Amicus Curiae

Editor's introduction

Michael Palmer — Wed, 02 Nov 2022 00:00:00 +0000

Reflections on the Roles of Apex and Intermediate Courts in New Zealand

Forrie Miller — Wed, 02 Nov 2022 17:31:50 +0000

The Supreme Court of New Zealand replaced the Privy Council as New Zealand’s final appeal court in 2004. Appeals to the Privy Council in the general civil jurisdiction lay as of right, but all appeals to the Supreme Court were to be by leave. The legislature chose not to change appellate structures and pathways which had long been designed to limit the number of appeals by leave. Rather, it was hoped that the Supreme Court’s broader jurisdiction and accessible location would allow it to meet its objectives as a final appellate court.

The Supreme Court has done much to develop law for New Zealand conditions. But the number and quality of leave applications constrain its substantive output, which has apparently stabilized at a level substantially lower than was predicted in 2004. The underlying causes can be located in appellate structures and pathways which constrain demand and also affect the Court of Appeal.

This paper examines those constraints and the Supreme Court’s attempts to address them. It identifies consequences for the distribution of law development and supervision of precedent as between the Supreme Court and Court of Appeal. The paper is a call for dialogue rather than a prescription for reform, but it does suggest that consideration should be given to adjusting pathways to improve the range and quality of work decided by panels of three and five judges. It argues that courts in an appellate hierarchy must pursue a collaborative approach if law is to be developed in a reasonably timely and cost-effective way in the common law case-by-case tradition, and it suggests that is best done through appellate restraint and conservative application of the rules of precedent.

Keywords: appellate courts; distribution of responsibility for precedent; appeal pathways and leave criteria.

Can Doctrinal Legal Scholarship Be Defended?

Geoffrey Samuel — Wed, 02 Nov 2022 17:32:19 +0000

This review article investigates the question whether doctrinal legal scholarship can be defended. And it does so in the light of a new book by Mátyás Bódig that sets out an epistemological defence of this scholarship. The second half of this article critically examines this work, while the first half looks more generally at how doctrinal legal scholarship is defined in the civil and common law traditions and how it has traditionally been defended in the United Kingdom. One secondary question that is considered is whether doctrinal legal scholarship is of any greater value, epistemologically, than scholarship in astrology. The article is sceptical as to whether doctrinal legal scholarship can be defended, except as scholarship providing assistance to the legal profession and judiciary.

Keywords: astrology; Bódig (Mátyás); Dworkin (Ronald); doctrine; epistemology; hermeneutics; methodology; theory.

Is the Hong Kong Courts’ Ability to Refer to Foreign Authorities Unrestrained?

Martin Kwan — Wed, 02 Nov 2022 17:32:55 +0000

Once in a while there is a debate on whether Hong Kong courts should be freely able to refer to foreign authorities, indicating the lack of firm consensus. In light of the need for clarifications, this note affirms the court’s ability to refer to foreign authorities for three main reasons. Constitutionally, this note is the first to raise that Hong Kong courts have a unique ‘constitutional assurance’ of their ability to refer to foreign cases. By comparison, other jurisdictions, like England & Wales and Singapore which do not share the same assurance, have even further restrained their power with Practice Directions. Professionally, the courts will not blindly rely on foreign authorities given the jurisdictional differences. Practically, Hong Kong has a relatively smaller case pool, so the practical insights from the foreign authorities are very useful. Given these three justifications, there should not be any doubt over the courts’ power and practice for such.

Keywords: common law; Singapore; English law; comparative law; case law; precedent; India; judiciary; legal method.

Mandatory Mediation in England and Wales

Bryan Clark — Wed, 02 Nov 2022 17:33:33 +0000

This article is concerned with the thorny issue of mandatory mediation. In so doing, the piece charts the development of court-linked mediation in England and Wales from the days of the Woolf reforms and examines the growing clamour from judges, policymakers, commentators and, more recently, mediators for a shift from a mere cajoling of parties to mediate to outright compulsion. The article examines recent proposals for the introduction of mandatory mediation in English civil justice and sets out the view that, while mandatory mediation is inevitable and not per se objectionable on legal or policy grounds, care must be taken to ensure that it is implemented in such a way as to balance up different important policy drivers including efficiency, preserving the qualitative goals of mediation and filling the ‘justice gap’ that mediating in the shadow of the court can leave.

