Nottingham Law Journal

The Nottingham Law Journal is a general law journal that publishes scholarly legal work across a broad range of subject matter.

Articles

Vol. 23, Annual

Proximity, Psychiatric Injury and the Primary/secondary Tortfeasor Dichotomy: Rethinking Liability for Nervous Shock in the Information Age
INTRODUCTION Digital technology has revolutionized the way human beings communicate. It is now possible for us to see and to interact with others, to be shocked, saddened, thrilled, tickled, amused, enthralled and even traumatized by scenes or images...
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Louder Than Words: Acceptance by Conduct of Unilateral Offers
INTRODUCTION The role of conduct in contractual formation has been adopted by UNIDROIT in their proposals for an international law of contract. Article 2.1.1. of the UNIDROIT Principles of International Commercial Contracts 2010 provides that a...
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The Lost Voice in Insolvency: Theories of Insolvency Law and Their Implications for the Employees
INTRODUCTION The relationship between employees and the company they work for is symbiotic (1) in nature: employees need the company for the attainment of their economic needs and well-being, (2) just as the company needs the employees for its day...
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Establishing Minimum Standards on the Rights, Support and Protection for Crime Victims with Specific Protection Needs
INTRODUCTION The EU Directive establishing minimum standards on the rights, support and protection of victims of crime (the 'Directive') (1) was adopted on the 25th of October 2012. With an aim of ensuring that 'victims of crime receive appropriate...
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Discretion or Obligation to Seek Directions: The Administrator and Rejected Proposals
INTRODUCTION The administration regime was reformed in 2002 to give creditors greater participation in the rescue process. Unlike the administrative receiver who drafts and executes a plan without consulting with the unsecured creditors, the administrator...
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Non-Petition Clauses
INTRODUCTION How far it is possible to insulate a company from the possibility of insolvency proceedings is an open question. The question is not new but has only rarely come before the courts and academic views differ. (1) It has gained an increased...
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Protecting Bank Depositors after Cyprus
INTRODUCTION During the recent financial crisis in the Republic of Cyprus, (1) in March 2013, (2) the government proposed taking a percentage of all bank deposits. Despite the fact that the proposal was not pursued, it raised a number of questions...
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Credit Where Credit Is Due: The Effect of Devolution on Insolvency Law in Scotland
INTRODUCTION The Scotland Act 1998 reserved some aspects of insolvency law to the United Kingdom parliament and devolved others to the Scottish parliament. (1) The period since the Scottish parliament's establishment has been characterised by rising...
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A Conflict between the Insolvency Act and the Pension Act
Re Nortel GmbH and Lehman Brothers International (Europe) (1) [2013] UKSC 52 (Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption and Lord Toulson) INTRODUCTION In 2013, the Supreme Court overturned the controversial decision of...
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Home Office Rules on Spousal Visas Fail to Consider Impact on Family Life
MM & Others v Secretary of State for the Home Department [2013] EWHC 1900 (Admin) (Justice Blake) INTRODUCTION New immigration rules regarding the requirements for entry and leave to remain in the UK as a spouse came into force on 9 July...
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Collective Agreements and the Contract of Employment: Determining the Intention of the Parties or Denying Legitimate Employee Expectations?
George v. Ministry of Justice [2013] EWCA 324 (Lord Justice Maurice Kay, Lord Justice Rimer, Lord Justice Jackson) INTRODUCTION A distinguishing feature of industrial relations in the United Kingdom is that, prima facie, collective agreements...
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Vol. 22, Annual

