Law - Book chapters

Permanent URI for this collection

https://hdl.handle.net/10468/2534

Browse

Now showing 1 - 5 of 40

The court as a site of rediscrimination
(Palgrave Macmillan, 2023-11-28) Morgan-Williams, Samantha; Donson, Fiona; Flower, Lisa; Klosterkamp, Sarah
This chapter provides an ethnographic analysis of how Travellers perceive the Courts and ‘justice’ (in the context of equality litigation), centring their experiences of discrimination and marginalisation. In presenting data on the adverse experiences of Travellers who have taken equality cases to the Irish District Court, Ireland’s lowest court level, we recognise the inability of existing desk-based research to capture emotional and memorial elements of adversarial court appearances for Irish Travellers. Speaking to existing literature promoting the importance of understanding how justice is experienced through court observation and lived experience. These observations allowed the authors to experience the Court through the eyes of Travellers, follow-up interviews provided insight into individual experiences which would not be accessible via observation. Ultimately, this discussion feeds into the need for a broader recognition and understanding of vulnerable court-users experiences to adequately inform reform of equality adjudication bodies, enhance judicial training, and enable actions ensuring access to justice for the most vulnerable.
Proprietary estoppel, promises and mistaken belief
(Hart Publishing, 2011-05-13) Mee, John; Bright, Susan
This chapter considers the restrictive vision of proprietary estoppel put forward by Lord Scott and Lord Walker in the House of Lords in Yeoman’s Row v Cobbe [2008] UKHL 55. It explains that the impact of taking their arguments seriously would be the elimination (or, at least, the severe restriction) of one of the three distinct principles subsumed within proprietary estoppel, ie the promise principle stated by Lord Kingsdown in Ramsden v Dyson. The chapter suggests that, although the approach in Cobbe runs counter to the current of equitable development over the last forty years, it does highlight important issues of principle surrounding the scope of proprietary estoppel. Despite the tendency to downplay the role of promise within the doctrine, the pre-Cobbe version of proprietary estoppel ventures into the territory of the law of contract, doing so only in respect of promises related to land/property (without any convincing justification as a matter of principle for this restriction). Rather than seek to deal comprehensively with the very large question as to the merits or otherwise of Lord Kingsdown’s promise principle, this chapter seeks to address a more modest set of questions. First, it points out that the particular concern which seems to have animated the judges in Cobbe – that it is wrong to allow C to succeed on the basis of a promise which C knows is binding only in honour – can be accommodated within the conventional modern understanding of proprietary estoppel, without any need to eliminate or severely curtail Lord Kingsdown’s principle. Secondly, the chapter addresses the seductive suggestion that a distinction should be drawn between the commercial and the domestic contexts, with the restriction upon proprietary estoppel suggested in Cobbe applying only in the commercial context. It concludes on the basis of a number of different arguments, that this suggestion does not represent a desirable avenue of development for the law. One of the points made against any application of a mistake requirement in the context of the promise principle is that this requirement makes sense only in the context of the acquiescence principle; the suggestion that it should be applied more broadly appears reminiscent of attempts in the past to apply the probanda to all proprietary estoppel cases. In terms of the future development of the law of estoppel, what is needed is a willingness to separate out for analysis the distinct principles which have, for historical reasons, been grouped together under the heading of proprietary estoppel. The emphasis on ‘unconscionability’ and ‘synthesis’, encouraged by the overrated judgment of Oliver J in Taylor Fashions, have contributed to the current confused state of the law. Following the debacle represented by Cobbe, it is time for a somewhat more reflective approach.
Reforming the law of prescription: A cautionary tale from Ireland
(Hart Publishing, 2015-08-27) Mee, John; Barr, Warren
The law on the prescriptive acquisition of easements and profits, as it evolved in England and Wales and was inherited by other common law jurisdictions, has long been considered unsatisfactory. ‘Clouds and darkness [had] settled down over the whole subject’ even before the ‘fitting addition to the chaos’ represented by the Prescription Act 1832. It is not surprising, therefore, that reform has been under consideration in a number of jurisdictions. As part of a wide-ranging reform of land law in the Republic of Ireland, the law of prescription was radically recast by Part 8 of the Land and Conveyancing Law Reform Act 2009 (the LCLRA). The three existing forms of prescription — common law prescription, prescription under the doctrine of lost modern grant, and statutory prescription under the Prescription Act 1832 — were abolished and replaced by a new form of statutory prescription. The period for the acquisition by prescription was reduced to 12 years, creating what one commentator has described as ‘The most liberal system of prescription ever proposed’. The new regime was due to come into effect after a three-year transition period but, before this period had elapsed, the scheme was modified by the Civil Law (Miscellaneous Provisions) Act 2011. Unfortunately, even after the 2011 amendments, there appear to be significant difficulties with the new Irish scheme. This chapter analyses the problems that have arisen in Ireland in relation to the reform of the law of prescription and considers the possible lessons for reformers in other jurisdictions, giving special attention to comparisons with the proposals made by the Law Commission for England and Wales in 2011.
Pettitt v Pettitt (1970) and Gissing v Gissing (1971)
(Hart Publishing, 2014-08-07) Mee, John; Mitchell , Charles; Mitchell, Paul
This chapter considers the landmark family property decisions of the House of Lords in Pettitt v. Pettitt [1970] AC 777 and Gissing v. Gissing [1971] AC 886 through the prism of imputed common intention, an idea advanced by Lord Diplock in Pettitt and (on one view) implemented in a different form by him in his speech in Gissing. The conclusion is that the common intention trust analysis, as first put forward in the speech of Lord Diplock in Gissing, did not directly involve the imputation of common intentions. The notion of imputation has, following Stack v. Dowden [2007] 2 AC 432 and Jones v Kernott [2012] 1 AC 776, crept back into the modern law on the common intention trust in respect of the secondary issue of quantification. However, as is argued in the chapter, it seems unnecessary to present the modern approach to quantification in terms of the imputation of a non-existent common intention. The chapter places Pettitt and Gissing in the context of the earlier case law – e.g. looking closely at the overrated ‘imputed common intention’ approach of the minority in Pettitt and its relationship with more overtly discretionary approaches of the Court of Appeal in earlier cases. The chapter also links this analysis to a consideration of the impact of the more recent cases of Stack v. Dowden and Jones v. Kernott.
Cohabitation, civil partnership and the Constitution
(Four Courts Press, 2007-12) Mee, John; Binchy , William; Doyle, Oran
This paper examines the issues surrounding the law reforms proposed in Ireland in relation to the introduction of civil partnership, as well as a legislative regime to provide certain rights for cohabiting couples. It examines key law reform documents, including the Report on the Family by the Oireachtas (Parliamentary) All-Party Committee on the Constitution, the Irish Law Reform Commission's Report on the Rights and Duties of Cohabitants and the Report of the Working Group on Domestic Partnership. It analyses the impact of the Irish Constitution, Bunreacht na Heireann 1937, on possible law reform, in respect of the rights of both opposite sex and same sex couples. It also offers some observations on the general approach to law reform in this area in Ireland.

Browse

Recent Submissions