Southampton Student Law Review

University of Southampton
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Latest documents

  • 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.

  • 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.

  • 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.

  • 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.

  • Foreword: Looking Forward and Back in Time of Transitions
  • 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.

  • 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.

  • Copyright protection of TV Formats in the UK: Banner Universal Motion Pictures Ltd v. Endemol Shine Group Ltd [2017] EWHC 2600 (Ch)

    In its decision of 19th October 2017, the High Court of Justice, Chancery Division (EWHC) held that under Copyright Designs and Patents Act 1988 ("CDPA"), a creator of a TV format is entitled to obtain copyright protection by complying with two minimum standards. The first standard being that there should be some apparently identified features which, taken together, distinguish the show in question from others of a similar type. Secondly, the distinguishing features should interlink with each other in a coherent framework which allows the creator to reproduce the show in a recognisable form repeatedly.

  • Article 8 and McDonald: A Tasty Judgement for Private Landlords but A Hard One to Swallow for Residential Tenants

    In 2016, the Supreme Court decided in McDonald v McDonald1 that Article 8 of the European Convention on Human Rights cannot justify a different mandate to that of the contractual relationship between private tenants and landlords, and the mandate that Parliament decided when balancing the competing interests. This essentially means that judges are not required to assess proportionality when a Section 21 notice is granted to private tenants. Despite this case being over a year old, its ramifications are still vast as according to the 2015-16 English Housing Survey, 36% of private sector tenants are families. These are people who could one day be affected by the consequences of this case. This article through using case law, legislation and academic literature scrutinises the reasoning of the judges in this case and uncovers whether it was decided correctly.

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