The Denning Law Journal

Apologies and the Legacy of an Unlawful Application of Terra Nullius in Terra Australis

Stephen Pitt-Walker — Wed, 31 Mar 2021 00:00:00 +0100

The use of the legal fiction, terra nullius, as it was erroneously applied to Terra Australis, Australia, as a legal doctrine, supported the British colonial power’s right to settle that territory. Since then, many unspoken (as well as acknowledged) acts of structural and direct violence have been perpetrated against the First Nations population in Australia via the imposition, and later ‘reception’, of the legal system and laws of England, as well as the dominant socio-political system, that represented the British Crown.

Owens v Owens: A Most Curious Case

Frances Burton — Wed, 31 Mar 2021 00:00:00 +0100

The combination of the long Brexit delays, largely unwelcome General Election, a change of leadership and Cabinet composition in the Conservative government and finally the coronavirus has between them resulted in a long pause in expected reforming legislation which is much needed in Family Law, including the initial loss of the Divorce Dissolution and Separation Bill 2019, generated in 2019 by the failure of Mrs Owens’ ’ Supreme Court appeal in the now notorious case of Owens v Owens. While this was immediately hailed by the media as justification for urgent reform of the Law of Divorce in England and Wales – on the grounds that English law was almost alone in modern liberal jurisdictions in lacking a No Fault Divorce regime – clearly this has now been overtaken by subsequent events.

While it may be factually accurate that England and Wales does not have such a regime for dissolution of marriage without fault and by consent (at least without satisfying the inconvenient condition of waiting for the two-year delay necessary for a decree on the basis of two years of separation and consent), and perhaps should have one for the reason stated, the failed Owens appeal has absolutely no jurisprudential connection with any urgency for reform of the law in order to secure such a decree at all. This is because the legal profession has been effectively obtaining divorces under the present law for over 40 years, and, notwithstanding Owens, has been continuing to do so since 2018, albeit with the caveat that drafting must be undertaken with extreme care to be sure to avoid a repeated debacle. Nevertheless, on account of the age of the present statute, legal, political and social theorists of course have strong arguments for a No Fault addition to the existing Matrimonial Causes Act 1973 or even for replacing the existing provisions of that statute altogether.

However this is because the present statute is itself a re-enactment and consolidation of the original Divorce Reform Act 1969 which led the post-WWII reforms creating our current Law of Divorce, so is well past its ‘sell-by date’, but not because it does not work in modern times. If anything, and especially with the assistance of s76 of the Serious Crime Act 2015, s 1(2)(b) of the 1973 Act works entirely consistently with present philosophy, that is, as marriage is a partnership of equals there is no place for any form of domestic abuse within it.

In fact Mrs Owens thus could (and arguably should) have obtained her divorce on the existing basis, pursuant to s 1(2)(b) of the 1973 Act, namely on that of her husband’s ‘behaviour’. Thus, as indeed hinted by Lady Hale in her paragraph 50 of the Supreme Court judgment, which she added to the agreed text set by Lord Wilson, there was clear evidence of the alleged ‘authoritarian, demeaning and humiliating conduct over a period of time’, which in law was capable of founding a decree, and there was existing case law supporting this in the case of Livingstone-Stallard v Livingstone-Stallard.

Consequently in her paragraph 53 she identified what in her view was thus ‘the correct disposal … to allow the appeal and send the case back to be tried again’ – which, however, could not be adopted in the particular circumstances, owing to the fact that no one, including the Appellant, Mrs Owens, wanted to go through such a trial again, not least as even her counsel, Philip Marshall QC, ‘viewed such a prospect with dread’. Thus, in her paragraph 54, Lady Hale concluded that she was ‘reluctantly persuaded that this appeal should be dismissed’ – a conclusion, however, not stopping her from including some forthright comments on the conduct of the case below, with which any analysis can only agree.

So, whatever happened in Owens v Owens? In the Central London Family Court, the Court of Appeal and the Supreme Court?

‘Not My Employee, Not My Liability’

Carrie de Silva — Wed, 31 Mar 2021 00:00:00 +0100

In April 2020, the Supreme Court in WM Morrison Supermarkets plc v Various Claimants [2020] and Barclays Bank plc v Various Claimants [2020] overturned the decisions of the Court of Appeal in applying the law regarding vicarious liability of employees and others (and deciding in both cases that the defendant companies were not liable for the acts in question). The scope of responsibilities which the employment relationship brings, together with an awareness among many businesses of the classification worker, along with the more familiar employed/self-employed status, makes an examination of the outcomes and potential impact of these cases of wide, practical interest for those running businesses, large or small. The review concluded that there had been no dramatic change in the law but that the cases provide a measure of comfort to employers in something of a common-sense view being taken as to the scope of vicarious liability. They also add to the body of case law, helping to ensure that future issues can more clearly be reasoned out of court, with the detailed steer on the application of legal principles which a Supreme Court judgment provides.

What Are the Legal Mechanisms for Seeking Solutions to Disparities in the Delivery of Care in the NHS and Where Does Liability Lie?