Keywords: mediation; mandatory mediation; access to justice; court-based mediation; mediation policy; litigants in person.

Developments in the History of Arbitration

Francis Calvert Boorman — Wed, 02 Nov 2022 17:34:06 +0000

It is not always easy to see the relevance of history to current practice, a complaint that might be levelled at the history of arbitration. Yet the uses made of history in work about the present state of arbitration show that some fascinating interventions have been made by both eminent academics and practitioners, with some important differences emerging in their interpretations. This article gives a brief overview of the history of legislation relating to arbitration, which predominantly relates to the relationship of arbitration with commerce and the courts. It also suggests that recent developments in studies of the history of arbitration challenge some of the assumptions made by those using it to illuminate the present. One particular difficulty with the way history has been used is the tendency to focus exclusively on commercial arbitration. Two detailed examples are given of areas that have received less attention; arbitration in the early railway industry and its use settling disputes for working-class friendly societies. These point the way to exploring a more diverse history, that looks beyond London, lawyers and commerce.

Keywords: arbitration; dispute resolution; history; Georgian; Victorian; railways; friendly societies; legislation.

Alternative Dispute Resolution and the Civil Courts

Debbie De Girolamo, Dominic Spenser Underhill — Wed, 02 Nov 2022 17:34:46 +0000

In 1996, Lord Woolf described a vision for civil English and Welsh justice, culminating in his culture-changing reforms (the Woolf Reforms) and the Civil Procedure Rules of April 1999. These impose a continuing duty on litigants to consider alternative dispute resolution (ADR) in preference to litigation, even after it has commenced, and on the courts, to encourage ADR. These duties are a central method for the delivery of justice. They required a radical new way of thinking about disputes from litigants, their advisors and the courts.

This article focuses on Lord Woolf’s vision and his Reforms, and their impact on the approach to ADR taken by the courts since 1999. It seeks to identify how that approach informs a concept of justice within the practice of modern litigation. The approach, supported by relevant case law, presents a broader and arguably more sophisticated view of justice that involves party autonomy, dialogue, settlement, creativity, flexibility of outcome, compromise, satisfaction and saving costs, as well as the more conventional approach to determining rights at trial after due process.

Keywords: ADR; mediation; justice; civil justice; court reforms; overriding objective; Halsey.

Conflict Avoidance and Alternative Dispute Resolution in the UK Construction Industry

Nicholas Gould, Olivia Liang — Wed, 02 Nov 2022 17:35:52 +0000

This article focuses on conflict avoidance and alternative dispute resolution (ADR) in the United Kingdom (UK) construction industry. It seeks to place the use of ADR in the UK in context and to analyse the dispute prevention techniques in standard form contracts. The article also considers the importance of, and processes involved in, mediation and statutory adjudication in construction disputes. It also discusses the key feature of dispute boards and their use in the UK.

Keywords: United Kingdom; conflict avoidance; ADR; adjudication; mediation; dispute boards; DABs; Construction Act; HGRA; HGCRA; NEC3; NEC4; BE Collaborative Contract; PPC2000.

Civil Justice Reform

Matthew Vickers — Wed, 02 Nov 2022 17:36:32 +0000

Ombudsman schemes have been viewed with interest for their efficiency, speed, cost and use of technology. As Sir Geoffrey Vos seeks to integrate alternative dispute resolution as part of a civil justice funnel, it is important to recognize that ombudsman schemes fulfil different functions than the courts. This paper suggests that dispute resolution is only one of the functions of a civil justice system. Court efficiency should not be the predominant organizing principle. Recognizing the variety of functions and legitimate interests contained within the civil justice system rather than conceiving a hierarchical structure presided over by courts could offer an outcome-based perspective on reform.

