Southampton Student Law Review
- University of Southampton
- Publication date:
- Foreword: Looking Forward and Back in Time of Transitions
- Does a Choice of Law Bind a Claimant in a Direct Action? An Analysis in Relation to Insurance Contracts in a Maritime Law Context
This article examines the application of European Union rules on a choice of law in relation to direct action claims, with a focus on insurance contracts in a maritime setting. This is an important legal matter which needs to be addressed, since, in cases of insolvent tortfeasors, third parties may be left without a remedy for damages incurred. The analysis will look into the most recent case law which has shaped direct action claims. For example, the Court of Justice of the European Union, in the recent case of Assens Havn v Navigators Management (UK) Ltd, confirmed that jurisdiction clauses are not binding on the third parties. Thus, this article will assess how the subsequent case law within the EU Member States have been developed, and will consider whether it has been harmonised - in order to conclude that the right to direct action against the insurers is of high significance to third parties - especially when the insured becomes insolvent.
- Don't Go Taking My Heart: A New Model for Organ Donation Law and Consent
In light of continued disparity between registered organ donors and patients in need of a transplant, this article seeks to evaluate purported solutions as enacted by the UK and other governments, with particular focus on the current explicit consent and proposed presumed consent models. The article seeks to view Organ Donation law in the UK through a wide lens, focusing not only on results achieved but also on policy underpinning the law and effect on public perception and trust in the aftermath of Alder Hey. The explicit consent system (Human Tissue Act 2004) falls short of delivering sufficient organs for transplant; and the presumed consent system (Organ Donation (Presumed Consent) Act 2019) falls short of meeting policy objectives and individual autonomy. A third solution is proposed here: mandated choice with multiple donation options, coupled with full reform to the registration system and introducing a duty for politicians to publicly educate.
- The Law of Illegality and Trusts: A New Mess for the Old One
In Patel v Mirza,1 the Supreme Court overruled the highly controversial judgment of the House of Lords in Tinsley v Milligan.2 The new ‘range of factors’ test adopted by the landmark decision, which replaced the narrow ‘reliance’ test formulated in Tinsley v Milligan, however does not produce different results in every single case. This article highlights the impact of the law on illegality of contracts and its application to trusts. It seeks to identify whether factual scenarios like those of Tinsley v Milligan would be decided differently today. Upon analysis of the relevant matters and case law, it is submitted that the outcome would remain unchanged, but not the reasoning.
- Modern Day Illegality: Mance LJ and the Range of Factors Approach
The longstanding principles underpinning equitable and common law proprietary claims in relation to illegality have recently been reconsidered in the Supreme Court, the outcome of which was a change of approach in assessing reliance on illegality. This paper explores Mance LJ’s (as he then was) distaste of abiding by established illegality doctrines and the extent to which his view was echoed and adopted when the scope of the illegality principle was deliberated. Analysis of the coherence and appropriateness of the different approaches to illegality will be provided in this paper. Further, the application of the new approach in illegality will be reflected upon.
- Can the Prospect of Unmanned Ships Stay Afloat under the Current Collision Regulations?
The prospect of unmanned shipping was previously confined to fiction, however, technological developments over the last decade have firmly established their place in the future of the Shipping industry. This essay focuses on unmanned ship’s ability to comply with the 1972 Collision Regulations (COLREGs). This essay will discuss whether unmanned ships can satisfy the existing COLREGs, whether enforcement of the COLREGs will need to be adapted and, finally, what reform is currently ongoing to rectify the issues that are thrown up in the course of this analysis. In conclusion, it is submitted that alterations to the current COLREGs will be required in order to allow application to unmanned ships; this change should take place quickly though through a Convention and not be left to gradual change through the Courts. This will provide sufficient certainty and confidence for those looking to invest in unmanned vessels and this will allow a smooth transition into the new era of the shipping industry.
- The Journey of Good Faith: Where Does It belong in General Contract Law?
