Christmas is just around the corner. With all the hustle and bustle of the academic life, we all need a little time off to refresh, recover and reflect. So as of next week (Monday 21 Dec. 2020), we’ll be on a short hiatus.
We hope that you can look back on a generally positive year with us. In 2020, we had 89 posts (up from 29 in 2019) on a very wide variety of topics by authors from all areas of law. Also, we have more than doubled our views (moving from 3,326 in 2019 to 7,440 in 2020). More than half of these are from the UK, with the USA, Canada, Germany, France and China making up the rest of the top five.
The Essex Law Research blog will be back in early January with more research news from our School. However you celebrate at this time of the year, we hope you enjoy a wonderful holiday season!
On 6 October 2020, Drag Race UK participant Crystal publicly announced her intention to pursue a defamation action against actor and aspiring politician Laurence Fox after calling her a ‘paedophile’ on Twitter.
The comment was made in relation to an earlier tweet posted on Sainsbury’s account, which expressed support for Black History Month. Fox accused the supermarket of promoting ‘racial segregation and discrimination’ and encouraged people to boycott the groceries retailer. Crystal criticised Fox’s tweet, writing: ‘Imagine being this proud of being a racist! So cringe. Total snowflake behaviour.’ In response, Fox tweeted: ‘Says the paedophile.’
The reality show contestant claimed that Fox’s comment on the microblogging platform amounted to ‘homophobic defamation’. In her statement, she said: ‘An accusation of paedophilia is one of the oldest homophobic tropes, and it was very shocking to have that levelled at me, not just by Mr Fox, but also his many followers who believed him. I may have had to endure homophobic bullying as a child, but I will not tolerate it as an adult.’
Crystal is the second individual seeking to bring a legal action against the actor over comments on the social networking platform. Simon Blake, deputy chair of the LGBT rights organisation Stonewall, also advised his lawyers to begin defamation proceedings against Fox, after the actor called him a ‘paedophile’ as well. Earlier, Blake had challenged him over his Sainsbury’s tweet by writing ‘What a mess. What a racist t**t’, to which Fox replied: ‘Pretty rich coming from a paedophile.’
Fox subsequently deleted his tweets, but screenshots continued to circulate online. He appears to have regretted posting these comments. In a Channel 5 interview, he stated: ‘It was in response, possibly, to 10 months now of being called a racist by people on Twitter, which I think is a career-ending slur, actually, and I find very hurtful. If the point is that words mean nothing, seeing as it’s a totally baseless allegation and is entirely in opposition to what my feelings are, I thought, you know what, if words meaning nothing nowadays, I can call you anything I want in return. Was it my finest hour? No.’
Defamation is committed by publishing a statement which lowers the reputation of the person referred to. In order to succeed in an action for defamation, the claimant must prove that the statement complained of was defamatory; that the statement was published and referred to the claimant; and that the publication of the statement has caused or is likely to cause serious harm to the claimant’s reputation. Whilst it is well-arguable that Fox’s tweets could provoke strong feelings against Crystal and Blake, the introduction of a serious harm threshold is one of the major changes introduced by the Defamation Act 2013 and is likely to prove a challenge when/ if these cases come before the court.
The early judicial opinion in Cooke and Anr v MGN Ltd and Anr[2014] EWHC 2831 suggests that in cases involving grave imputations serious harm will be so obvious that the need for evidence can be dispensed with, such as where an individual was wrongly accused of being ‘a terrorist or a paedophile’ in a national newspaper (Mr. Justice Bean, para. 43). More recently, however, the Supreme Court held in Lachaux v Independent Print Ltd and Anr[2019] UKSC 27 that, in assessing whether a publication has caused serious harm to reputation, the meaning of the words and their inherent tendency to do harm are not the sole factors. As Lord Sumption stated:
The reference to a situation where the statement ‘has caused’ serious harm is to the consequences of the publication, and not the publication itself. It points to some historic harm, which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. The same must be true of the reference to harm which is ‘likely’ to be caused. In this context, the phrase naturally refers to probable future harm.