Keywords: ombudsman; dispute resolution; technology; justice systems; prevention.

Judges in the Dock

Barrie Lawrence Nathan — Wed, 02 Nov 2022 17:37:20 +0000

This article refers to judges, in the UK and elsewhere, who have themselves been convicted of or accused of a crime, whether while still officiating as a judge, before their appointment, or after their retirement. The most obvious criminal offence of which judges are guilty is bribery. This is considered in this article, but there is a wide range of offences from smuggling to murder, including, along the way, perjury, perverting the course of justice, two judges sent to prison for passing sentences which were much too heavy and one judge imprisoned for passing a sentence which was much too light. It examines the ways in which such judges have been dealt with and disparities of sentence.

Keywords: perjury; perverting the course of justice; points-swapping; sentencing.

A Geo-Legal Approach to the English Sharia Courts: Cases and Conflicts by Anna Marotta

Samia Bano — Wed, 02 Nov 2022 17:38:02 +0000

Putting a Social and Cultural Framework on the Evidence Act

David Goddard J, Mai Chen — Wed, 02 Nov 2022 17:38:42 +0000

What follows are presentations to a seminar on the Supreme Court decision in Deng v Zheng (2022): guidance on bringing relevant social and cultural information to the court’s attention. The case concerned whether, despite a lack of formal documentation, the parties had entered into a legal partnership, of which they would be jointly responsible for the debts of the partnership. Two issues arose relating to the culture of the parties: namely, whether the meaning to be ascribed to 公司 (gingsi) went beyond ‘company’ and could extend to ‘firm’ or ‘enterprise’ and the significance of 关系 (guanxi). Both parties are Chinese and their business relationship appeared to have been conducted in Mandarin. Justice Goddard was the presiding judge in Zheng v Deng (2020), the Court of Appeal judgment appealed to the Supreme Court. Mai Chen appeared with two other lawyers on behalf of the intervenor, the New Zealand Law Society.

Keywords: social and cultural framework; Evidence Act; expert evidence; translations; interpreters; adjudicative facts; social facts; legislative facts; stereotyping; subconscious bias; judicial notice; reliable published documents.

Professor of Practice

Barnaby Hone — Wed, 02 Nov 2022 17:39:22 +0000

Histories of Legal Aid: A Comparative and International Perspective Edited by Felice Batlan and Marianne Vasara-Aaltonen

Daniel Newman — Wed, 02 Nov 2022 17:39:49 +0000

Sleep-Facilitated Sexual Assault

Philip N S Rumney, Duncan McPhee — Wed, 02 Nov 2022 17:40:20 +0000

This note addresses a form of rape that is neglected in the scholarly literature. This form of offending occurs when a male uses his penis to vaginally, orally or anally penetrate a female or male who is sleeping at the time of the penetration. The data on which this note is based is gathered from a total sample of 441 police rape investigation case files, from which 39 of these sleep cases are identified. The note examines some of the characteristics of these cases, investigative trajectories through the criminal justice process and the behaviour of suspects. Given the neglect with which this issue has been treated, it is argued that further research would be beneficial so as to improve our understanding of the rape of those who are sleeping and the criminal justice and police response to this problem.

Keywords: rape; victims; suspects; sleep; police investigations.

In Memory of James Crawford: Judge, Jurist and Scholar (1948-2021)

Amy Kellam — Wed, 02 Nov 2022 17:40:52 +0000

In Memory of Professor Philip Rumney

Duncan McPhee — Wed, 02 Nov 2022 17:41:33 +0000

News and Events

Eliza Boudier — Wed, 02 Nov 2022 17:41:55 +0000

Sporting arbitrations

Francis Calvert Boorman — Wed, 02 Nov 2022 17:42:28 +0000

Full issue

Michael Palmer — Wed, 02 Nov 2022 18:00:09 +0000