Affifa Farrukh — Wed, 31 Mar 2021 00:00:00 +0100

This review deals with the potential role of Commissions and Inquiries into delivering a just service to patients from ethnic minorities. It takes as an example the experience of people with inflammatory bowel disease and the National Health Service in the United Kingdom. Although there are many legal safeguards, the avenues open to groups of patients who experience discrimination, are limited and generally ineffective. Government inspired responses such as Commissions and Inquiries are inadequate and not fit for purpose.

Legal Education and the Reproduction of Hierarchy: A Contemporary Asian Reading of a Seminal Text

Andra le Roux-Kemp — Wed, 31 Mar 2021 00:00:00 +0100

Law schools are peculiar places occupied by, dependent on, associated with, and exerting influence on a myriad of institutions and stakeholders. From law students’ efforts at mastering the allusive skill of legal reasoning to the challenges both tenured and untenured academic staff face in the neoliberalist higher education model where the legal profession and the consumers of the law school product exert increasing – and sometimes even impossible – demands, law schools and its populace have always been contested, hierarchical and image-conscious spaces. Indeed, as Ralph Shain noted in the Journal of Ideology in 2012, “[a]nyone who has suffered through law school would be grateful to have a good polemic against the institution”. This article offers such a polemic against legal education in the Hong Kong Special Administrative Region. Over a period of four years, a selection of postgraduate law students from one of the (three) higher education institutions responsible for legal education and training in Hong Kong were asked to reflect upon their legal studies and future roles as legal professionals with reference to the 1983 self-published pamphlet by Duncan Kennedy, entitled “Legal Education and the Reproduction of Hierarchy: A Polemic Against the System”. Kennedy’s essay offered a critical analysis of the role of legal education in American social life at that time, and the manner in which it reproduced hierarchy in law, legal education, the legal profession, as well as in society generally. The narratives informing this article show that almost 40 years subsequent the publication of Kennedy’s text, and in a jurisdiction with an altogether different social context and facing its own political turmoil and civil rights’ aspirations, many parallels can be drawn with what Kennedy had observed in 1983.

Part I of this article sets the scene with a detailed overview of the legal education and training landscape of the Hong Kong Special Administrative Region from a legal-historical perspective to date. The discussion and analysis then turn to the narratives of Hong Kong law students, offering a window into their experiences as (unintended) participants in the hierarchies of law and legal education in Hong Kong. Much more, however, can be gleaned from these narratives than just how these students perceive their present legal studies and future roles as legal professionals in the Hong Kong Special Administrative Region. These narratives also offer a critical reflection on Hong Kong’s colonial past and present status as a Special Administrative Region of the People’s Republic of China under the principle of “one country two systems” (Part II). Culture-specific values impacting on these students’ legal studies and career decisions are revealed (Part III), and troublesome shortcomings in the current legal education and training landscape vis-à-vis the legal professional fraternity and political and socio-economic reality of Hong Kong are laid bare (Part IV). Much like Kennedy’s 1983 essay failed to bring about any real change in how law schools go about their business as cogs in the apparatus of social hierarchy, the narratives informing this article also conclude on a rather sombre and futile note. Be that as it may. At least their voices have been heard and the seemingly inescapable power struggles noted. This too is an important function of the law and legal discourse.

Beneficial Ownership of the Family Home

Mark Pawlowski, James Brown — Wed, 31 Mar 2021 00:00:00 +0100

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 questions 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.

Book Review

Jocelynne A. Scutt — Wed, 31 Mar 2021 00:00:00 +0100

Title: Catch and Kill: Lies, Spies and Conspiracy to Protect Predators

Author: Ronan Farrow

Publisher: Fleet/Little, Brown & Company, London

Date of Publication: 2019

Hard Back, pp 448 (including endnotes)

Title: She Said: Breaking the Sexual Harassment Story that Helped Ignite
a Movement

Authors: Jodi Kantor and Megan Twohey

Publisher: Bloomsbury Circus/Bloomsbury, London

Date of Publication: 2019

Hardback, pp 310 (including index)

Title: Brave – A revealing and empowering memoir

Author: Rose McGowan

Publisher: HarperCollins

Date of Publication: 2018

Hardback, pp. 245 (plus Author’s Note & Preface ix-xvi)

Introduction

Sarah Sargent, James Slater — Wed, 31 Mar 2021 00:00:00 +0100

The Denning Law Journal Team is very pleased to bring you the 2020 edition. In a year of unprecedent challenges and changes, we would especially like to extend our thanks to our contributors who have provided an outstanding collection of articles, comments and book reviews. We also note the passing of a distinguished jurist, Ruth Bader Ginsburg, who was an Associate Justice on the United States Supreme Court. She was the second woman to serve on the United States Supreme Court and is noted as a proponent of civil liberties. This edition of the Denning Law Journal is dedicated to Ruth Bader Ginsburg and the legacy of her work in safeguarding and promoting civil liberties.