Today I’m very pleased to share with you the approved cover design for the book, and as you can see I have utilised the red, white and blue of the American flag, which I hope compliments the overall aesthetic and inspires some degree of patriotism when looking at it first hand.
Naturally this is just the first step in several, however it does indicate that publication is not too far away, and needless to say that with two years in the making, it’s a body of work that I am incredibly proud of.
More posts will follow as things progress, but for now I hope you like the final product as it stands right now, and here’s to getting it out to market in the coming weeks…
Today marks exactly one year to the day that I first started writing the ‘voluminous’ Case Law Compendium: United States Case Law, and its pretty incredible to think that so much time has already passed, particularly given that I’m not even midway through the book yet!
Anyway, needless to say my hard work continues on undaunted, and I’m hoping to share the first half of the criminal law section here in the next couple of weeks, so watch this space if you’re interested to learn more…
Having recently completed this preliminary chapter of the book, I have provided a list of the cases covered in the civil procedure section for those that might be mildly curious. I would also add that it’s been a genuine pleasure reading and analysing these cases, all of which have helped educate me as to the intricate nature of State and Federal legalities, and I can only hope the readers will take as much pleasure in their reading, as I have in their writing.
Today marks the commencement of my writing ‘United States law: A Collection of Case Studies’, the second instalment of ‘The Black Letter’ series of books, and my excitement is quietly simmering away as I begin preparing for the months ahead.
This book covers the principle law modules offered within leading American universities and Law Schools at Juris Doctor level, and will therefore include civil procedure, constitutional law, contract law, criminal law, property law and tort law. While I appreciate there has been a shift towards comparative and international law, particularly within educational institutions such as Harvard University, when similarly examining both Stanford and Yale, there appears an inclination to adhere to the core fields as shown above, hence I have decided to remain true to that ethos for simplicity’s sake.
While consciously adopting a linear approach, I aim to include around 375 case studies – well over twice the number found in ‘The Case Law Compendium: English & European Law’, and although there is perhaps obvious reason for this, particularly given the size and legal structure of American jurisdiction, I feel the end result will provide law students with more than sufficient insight into the mechanics of notable United States case law.
On a personal note, I am very much looking forward to this journey, and estimate that the book should be finished and available for purchase around summer of 2019, adding that I will consciously try to publish new case studies to this website where time permits.
In closing, I would like to say a heartfelt ‘thank you’ to those of you who purchased my first book (or plan to soon) and I sincerely hope that my efforts have been of valued assistance when working towards your chosen vocations.
Discrimination on grounds of sexual orientation and the right to manifest one’s religious beliefs lock horns in a case built around progressive lifestyles and the security of dogma.
Having established herself as the owner operator of a bed and breakfast, the appellant consciously took bookings on principles espoused through Christian teachings, one of which precluded the use of double rooms by those outside wedlock. While considered a practical and measured restriction, the appellant was often found letting out such rooms to unmarried couples, largely due to the difficulty in establishing their marital status at the time of agreement.
However, the footing of this matter rested upon a homosexual couple, who having secured the room via email, and duly paying the required deposit, arrived at the property, before finding themselves denied use of the double room on grounds of their sexual relationship and unmarried status (an impossible task at the time of this hearing).
At the point of litigation, the claimants argued that the appellant had unlawfully discriminated against them under the terms of the Equality Act (Sexual Orientation) Regulations Act 2007 (SI 2007/1263), in particular regulations 3 and 4, which read:
“3.(1) For the purposes of these Regulations, a person (“A”) discriminates against another (“B”) if, on grounds of the sexual orientation of B or any other person except A, A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances).
4. (1) It is unlawful for a person (“A”) concerned with the provision to the public or a section of the public of goods, facilities or services to discriminate against a person (“B”) who seeks to obtain or to use those goods, facilities or services”
While the appellant countered that she had refused the claimants use of the room under regulation 6, which reads:
“6.-(1) Regulation 4 does not apply to anything done by a person as a participant in arrangements under which he (for reward or not) takes into his home, and treats as if they were members of his family, children, elderly persons, or persons requiring a special degree of care and attention.”
Further arguing that her business fell outside the scope of a boarding house, as expressed in regulation 4(2)(b) of the same statutory instrument.