Para. 14
So, the threshold has been raised and its application is to be determined with reference to a two-pronged test, i.e. the meaning of the words, plus their actual impact. The Supreme Court recognised, nevertheless, at para. 21 of the decision that inferences of fact can still be drawn from the circumstances and context of the publication, including factors like the scale of publication and the gravity of the allegation(s). The same court confirmed the importance of context in Stocker v Stocker[2019] UKSC 17, where the fact that publication was in a Facebook post was critical, as Facebook is ‘a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre-eminently one in which the reader reads and passes on’ (Lord Kerr, para. 43). Twitter is not too dissimilar. One of the messages sent is that in many instances not much thought is invested by people publishing on forums like these, and so far as defamation is concerned, ordinary readers on such platforms recognise this and are not overly analytical: ‘People scroll through it quickly. They do not pause and reflect. They do not ponder on what meaning the statement might possibly bear. Their reaction to the post is impressionistic and fleeting’ (Lord Kerr, para. 44; see also Monir v Wood[2018] EWHC 3525, para. 90, Mr. Justice Nicklin).
A similar approach had earlier been taken in Monroe v Hopkins[2017] EWHC 433, in which Twitter was seen by Mr. Justice Warby as ‘a conversational medium’ to which ‘an impressionistic approach is much more fitting and appropriate’ (para. 35), taking into account the immediately surrounding contextual material. But, would it be fair to say that crude, provocative and controversy-seeking messages on Twitter are not often taken seriously because they are considered by ordinary readers ‘mere abuse’ or are perhaps expected in a forum of this nature? And, does it follow that the harm suffered will often be less serious? Every case depends on its own facts, but in Monroe, Mr. Warby Justice had little difficulty in accepting that the absence of evidence that a tweet was believed was not evidence of a lack of harm (para. 71).
Ultimately though, does it really make a difference if someone is accused of paedophilia in a ‘casual’ social medium like Twitter or a national newspaper? In our multi-mediated world, the so-called ‘trial-by-media’ – which often involves a sensationalist, moralistic speculation over the actions and motives of those who find themselves accused in the ‘court of public opinion’ – extends beyond news stories produced by professional journalists to also cover claims made on social media. More importantly, the age of ‘fake news’, the Jimmy Savile scandal and the #MeToo movement is also an age of mistrust towards society’s institutions (including traditional media organisations), especially when the matter at issue is paedophilia. From this perspective, social media have the power to challenge the top-down information flow in contemporary democratic societies and therefore their ordinary users might attribute more importance to content like Facebook posts or tweets than they are often assumed to.
With regard to how a tweet containing accusations of paedophilia could be interpreted, it is also worth briefly noting here the similarities between Fox’s case and that of the equally temperamental Tesla CEO Elon Musk, who was sued for defamation in the USA by a British cave explorer, Vernon Unsworth, after Musk called him a ‘pedo guy’ on Twitter in 2018. Musk claimed at the time that he used the term as a generic insult meaning ‘creepy old man’ and not with the intention to literally accuse Unsworth of paedophilia – an explanation that was accepted by the Los Angeles court which cleared Musk a year later. However, coming back to Fox’s tweets, an assessment of the harm they could cause to the claimants’ reputation would be deficient without a careful consideration of their identities and, particularly, their sexuality. Targeted towards two members of the LGBT community, Fox’s claims acquire an additional layer of meaning (and by extension, a greater capacity to harm) as they allude to the homophobic myth conflating homosexuality with child predation and paedophilia.
Post-Lachaux case law indicates that solely relying on the inherent tendency to cause harm may not be optimal for the success of a libel claim. Adducing as much evidence as possible can maximise a claimant’s likelihood of success. This could include: first, reliable evidence as to the extent of publication. Although Fox’s tweets were deleted, a sound assessment can still be made of the scale of publication through a combination of the number of his followers, the number of profile visits to his ‘home page’ and Twitter analytics. Hence, efforts should be made prior to the deletion of the tweets to obtain and preserve the analytics data regarding publication. The importance of Twitter analytics was noted by Mr. Justice Warby in Monroe (para. 84). And, even if a tweet is deleted, ‘what matters […] is not the period of time for which a person is exposed to the message but the impact the message has’ (Monroe, para. 71). Second, evidence of serious harm in the form of abusive tweets from other Twitter users who had read the tweet complained of can also be helpful, so long as the alleged abuse is causally linked to the offending tweet and reflects harm to reputation (see Monroe, para. 71). Third, evidence of substantial further indirect (“grapevine”) dissemination of the allegations complained of would be useful; as Fentiman v Marsh[2019] EWHC 2099 suggests, the likelihood of repetition of the allegation beyond the original publishees may be ‘typically’ inferred in cases involving social media (para. 55). Finally, evidence of the statement’s adverse effect on the way right-thinking members of society generally would treat the claimant could strengthen the serious harm argument, but the absence of direct evidence of adverse impact does not of itself mean a claim should fail. As noted earlier, Lord Sumption in Lachaux referred to the court’s ability to draw inferences and to the ‘inherent probabilities’ (para. 21).
