The legal pendulum swings back

Comments on the Court of Appeal judgment in Abou-Rahmah v Abacha on liability for dishonest assistance to a breach of trust. Discusses whether an objective standard should apply to determine whether the accessory acted dishonestly. Reviews case law, examining whether the combined test proposed in the House of Lords judgment in Twinsectra Ltd v Yardley is still good law.

Financing the development of poor communities in the Northern Cape of South Africa - an analytical framework for the study of livestock banks

This paper is part of a major project about the Northern Cape Land Reform and Advocacy (NCLRA) programme being implemented by FARM-Africa* in South Africa. The NCLRA programme had initiated a financial mechanism to help poor communities to get access to finance and training in order to enable them to make better use of their newly-acquired land. One prominent aspect of the programme is the implementation of Livestock Banks, or the use of animals as financial products. The paper provides an analytical framework with which to evaluate the effectiveness of Livestock Banks in the poor communities of the Northern Cape in South Africa. It focuses on the design, implementation and future of Livestock Banks. The paper argues that Livestock Banks need to be reformed and enhanced if they are to continue to play a key role in the goal of creating financial and economic value in Africa, particularly when the primary objective is simultaneously to help reduce poverty. [Note]*FARM-Africa (Food & Agricultural Research Management) is a registered UK charity organisation and a company limited by guarantee in England and Wales no. 01926828.

Urgent review

Explains the rights of mortgagees to take possession of and sell property where mortgagors fall into arrears, considering the application of the provisions of the Administration of Justice Act 1970 allowing courts to adjourn or stay proceedings to allow borrowers to meet their obligations under the mortgage. Highlights the Chancery Division ruling in Horsham Properties Group Ltd v Clark, in which the property was sold without vacant possession and an action taken for possession of the property from the mortgagors as trespassers, which meant that the 1970 Act did not apply. Notes the concerns of the Council of Mortgage Lenders which may lead to a review of the law. [from Legal Journals Index]

Deal or no deal

Discusses the pre-action protocol for mortgage possession claims which came into effect on November 19, 2008, highlighting the situations in respect of which it is suggested the lender "considers" not starting proceedings and the lenders entitlement to be informed of progress on the sale of the property. Reviews the guidance on mortgages and arrears issued by the Council for Mortgage Lenders, aimed at assisting lenders in complying with the Financial Services Agency's Mortgage Conduct of Business Rules Pt 13. [From Legal Journals Index]

Horsham Properties Group Ltd v Clark: possession - mortgagee's right or discretionary remedy?

Comments on the Chancery Division decision in Horsham Properties Group Ltd v Clark on whether a mortgagee's exercise of its contractual right, on the mortgagor falling into arrears, to appoint receivers such that the property could be sold and possession obtained without triggering the court's discretionary powers pursuant to the Administration of Justice Act 1970 s.36 infringed the mortgagor's rights under the European Convention on Human Rights 1950 Protocol 1 art.1. Considers the implications of proposed reforms recasting the mortgagee's right to possession as a discretionary remedy. [From Legal Journals Index]

A clear direction

Comments on the House of Lords decision in Thorner v Curtis, also referred to as Thorner v Major, on whether an unpaid farm labourer could rely on assurances made by the farmer that he would inherit the farm, to establish proprietary estoppel when the farmer died intestate. Considers whether the assurances had been clear and whether the property to be inherited could be specifically identified. Notes the Lords' consideration of the possible existence of a constructive trust. [From Legal Journals Index]

Estoppe right there

Examines the House of Lords judgment in Cobbe v Yeoman's Row Management Ltd on whether an experienced property developer was entitled to relief on the basis of proprietary estoppel for the cost of obtaining planning permission to demolish an existing property and build new houses under a non-binding oral agreement. Sets out two requisite conditions needed when deciding whether estoppel existed. Considers whether unconscionability was a separate element in making a claim for proprietary estoppel. [From Legal Journals Index]

Arrears end

Considers the proposed pre-action protocol for mortgage arrears aimed at residential lenders and intended to restrict their ability to seek possession. Includes responses to the Civil Justice Council's consultation, which ended in May 2008, with particular emphasis on the objections of the Council of Mortgage Lenders. [From Legal Journals Index]

A connection too far

Examines the test for vicarious liability for intentional torts laid down by the House of Lords in Lister v Hesley Hall Ltd requiring a close connection between an employee's tort and his employment. Reviews subsequent case law, highlighting inconsistencies in the courts' approach as to whether a close connection existed. Asks whether the cases suggest that the courts are applying a separate test based on the fairness of holding the employer liable. [From Legal Journals Index]

Assessing the sensitivity of seagrass bed biotopes to pressures associated with marine activities.

