Contents

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CLWR 38 (2009) 1

Relocating Officially Induced Error of Law: Fitting the Remedy to the Wrong
Margaret Briggs

The rule that ignorance or mistake of law is no excuse is one of the pillars of the criminal law. However, it can prove problematic in some cases including those where an individual commits an offence in reliance on incorrect official advice. This paper argues that the orthodox judicial approach to such claims fails to address the concern that the defendant is held responsible for what is essentially the state's own mistake. Rather than advocating a full defence of officially induced error of law, a more appropriate solution is for the court to exercise its inherent jurisdiction to prevent an abuse of process by staying the proceedings. This 'procedural' approach, which identifies the state's role in the commission of the offence, has recently been adopted by the Supreme Court of Canada, and has the potential to be applied in other common law jurisdictions including Australia, New Zealand and the United Kingdom.

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CLWR 38 (2009) 27

The English Law on Adverse Possession: A Tale of Two Systems
Una Woods

This paper discusses the divergence in the operation of the doctrine of adverse possession which the Land Registration Act 2002 brings about, resulting in a separate approach to registered and unregistered land. The Law Commission justified the new dichotomy by explaining that while adverse possession runs counter to the fundamental concept of indefeasibility which is a feature of registered title, its role in encouraging the owner of land to guard possession is fully compatible with the unregistered title system which is based on possession. It also noted that the doctrine plays a vital role in the investigation of title to unregistered land and concluded that making the requirements for adverse possession of unregistered land too demanding could weaken the security of title to that land. Section II of this paper investigates claims that the doctrine of adverse possession is at odds with principles of title registration. Section III examines the role played by possession and adverse possession in the unregistered conveyancing system. It is submitted that the reasons adduced by the Law Commission for restricting the reforms of the doctrine to registered land do not hold up under scrutiny. Once this is acknowledged, it becomes necessary to consider whether the reforms could be extended to unregistered land in a manner which would not raise concerns about the functionality of the unregistered conveyancing system or the reliability of the Land Register once first registration has occurred. The marketable title legislation which operates in the US illustrates how title defects that may not be revealed by a standard investigation of title may be eliminated without reliance on the doctrine of adverse possession. If England were to borrow the basic premise behind the US approach, requiring the registration of certain older interests in order to preserve their validity, an extension of the veto system to unregistered owners could be contemplated. The paper concludes by discussing the advantages of introducing such reform and suggesting solutions for certain practical difficulties which it would raise.

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CLWR 38 (2009) 56

Implied Terms in English Contract Law: The Long Voyage of The Moorcock
Richard Austen-Baker

This paper considers the antecedents and the legacy of the case of The Moorcock, a leading authority on the law of implication of terms in fact into contracts. It traces the 'voyage' of the precedent through a period of 120 years down to the present day, adumbrating the disputes that continue to surround it and considering the continuing significance of the case for contract lawyers, judges and jurists today, concluding that the Moorcock test is robust, hard-headed and continues to set the fundamental standards for implication in fact to this very day.

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CLWR 38 (2009) 81

Insurance Law Reform in the Commonwealth Caribbean: In the Interests of the Insured Policyholder?
Lesley A. Walcott

This paper focuses on the extensive law reform that has been conducted in the Commonwealth Caribbean with respect to insurance law. The Caribbean's transition from the colonial dependence on United Kingdom eighteenth- and nineteenth-century legislation and its subsequent acceptance of the Caribbean Law Institute's (CLI) Insurance Bill of 1993 is examined within the context of regional integration and the creation of the Caribbean Single Market & Economy. Discussion highlights several shortcomings at both the regional and national level which threaten to undermine the level of protection afforded insured policyholders. Regionally, while the fragmented dialogue on integration mirrors that experienced by the European Union, the Caribbean cannot yet claim the same degree of success. The outcome is that there is an absence of consolidated supervision and/or coherent rules and guidelines. For the insurer, this increases the regulatory complexity of regional insurance business. At the national level, apart from the failure by some territories to embrace the CLI reforms signalling that protection is prima facie dependent on the jurisdiction from which the insured hails, perhaps reflective of the regional harmonization effort, institutional consolidation is being witnessed with the emergence of super 'one-stop' regulators by some Caribbean territories. This consolidation, it is canvassed, threatens to further obscure the needs of the insured and even where legislative reform has occurred, as in the case of Jamaica with the 2001 Insurance Act, the philosophical stance is so dissimilar from its regional counterparts that a tension is created that must be accommodated on the regional front. Collectively the developments raise questions as to the raison d'être of insurance law and whether the regime, as currently constructed, is truly capable of meeting the needs of insured policyholders.

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Links to other issues

Volume 30 (2001) :   1   2   3   4

Volume 31 (2002) :   1   2   3   4

Volume 32 (2003) :   1   2   3   4

Volume 33 (2004) :   1   2   3   4

Volume 34 (2005) :   1   2   3   4

Volume 35 (2006) :   1   2   3   4

Volume 36 (2007) :   1   2   3   4

Volume 37 (2008) :   1   2   3   4

Volume 38 (2009) :   1

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