At the time of writing, letters of claim have not been issued. If, however, the cases eventually reach the court, a difficult evidential burden will have to be shouldered. In the absence of such evidence, serious harm arguments may be open to question and weakened.
Last year, the Government committed itself to establishing a Commission on the Constitution, Democracy and Rights, which would consider reform of the UK’s constitutional order, including judicial review and the Human Rights Act 1998. Instead, on 30 July 2020, the Government launched an ostensibly narrower Independent Review of Administrative Law (IRAL) to examine the need for reforms of judicial review in particular. This is to be conducted by an advisory panel of experts led by Lord Faulks QC. Any options for reform put forward by the Review will be considered by the Lord Chancellor and Secretary of State for Justice, Robert Buckland QC MP and by the Chancellor of the Duchy of Lancaster, Michael Gove MP. Both the report of the Review and the Government’s response will be published by the end of 2020 or shortly thereafter.
The scope of the Review in context
The Review is expressly framed as an attempt to explore the balance ‘between enabling citizens to challenge the lawfulness of government action and allowing the executive and local authorities to carry on the business of government’. In particular, the Review considers the:
(i) codification of the grounds of judicial review and the amenability to review of public decisions;
(ii) justiciability of certain executive decisions;
(iii) grounds and remedies available in justiciable claims and whether these should differ depending on the subject-matter of the case; and
(iv) any additional procedural reforms, such as time limits, costs, appeals, and standing.
The current Review is the latest in a series of exercises over the past decade directed at reforming judicial review. Recent consultations include:
Judicial Review: proposals for reform in 2012, which led to the Civil Procedure (Amendment No 4) Rules 2013 amending Parts 52 and 54 of the Civil Procedure Rules. These alterations, inter alia, reduced time limits in planning and procurement cases, introduced a fee for oral renewal, and removed the right to an oral renewal where the case is found totally without merit on the papers;
Judicial Review: proposals for further reform in 2014, which led to the Criminal Justice and Courts Act 2015 and explored the potential for rebalancing the system of financial incentives, including a proposal on payment of legal aid to providers in judicial review cases and speeding up appeals to the Supreme Court in important cases; and
While the current Review follows this reform trajectory, it is substantially different in its framing and objectives in several respects. In particular, this exercise is presented as being concerned with a range of broader issues than previous consultations, which largely focused on procedural and financial reforms. This is indicated by the Review’s function to provide an independent examination of ‘administrative law’, rather than ‘judicial review’ exclusively. This would be an ambitious project especially given the seemingly tight timeframe being set, not least for the initial consultation (some six weeks from start to end). However, the reality of the Review may belie its ambitious wording. In practice, it seems that the Review is considering ‘administrative law’ only in the narrowest of senses – that is, those aspects of administrative law that are associated with the grounds of judicial review.
In other words, the Review appears not to be concerned with the broader territory of administrative law or with the wider landscape of administrative justice. There is, for instance, no indication that it will examine statutory appeals, administrative reviews, the work of tribunals, or ombuds. The implication is not only that judicial review equates to administrative law, which many will recognise as being dubious, it is also that judicial review can be understood and reformed in isolation to those parts of the administrative justice system to which it is inevitably attached. This is an artificially narrow approach. After all, judicial review is a remedy of last resort and its use is intimately connected to the availability of other routes of redress, including those within public bodies themselves. This narrow approach to administrative law also runs the risk of producing reforms to one part of the wider system without adequate regard to other parts.
It is perhaps not surprising that, despite its title, the Review has not been established to consider wider issues of administrative law redress and justice. After all, these wider issues of redress are not the political priorities underlying the Review. The real priorities are likely to be those originally flagged by the government when it promised to establish a Commission on the Constitution, Democracy and Rights. The real issues of concern are constitutional in character and this is why the Review differs substantially from previous consultations. The earlier concerns were to make procedural changes that would address the perceived growth in the use of judicial review that was thought to be largely driven by claimants seeking to abuse the system and to prevent judicial review impeding good government. The current call for reform builds on these concerns but now the priority has shifted away from procedural reform to more substantive constitutional reform. In particular, the Review is being asked to address fundamental issues concerning the appropriate constitutional place of judicial review, including: whether the courts are interfering inappropriately with executive decisions and if so whether certain types of executive decisions should be protected, whether appropriate tests of justiciability are being adopted, and most fundamentally of all whether judicial review should be placed on a statutory footing and the grounds codified.