This piece considers the doctrine of good faith and its existence in contract law which began with Lord Mansfield’s judgment in Carter v Boehm. Then, reconsiders the general contract law approach in reluctance to establishing an overriding duty of good faith. Parallels are drawn from the operation of the pre-contractual duty of good faith in insurance contracts to demonstrate that an overreaching principle is workable in contract law. The overarching theme of this thesis contends that the assumption that a good faith duty would bring disarray to certainty and will frustrate contractual parties’ intentions, is inaccurate. The overall proposal for good faith is to establish a good faith regime, similar to the workings of insurance contract. A post-contractual duty has been rejected since it has been difficult to consolidate within the insurance contract realm. What we will see is the potential for harmonisation between insurance contract and general contract.
- Peace in our time? Averting Transitional Justice's Mid-life Crisis in Liberia
Transitional justice’s goal, broadly construed, is to ensure accountability and redress for victims in post-conflict societies devastated and divided at its core by systemic human rights violations. Yet, the noble aims of transitional justice and its attendant mechanisms are almost always hamstrung by context-insensitivity, disenchantment with the transitional process, and the propensity of transitional mechanisms to be manipulated for political ends. Left unaddressed, these issues subvert the transitional process and eventually defeat transitional justice mechanisms, relegating transitional justice to a mere cosmetic rather than substantial, process post-conflict. This article comparatively analyses the application of transitional justice mechanisms in, inter alia, Liberia and South Africa, highlights where and why transitional processes often wane, cautions against the boilerplate application of transitional justice mechanisms, and proposes a practical framework to avoid transitional justice’s disposition to a mid-life crisis from which it has great difficulty bouncing back from.
- The Principle of Supremacy and the Response of Member States' Constitutional Courts
One of the main concerns that was highlighted, by the referendum requesting Britain to leave the European Union, was the principle of supremacy as developed by the European Court of Justice. This article will examine the principle of supremacy, the response by national courts, the true nature and extent of the principle, whilst discussing the statement by Michael Gove MP on who should be the political decision-makers. The facts and opinions expressed in case law and journals, will be used to add to this discussion and will be connected to the original statement by Michael Gove MP throughout. It is concluded that despite the original opposition, acceptance is the more commonplace as Member States realize that they can allow supremacy, without losing their own sovereignty.
- Exploring the Collective mea culpa: Reconciliation Between Nations and Populations
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...
- Pure Economic Loss in Negligence: Has England got it wrong? Does Australia have it right?
The exclusionary rule regarding recovery for pure economic loss in negligence in England has been the subject of academic debate for a long time. The law of negligence in England has developed in such a way as to protect people in cases of physical harm or damage to property, but it does not...
- Compensation Culture: A Storm in a Coffee Cup
The existence of a compensation culture in the United Kingdom (UK) is a controversial and widely debated topic. Whilst some commentators argue that the "compensation culture" is a reality, others believe it is merely a perception fuelled by a frenzied media and a succession of changes...
- Birks and the Absence of Basis Approach
The theoretical basis of the law of unjust enrichment can be traced back many centuries, though the most significant developments have only occurred in the last fifty years. Professor Peter Birks has played a pivotal role in the development of the law of unjust enrichment, advocating its importance ...
- Out with the Old, in with the New? Comparing the 1992 US Horizontal Merger Guidelines with the 2010 US Horizontal Merger Guidelines
In 2010, new merger guidelines were adopted by the US antitrust agencies on the assessment of mergers between competitors under competition law. This paper critically compares such horizontal guidelines with their 1992 predecessor to analyse the extent to which there is continuity between the two....
- A False Hope?: A Critical Evaluation of the Difference made by the Human Rights Act to those who Rent Homes
Scholars believed that the Human Rights Act 1998 would compel the courts to address the much derided injustices of housing law and therefore lead to much stronger rights and protection for tenants. This article, through an examination of case law, evaluates whether the Act has had any impact at all ...
- Straight through Certainty and Out the Other Side: Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 and Proprietary Estoppel
In the quest for certainty in the disposition and transferral of interests in land, Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 utilises formality at the expense of a wider sense of just and equitable ownership. Preoccupation with the ambiguity equitable doctrine brought to ...
- Case comment: Re T (a child) (surrogacy: residence order)  EWHC 33 (fam)
- The Problem with Reasonable Force: Rebalancing the Law in Favour of the Householder by Adopting Alternative Jurisdictional Approaches
There is a strong view held among many members of the public that the law favours the rights of intruders over those of the householder. Under the current law, a householder may only use as much force as is “reasonable” in the circumstances to protect themselves, others or their home from intruders....