Search

Conditions and warranties, which are generally referred to as policy terms in insurance contracts, are crucial in the determination of the rights and obligations of the contracting parties. The article examines the enforcement of policy terms in insurance contracts at common law and the legislative measures that have been deployed in some common law countries, including Nigeria, the United Kingdom and Australia, to ensure fairness as well as to balance the inequality in the bargaining power of the contracting parties. In as much as the principle of freedom of contract will generally be honoured by the court, the paper argues that through legislative intervention in policy terms in these countries, the principle is being discountenanced with, in appropriate cases, in order to effectuate the just and reasonable expectation of the insured. It concludes by proffering suggestions to identified lacunae in the Nigerian Insurance law. [ABSTRACT FROM AUTHOR]

Litigants are now required to consider mediation and can be penalized under the Civil Procedure Rules if they unreasonably refuse to use an ADR procedure. As litigants are expected to participate in mediation, there are mounting concerns, particularly in common law countries that mandate attendance before accessing the courts, that parties are obstructing the process by engaging in 'bad faith'. Some common law countries have used the concept of 'good faith' negotiation to design rules or codes to regulate conduct in mediation. The English and Welsh jurisdiction identifies mediation as a type of negotiation, but has no developed concept of negotiating in 'good faith'. This paper first reviews the case law on good faith negotiation in England and Wales, before considering the concept of 'good faith' in mediation and assessing whether or how the conduct of parties in mediation could be controlled. The concept of good faith in mediation may not provide the answer because of definitional difficulties and a review of Australia, Hong Kong and the USA indicates that many rules or procedural codes are confined to a 'minimum level' of participation. Furthermore, court control of conduct is limited by the rules of without prejudice in negotiation and confidentiality rules in mediation, which limits court review unless there is substantial impropriety such as blackmail or duress. This paper proposes that the issue of the conduct of parties in mediation must be given serious consideration, particularly in view of judicial pressures in some quarters for courts to be given increased powers to direct litigants to mediate. Mandating mediation may lead to more incidences of bad faith or to party involvement without serious engagement. An argument is made to draw on the already developed principles of unreasonable behaviour in litigation in order to define the expectations of reasonable conduct in mediation. [ABSTRACT FROM AUTHOR]

The principle of autonomy is at the heart of the right of a competent individual to make an advance directive that refuses life-sustaining medical treatment, and to have that directive complied with by medical professionals. That right is protected by both the common law and, to an extent, by legislation that has been enacted in the United Kingdom and many jurisdictions in Australia. The courts have a critical role in protecting that autonomy, both in those jurisdictions in which the common law continues to operate and in those jurisdictions which are now governed by statute, and in which judicial determinations will need to be made about legislative provisions. The problem explored in this paper is that while the judiciary espouses the importance of autonomy in its judgments, that rhetoric is frequently not reflected in the decisions that are reached. In the United Kingdom and Australia, there is a relatively small number of decisions that consider the validity and applicability of advance directives that refuse life-sustaining medical treatment. This paper critically evaluates all of the publicly available decisions and concludes that there is cause for concern. In some cases, there has been an unprincipled evolution of common law principles, while in others there has been inappropriate adjudication through operational irregularities or failure to apply correct legal principles. Further, some decisions appear to be based on a strained interpretation of the facts of the case. The apparent reluctance of some members of the judiciary to give effect to advance directives that refuse treatment is also evidenced by the language used in the judgments. While the focus of this paper is on common law decisions, reference will also be made to legislation and the extent to which it has addressed some of the problems identified in this paper. [ABSTRACT FROM AUTHOR]

This paper surveys the use made of comparative law by the House of Lords and Supreme Court in tort cases decided in the period 1990-2013. Consideration is given to the use of materials from both common law and civil law jurisdictions. The research finds that these courts make a great deal of use of comparative common law (albeit from a limited number of jurisdictions) and that these materials have played a part in a variety of ways in developing the law. In contrast, use of materials from civil law jurisdictions has been at a much lower level and appears to have declined in recent years. The enthusiasm for using civil law sources that certain judges showed in the past has not been continued in more recent years. [ABSTRACT FROM AUTHOR]

This paper discusses the extent to which the common law recognized public interest considerations when confronted with utility insolvencies in the UK, Australia, and the US in the period 1825 to 1970. Jurisprudence in all three jurisdictions concerning insolvent utilities arose in the nineteenth century out of the difficulties arising from the financial distress of railway companies. It is argued that public interest considerations were mobilized to justify various degrees of restriction on the usual rights of creditors in all jurisdictions. While evidence was found of the use of public interest theory in all jurisdictions, there was little development of it in the UK and Australia compared with the US. This may have been because of the early introduction of statutory schemes of arrangement in both countries and because of the nationalization of the industries for the better part of the twentieth century. In the US, on the other hand, public interest theory in the context of insolvent railways and other utilities was much more developed. In particular, it provided part of the rationale for the judicial development of the equity receivership into a comprehensive corporate reorganization mechanism. [ABSTRACT FROM AUTHOR]

This paper critically examines the law of forum non conveniens, in particular the use of the ‘clearly inappropriate forum’ test in Australia, compared with the ‘more appropriate forum’ test applied in jurisdictions such as the UK and the US. It traces the development of the law in the UK in relation to forum non conveniens, including the English acceptance of the doctrine, and how it has been applied in various cases. Some criticism of the ‘more appropriate forum’ test is noted, and it is not recommended that the courts adopt the ‘laundry list’ approach evident in some US decisions, where up to 25 different factors are considered in assessing a forum non conveniens application. It considers the Australian ‘clearly inappropriate forum’ test, and concludes that the ‘clearly inappropriate forum’ test should no longer be followed in that it is unnecessarily parochial and is not consistent with other goals of the rules of private international law including comity. Links between Australia and the subject matter may well be tenuous. Confusion attends the application of the test in Australia at present, the court has rejected the English approach but claims to apply some of the factors mentioned in the English approach in the Australian test, and there is an undesirable schism between statutory rules applicable in domestic cases and the approach when the common law doctrine of forum non conveniens is used. The law regarding forum non conveniens should be harmonious with choice of law rules, and interest analysis can assist in formulating the desired approach to forum non conveniens applications. [ABSTRACT FROM AUTHOR]