This project was commissioned to generate an improved understanding of the sensitivities of seagrass habitats to pressures associated with human activities in the marine environment - to provide an evidence base to facilitate and support management advice for Marine Protected Areas; development of UK marine monitoring and assessment, and conservation advice to offshore marine industries. Seagrass bed habitats are identified as a Priority Marine Feature (PMF) under the Marine (Scotland) Act 2010, they are also included on the OSPAR list of threatened and declining species and habitats, and are a Habitat of Principle Importance (HPI) under the Natural Environment and Rural Communities (NERC) Act 2006, in England and Wales. The purpose of this project was to produce sensitivity assessments with supporting evidence for the HPI, OSPAR and PMF seagrass/Zostera bed habitat definitions, clearly documenting the evidence behind the assessments and any differences between assessments. Nineteen pressures, falling in five categories - biological, hydrological, physical damage, physical loss, and pollution and other chemical changes - were assessed in this report. Assessments were based on the three British seagrasses Zostera marina, Z. noltei and Ruppia maritima. Z. marina var. angustifolia was considered to be a subspecies of Z. marina but it was specified where studies had considered it as a species in its own rights. Where possible other components of the community were investigated but the basis of the assessment focused on seagrass species. To develop each sensitivity assessment, the resistance and resilience of the key elements were assessed against the pressure benchmark using the available evidence. The benchmarks were designed to provide a ‘standard’ level of pressure against which to assess sensitivity. Overall, seagrass beds were highly sensitive to a number of human activities: • penetration or disturbance of the substratum below the surface; • habitat structure changes – removal of substratum; • physical change to another sediment type; • physical loss of habitat; • siltation rate changes including and smothering; and • changes in suspended solids. High sensitivity was recorded for pressures which directly impacted the factors that limit seagrass growth and health such as light availability. Physical pressures that caused mechanical modification of the sediment, and hence damage to roots and leaves, also resulted in high sensitivity. Seagrass beds were assessed as ‘not sensitive’ to microbial pathogens or ‘removal of target species’. These assessments were based on the benchmarks used. Z. marina is known to be sensitive to Labyrinthula zosterae but this was not included in the benchmark used. Similarly, ‘removal of target species’ addresses only the biological effects of removal and not the physical effects of the process used. For example, seagrass beds are probably not sensitive to the removal of scallops found within the bed but are highly sensitive to the effects of dredging for scallops, as assessed under the pressure penetration or disturbance of the substratum below the surface‘. This is also an example of a synergistic effect Assessing the sensitivity of seagrass bed biotopes to pressures associated with marine activities between pressures. Where possible, synergistic effects were highlighted but synergistic and cumulative effects are outside the scope off this study. The report found that no distinct differences in sensitivity exist between the HPI, PMF and OSPAR definitions. Individual biotopes do however have different sensitivities to pressures. These differences were determined by the species affected, the position of the habitat on the shore and the sediment type. For instance evidence showed that beds growing in soft and muddy sand were more vulnerable to physical damage than beds on harder, more compact substratum. Temporal effects can also influence the sensitivity of seagrass beds. On a seasonal time frame, physical damage to roots and leaves occurring in the reproductive season (summer months) will have a greater impact than damage in winter. On a daily basis, the tidal regime could accentuate or attenuate the effects of pressures depending on high and low tide. A variety of factors must therefore be taken into account in order to assess the sensitivity of a particular seagrass habitat at any location. No clear difference in resilience was established across the three seagrass definitions assessed in this report. The resilience of seagrass beds and the ability to recover from human induced pressures is a combination of the environmental conditions of the site, growth rates of the seagrass, the frequency and the intensity of the disturbance. This highlights the importance of considering the species affected as well as the ecology of the seagrass bed, the environmental conditions and the types and nature of activities giving rise to the pressure and the effects of that pressure. For example, pressures that result in sediment modification (e.g. pitting or erosion), sediment change or removal, prolong recovery. Therefore, the resilience of each biotope and habitat definitions is discussed for each pressure. Using a clearly documented, evidence based approach to create sensitivity assessments allows the assessment and any subsequent decision making or management plans to be readily communicated, transparent and justifiable. The assessments can be replicated and updated where new evidence becomes available ensuring the longevity of the sensitivity assessment tool. The evidence review has reduced the uncertainty around assessments previously undertaken in the MB0102 project (Tillin et al 2010) by assigning a single sensitivity score to the pressures as opposed to a range. Finally, as seagrass habitats may also contribute to ecosystem function and the delivery of ecosystem services, understanding the sensitivity of these biotopes may also support assessment and management in regard to these. Whatever objective measures are applied to data to assess sensitivity, the final sensitivity assessment is indicative. The evidence, the benchmarks, the confidence in the assessments and the limitations of the process, require a sense-check by experienced marine ecologists before the outcome is used in management decisions.