During the first hearing, the court refused to uphold her claim and found her liable for sexual discrimination on grounds of sexual orientation, whereupon the defendant argued her case in the Court of Appeal.
Here, the facts were given greater consideration, including various articles of the European Convention on Human Rights (ECHR). With regard to exemption from regulation 4(b), the Court observed that in Otter v Norman the House of Lords had ruled that:
“[T]he provision of breakfast by itself, with the implicit inclusion of the ancillary services involved in preparing it and the provision of crockery and cutlery with which to eat it, amounted to “board” within the meaning of section 7(1) [of the Rent Act 1977].”
However, with careful observation of regulation 6(1), it was noted by the Court that the claimants were anything but members of her family, children, elderly persons of those requiring special degree of care and attention. The appellant also relied upon Preddy v Bull for her contention that her refusal of the respondents occupation was one based upon an objection to sexual behaviour, and not orientation; yet sadly the parties involved were in a civil partnership, which distinguished it from the immediate case.
Turning instead to proportionality for justification, the appellant relied upon arts.8 (Right to respect and private family life) and 9 (Freedom of thought, conscience and religion) of the ECHR for her right to exclusion, while the respondents relied upon arts.8 and 14 (Prohibition of discrimination) to uphold their right to occupation.
It was then noted that while art.9(1) provides for religious manifestation, art.9(2) also provides that restrictions apply when preserving the rights of others, which on this occasion worked against the appellant, as she was by all accounts, running a commercial enterprise, and which under a Government paper titled “Getting Equal: Proposals to outlaw sexual orientation discrimination in the provision of goods and services, Government Response to Consultation” it was outlined on page 13 that:
“The Government contends that where businesses are open to the public on a commercial basis, they have to accept the public as it is constituted.”
While it was also stressed in Eweida and others v United Kingdom that:
“Even where the belief in question attains the required level of cogency and importance, it cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a ‘manifestation’ of the belief.”
And so despite any freedom to manifest one’s religious beliefs when operating a licensed business to paying customers, indirect discrimination through the application of a policy denying equal rights to those in homosexual relationships amounted to a uniform ruling of direct discrimination on grounds of sexual orientation, while the appeal court held that:
“[D]irect discrimination cannot be justified, whereas indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim.”
Acting ultra vires through the application of executive powers is not something alien to public authority decision-making, but it is equally important that those seeking legal review are clear as to exactly what has constituted a breach of their jurisdiction.
During the period following the second world war, there were three Acts that affected the opening times of cinematograph houses across the UK. The first was the Cinematograph Act 1909, the second was the Sunday Entertainments Act 1932, and third was Defence Regulation 42B, which was introduced during the war, but remained effective until late 1947.
When it was decided by an issuing local authority to grant a trading licence to their local picture house, there came with it restrictions preventing any attendance by children aged below fifteen years of age, regardless of whether they were accompanied by an adult. While appreciative of the opportunity to open on a day typically reserved for domestic pursuits, the appellants sought judicial review on grounds that such a restriction was self-defeating and thereby ‘unreasonable’.
As there were three Acts from which to rely upon, it was agreed that for the purposes of clarity the Sunday Entertainments Act was the most appropriate, and yet within the terms prescribed, s.1 ss.1 provided that the issue of a licence was “subject to such conditions as the authority think fit to impose.” This, it was agreed, allowed the local authority to apply its discretion to the limitations of the permit, and so by extension, it had acted accordingly.
When heard in the first instance, the court dismissed the objections brought by the picture house, and after a brief but considered review of that decision, it was reiterated that while the courts are able to question the legal validity of executive decisions, they are not equipped nor predisposed, to challenge the illegitimacy of those limitations, unless the body in question has applied it powers outside the boundaries of reasonableness, and in ignorance of required objectives.
Relying upon the relevant case history behind these matters, there was, despite strong opposition by the commercial vendors, no precedent upon which their argument could stand, and thus the court noted that it was important to hold in mind the scope of discretion afforded local authorities when following statute before taking legal action, while further reminding the parties that:
“[T]he court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for that authority.”
Direct effect compatibility, and the obligation owed by Member States to transpose Directives and Treaties as binding upon national laws, was a ruling that would soon unearth conflicts of interest. On this occasion, the contention was brought about by aggressive amendment to statute in favour of the UK fishing industry.
