The area of corporate disregard has a poor reputation for certainty of reasoning. To provide an alternative way of approaching the issue, we conducted an empirical study of the relationship between rationale and outcome within UK corporate disregard cases from the nineteenth to the twenty-first century. We examine the evidence from three perspectives. First, we examine the broad range of instrumental rationales found in the case law by disregard rates in order to identify where issues might be arising with individual rationales. Secondly, as suggested in the wider empirical literature, we examine the rationale rates by jurisdiction in order to see whether there were problematic interpretation issues concentrated in particular parts of the court levels. Thirdly, we examine the rationale rates by substantive claim to see whether contextual aspects of the doctrine, as the court identified with family law in Prest, were influencing outcomes. By providing an empirical study on the rationales instrumental to corporate disregard outcomes we aim to introduce a broader evidential view of where concerns may lie, which can both aid critique of key judicial historical developments such as Adams and Prest and provide a broader evidence base that might aid future judicial reform of the area.

Contextual review is a judicial method that rejects doctrinal or categorical methods to guide judicial supervision of administrative action. Judges are invited to assess the circumstances of a claim in the round without any doctrinal scaffolding to control the depth of scrutiny; in other words, intervention turns on an instinctive judicial impulse or overall evaluative judgement. This paper identifies and explains the various instances where this method is deployed in judicial review in Anglo-Commonwealth administrative law. The efficacy of this style of review is also evaluated, using rule of law standards to frame the analysis. Its increasing popularity is a worrying turn, in part because its reliance on unstructured normativism undermines the rule of law.

Sexual harassment is persistent, prevalent and under-reported in Australian workplaces despite its legal regulation over many decades. The most recent survey data in Australia indicate that the majority of individuals who are subject to sexual harassment at work do not make a formal report or lodge a complaint. The opportunity for voice that organisational processes provide to those who experience sexual harassment at work is a particular focus, given the under-reporting problem. The paper also considers the impact of organisational processes on those who observe the inappropriate behaviour and/or the organisational response. Ultimately, this paper argues that organisations should reduce their reliance on individual complaints by expanding the pathways by which concerns can be raised or observed behaviours addressed that offer alternative voice mechanisms, with an emphasis on problem-solving and early intervention where this is appropriate. The paper also considers different communications strategies, such as approaches to training, the sharing of information about workplace incidents, and leadership on the issue within organisations.

Section 4(1)(a) of the Human Trafficking and Exploitation (Scotland) Act 2015 states that it is an offence for any person to hold another person in servitude or slavery. In February 2018, John Miller and Robert McPhee appeared at the High Court in Glasgow, charged on indictment with this offence. In defining both ‘servitude’ and ‘slavery’, the court was obliged, per s 4(2) of the 2015 Act, to have due regard to the understanding of these terms which has evolved out of the jurisprudence of Article 4 of the European Convention on Human Rights (ECHR). ‘Slavery’, then, was said to denote ‘the status or condition of a person over whom any or all of the powers attaching to the rights of ownership are exercised’. If, however, the definition of ‘slavery’ necessarily ‘involves rights of ownership’, then it follows that any enactment of law specifically proscribing slavery is nugatory. Indeed, in Miller, the court ultimately held that ‘there was no evidence upon which they could hold that the complainer had been held in a state of slavery’. This paper consequently asks whether or not in passing s 4(1)(a) of the 2015 Act, Parliament criminalised an impossible action.

This paper presents the findings of the first empirical study of the experiences of young lawyers who have entered an increasingly uncertain profession following a highly competitive education and recruitment process. These ‘millennial lawyers’ are framed by a narrative of ‘difference’. This ‘difference’ is commonly articulated negatively and as a challenge to organisational and professional norms. However, our findings suggest a more complex reality. In its synthesis of work on structure and agency, with the temporal focus required by generational sociology, this paper advances an original approach to the analysis of organisational and professional change within contemporary legal practice. Drawing on new empirical research, it demonstrates that although our sample shares many field-level expectations, there is also considerable stress, unhappiness and discomfort. This is generated by a complex interaction between the lawyers’ expectations of practice, and the structuring properties of the field. Thus, the capacity for organisational and professional change is more comprehensively understood within a temporal frame. This paper challenges academic and professional paradigms of generational change within the legal field. It concludes with recommendations for legal educators and the profession which foreground the complexity of millennial lawyers’ expectations of practice.

The existing principles of quantification of damages for non-pecuniary losses deriving from breach of contract which are adopted by the courts or advanced in the legal scholarship appear to be arbitrary and founded on certain misconceptions. This paper proposes three different models for assessment based on the consequences of breach. When the performance is possible after the breach, the damages are equal to the value of an alternative subject matter if such is available from elsewhere. If there are no other sources from where the bargained-for subject matter can be obtained, then the amount of the damages is based on the value of a substitutive benefit which leads to attainment of the initial contractual aim. If the promisee has no interest in delayed performance, the damages are quantified with respect to a different non-pecuniary benefit which is commensurable to the one that was pursued with the contract initially.