The Latest Attempt at Reform of the House of Lords - One Step Forward and Another One Back
INTRODUCTION "When it comes to House of Lords reform during this Parliament, the ship has sailed". (1) Sadiq Khan, Shadow Lord Chancellor and Shadow Secretary of State for Justice, January 2013. In September 2012 the Deputy Prime Minister Nick...
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The Best Interests of the Child in UK Immigration Law
INTRODUCTION On 18 November 2008, nearly two decades after ratification of the United Nations Convention on the Rights of the Child (UNCRC), the United Kingdom withdrew its general reservation on immigration matters. The reservation had permitted...
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Neutrality Revised?
INTRODUCTION Rules of armed neutrality have been developed over centuries, and form an important subset of laws of international armed conflict. A legal status of neutrality during war reflects the sovereign right of any state to remain uninvolved....
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The Pursuit of "Socially Useful Banking" in Twenty-First Century Britain and Exploring Victorian Interactions between Law, Religion, and Financial Marketplace Values
BACKGROUND AND CONTEXT In this second decade of the twenty-first century, people of Britain have been warned that the "nice decade" is over. (1) It is becoming clear that from the time of considerable consumption which preceded the 2007-8 financial...
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Victims, Trauma, Testimony
INTRODUCTION The purpose of this paper is to explore the interconnections between the rising policy concern with the victim (of crime) on the one hand and the social recognition of trauma on the other. In so doing the paper will address three interconnected...
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The EU's New Victims' Rights Directive: Can Minimum Harmonization Work for a Concept like Vulnerability?
INTRODUCTION This is a conceptual piece. It is also, to use the latest pedagogical jargon, a reflective piece. It arose from a project which the author undertook with the National Centre for Cyberstalking Research at the University of Bedfordshire...
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Victimized by Regulation: The Victimogenicity of Taxi Drivers
INTRODUCTION The extent to which state regulation of specific professions and trades contributes towards victimization of members of that occupation is a neglected area of research. Taxi driving is a heavily regulated occupation, with taxi drivers...
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Anti-Social Behaviour, Harassment and the Context-Dependent Victim
INTRODUCTION In May 2012 the Coalition government announced replacements for the main legal instruments used to control anti-social behaviour in England and Wales, including the Anti-Social Behaviour Order (ASBO). Introducing the new powers, Home...
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Key2 Law (Surrey) LLP V De'Antiquis & Another: A Return to Certainty, but at What Cost?
Key2 Law (Surrey) LLP v Gaynor De'Antiquis (Secretary of State for Business, Innovation and Skills intervening) [2011] EWCA Civ 1567 (Lord Justice Rimer, Lord Justice Longmore and Mr Justice Warren) THE FACTS On 21 July 2008, the Claimant...
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Reform to the UK Company Registration of Charges Scheme
The Companies Act 2006 (amendment of Part 25) Regulations 2013 (SI 20131600) INTRODUCTION The recent reforms to modernise the corporate security registration system significantly strengthen the law relating to corporate security. Following a...
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The Life and Work of Elinor Ostrom
It is a shame that the law and economics movement is so strongly associated with one particular type of economics in the legal mind, at least on this side of the Atlantic. The economics is one that combines the hyper-rational economic agent with a...
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How Property Works: The Complex World View
INTRODUCTION 2013 is a good time for UK property lawyers to celebrate the life and work of Elinor Ostrom. During the last decades of her life--she died on 12 June 2012, aged 78--she was responsible for a radical change in the thinking about the...
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Corporate Law Theory
The Corporate Objective, by ANDREW KEAY, United Kingdom, Edward Elgar, 2011, x + 346 pp, Hardback, 89.95 [pounds sterling], ISBN 978-1-84844-771-4 AND The Enlightened Shareholder Value Principle and Corporate Governance, by ANDREW KEAY, United...
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Centre for Conflict Rights and Justice: Student Prize
Critically analyse the below proposal: "I think householders acting instinctively and honestly in self-defence are victims not criminals. They should be treated that way. That's why we are going to deal with this issue once and for all. I will shortly...
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How Does Public Opinion Influence the Law?
INTRODUCTION In physics, the phenomenon of momentum often occurs after the influence of a force namely pressure. Public opinion most strikingly influences the law in much the same way--through pressure. It exists as a background presence and, because...
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Vol. 21, Annual