Until 1988, those parties involved in domestic commercial fishing were required to register under the Merchant Shipping Act 1894; an Act that allowed overseas companies to operate outside British waters, but still have their fleets registered under UK incorporation. As a means of preventing ‘quota hopping’ (over-fishing), it was enacted by Parliament to include Part II of the Merchant Shipping Act 1988 and Merchant Shipping (Registration of Fishing Vessels) Regulations 1988, to the effect that all those trading were to re-register under new conditions.
These terms required that in order to qualify for registration, the company must have a minimum of seventy-five percent British ownership, and where ownership fell outside the United Kingdom, there needed to be a seventy-five percent share hold by British citizens. This translated that the appellants, who had been previously registered for over almost twenty years, were now unable to re-register, as the owners were Spanish and therefore exempt from the new legislation.
Having appreciated the United Kingdom’s position as a Member State, and subsequent membership to EU Community law, the firm sought proceedings under the principle that the choice taken to exclude other EU members from registration had displayed an overt refusal to comply with art.177 of the EEC Treaty. Furthermore, it was claimed that where Community rights were held to have ‘direct effect’, it was the onus of the national courts to suspend challenged legislation, with the granting of interim relief where proven necessary.
When heard in the Divisional Courts, the claim was supported and provisions made to allow the unfettered trading of the claimants, until such time that clarification was found in the challenge against the amended Act. However, when appealed by the Secretary of State, Court of Appeal Court set aside the previous finding, while granting leave of appeal to the House of Lords.
In this instance, the House agreed that should the claimants’ fail in their argument, the financial damage would be sufficient enough to cause irretrievable damage to the firm, but that without a preliminary ruling by the European Court of Justice (COJ), it was impossible to determine (i) if the courts were empowered to suspend legislative effect, and (ii) how best to determine what form the interim relief should take.
Upon deliberate consideration by the COJ, it was unanimously agreed that when the objectives of direct effect were designed, they were done so in a way that intended literal application with immediate purpose, and that unless under exceptional circumstances, it was the duty of the national courts to hold the powers of Community law above those of domestic interest, whereupon the House held that:
“[N]ational courts are required to afford complete and effective judicial protection to individuals on whom enforceable rights are conferred under a directly effective Community provision, on condition that the Community provision governs the matter in question from the moment of its entry into force…”
‘Estoppel’ or by virtue of its purpose ‘interruption’, is a legal source of remedy often used in connection to land or property related matters, but is readily used in numerous fields of dispute. The concept behind this intervening doctrine is one that prevents a miscarriage of justice where through discourse and action, a party is found to suffer at the expense of another’s profit. Because this approach often falls outside of common law rules, it frequently requires equity to redress the balance in favour of a fair and reasoned settlement where proven as fact.
To date, there are distinct and overlapping forms of estoppel, and so the list below while no means definitive, aims to cover the more familiar (and unfamiliar) versions used within domestic and international law.
Promissory Estoppel (or Equitable Estoppel)
Founded within contract law, this form of estoppel relies upon the promise of one party to another that is later revoked and proven detrimental to the promisee. Naturally circumspect of the rules of contract, the essence remains equitably valid, and was best witnessed in Central London Properties v High Trees Ltd, where Denning J remarked:
“The logical consequence, no doubt, is that a promise to accept a smaller sum in discharge of a larger sum, if acted upon, is binding notwithstanding the absence of consideration.”
As founded and used most in property law, there are three main elements to qualifying action in proprietary estoppel, namely (i) that the landowner leads the claimant to believe he will accumulate some proprietary right, (ii) the claimant acts to his own detriment in reliance of the aforementioned right, and (iii) those actions are demonstrably in reliance of the expected right, where otherwise different choices might have been made. This was explained by Lord Scott of Foscote in Cobbe v Yeoman’s Row Management Ltd , who said:
“An estoppel bars the object of it from asserting some fact or facts, or, sometimes, something that is a mixture of fact and law, that stands in the way of some right by the person entitled to the benefit of the estoppel. The estoppel becomes a proprietary estoppel – a sub-species of a promissory estoppel – if the right claimed is a proprietary right, usually a right to or over land but, in principle, equally available in relation to chattels or choses in action.”
