12,000 Web: http://www.cjicl.org.uk words but not exceeding 12,000 words in- cluding footnotes; Typeset in Crimson and Gentium Book Basic, (ii) Short Articles not exceeding 5,000 words distributed under the terms of the SIL Open Font including footnotes; (iii) Case Notes not exceeding 3,000 words license, available at <http://scripts.sil.org/OFL>. including footnotes; and (iv) Book Reviews not exceeding 2,500 words including footnotes. Please visit our website for submission details. ISSN 2050-1706 (Print) ISSN 2050-1714 (Online) © 2013 Cambridge Journal of International and Comparative Law and Contributors This issue should be cited as (2013) 2(1) C.J.I.C.L. http://www.cjicl.org.uk i Editorial Board 2012-13 Editors-in-Chief JasmineMoussa BartSmitDuijzentkunst Managing Editors JastineBarrett EmmaBickerstaffe DanielCostelloe CameronMiles Sidney Richards Managing Editor of the UK Supreme Court Annual Review Shona Wilson Secretary and Treasurer Yin Harn Lee Editors Ielyzaveta Badanova Philippe Boisvert AnnSofieCloots DanielClarry TatyanaEatwell CallistaHarris GodsgloryIfezue KrishnaKakkaiyadi BulbulKhaitan LawrenceLi DemetrioMaltese AnaJúliaMaurício NatasaMavronicola ThomasMiller RowanNicholson MariaRajabali MaryRoberts ChristopherSargeant EstelleWolfers JureZrilic CJICL Blog Team DanielCostelloe NaomiBurke ValentinJeutner RobinMorris ii Academic Review Board Honorary Member and Senior Treasurer PROFESSOR JAMES CRAWFORD SC LLD, Whewell Professor of International Law at the University of Cambridge and Barrister at Matrix Chambers Members DR GEERT DE BAERE, Assistant Professor DR DOMINIC DE COGAN, Leverhulme at Katholieke Universiteit Leuven Early Career Research Fellow, Birmingham Law School DR FREYA BAETENS, Assistant Professor at Leiden University MR ZACHARY DOUGLAS, Associate Pro- fessor at the Graduate Institute, Geneva, and DR JOHN BARKER, Fellow of the Lauter- Barrister at Matrix Chambers pacht Centre for International Law and Fel- low of Hughes Hall DR MATTHEW DYSON, College Lecturer in Law at Trinity College, University of Cam- PROFESSOR CATHERINE BARNARD, Pro- bridge fessor and Jean Monnet Chair of European Union Law at the University of Cambridge, PROFESSOR CHARLES GARRAWAY, Fel- Co-director of the Centre for European Legal low, Human Rights Centre, University of Es- Studies and Fellow of Trinity College sex; Former Stockton Professor, United States Naval War College DR LORAND BARTELS, University Senior Lecturer, University of Cambridge and Fel- DR MARKUS GEHRING, University Lec- low of Trinity Hall turer; Deputy Director, Centre for European LegalStudies; andFellow ofHughesHall, Uni- PROFESSOR JOHN BELL, Professor of Law versity of Cambridge at the University of Cambridge, Fellow of Pembroke College and Editor of the Cam- DR JOANNA GOMULA-CRAWFORD, Fel- bridge Law Journal low of the Lauterpacht Centre for Interna- tionalLawandVisitingReaderatQueenMary MS MARIE-CLAIRE CORDONIER SEG- College, University of London GER, Senior Legal Expert, International De- velopment Law Organization DR TOM GRANT, Research Fellow, Lauter- pachtCentreforInternationalLawandFellow DRANTHONYCULLEN,ResearchFellowin of Wolfson College International Law at the University of Leeds iii PROFESSOR CHRISTINE GRAY, Professor DR ROGER O'KEEFE,UniversitySeniorLec- ofInternationalLawattheUniversityofCam- turer at the University of Cambridge and bridge and Fellow of Trinity College Deputy Director, Lauterpacht Centre for In- ternational Law DRDOUGLASGUILFOYLE,SeniorLecturer at University College London DR ALEX OUDE ELFERINK, Deputy Di- rector and Associate Professor, Netherlands DR PETER HARRIS, Reader in Tax Law and Institute for the Law of the Sea, Utrecht Uni- Fellow of Churchill College, University of versity Cambridge DR TIINA PAJUSTE, Research Associate at DR GLEIDER I HERNÁNDEZ, Lecturer at the Lauterpacht Centre for International Law the University of Durham DR KATE PARLETT, Associate, Freshfields DR JESSIE HOHMANN, Lecturer in Law, Bruckhaus Deringer Queen Mary, University of London DR SOLÈNE ROWAN, Fellow and College DR DANIEL JOYCE, Lecturer at the Univer- Lecturer in Law, Queens' College, University sity of New South Wales of Cambridge MS JODIE KIRSHNER, University Lecturer, DR SURABHI RANGANATHAN, Junior Re- University of Cambridge and Fellow