After the storms

From mid December 2013 to the end of February 2014, the coast of south-west and southern England and Wales were battered by a succession of severe gales. This article gives an account of some of the impacts of those storms on inshore marine life.

Repeated measures screening for down's syndrome

Objective To demonstrate the potential value of screening for Down's Syndrome using highly correlated repeated measures of serum markers taken in the first and second trimesters of pregnancy. Design A Monte Carlo simulation study. Population Detection rates and false positive rates relating to the maternal age distribution of England and Wales for the period 1996 to 1998 were obtained using marker distributions from the SURUSS study. Results Screening using first trimester nuchal translucency and repeated measures of uE3 and PAPP-A in the first and second trimester has an estimated false positive rate of 0.3% for an 85% detection rate. This should be compared with the integrated test with an estimated false positive rate of 1.2% for the same detection rate. Conclusionsâ?? The performance of repeated measures screening tests, and their acceptability to women, should be assessed in further prospective studies.

Personal Injury Liability in Sport: Emerging Trends

Violent play during the course of a game or sport is not a new phenomenon; accompanying legal proceedings are. This article considers personal injury liability for injuries inflicted by a participant upon an opponent during a sporting pursuit. The jurisdictional focus is on England and Wales. The sporting emphasis of the article is on competitive, body contact games. The legal emphasis is on the tort of negligence. Analogous to the law of criminal assault, breach of "implied sporting consent" or the volenti of the claimant will be seen as central in application, as assessed through a number of objective criteria, including the skill level of the injuring party and whether that defendant was acting in "reckless disregard" of the claimant's safety. These criteria or evidential guidelines, which emerge from a careful doctrinal analysis of the relevant case law, are seen as crucial to the examination of the appropriate degree of care in negligence within the prevailing circumstances of sport. The article also searches for some theoretical coherency within the case law, premising it on Fletcher's idea of reciprocal risk-taking. In addition, the underlying policy-related issue of sport's social utility is discussed, as are practical matters relating to vicarious liability, insurance and the measure of damages for "lost sporting opportunity". Moreover, it will be shown that personal injury claims relating to sports participant liability now extend to a consideration of the duties of coaches, referees, sports governing bodies and schools. Finally, this article is set against the backdrop of an apparently spiralling "compensation culture" and the concomitant threat that that "blame culture" poses for the future promotion, operation and administration of sport.

Child Welfare Interventions: Patterns of Social Work Practice

Some 10 years ago one of the authors embarked on a research study examining the potential for social workers to shift from a child protection to a child welfare practice orientation (Spratt, 2000; 2001; Spratt and Callan, 2004). The research reported here develops that work; examining how social workers respond to ‘child care problems’ (CCPs). The results indicate that Northern Irish Health and Social Services Trusts (equivalent to Local Authorities in England and Wales) have responded to social policy goals to balance the protection of a lesser number of children whilst meeting the welfare needs of the greater by reducing the number of referrals designated ‘child protection investigations’ (CPIs) and increasing the number of CCPs. Closer analysis reveals, however, that a filtering system has been developed by social workers to address perceived child protection risks within CCP cases. Paradoxically, this leads to early closure of the more concerning cases, with service provision largely confined to the least concerning. The authors argue that the ways in which social workers balance social policing and supportive functions in practice may indicate possible responses to an increase in referred families anticipated within Every Child Matters (Chief Secretary to the Treasury, 2003).

Who goes where? Young children's pathways through care in Northern Ireland

This is one of a series of articles reporting on the large-scale ‘Northern Ireland Care Pathways and Outcomes Study’ (McSherry et al, 2008). The study has been examining a population of young children (n=374) who were in care under five years of age in Northern Ireland, and initially followed them across a four-year period (2000-2004). It has mapped these young children’s care careers, and explored factors relating to five care pathways that these children progressed along, i.e. towards adoption; long-term non-relative foster care; long-term relative foster care; Residence Order; and return to birth parent/s. This paper will examine the children’s care pathway patterns from 2000 to 2004, and will identify the background factors that appear to have influenced their specific care pathway. These background factors relate to the age of child, length of time in care, the child’s health, the child’s behaviour and regional variation. The findings indicate that although the care pathway patterns were to some extent similar to England and Wales, there were differences apparent to the Northern Ireland context.