Month: May 2019

Social Justice in EU Financial Consumer Law

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Dr Andrea Fejős, Lecturer in Law, University of Essex

Dr Fejős’ recent paper for Tilburg Law Review considers how social justice influences EU financial consumer law. It provides a new way of looking at social justice in consumer law by showing that equality of status based social justice has increasingly come to the fore in modern EU financial consumer law.

This emergent and complex set of private and regulatory rules on credit, insurance, investment and payment products has responded to the consequences of inequality between financial firms and consumers by engaging in product and rights regulation that balances the parties’ rights and duties and protects consumers from the consequences of status-based inequality. Looking forward the paper recommends that this social justice approach must be made transparent and become an express part of EU law and policy, both in order to raise consumer trust in the internal market and to more clearly set the future law and policy agenda.

Photo credit: Fortegra Blog

Constitutional Pluralism in Ireland, the EU and the ECHR

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A newly published book, The Triangular Constitution: Constitutional Pluralism in Ireland, the EU and the ECHR, by Tom Flynn, lecturer in law at the University of Essex, offers a fresh account of modern European constitutionalism. It uses the Irish constitutional order to demonstrate that, right across the European Union, the national constitution can no longer be understood on its own, in isolation from the EU legal order or from the European Convention on Human Rights.

The constitution is instead triangular, with these three legal orders forming the points of a triangle, and the relationship and interactions between them forming the triangle’s sides. It takes as its starting point the theory of constitutional pluralism, which suggests that overlapping constitutional orders are not necessarily arranged ‘on top of’ each other, but that they may be arranged heterarchically or flatly, without a hierarchy of superior and subordinate constitutions.

However, it departs from conventional accounts of this theory by emphasising that we must still pay close attention to jurisdictional specificity in order to understand the norms that regulate pluralist constitutions. It shows, through application of the theory to case studies, that any attempt to extract universal principles from the jurisdictionally contingent interactions between specific legal orders is fraught with difficulty. The book is an important contribution to constitutional theory in general, and constitutional pluralism in particular, and will be of great interest to scholars in the field.

Executory Contracts in Insolvency Law

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Dr Eugenio Vaccari, lecturer at the University of Essex, School of Law, has recently co-edited a book with Professor Jason Chuah, Head of Department at the City Law School at City, University of London. The book, Executory Contracts in Insolvency Law: A Global Guide is published by Edward Elgar.

Executory Contracts in Insolvency Law is the result of a research project that lasted for more than 2 years. The purpose of this project was to cover a gap on the treatment of executory contracts in insolvency in academic and professional literature.

On the academic side, few papers have so far investigated the principles that should govern the treatment of executory contracts in insolvency. Why and to what extent should insolvent companies be allowed to terminate or continue their contracts upon filing for a formal insolvency proceeding? Should the procedure, the purpose of the procedure or simply the nature of the business determine the outcome of the contract?

On the professional side, Executory Contracts in Insolvency Law aims at providing a comprehensive yet easily accessible guide on the treatment of these contracts in a larger number of jurisdictions than any other study conducted in the field to date. In an increasingly globalised world, practitioners may find that termination clauses in commercial contracts are governed by one law, while the main contract is subject to either English or New York law. A comprehensive outline of the main features of these laws is essential to provide timely and informed advice to the parties.

Executory Contracts in Insolvency Law offers a unique, comprehensive, and up-to-date transnational study of the topic, including an analysis of certain countries which have never previously been undertaken in English. Written by experts in the field, with extensive practical and theoretical knowledge of both research and professional experience, this is a ground-breaking investigation into the philosophies and rationales behind the different policy choices adopted and implemented by a range of over 30 jurisdictions across the globe.

With contributions from more than 40 insolvency law experts, this book provides extensive coverage of executory contracts, encompassing both developed and developing countries, and drawing on not only so-called common and civil law systems, but also, countries with hybrid systems of law. The book explores ipso facto clauses, improvements that could be made, as well as casting light upon procedural and tactical issues and considerations when attempting to address executory contracts in different jurisdictions.

Providing a globalised and comparative perspective on executory contracts in insolvency law, this book will be an invaluable tool for legal practitioners requiring a cross border perspective on the subject, as well as for academics and researchers pursuing a study of the topic. It will also benefit policy makers and institutions seeking to introduce insolvency law reforms in their home countries.