of Peter- search Fellow in Public International Law, house King's College, University of Cambridge DR FRANCESCO MESSINEO, Lecturer at MS EVGENIYA RUBININA, Associate, the University of Kent Freshfields Bruckhaus Deringer DR MARKO MILANOVIC, Lecturer at the PROFESSOR PHILIPPE SANDS QC, Pro- University of Nottingham fessor of Law at University College London and Barrister at Matrix Chambers DR ALEX MILLS, Lecturer at University Col- lege London MR ANDREW SANGER, Founding Editor- in-Chief and Doctoral Candidate, University MS EVA NANOPOULOS, College Teaching of Cambridge Officer, Sidney Sussex College, Cambridge MR DANIEL SAXON, York Distinguished MS PENELOPE NEVILL, Tutor at King's Visiting Fellow, University of Cambridge and College London and Barrister, 20 Essex Street Visiting Fellow, Wolfson College DR SARAH NOUWEN, University Lecturer, DR JILLAINE SEYMOUR, Fellow and Col- University of Cambridge and Fellow of Pem- lege Lecturer in Law, Sidney Sussex College, broke College University of Cambridge iv PROFESSOR MALCOLM SHAW QC, Pro- DR SANTIAGO VILLALPANDO, Legal Offi- fessor of International Law, Senior Fellow of cer at the Codification Division of the United the Lauterpacht Centre for International Law Nations Office of Legal Affairs and Barrister at Essex Court Chambers DR MICHAEL WAIBEL, University Lecturer PROFESSOR JOHN SPENCER QC LLD, Professor of Law, Co-director of CELS, Uni- at the University of Cambridge and Fellow of versity of Cambridge and Fellow of Selwyn Jesus College College PROFESSOR MARC WELLER, Professor of MR CHRISTOPHER THOMAS, Lecturer in InternationalLaw andInternationalConstitu- Law at the London School of Economics and tional Studies at the University of Cambridge Political Science and Director of the Lauterpacht Centre for DR KIMBERLEY TRAPP, Lecturer at Uni- International Law, University of Cambridge versity College London DRRALPHWILDE,ReaderatUniversityCol- DR SOPHIE TURENNE, Neil Allam/Clifford lege London Chance Lecturer in Law, University of Cam- bridge and Fellow of Murray Edwards MS RUMIANA YOTOVA, Founding Editor- in-Chief and Doctoral Candidate, University DR ISABELLE VAN DAMME, Référendaire of Cambridge at the European Court of Justice PROFESSOR GUGLIELMO VERDIRAME, MR SHENG ZHANG, Xi'an Jiaotong Uni- Professor of Law at King's College, University versity of London v Volume 2 C.J.I.C.L. [2013] Issue 1 The UK Supreme Court Annual Review Table of Contents Editor's Introduction 1 Shona Wilson Foreword 3 Matthew Ryder Part I: Commentary and Reflections Judicial Diversity: Where Do We Go From Here? 7 Shona Wilson Intervention at the UK Supreme Court 16 Lorne Neudorf Creativity in the Supreme Court 2011-12 33 Brice Dickson The Structure of Supreme Court Judgments: Eleven Ways to 41 Leave One's Mark Chris Hanretty The Selection of the Major Premise 47 William Gummow ‘A Most Difficult Case': On the Ratio of Gnango 60 Findlay Stark Scotland and the Supreme Court 67 Lord Drummond Young vi Part II: Thematic Analysis Protecting the Interests of the Child 77 Godsglory Ifezue and Maria Rajabali Criminal Law, Evidence and Procedure 86 Tatyana Eatwell and Christopher Sargeant European Dimensions 96 Demetrio Maltese and Rowan Nicholson Social Welfare 103 Ielyzaveta Badanova and Ann Sofie Cloots Treaty Interpretation before the Supreme Court 113 Callista Harris and Krishna Kakkaiyadi Part III: The 2011–12 Legal Year in Overview Overview: Civil Procedure 121 Jure Zrilic Overview: Constitutional and Administrative Law 125 Philippe Boisvert Overview: Criminal Law 128 Estelle Wolfers Overview: Economic and Safety Regulation 131 Thomas J Miller Overview: European Law 136 Ana Júlia Maurício Overview: Family Law 140 Natasa Mavronicola Overview: Human Rights 145 Bulbul Khaitan Overview: Immigration Law 150 Mary Roberts Overview: International Law 154 Mary Roberts Overview: Local Government 157 Philippe Boisvert vii Overview: Private Law 160 Lawrence Li Overview: Tax Law 165 Ana Júlia Maurício Part IV: Composition and Statistics AppendixA:CompositionoftheSupremeCourt 168 AppendixB:Statistics 170 viii DOI: 10.7574/cjicl.02.01.91 Cambridge Journal of International and Comparative Law (2)1: 1–2 (2013) Editor’s Introduction Shona Wilson* This special edition of the
Recommended publications
  • Ideas of Equity (Pdf)