Important omissions from the call for evidence
The omission of any reference to human rights is striking. This probably reflects an intention to draw a clear line between the focus of this IRAL’s work and future consideration of human rights issues and the Human Rights Act 1998. Indeed, one is left wondering whether the Government’s and Lord Faulks’s views about repealing the Human Rights Act 1998 have a bearing on this omission. But this too suggests that the IRAL is being asked to take an artificial and narrow approach to judicial review. It is difficult to see, for example, how the grounds of judicial review and issues such as justiciability can be considered without addressing human rights. After all, sections 6 and 7 of the Human Rights Act 1998 create an express statutory obligation on public bodies not to violate the human rights in Schedule 1 and provide victims of a violation the right to pursue legal proceedings against a public body. Moreover, the approach of the courts to such matters as rationality, procedural fairness, and proportionality is fundamentally affected by issues concerning human rights. Human rights are now fundamentally entwined into the life of judicial review and while surgical procedures may be used to try to separate them out, there is a real risk that the patient will not survive: that no sustainable reforms will be produced and that those reforms will ignore major issues at their core.
Reassurance about the place of fundamental rights in judicial review would have been particularly welcome since the EU Charter of Fundamental Rights (which sets out individual rights and freedoms emanating from CJEU case law, the ECHR and common domestic constitutional traditions) will cease to have effect in the UK at the end of the Brexit implementation period. This development will affect constitutional checks that are currently capable of correcting outdated legislation. For instance, after 31 December 2020, claimants in cases like Benkharbouche(where the Supreme Court held that the State Immunity Act 1978 was unlawful for breaching Article 6 ECHR and Article 47 of the EU Charter of Fundamental Rights) will not be able to get a remedy beyond a declaration that their rights have been breached under s.4 of the Human Rights Act 1998.
More stark is the omission of any reference to the most fundamental premise of British constitutionalism; namely, parliamentary sovereignty. Indeed, there is no reference to Parliament in either the terms of reference or the call for evidence. Instead, the IRAL’s work is expressly framed as an exercise to determine the appropriate balance between executive action and the individual’s ability to challenge the executive, whitewashing Parliament from view. This neglects that the executive is the junior constitutional partner (as Lady Hale put it at [90] in Miller I) and that Parliament is sovereign. Government is not entitled to ignore the law as enacted by Parliament, even if this would substantially improve its efficiency and accomplish its objectives. This is basic Entick v Carrington (1765). The Review locates judicial review within a struggle between executive and judges when that is not necessarily its primary and exclusive place within the constitution – arguably, its basic and core role is to ensure that government acts within the powers granted by Parliament (Padfield v Minister of Agriculture, Fisheries and Food). This essential point has not even a footnote in the IRAL’s extant documents.
Also concerning is the lack of any express or implied recognition of the potentially major constitutional consequences of codifying the grounds of judicial review, particularly for the accountability of the executive to the common law. For many commentators, the experience of the Australian codification of the grounds of review in the Administrative Decisions (Judicial Review) Act 1977 has been the ossification and stunting of judicial developments in the grounds of review e.g. Mark Aronson, ‘Is the ADJR Act hampering the development of Australian administrative law?’ (2004) 15 Public Law Review 202 and T.H. Jones, ‘Judicial Review and Codification’ (2000) 20 Legal Studies 517. A similar eventuality could arise with these reforms – an executive with a large majority in the House of Commons inveigles Parliament to codify judicial review so as to prevent or hamper the courts from developing and increasing its accountability at common law.
Evidence and methodology
A final comment concerns the method by which the IRAL seeks to obtain evidence. The Review is rightly concerned to base its deliberations on the available evidence, including on such matters as the trends in judicial review over the last thirty to forty years. However, the challenges in identifying, marshalling and understanding that evidence in the short time available cannot be overestimated. It is noteworthy that the IRAL’s secretariat quickly produced a full questionnaire to government departments. The responses are likely to provide significant evidence relating to how government departments experience and perceive judicial review. This will be a valuable addition to our knowledge base.
However, and this is to say the obvious, that evidence will only provide a partial view of the working of the system – the view of defendant public bodies subject to judicial review. Ideally, a similar exercise would be conducted to seek the views of claimants and their lawyers, as well as other users of the system. Such an exercise would ideally enable the responses to be analysed and coherently presented as a corrective to defendant-focused evidence. This of course would supplement but not replace individual submissions. It would help ensure that the IRAL has access to a full range of experiences and opinions. Undertaking such an exercise in the time available will be a real challenge but one that is extremely important, and this exercise is something that we are currently considering with The Law Society.