Twenty years after the Human Rights Act 1998 came into force, where are we in our understanding of the relationship between tort and human rights? This paper argues that we are not as far along in our understanding as we could be. The reason for that has been the methodology we used to understand the relationship, focused as it was around remedies, limitation and causation. This paper proposes a new approach, based around the right rather than the remedy. It aims to theorise one particular cause of action – the duty in Osman v United Kingdom – to exemplify this approach. For English lawyers, who have historically used the framework of the forms of action to understand our own law, it is argued that this a good way to comprehend the European jurisprudence.

The Isle of Man is a largely autonomous dependent territory of the UK. In 2016, Lord Lisvane was commissioned to report on the functioning of the principal organ of governance, the Tynwald. This Lisvane Review has led to substantial constitutional reform within this small democracy, particularly in relation to the unelected second chamber of Tynwald, the Legislative Council. This reflects an ancient tension within the Manx constitution between the House of Keys, since the mid-nineteenth century a directly elected chamber, and the unelected Legislative Council. The Lisvane period saw important changes to the composition and powers of the Legislative Council, as well as gender diversity within Tynwald as a whole. Placing the Manx experience within a broader small democracy theoretical and comparative framework demonstrates not only the possibility of constitutional reform, but also provides insights into resources for constitutional development, the special challenges of managing intimacy, and the dangers of over-concentration of power in a small democracy.

A number of Masters and a Registrar have recently indicated that, when exercising High Court jurisdiction, they are not bound strictly to follow prior decisions made by Judges in the High Court. This represents a notable departure from the position established by and within the High Court, where since the Judicature Acts of 1873 and 1875 an unquestioning obeisance of the Master and Registrar towards such decisions has been generally expected and offered. Delving into questions of power, authority and jurisdiction, and examining relevant legislation such as the Civil Procedure Rules, this paper constructs and analyses various arguments for and against recognising the co-equivalence of decisions of Judges, Masters and Registrars in the High Court.

This paper examines how continued reductions in fee levels for criminal legal aid work affect recruitment and retention in the English publicly funded criminal defence profession. Data from 29 qualitative interviews with English defence solicitors and barristers are analysed to explore the impact of these reductions on recruitment of new lawyers and retention of current lawyers. On the basis of these findings, also building on research conducted by lawyer professional associations, I argue that a combination of cuts to legal aid, the resulting working patterns and low morale has led to a position where the criminal defence profession, as we know it, is unsustainable.

I consider the ways in which the courts use a variety of existing powers to determine the scope of criminal offences, on a prospective basis, through declarations as to the limits or extent of the law. I argue that the courts should be emboldened to build on these powers through greater openness to the circumstances in which declarations may be issued. In particular, courts should be more open to actions for declarations as to the scope of criminal offences brought by a broader range of third parties, such as third sector organisations devoted to exposing wrongdoing.

This paper explores the development and operation of law and policy concerning the charging of overseas visitors for healthcare in England from the beginnings of the NHS to the present day. It highlights how this has been a highly contentious issue for decades, often linked with immigration policy, and is an area that still lacks comprehensive reliable empirical data to inform the debate. It explores and analyses the recent reforms to the NHS Overseas Charging Regulations introduced in 2015 and 2017. It demonstrates the problems in implementing the most recent regulations in an era of the ‘hostile environment’ and argues that the approach which has been taken can be seen as undermining the covenant of trust between patient and clinician and thus the fundamental principles of the NHS.

Mistakes in assisted human reproduction procedures such as IVF, egg, sperm and embryo donation are surprisingly common, but tortious liability for such mistakes has not been addressed in the courts of England and Wales, or Ireland. This paper presents an argument in favour of a vindicatory approach to tortious claims arising from mistakes, where the claimants are the parents of the resulting, healthy, child. Drawing on the analogous tort of wrongful pregnancy, the paper provides a vindicatory account of the case of Rees v Darlington Memorial Hospital, and argues that Rees signposts the correct approach for tortious claims arising from mistakes in assisted human reproduction. It is argued that while the law should not compensate ‘loss’ flowing from the birth of a child, parents should be entitled to an award of damages to vindicate their right to reproductive autonomy. The paper explores vindication of the right to reproductive autonomy through the tort of negligence, but argues that vindication may be more effectively achieved through the creation of a separate tort which is actionable per se, strict liability, and expressly focused on vindication rather than compensation.