    Ideas of Equity (Pdf)

    Ideas of Equity 00A_PoE_prelims.pmd 1 15/05/2017, 21:45 STUDIES IN SCOTS LAW Series Editor Kenneth G C Reid Editorial Board Alan R Barr Sandra M Eden George L Gretton Volumes in the series 1. Ross Gilbert Anderson, Assignation (2008) 2. Andrew J M Steven, Pledge and Lien (2008) 3. Craig Anderson, Possession of Corporeal Moveables (2015) 4. Jill Robbie, Private Water Rights (2015) 5. Daniel J Carr, Ideas of Equity (2017) 00A_PoE_prelims.pmd 2 15/05/2017, 21:45 STUDIES IN SCOTS LAW VOLUME 5 Ideas of Equity Daniel J Carr Lecturer in Private Law, University of Edinburgh Lecturer in Law, Robert Gordon University EDINBURGH LEGAL EDUCATION TRUST 2017 00A_PoE_prelims.pmd 3 15/05/2017, 21:45 Published by Edinburgh Legal Education Trust School of Law University of Edinburgh Old College South Bridge Edinburgh EH8 9YL http://www.centreforprivatelaw.ed.ac.uk/monograph_series First published 2017 © Daniel J Carr, 2017 The author asserts his moral rights. ISBN 978-0-9556332-9-4 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the written permission of the copyright owner. Applications for the copyright owner’s permission to reproduce any part of this publication should be addressed to the publisher. Typeset by Etica Press Ltd, Malvern Printed and bound by Martins the Printers, Berwick-upon-Tweed 00A_PoE_prelims.pmd 4 15/05/2017, 21:45 Contents Preface vii Table of Cases ix Table of Statutes xvii Abbreviations xix 1 Introduction 1 2 Historical Understandings of Equity 14 3 Unjustified Enrichment 53 4 Trusts 104 5 Constructive Trusts 134 6 Fiduciary Law 184 7 Conclusion 219 Index 219 v 00A_PoE_prelims.pmd 5 15/05/2017, 21:45 00A_PoE_prelims.pmd 6 15/05/2017, 21:45 Preface This book is an updated version of my doctoral thesis submitted in 2009, and awarded by the University of Cambridge in 2010.
  • Society of Legal Scholars Conference 2016 Legislation Or Judicial Law Reform