Estoppel within Public Law
This is often used where a member of a public body has issued assurances that (i) an action can be undertaken by member of the public, or (ii) that the specific body will exercise its power to the benefit of the person enquiring. Where either fact has been proven correct, the designated department or authority is held liable to follow through on that action where reasonable, and in line with public interest, as was discussed in Southend-on-Sea Corporation v Hodgson (Wickford ) Ltd, although the applicable claim was never upheld after it was stressed by Lord Parker CJ that:
“[I]t seems to me quite idle to say that a local authority has in fact been able to exercise its discretion and issue an enforcement notice if by reason of estoppel it is prevented from proving and showing that it is a valid enforcement notice in that amongst other things planning permission was required.”
Estoppel by (unjust) Conduct
This phrase is largely self-explanatory, but can be best surmised as visibly manipulative or unreasonable behaviour by one party toward another, for example when securing an annulment, as was explored in Miles v Chilton, where the groom falsely induced his fiancée into a marriage that was by all accounts, illegal, as the bride-to-be was in fact still married to her previous husband, despite his misleading her that the annulment had succeeded. The destructiveness of this self-created dilemma was explained by Dr. Lushington, who despite awarding in favour of the claimant, warned that:
“[H]ere the averment of marriage is made by the party having an opposite interest, and we well know that every one is bound by his admission of a fact that operates against him.”
Estoppel by Per rem Judicatam (or issue estoppel)
This is another family law approach, which translates that a judicial decision to grant nullity cannot be overturned after the fact, except in circumstances where the annulment is proven invalid, after which any party aside from the divorcing couple, can challenge the direction of the court. This form of estoppel can however, be found in criminal law cases, as was seen in Hunter v Chief Constable of the West Midlands Police and Others, where Lord Diplock commented that:
“The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.”
Estoppel through Acquiescence (or Laches or Silence)
As used in a number of fields, there are requisites that the party claiming estoppel has had their hand forced into complying with matters that they had in fact not been properly consulted upon, as was argued in Spiro v Lintern, where a husband was held to agree to the sale of his co-owned property, despite not having consented to his wife’s putting it up for sale, and the purchaser proving able to enforce the contract in his name through her individual representation. It is also applied in cases where a secondary party to a contract or notice, fails to challenge it within a reasonable period, after which estoppel of acquiescence can be used to deter any claim to the contrary, as was used in Kammins v Zenith Investments, where Lord Diplock again explained:
“[T]he party estopped by acquiescence must, at the time of his active or passive encouragement, know of the existence of his legal right and of the other party’s mistaken belief in his own inconsistent legal right. It is not enough that he should know of the facts which give rise to his legal right. He must know that he is entitled to the legal right to which those facts give rise.”
And in the U.S case Georgia v South Carolina, where it was held that:
“South Carolina has established sovereignty over the islands by prescription and acquiescence, as evidenced by its grant of the islands in 1813, and its taxation, policing and patrolling of the property. Georgia cannot avoid this evidence’s effect by contending that it had no reasonable notice of South Carolina’s actions. Inaction alone may constitute acquiescence when it continues for a sufficiently long period.”
Estoppel through Encouragement
Similar to acquiescence, this form of estoppel was discussed in Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd, where Oliver J defined it in the following passage:
“The fact is that acquiescence or encouragement may take a variety of forms. It may take the form of standing by in silence whilst one party unwittingly infringes another’s legal rights. It may take the form of passive or active encouragement of expenditure or alteration of legal position upon the footing of some unilateral or shared legal or factual supposition. Or it may, for example, take the form of stimulating, or not objecting to, some change of legal position on the faith of a unilateral or a shared assumption as to the future conduct of one or other party.”
Estoppel by Convention
Often used in contract law, this principle comes into effect when two parties have relied upon an assumed true statement of fact, only to learn otherwise after the actions undertaken have been shown as unreasonable or unlawful. Any wrongful decision to then undo the damage is by definition, estopped on those grounds, as was discussed in Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd, where Denning LJ eloquently concluded that:
“When the parties to a contract are both under a common mistake as to the meaning or effect of it – and thereafter embark on a course of dealing on the footing of that mistake – thereby replacing the original terms of the contract by a conventional basis on which they both conduct their affairs, then the original contract is replaced by the conventional basis.”
