The Core Nature of Fiduciary Accountability
Robert Flannigan |
Likely reacting to the perception of a confused jurispru-dence, several writers recently have sought to clarify (or reconfigure) the core nature of fiduciary accountability. Their claims, including various assertions of prescriptive content, differ in significant respects. That discordance only fuels the perception of confusion. A review of the claims indicates that none of the normative arguments offer a superior conceptual apparatus for framing the conventional function of the regulation, and none justify prescriptive content. |
Interpretation and Rectification: Lord Hoffmann’s Last Stand
David McLauchlan |
In this article, the author analyses the recent decision of the House of Lords in Chartbrook Ltd v Persimmon Homes Ltd concerning the law of contract interpretation and rectification. After explaining the difficult facts of the case and the reasons given by their Lordships for reversing the judgments of the lower courts on the interpretation issue, which were based on the plain meaning of the clause in dispute, the author discusses the further, albeit obiter, ruling that evidence of prior negotiations is inadmissible as an aid to interpretation. He argues that the reasons for this conclusion given in the main judgment of Lord Hoffmann are unconvincing and suggests that, in this respect, Chartbrook is unlikely to be followed by the New Zealand Supreme Court in view of that Court’s decision in Gibbons Holdings Ltd v Wholesale Distributors Ltd that evidence of subsequent conduct is admissible as an aid to interpretation. The author also discusses Lord Hoffmann’s ruling on the alternative claim in Chartbrook for the equitable remedy of rectification and suggests that, while his Lordship’s conclusion is correct, the reasoning is difficult and likely to generate further debate as to the requirements for granting that remedy.
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A Criminal Cases Review Commission For New Zealand
Simon Mount |
In recent years many in New Zealand have supported the creation of a Criminal Cases Review Commission. The purpose of such a Commission would be to investigate and report on alleged cases of miscarriage of justice, and to refer appropriate cases to the courts for further scrutiny. Similar bodies have existed in England, Wales, and Northern Ireland for the last 12 years, and in Scotland for the last 10 years. This article assesses the arguments in favour of such a body in New Zealand, and argues that the creation of a body modelled on the Scottish Commission would be a welcome development in this country. |
Courts in the Service of Democracy: Why Courts Should Have a Constitutional (But Not Supreme) Role in Westminster Legal Systems
Jason N E Varuhas |
This article proposes a normative theory of the relationship between the courts and Parliament in the determination of human rights issues in Westminster legal systems such as New Zealand and the United Kingdom. It argues that Parliament should retain the final authority to determine rights issues. Majority decision-making in large, representative legislative assemblies is the fairest, most respectful, and most egalitarian way for society to settle its disagreements about rights issues. However, because democratic decision-making procedures do not always operate as robustly as they should, the courts can play an important non-supreme constitutional role in facilitating the serious and rigorous consideration of rights issues by Parliament. The courts can principally perform this role by reviewing statutes for consistency with rights standards under a statutory bill of rights. Under such an institutional arrangement human rights issues will ultimately be determined in the most legitimate way, through democratic process, and with the requisite seriousness and rigour due in a democratic society committed to human rights. |
Constitutional Law
Philip A Joseph |
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The Treaty of Waitangi and Maori Custom Law
Kerensa Johnston |
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2009 Part III