    Society of Legal Scholars Conference 2016 Legislation Or Judicial Law Reform

    Society of Legal Scholars Conference 2016 Legislation or judicial law reform: where should judges fear to tread? Lady Hale, Deputy President of The Supreme Court 7 September 2016 James Lee set me a challenge in his paper on ‘The Etiquette of Law Reform’ at the seminar held last year to celebrate 50 years since the creation of the Law Commissions1: why, he asked, was the Law Commission’s competence a factor against judicial development of the law on pre-nuptial agreements in Radmacher v Granatino 2 (or, he might more pertinently have asked, on witness immunity in Jones v Kaney3) but not similarly a factor in the joint ownership cases of Stack v Dowden4 and Jones v Kernott?5 Although generally a respecter of the judicial motto, ‘never explain and never apologise’, this is a fair question and I shall attempt to give it a fair answer. The wider question is ‘when should a judge feel free to develop, change or reform the law rather than leaving it to Parliament?’ In trying to answer the question, please forgive me for concentrating on the cases in which I have been involved. Recently in the Supreme Court There is a tendency, noticeable among some law students, but not among the members of this Society, to think of Stack v Dowden and Jones v Kernott as family law cases, concerned with discretionary property adjustment when an unmarried couple’s relationship breaks down. They were no such thing. They were property law cases concerned with deducing the intentions of the 1 Ch 29 in M Dyson, J Lee and S Wilson Stark (eds),Fifty Years of the Law Commissions (2016) Bloomsbury; see also Ch 20, Andrew Burrows, ‘Post-legislative Scrutiny, Legislative Drafting and the “Elusive Boundary”’.
  • Rethinking the Common Intention Constructive Trusts in Stack V Dowden and Jones V Kernott – Should the Resulting Trusts Be Preferred?

    Rethinking the Common Intention Constructive Trusts in Stack V Dowden and Jones V Kernott – Should the Resulting Trusts Be Preferred?

    Rethinking the Common Intention Constructive Trusts in Stack v Dowden and Jones v Kernott – should the Resulting Trusts be preferred? by Yee Ching Leung Abstract Yee Ching Leung takes the two landmark cases, Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53, as starting points to consider the new Common Intention Constructive Trust approach in dealing with the issue of how the beneficial interest of a property is to be shared between two separating cohabitants. The article analyses whether this new approach should be preferred over the traditional Resulting Trust approach. The author explains the two approaches and gives three arguments in support of the Resulting Trust approach. First, it provides a greater degree of certainty, which is crucial in property law. Secondly, the traditional approach is more coherent in principle when comparing to the Common Intention Constructive Trust approach. Thirdly, the author argues that the Resulting Trust approach would not leave the discretion of judges unconfined. Toward the end of the article, the author gives two brief replies to the critics of the Resulting Trust approach. However, the Common Intention Constructive Trust approach is now the law of England and whether the Resulting Trust approach will return remains to be seen. I. Introduction This article concerns the issue of how the beneficial interest of a property is to be shared between two separating cohabitants. Generally, the issue can be resolved by either an express trust or an express agreement. However, in a domestic context, it is common that cohabitants do not make explicit arrangements. Accordingly, the courts have to decide the issue when disputes arise during their separation.
  • UK Supreme Court Debate Day

    UK Supreme Court Debate Day

    UK Supreme Court Debate Day Information Pack 1 Contents 1. Introduction to the Supreme Court 2. Joint Enterprise – What is it? 3. Background Information on UKSC Joint Enterprise Cases 4. Further Case Examples 5. Your Debate 6. Debate Rules and Preparation 7. Useful Links 2 1. The UK Supreme Court The Supreme Court is the highest court in the United Kingdom. It is the final court of appeal for all civil cases in the UK (including Scotland) and for criminal cases in England, Wales, and Northern Ireland, excluding Scotland. Any decisions made in the Supreme Court sets the precedent for all of the lower courts. The Supreme Court is also the final court of appeal for devolution issues, where its role would be to see whether Scotland, Northern Ireland, and Wales are acting within their powers. These cases used to be heard by the Judicial Committee of the Privy Council. The Supreme Court was established in the Constitutional Reform Act of 2005 which sought to establish a clear separation of powers between the executive, the legislature and the judiciary. It also aimed to create a more transparent and accessible judicial process. It was in October 2009 that the judges or Law Lords were finally moved out of the Appellate Committee of the House of Lords (the former highest court of appeal) and into the newly renovated Supreme Court. There are twelve Supreme Court justices, but they do not sit on cases at the same time. Each case is usually heard by a panel of five justices. This can be increased to seven or nine justices depending on the importance or complexity of the case.
  • Abolishing Australia's Judicially Enacted Sui Generis Doctrine Of