Estoppel by Representation (or Pais)
Again found in many contractual matters, this doctrine is bought into effect when a party that has agreed to a change in the terms of the relationship (often supported by a promise of trusted representation of their own) later chooses to renege on that statement, despite the other party altering their position to accommodate that express arrangement. This was found in Royal Bank of Scotland v Luwum, where Lord Justice Rimer outlined that:
“[T]he clear sense of the arrangement was that Mr Le Page was making a representation or promise to Mr Luwum that the Bank would hold its hand on enforcing its rights for three months, and Mr Luwum changed his position in reliance upon that by borrowing £260 from friends and family in order to make a payment to the credit of the account, which was the very purpose of the arrangement that was made. In my judgment those circumstances had the consequence of estopping the Bank from reneging on its promise and starting the proceedings it did before the expiry of the three-month period.”
Estoppel by Deed (or Agreement)
This doctrine is applied when two parties agree to contract with each other for whatever intended gain or purpose, in the knowledge that the terms of the contract (or in these instances deeds) are based upon fraudulent fact, and nothing more. It is suggested that the motivation for such covenants is one of singular gain on the pretence that should the truth out, those facts will remain unchallenged. It is this kind of clandestine deception that was explored in Prime Sight Ltd v Lavarello, where Lord Toulson JSC mused:
“If a written agreement contains an acknowledgement of a fact which both parties at the time of the agreement know to be untrue, does the law enable on of them to rely on that acknowledgement so as to estop the other from controverting the agreed statement in an action brought on the agreement?”
Estoppel by Contract
Again, the terms of the contract can themselves prevent enforcement between disputing parties, as was discussed in Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd, where it was said:
“Where parties express an agreement…in a contractual document neither can subsequently deny the existence of the facts and matters upon which they have agreed, at least so far as concerns those aspects of their relationship to which the agreement was directed. The contract itself gives rise to an estoppel…”
In closing, it must be iterated that the doctrine of estoppel exists as a rule of evidence and not a cause of action, therefore any idea that this principle can, and should, be wielded as a defence or prosecution, falls outside the intended design and usurps its undiluted use.
While paving the way for a number of similar ‘religious obligations’ versus ‘convention rights’ cases, this protracted legal discourse reveals a number of indiscretions, that in many respects, served to influence legislative and educational policy in the United Kingdom, and illustrate how laws evolve through the integration of cultural norms and progressive state cohabitation.
After working as a supply teacher within the mainstream schools arena for a considerable number of years, the Islamic applicant took issue with the government, upon grounds that his need (or at least doctrinal requirement) to attend a mosque on Friday afternoons was being denied by statute; and that subsequent operational policy created the violation of a number of constitutional rights afforded to all citizens of the United Kingdom.
Citing art.9(1) of the ECHR (freedom of thought, conscience and religion) and art.14 (prohibition of discrimination), the applicant protested that s.30 of the Education Act 1994 stood in immediate conflict with his need to manifest his religious beliefs every Friday between the hours of 1.30pm to 2.15pm. Having been employed by a number of London Borough schools prior to his decision to resign rather than reduce his working hours, the applicant had been given verbal allowances by one school, and shown strict opposition by another, which bore an inconsistent position of unwillingness to accommodate a religious need, which until recently, had never been expressed nor discussed at the time of his original appointment.
When it was submitted that the repeated failure of a Muslim man to attend a mosque (subject to relative distances) would likely result in a beheading in a country such as Saudi Arabia, the applicant expected that the same principles would apply under domestic jurisdiction, and that those grounds, along with previous (albeit unofficial) allowances were sufficient enough to warrant time taken from his contractual duties, despite any inconvenience to teaching staff, pupils or the school as a whole.
After failing to find those arguments upheld in the domestic courts, the matter wound up before the European Commission for Human Rights, where it was unanimously decided that the terms of the Convention were constructed in such as fashion as to allow interpretation and consideration of all religions and beliefs, not just those of the applicant; and yet when willingly accepting a position of employment that brings with it a set of express and implied terms, the accepting individual takes ownership of how that agreement might impinge upon their religious requirements or obligations of faith, and must therefore act accordingly, thus the Commission dismissed the application, while holding that:
“[E]ven a person at liberty may, in the exercise of his freedom to manifest his religion, have to take into account his particular professional or contractual position.”