The authors of this blog post are involved in a project funded by the ESRC with the objective of assisting The Law Society of England and Wales to amass an evidence-base that will help inform the Society’s response to the Review’s call for evidence and eventual reform agenda. The Law Society is the independent professional body representing solicitors in England and Wales. This blog post offers some initial observations about the Review and is written in a purely personal capacity and does not necessarily represent the views of The Law Society.
The article is one of the few attempts to explore the meaning of exploitation in international law and the first to try articulating its legal parameters in the context of the human rights prohibition of ‘modern slavery’. This is a pressing task because of the proliferation of legislation, policy instruments, and academic work on ‘modern slavery’ and human trafficking, which rely heavily on the concept but do not define it.
By articulating the necessary and sufficient conditions for the notion of exploitation, the present study contributes to a better understanding, interpretation, and application of the prohibition of slavery, servitude, forced or compulsory labour, and human trafficking.
On 18 May 2020, the UK communications regulator Ofcom ruled that Loveworld Limited, which broadcasts the religious television service Loveworld, breached its Broadcasting Code after a news programme and a live sermon featured potentially harmful claims about the causes of and treatments for COVID-19.
The Ofcom investigation found that a report on Loveworld News, a programme featuring news from studios around the world, included a number of uncorroborated claims that the source of the risk to health was the effect of 5G Wi-Fi networks rather than the viral transmission of COVID-19. The report also contained several assertions that there was a “global cover-up” about the cause of the pandemic. Another report during the programme “repeatedly and unequivocally” presented the anti-malarial drug hydroxychloroquine as a “cure” for the virus without clearly recognising that this was a clinically unproven claim about the effectiveness of the drug for coronavirus treatment and without acknowledging the drug’s potentially serious side effects.
In relation to both reports, the regulator found that Loveworld Limited had not preserved “due accuracy” (in breach of Rule 5.1 of the Code) and had failed to adequately protect viewers from potential harm (in breach of Rule 2.1) by presenting content of this nature as unequivocal facts rather than views placed in an appropriate context. Ofcom underlined that it did not seek to curb the broadcaster’s ability to present programmes covering current affairs from a religious perspective, but it did not consider that the religious nature of the channel justified a departure from the established application of these rules.
In addition, a sermon broadcast on Your Loveworld was also found to have included “unchallenged and unevidenced” claims casting doubt on the necessity and effectiveness of the social distancing policies adopted by governments (including the United Kingdom) as well as assertions questioning the motives behind official health advice in relation to the coronavirus and 5G technology. In particular, Pastor Chris Oyakhilome (the founder and president of the megachurch Christian denomination known as Christ Embassy) preached that the lockdown measures, the roll-out of 5G and potential future vaccines were part of a plan to reach “the final union between man and machines” because “Satan wants to create a new man”. Ofcom considered that these statements risked “undermining viewers’ confidence in the motives of public authorities and leading them to disregard current and future advice (including on any future vaccine) intended to protect public health.” An exacerbating factor in this case was that these views were set out – without challenge – by a person who was portrayed to viewers as a figure of knowledge and particular authority.
The regulator held that the sermon broadcast provided “a platform for uncontextualized views” that had the potential to cause significant harm to viewers (in breach of Rule 2.1) and that Loveworld Limited had not taken any measures to provide its audience with adequate protection from such material, for example, by challenging the conspiracy theory or including the views of others and making it clear that other explanations could exist.
Ofcom recognised the Licensee’s right to hold and broadcast controversial views which diverge from, or challenge, official authorities on public health information. However, the inclusion of unsubstantiated assertions in both programmes had not been sufficiently contextualised and risked undermining viewers’ trust in official public health advice, with potentially serious consequences for their own and others’ health. In light of the serious failings in these cases, Ofcom directed Loveworld Limited to broadcast summaries of its decisions and will consider imposing further sanctions.
Equality requires us to treat like cases alike. But who are the like cases? Does equality require similarity in the factual situation of those compared? Treating like cases alike is not necessarily as restrictive a formula as is often understood to be; neither does the comparator requirement have to be one of the problematic aspects of applying that formula. Much depends on how we choose to interpret the notion of likeness. This paper aims to propose an interpretation that is based not on the similarity of the situations, but on the similarity of the claims at hand. It does so with reference to the relevant case-law of the European Court of Human Rights. The basic goal is to show that such an alternative understanding of what likeness entails can prove particularly helpful both in terms of comprehending previous instances of the case-law of the Court as well as in terms of allowing for a more principled approach to prevail in the future.