    Abolishing Australia's Judicially Enacted Sui Generis Doctrine Of

    Abolishing Australia’s Judicially Enacted Sui generis Doctrine of Extended Joint Enterprise * Victoria B. Wang Abstract In this paper it is argued that the decision in Miller v The Queen [2016] HCA 30 is not supported by the common law precedents in Australia nor the historical English precedents. It is argued that the change of normative position theory invoked by the majority judges is just stated as a rule rather than as a positive justification, which is an assertion that has never been developed into a plausible theory. Moreover, the policy considerations cannot work as convincing justifications for extended joint enterprise liability. It is submitted that assisting/encouraging is normatively different from and less harmful and dangerous than perpetration; and that making an assister/encourager fully liable for the target crime goes against principles of fair labelling and proportionate punishment. It is further submitted that the unfairness and injustice in complicity liability is doubled in the context of extended joint enterprise showing the urgency of abolition of it in Australia. I Introduction Arguably, a doctrine of ‘extended joint enterprise’ was enacted by judicial fiat in Australia in 1995.1 It appears the judges deciding McAuliffe v The Queen were * Lecturer, School of Law, University of Surrey, United Kingdom. 1 McAuliffe v The Queen [1995] 183 CLR 108. The majority judges in Miller v The Queen [2016] HCA 30, para 2 acknowledge its doctrinal foundations cannot be traced beyond the 1980s when they state, ‘These criticisms were invoked in support of an application to re-open and overrule McAuliffe in Clayton v The Queen (2006).
  • Yours, Mine, Or Ours? Charting a Course Through Equity's

    Yours, Mine, Or Ours? Charting a Course Through Equity's

    Yours, Mine, or Ours? Charting a Course Through Equity’s Determination of Domestic Proprietary Interests Kathrine Galloway ORCID: 0000-0002-8047-1210 Submitted in total fulfilment of the requirements for an award of Doctor of Philosophy Submitted 24 March 2017 Melbourne Law School ABSTRACT Distributing proprietary interests between domestic heterosexual partners remains the purview of the courts of equity, using the trust. In answering the question: ‘Whose property is this?’ the courts are faced with the tension between a property law system designed for the market, and property claims arising from within a couple’s intimate lives. The law’s market orientation favours the party best able to explain their claim in market terms. Because of the gendered structures of society and the family, the process tends to favour the man. This prompts the question central to this thesis: Does equity have the capacity to determine domestic proprietary interests consistent with equality between men and women intimate partners in light of pervasive gender inequality? Existing analysis of intimate partner trusts predominantly suggests new redistributive mechanisms to resolve the problem of equality. Other work describes the law’s evolution towards more ‘familial’ approaches as ameliorating the unfairness of market norms applied to intimate relationships. This thesis adds to the literature by using relational theory to focus instead on equity’s existing property-based distributive framework, charting a course through the tensions inherent in the application of market principles to the intimate context. The tensions of individual and community, market and home, arise from the tenets of liberalism built into private law.
  • Durham Research Online

    Durham Research Online

    Durham Research Online Deposited in DRO: 24 May 2016 Version of attached le: Accepted Version Peer-review status of attached le: Peer-reviewed Citation for published item: Hayward, A. (2016) 'Common intention constructive trusts and the role of imputation in theory and practice.', Conveyancer and property lawyer., 80 (3). pp. 233-242. Further information on publisher's website: http://www.sweetandmaxwell.co.uk/Catalogue/ProductDetails.aspx?recordid=333 Publisher's copyright statement: This is a pre-copyedited, author-produced version of an article accepted for publication in Conveyancer and Property Lawyer following peer review. The denitive published version Hayward, A. (2016) 'Common intention constructive trusts and the role of imputation in theory and practice.', Conveyancer and property lawyer., 80 (3): 233-242 is available online on Westlaw UK or from Thomson Reuters DocDel service. Additional information: Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in DRO • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full DRO policy for further details. Durham University Library, Stockton Road, Durham DH1 3LY, United Kingdom Tel : +44 (0)191 334 3042 | Fax : +44 (0)191 334 2971 https://dro.dur.ac.uk Common Intention Constructive Trusts and the Role of Imputation in Theory and Practice: Barnes v Phillips Barnes v Phillips [2015] EWCA Civ 1056; [2016] HLR 3 Andy Hayward* Following the Supreme Court decision in Jones v Kernott, imputation of fair shares now exists as a possibility in the quantification (but not acquisition) of beneficial ownership under a common intention constructive trust.
  • FLW January 2010