Friedrich Nietzsche proposed the ‘Eternal Recurrence’ thought experiment in his book, The Gay Science (1882). Drawing on ancient Greek and Indian philosophy, Eternal Recurrence is the idea that with infinite time and matter events will occur again and again without end. While not (quite) infinite, English and Welsh insolvency law does have a sufficient and significant history that reveals numerous examples of this phenomenon of repetition. This paper examines some of the patterns of repetition within the law and reform processes and how ‘broad’, ‘narrow’, and ‘deep’ Eternal Recurrence applies to English and Welsh insolvency law. Three examples of Eternal Recurrence are examined: (1) the plight of the unsecured creditor; (2) the quest for protection, including the use of security devices; and (3) the accountability of directors in corporate insolvency, with specific reference to human rights protection for directors versus insolvency law objectives for the benefit of creditors. Finally, suggestions are provided as to why ‘insolvency’ Eternal Recurrence is problematic, particularly for law reform development and the reform of insolvency law in England and Wales.

This paper argues that punitive, nominal, contemptuous, vindicatory, and disgorgement damages (commonly referred to as non-compensatory damages) can be collectively analysed as public interest damages because all these awards are justified by violations of public interests in addition to violations of the claimant's rights. To the extent they are awarded in the public interest, non-compensatory damages feature a distinctively public element in private law. In contrast to compensatory damages, public interest damages are justified by ‘non-correlative wrongdoing’, ie infringements of interests which are valuable to the community rather than to the claimant. This helps us to understand how public interest damages differ from traditional damages awards and why public interest damages should be treated as an exceptional remedy. In support of these claims, the paper offers an original analytic framework of reasons that justify damages awards.

The UK Supreme Court took the opportunity in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 to reverse the long-standing, but unpopular, test for dishonesty in R v Ghosh. It reduced the relevance of subjectivity in the test of dishonesty, and brought the civil and the criminal law approaches to dishonesty into line by adopting the test as laid down in Royal Brunei Airlines Sdn Bhd v Tan. This paper employs extensive legal historical research to demonstrate that the Supreme Court in Ivey was too quick to dismiss the significance of the historical roots of dishonesty. Through an innovative and comprehensive historical framework of fraud, this paper demonstrates that dishonesty has long been a central pillar of the actus reus of deceptive offences. The recognition of such significance permits us to situate the role of dishonesty in contemporary criminal property offences. This historical analysis further demonstrates that the Justices erroneously overlooked centuries of jurisprudence in their haste to unite civil and criminal law tests for dishonesty.

This paper examines the aims and challenges of ‘judicial diplomacy’ in the form of bilateral meetings between UK and supranational judges. Drawing from in-depth interviews, extra-judicial writings and other documentary sources, it argues that judicial diplomacy has become an important feature of the work of senior judges in the UK, allowing them to pursue jurisprudential and strategic aims. In jurisprudential terms, the judges have sought to improve the quality of judicial decision-making at the domestic and supranational levels. Strategically, they have striven to maintain robust inter-institutional relations and maximise their influence at the supranational level. The pursuit of these aims has taken on renewed significance in the context of Brexit but may raise questions for the protection of judicial independence and impartiality. The judiciaries should therefore consider steps to improve the visibility of these interactions and their value.

Local community opposition to environmentally significant development proposals is commonplace, with environmental issues often at the forefront of community concerns. Whilst the development consent system provides multiple opportunities for local community groups to participate in the initial decision-making process, a legal commitment to such participation ensures neither its quality nor its effectiveness. This is especially so for local group ‘have-nots’ who lack resource and expertise, and whose focus on locally-based objections can delegitimise their valid and often broader concerns about the proposed development. This paper argues that access to legal expertise plays a significant role in promoting principles of fairness and competence in participation by helping shape local opposition views in a way that is both understood and accepted as valid by the planning system. Whilst there are important and valuable sources of advice and support currently available, many local groups find themselves in the position of having to raise considerable funds to pay for the legal expertise they need. This unsatisfactory position needs to be addressed if local groups are to meaningfully engage with the planning process.

‘Revenge pornography’ is a concept which embraces a broad spectrum of the non-consensual distribution of private sexual images. Acknowledging the harms that arise from this practice and the human rights implications of ‘revenge pornography’, this paper focuses on the difficulty of removing those images from the Internet. It considers the legal vehicles which can be employed to force websites and third-party operators to remove private sexual images, including privacy law and copyright notice and takedown systems. It concludes that the piecemeal approach to image removal is insufficient, and that a more cohesive and appropriate approach to image removal is required to ensure that victim-survivors’ rights to private and family life are properly protected.

Over the past two decades, there have been significant legal developments aimed at securing and enhancing the participation of vulnerable witnesses in criminal trials. Yet, there remains relatively little regard for the fact that many defendants, including those who are not deemed to be vulnerable, are unable to participate in criminal proceedings in a meaningful sense. This paper aims to address two questions. First, why should defendants have participatory rights and be capable of meaningful participation in criminal proceedings? Second, why has it proven so difficult to attain meaningful participation of defendants? It is contended that barriers to meaningful communication between the defendant and the court could be dismantled without great difficulty, but continue to exist because due regard is not given to the normative rationales for participatory rights and defendant participation.