High Court awards damages for libellous child grooming tweet

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Alexandros K. Antoniou, Lecturer in Media Law, University of Essex*

On 19 December 2018, Mr. Justice Nicklin handed down the judgment in Monir v Wood, ordering the defendant, the chairman of a local branch of a political party, to pay GBP 40 000 in damages for a defamatory message sent by a branch member through the branch’s Twitter account. The judgment highlights the potential liability of those who set up social media accounts and then delegate responsibility to others to post on their behalf.

The claimant in this action was Zahir Monir, a businessman and Labour activist from Rotherham. He brought libel proceedings against Stephen Wood, the former chairman of the Bristol branch of the UK Independence Party (UKIP), over a tweet published on the branch’s Twitter account on 4 May 2015, shortly before that year’s General Election. Although it did not directly identify the claimant, the tweet comprised a photograph of him alongside the Labour MP for Rotherham, Sarah Champion, and another man. The text of the tweet, which evidently referred to the photograph, stated that the Labour candidate “stood with 2 suspended child grooming taxi drivers. DO NOT VOTE LABOUR.” The allegation against the claimant was false. Mr. Monir sued the chairman of the branch, Stephen Wood, contending that he had been defamed by the tweet and that Mr. Wood was legally responsible for it. However, the tweet had actually been written and posted by the vice chairman of the UKIP Bristol branch, John Langley, to whom responsibility for the operation and control of the account had been delegated by Mr. Wood.

On the facts, the Court found that “ultimate control” of the Twitter account remained vested in Mr. Wood “at all times”, as it was registered using his email address. The claimant complained to the defendant about the tweet on 8 May, but the defendant had not focused on the offending tweet’s precise terms until after the police intervened on 1 June. The defendant had also become aware of earlier racist postings by the vice chair, but nevertheless decided not to remove him from the account for reasons “clearly born of political expediency” given the forthcoming election.

As regards the issue of meaning, Nicklin J. took the view that the ordinary reasonable reader would understand the offending tweet to mean that “the two men were involved in the sexual abuse of children.” This was a “very seriously defamatory allegation” of conduct amounting to a serious criminal offence that would result in a substantial term of imprisonment following conviction. As such, the tweet was also deemed to have met the “serious harm” threshold under the Defamation Act 2013. Moreover, the judge was satisfied that Mr. Monir successfully established that the tweet at issue had been published to a number of people who understood the words in it to refer to him. Also, the republication of the tweet via WhatsApp was likely to have led to “a significant, but unquantifiable number of people” identifying the claimant from the photograph.

The defendant, who had not posted the tweet on the Bristol UKIP Twitter account himself, denied responsibility for its publication. After reviewing the relevant authorities, Nicklin J. concluded, however, that the defendant was liable for the tweet on the basis of agency: Mr. Wood had created the Bristol UKIP account and retained control over it both practically and by means of his authority as chairman of the Bristol branch. The libellous tweet was posted by Mr. Langley, not on his own account, but in his capacity as campaign manager in the course of executing the task delegated to him by the defendant, i.e. campaigning for Mr. Wood and Bristol UKIP. In Nicklin J.’s judgment, the evidence of Mr. Wood’s knowledge of the tweet in question was also sufficient to infer that “he acquiesced in and thereby authorised its continued publication.”

On the issue of remedies, Nicklin J. concluded that the gravity of the defamatory allegation put it “towards the top end of seriousness” for calculating damages. Although the scale of the publication was fairly limited, the Court assessed the significance of the publishees as well as the extent to which publication to them had tarnished the claimant’s reputation and increased his hurt and embarrassment. Further, the evidence of serious and significant reputational harm was compounded by the defendant’s “mean-spirited stance” and refusal to publicly apologise and withdraw the allegation. Nicklin J. found that the appropriate award was GBP 40 000. If this libel had been published in a national newspaper, a figure of GBP 250 000 or more would have been “easily justified.” Finally, there was no evidence of the defendant threatening to republish the offending tweet or anything similar and thus an injunction was unnecessary in the circumstances.

*Reblogged from IRIS Merlin blog