    FLW January 2010

    Family Law Week December 2011 - 1 December 2011 News 1 report, the decision will provide clarity Analysis NEWS for countless couples who buy property together about whether and, if so, how Finance & Divorce Update 23 Jones v Kernott: Supreme Court their original agreements can be Autumn 2011 judgment to be delivered on reinterpreted by a court months or years Mesher Orders in Practice 26 Wednesday, 9 November later on the basis of what might be considered fair. Depending on the Jones v Kernott – Another 29 The Supreme Court will deliver its judgment, it may be that family lawyers helping of the witches' brew? judgment in Kernott v Jones on who specialise in this complex area will be advising clients that living together Wednesday, 9 November. The case was The Proceeds of Crime Act 32 heard in May 2011 by Lord Walker of agreements and declarations of trust are 2002 in Financial Remedy Gestingthorpe, Lady Hale of Richmond, essential if they are not to be prejudiced Proceedings Part 1. if the relationship breaks down." Lord Collins of Mapesbury, Lord Kerr of The Proceeds of Crime Act 37 Tonaghmore and Lord Wilson of 2002 in Financial Remedy Culworth. The judgment in the Court of Appeal can Proceedings Part 2. be read here. One step forward, one step 42 The issue which the Supreme Court will back: Jones v Kernott decide is "whether a court can properly An article by Rebecca Bailey-Harris and 45 infer an agreement by an unmarried John Wilson (Hang on a Minute! (Or is Alternative Methods of Family Dispute Resolution couple, who hold a property in equal Kernott the new White?)), can be read here.
  • A Comparative Study of English and Australian Constructive Trusts

    A Comparative Study of English and Australian Constructive Trusts

    Denning Law Journal 2020 Vol 32 p 151-173 BENEFICIAL OWNERSHIP OF THE FAMILY HOME: A COMPARATIVE STUDY OF ENGLISH AND AUSTRALIAN CONSTRUCTIVE TRUSTS Mark Pawlowski * James Brown** ABSTRACT The aim of this article is to review and critically analyse the English law relating to common intention constructive trusts in the context of the family home. In particular, it seeks to show how the English courts have addressed the question of establishing and quantifying the parties’ beneficial shares in both sole and joint ownership cases. The writers also seek to compare the English approach with the way in which such ques- tions have been answered by the Australian courts. The primary purpose of this comparison is to consider what lessons (if any) can be learnt from the Australian model. Key words: family home, constructive trust, beneficial ownership, common intention, presumption of equality, single regime, composite enquiry INTRODUCTION Much of English law regarding the imposition of a constructive trust in relation to the family home has developed in the context of sole ownership cases where legal title to the property is vested in one of the parties. In these cases, considerable confu- sion has persisted amongst the judiciary regarding the correct test to be applied in establishing beneficial entitlement (the acquisition question) and the method by which such entitlement should be assessed (the quantification question). In terms of acquiring a beneficial share, the House of Lords, in two landmark cases1 decided in the early 1970s, clarified the previous law by adopting a test based on common intention and detrimental reliance. These cases have provided the foundations for determining beneficial entitlement in single ownership cases under English law.
  • Oxford University Undergraduate Law Journal

    Oxford University Undergraduate Law Journal

    Issue 1 2012 OXFORD UNIVERSITY UNDERGRADUATE LAW JOURNAL ouulj.law.ox.ac.uk The views expressed by the contributors are not necessarily those of the Editorial or Honorary Board of the Oxford University Undergraduate Law Journal. Whilst every effort has been made to ensure that the information contained in this journal is correct, the Editors cannot accept any responsibility for any errors or omissions, or for any consequences resulting therefrom. © 2011 individual authors. 2011-12 Editorial Board Editor-in-Chief Maria Sonam Hertford College General Editor Christy Rush Magdalen College Editors Samuel Campbell Elton Tan St Edmund Hall Exeter College Associate Editors Ian Cheong James Fisher St Edmund Hall St Catherine’s College Li Sian Goh Owen Lloyd Corpus Christi College Merton College Danny Tang Judy Wong Harris Manchester College New College Honorary Board Sir Nicolas Bratza Professor Michael Bridge Donald Findlay QC Professor Christopher Forsyth Ian Gatt QC The Right Hon the Lord Judge The Right Hon the Lord Kerr of Tonaghmore Michael Mansfield QC The Right Hon the Lord Neuberger of Abbotsbury The Right Hon the Lord Phillips of Worth Matravers Lord Pannick QC Dinah Rose QC Sir Konrad Schiemann The Right Hon the Lord Wilson of Culworth Contents English Law and the Doctrine of Abuse of Rights Mateusz Krauze ............................................................................................ 1 Life After Bankovic and Al-Skeini v UK: Extraterritorial Jurisdiction Under the European Convention on Human Rights Natasha Holcroft-Emmess
  • Joint Enterprise