The analysis unfolds in four main steps. The first step argues that the classic formulation of formal equality does not really require, as a matter of necessity, the tracking down of an “analogously situated” comparator and then it proposes a different normative framework for understanding “likeness”. The second step demonstrates how the proposed framework allows us to navigate through the (very close) interaction between the comparability and the justification stages without conflating the two. The third step deals with the way in which the approach advanced in this paper helps us bring the formal conception of equality closer to what is known as substantive equality, simply by enabling us to look at the requirement for “likeness” from a different angle. Finally, the fourth step explains how the perception of likeness as similarity in the weight of the legitimate interests involved can help provide clearer answers when the court faces difficult questions.
This post is based on: Charilaos Nikolaidis, ‘Rethinking Likeness and Comparability in Equality Claims Brought Before the European Court of Human Rights’, Public Law, Issue 3, July 2020, pp. 448-467. The full text is available for download below.
This material was first published by Thomson Reuters, trading as Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ, in Public Law as ‘Rethinking Likeness and Comparability in Equality Claims Brought Before the European Court of Human Rights’, Public Law, Issue 3, July 2020, pp. 448-467 and is reproduced by agreement with the publishers.
On 18 June 2020, I hosted a roundtable on the role of mediation in Court of Protection (CoP) proceedings. Originally, this meeting was meant to be held in person, but due to events I decided to move the roundtable online, rather than delay. The aim was to get a range of stakeholders with expertise in mental capacity law, the CoP and/or mediation together to discuss the key issues arising where mediation is used in the context of CoP proceedings. The roundtable included discussion of the role of mediation in improving P’s participation (P being the subject of the proceedings).
Evidence suggests that P’s participation in CoP proceedings is limited and so part of the aim of my current research is to consider whether i) mediation provides more opportunities for participation and, if so, why, and ii) whether or not this improvement in participation is reflected in practice. The roundtable also included discussion of wider issues, including mediation’s various advantages and disadvantages, and discussions about the use of virtual mediations during the pandemic.
Despite the limitations of holding a roundtable by Microsoft Teams, the event was a success, bringing together a range of perspectives including lawyers, mediators, academics, policy makers, members of the judiciary and others. The session began with three short presentations to identify the core issues to frame the roundtable discussion. These presentations covered: an overview of the current evidence on mediation in the CoP; vulnerability and the values of participation in mediation; and, reflections on the use of virtual mediations during the pandemic. After a short break, we then moved on to the roundtable, whereby participants engaged with a multitude of topics ranging from the extent to which P participates in mediations, to which issues are most appropriate for mediation and who should fund mediations.
Clear positive reflections on the possibility of CoP mediation included: mediation’s potential to improve relationships between parties; that it can be a better form of resolution; and, that its processes are more flexible and informal. Potential challenges of CoP mediation included: dealing with power imbalances and participant vulnerability; safeguarding concerns; the potential for mediation to create delay in resolution; and, concerns about substantive justice, for example whether the outcome of mediated agreements is always in P’s best interests.
The roundtable also included some discussion of the mediation scheme, set up by a working group of experts, which is currently underway and seeking to gather evidence on the use of mediation in CoP proceedings. I will be carrying out the independent evaluation of that scheme and the roundtable discussion was invaluable for identifying some of the key issues that will need to be addressed in that report. Themes and issues identified at the roundtable will also help to shape the future direction of my research in this area more generally and I hope will facilitate further discussion between academia, policy and practice on this important issue.
I am grateful to all who took part, as well as the Socio-Legal Studies Association for funding the event through a research grant. The roundtable was held under the Chatham House Rule, which means that individual participants will not be identified, implicitly or explicitly, publicly. A full report of the roundtable will be available soon. Please get in contact with me if you would like a copy of that report (j.t.lindsey@essex.ac.uk).
Christmas is just around the corner. With all the hustle and bustle of the academic life, we all need a little time off to refresh, recover and reflect. So as of next week (23 December 2019), we’ll be on a short hiatus.
We hope that you can look back on a generally positive year with us. In 2019, we published 27 posts which attracted more than 3,200 views from 94 countries around the world.
The Essex Law Research blog will be back in early January with more research news from our School. However you celebrate at this time of the year, we hope you enjoy a wonderful holiday season!
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.
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.
Essex Law Research Blog 