Editorial
I am pleased to introduce the new, improved annual edition of the Nottingham Law Journal which features a series of thematically linked articles in addition to several, erudite submissions on themes of contemporary legal interest. Our thematically...
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The Administrative Court, the Upper Tribunal and Permission to Seek Judicial Review
INTRODUCTION The constitutional function of Administrative Court judicial review is to craft and apply legality standards derived from constitutional values such as the rule of law and respect for fundamental rights. However, these legality standards...
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The Interpretation of Commercial Contracts: Time for Reform
INTRODUCTION In 2005 Lord Nicholls, writing extra-judicially, spoke of the need to give a 'gentle stir' to the debate concerning the exclusionary principle in English contract law: the long established but controversial rule that evidence of prior...
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Immunity of Parliamentary Statements
Democracy depends on more than voting. It presupposes a polity where citizens are informed about the actions of their representatives and where those representatives themselves can raise their concerns and those of their constituents without fear of...
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9/11 and Self-Determination
ENOUGH! Enough pain, enough tears, enough suffering, enough control, limitations, unjust justifications, terror, torture, excuses, bombings, sleepless nights, dead civilians, black memories, bleak future, heart-aching present, disturbed politics, fanatic...
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A Summary of the Developments in the Reform of the House of Lords since 2005
INTRODUCTION In May 2011 the Deputy Prime Minister unveiled a White Paper on completing the reform of the House of Lords which included a draft House of Lords Reform Bill. (1) This was the third White Paper on the reform of the House of Lords that...
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Featured Theme: Restorative Justice
The expansion of restorative justice in recent years has been nothing short of remarkable, with its potential benefits being increasingly acknowledged by scholars, practitioners and policymakers in the criminal justice arena and beyond. To this end,...
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The Need for Correctional Logic: Are Punishment and Restoration Mutually Exclusive Imperatives in Criminal Justice?
All this was lost on Alice, who was still looking intently along the road, shading her eyes with one hand. "I see somebody now!" she exclaimed at last. "But he's coming very slowly--and what curious attitudes he goes into!" (For the Messenger kept...
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Restorative Justice and Youth Justice in England and Wales: One Step Forward, Two Steps Back
This article analyses the emergence and impact of restorative justice within youth justice in England and Wales. It critically examines progress that has been made, highlighting how restorative initiatives have been largely targeted towards 'diversionary'...
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The Influence of Legal Culture, Local History and Context on Restorative Justice Adoption and Integration: The Czech Experience
INTRODUCTION While criminal justice systems and programmes around the world may use similar terms and processes, they are very often shaped by national identity and perceptions of the historical role of criminal justice agencies--police, prosecutors...
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Restorative Justice as Social Justice
This paper grew out of a keynote speech called 'Acting "restoratively" and being "restorative"--what do we mean?-the 'DNA' of restorative justice and restorative approaches in schools and other institutions and organisations' delivered at the European...
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The Impact of the America Invents Act on the United Kingdom: 'First to File' Rules
INTRODUCTION On 16 September 2011 the President of the United States, Barack Obama, signed into law the America Invents Act, the most significant piece of federal intellectual property legislation to be passed in that country since 1952. The America...
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The Court of Justice of the European Union Rules That Non-Dutch Residents Should Get a Proper Cup of Coffee, but No Pot!
M.M. Josemans and the Burgemeester of Maastricht v Rechtbank Maastricht, Reference for a preliminary ruling from the Raad van State (Netherlands) Case C-137/09 (J.N. Cunha Rodrigues, A. Arabdjiev, A. Rosas (Rapporteur), A.O. Caoimh and P. Lindh, Judges....
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Caging the Green-Eyed Monster-Restrictions on the Use of Sexual Infidelity as a Defence to Murder
Regina v Clinton; Regina v Parker; Regina v Evans [2012] EWCA Crim 2 (Lord Judge, LCJ, Henriques and Gloster DBE, LLJ) INTRODUCTION The circumstances in which an individual can claim a "loss of control" so as to mitigate their culpability when...
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Mediation and the Judiciary: Negotiation Is Not Enough!
PGF II SA v OMFS Company and Bank of Scotland PLC [2012] EWHC 83 (TCC) (Mr Recorder Furst QC) INTRODUCTION As well as attracting increasing academic attention, mediation remains a topic of considerable importance for civil practitioners. The...
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Walled States, Waning Sovereignty
Walled States, Waning Sovereignty by WENDY BROWN New York, Zone Books (distributed by The MIT Press), 2010, 168 pp., 10 illustration $25.95, 19.95[pounds sterling] cloth, ISBN 978-1-935408-08-6. The future of independent and equal state sovereignties...
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The Owlets of Minerva
The Owlets of Minerva By BOSTJAN ZUPANCIC The Hague, Eleven International Publishing 2012 552pp Hardback, 81.50, [euro] 978-94-90997-34-7 The Owlets of Minerva were hatched by The Owl of Minerva. The latter is a series of essays on aspects...
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Housing Disadvantaged People? Insiders and Outsiders in French Social Housing
Housing Disadvantaged People? Insiders and Outsiders in French Social Housing by JANE BALL, London, Routledge, 2012, xiv+341 pp, Paperback, 34-99, [pounds sterling] 978-0-415-55445-9 "... it is the mark of a trained mind never to expect more...
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Vol. 20, Annual