    Joint Enterprise

    House of Commons Justice Committee Joint Enterprise Eleventh Report of Session 2010–12 Volume I: Report, together with formal minutes, oral and written evidence Additional written evidence is contained in Volume II, available on the Committee website at www.parliament.uk/justicecom Ordered by the House of Commons to be printed 11 January 2012 HC 1597 Published on 17 January 2012 by authority of the House of Commons London: The Stationery Office Limited £13.50 Justice Committee The Justice Committee is appointed by the House of Commons to examine the expenditure, administration and policy of the Ministry of Justice and its associated public bodies (including the work of staff provided for the administrative work of courts and tribunals, but excluding consideration of individual cases and appointments, and excluding the work of the Scotland and Wales Offices and of the Advocate General for Scotland); and administration and expenditure of the Attorney General's Office, the Treasury Solicitor's Department, the Crown Prosecution Service and the Serious Fraud Office (but excluding individual cases and appointments and advice given within government by Law Officers). Current membership Rt Hon Sir Alan Beith (Liberal Democrat, Berwick-upon-Tweed) (Chair) Steve Brine (Conservative, Winchester) Mr Robert Buckland (Conservative, South Swindon) Jeremy Corbyn (Labour, Islington North) Nick de Bois (Conservative, Enfield North) Christopher Evans (Labour/Co-operative, Islwyn) Ben Gummer (Conservative, Ipswich) Rt Hon Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd) Yasmin Qureshi (Labour, Bolton South East) Mrs Linda Riordan (Labour/Co-operative, Halifax) Elizabeth Truss (Conservative, South West Norfolk) Karl Turner (Labour, Kingston upon Hull East) The following Members were also members of the Committee during the Parliament: Mrs Helen Grant (Conservative, Maidstone and The Weald); Mrs Siân C James (Labour, Swansea East); Jessica Lee (Conservative, Erewash); Claire Perry (Conservative, Devizes); and Anna Soubry (Conservative, Broxtowe).
  • Bartłomiej Orawiec* in Paragon Finance Plc V DB Thakerar & Co1

    Bartłomiej Orawiec* in Paragon Finance Plc V DB Thakerar & Co1

    REVIEW OF COMPARATIVE LAW VOLUME XXVIII YEAR 2017 ENGLAND: DID THE DECISION OF THE SUPREME COURT IN THE CASE OF JONES V KERNOTT CLARIFY THE LAW IN RELATION TO TRUSTS OF THE FAMILY HOME? Bartłomiej Orawiec* ABSTRACT This dissertation will focus on common intention constructive trusts in relation to shared ownership of the family home predominantly in relation to unmarried couples. These trusts are particularly important because as opposed to married couples where the court may determine a couple’s financial and property issues upon divorce using the provisions of the Matrimonial Causes Act 1973, the position of unmarried couples is not covered by any legislation and so judges need to refer back to case law and property law in order to establish the equitable ownership of property. Key words: constructive trusts, family home, cohabitation, equitable owner- ship, unmarried couples In Paragon Finance plc v DB Thakerar & Co1, Millet LJ defined a con- structive trust as a “trust which arises by operation of law whenever the cir- cumstances are such that it would be unconscionable for the owner of property * Currently a PhD Candidate at the Jagiellonian University, Faculty of Law and Administration, Economic Policy. Also graduated with LLB Law (Hons) from Univer- sity of Northampton and was awarded ‘Certificate of Commendation from the Univer- sity of Northampton Law Board of Study for the Outstanding Academic Achievement’ and won ‘Shoosmiths prize for Outstanding Contribution to Corporate Responsibility 2014’. He also completed LLM with LPC (Legal Practice Course) at the University of Law, London. 1 [1999] 1 All ER 400 85 (usually but not necessarily the legal estate) to assert his own beneficial interest in the property and deny the beneficial interest of another”2.