Editorial
I am very pleased to introduce the latest edition of the Nottingham Law Journal and to have the opportunity of taking over the role of editor. My predecessor, Tom Lewis carried out his duties with aplomb in often challenging circumstances, and ensured...
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When Is Pre-Packaged Administration Appropriate?-A Theoretical Consideration
INTRODUCTION Pre-packaged administration ("pre-pack") has been described as: An arrangement under which the sale of all or part of a company's business or assets is negotiated with a purchaser prior to the appointment of an administrator,...
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Abolishing Obsolete Crown Prerogatives Relating to the Military
INTRODUCTION In Britain today, there is concern at the loss of authority of Parliament. There is also the problem of how well Parliament and the Crown inter-relate in modern times. A vast number of decisions are taken in the name of that mysterious,...
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Contracts for the Sale of Land and Personal Property: The Equitable Interests of the Purchaser
INTRODUCTION As property lawyers, we are all familiar with the general principle that a contract for the sale of land, which is capable of specific performance, operates in equity so as to confer a trust on the purchaser pending completion of the...
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Assuring Forbearance in Mortgage Arrears Management: A Regulatory Blind Spot
INTRODUCTION If one would have to extract something positive out of economic crises, it must be the hard lessons learnt. Every flaw of the financial system becomes magnified and scrutinised. One can only hope that for the hundreds of thousands of...
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Sentencing in Cases of Small-Scale Cannabis Production
Auton and Others v R. [2011] EWCA Crim 76 (Hughes LJ, Eady and Rafferty JJ) INTRODUCTION The Court of Appeal recently heard a joint appeal from four defendants involved in small-scale production of cannabis. Having already taken the opportunity...
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When Is a Director Not a Director?
Holland (Respondent) v The Commissioners for Her Majesty's Revenue and Customs (Appellant) and another [2010] UKSC 51 (Lord Hope, Deputy President, Lords Walker, Collins, Clarke and Saville) THE FACTS This was a highly complex case in which section...
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Proportionality and Possession Proceedings
Manchester City Council v Pinnock [2010] UKSC 45 (Lords Phillips, Hope, Rodger, Walker, Hale, Brown, Mance, Neuberger, Collins) INTRODUCTION It is rare that the highest court in the UK sits with nine judges; this only happens, it would seem,...
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Care Quality Commission Guidance to Registered Providers
INTRODUCTION In October 2010, Care Quality Commission (CQC) published Guidance for registered providers of care, treatment and support services (for example, care homes) on how the Mental Capacity Act 2005 (MCA 2005) affects the way they make decisions...
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Outcomes Focused Regulation: Risk of a Culture Shock?
This is the calm before the storm. With the release of the Solicitors' Regulation Authority's final pronouncement on its new outcomes focused approach to regulation draws near, solicitors will increase their focus on the four letter word at the heart...
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A Rational Approach to Exciting Developments in Space Law
Space Law A Treatise by FRANCIS LYALL and PAUL B. LARSEN, Ashgate Publishing Ltd, Surrey, 2009, 1st Edition, 596 pp, Hardcover, 80[pounds sterling], ISBN: 978 07546 4390 6, eISBN 978 0 7546 9242 3 (ebook) Space has revolutionized telecommunication...
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