academic news · osborn’s concise law dictionary edited by mick woodley 11th edition essential...

aCaDEMIC NEWSSprINg 2010

in this issue• Daniel greenberg discusses the challenges of understanding modern legislation• We take a look at the new edition of Legal Methods and Systems• W V H rogers examines the law of tort, in particular the impact of the European

Convention on Human rights• We ask you to put aside your pre-formed ideas for ten minutes and let us explain

why Nutshells and Nutcases should no longer be loathed• robert Bray discusses judicial cooperation in civil matters• plus, we showcase our 2010 textbooks for students

tItLES INCLUDE:• gower and Davies’: the principles of Modern

Company Law

• Schmitthoff’s Export trade: the Law and practice of International trade

• treitel on the Law of Contract

• Smith, Bailey & gunn on the Modern English Legal System

• Hanbury & Martin: Modern Equity

• Wyatt & Dashwood’s European Union Law

• Dennis: the Law of Evidence

• Cretney’s principles of Family Law

• Cornish & Llewelyn Intellectual property: patents, Copyright, trade Marks and allied rights

• Morris: the Confl ict of Laws

• Lloyd’s Introduction to Jurisprudence

• Winfi eld & Jolowicz on tort

• Craig: administrative law

• Hudson: the Law of Finance

• Megarry & Wade: the Law of real property

SWEEt & MaxWELL’S CLaSSIC SErIESproviding students with the detailed and extensive coverage needed to achieve top marks

Request your inspection copies today CaLL the Inspection Copy Hotline +44 (0) 20 7393 7293EMaIL [email protected] VISIt www.sweetandmaxwell.co.uk/lecturers-students

Welcome to the Spring 2010 issue of academic News from Sweet & Maxwell – bringing you news from the legal world, by way of informative articles. In this issue, Daniel greenberg discusses the challenges of understanding modern legislation. We look at the approach of the new fourth edition of Legal Methods and Systems. W V H rogers examines the law of tort, in particular the impact of the European Convention on Human rights.

We then ask you to give us ten minutes of your time so we can explain why Nutshells and Nutcases should no longer be loathed. We round off with an article by robert Bray in which he discusses judicial cooperation in civil matters. In addition to the extensive articles, we detail the many new textbooks publishing during 2010 – all of which are available on inspection.

I hope you fi nd this issue of academic News informative and interesting. If you have any comments or suggestions, you can contact me at the address below.

Enjoy reading!

CONTENTS

Key services from Sweet & Maxwell ................................................................................4-5

the Challenges of Understanding Modern Legislation by Daniel greenberg ............. 7-8

Legal Methods and Systems – Continuity and Change ..............................................10-11

Key 2010 academic titles .............................................................................................. 12-15

tort Law – What’s in it? By W V H rogers ................................................................... 16-17

Challenge your prejudices ............................................................................................ 18-19

Judicial Cooperation in Civil Matters .......................................................................... 20-22

Samantha goosetree, Editor, Academic News, Sweet & Maxwell 100 Avenue road, London NW3 3pF

ACADEMIC NEWS SprINg 2010

aCaDEMIC NEWS

oSBorN’S CoNCISE LaW DICtIoNarY Edited by Mick Woodley11tH EDItIoN

ESSENtIaL For LaW StUDENtS

available for your students to buy from: www.amazon.co.uk, www.hammickslegal.com and all good bookshops

• For over 80 years osborn’s has been the essential concise dictionary of legal terms for students

• offers comprehensive coverage including an extensive listing of journals, law reports and their abbreviations

• Contains over 4,700 references from the obscure to the everyday

• provides speedy access to a mass of technical terms and phrases in both English and European law

• takes all entries beyond defi nitions and basic context with extensive legal referencing to provide a solid basis for further research

ISBN: 978-1-847-03308-6price: £11.95publishing: March 2009

4 www.sweetandmaxwell.co.uk/lecturers-students

roaD SHoW aND aCaDEMIC CaLLINg prograMME


FrEE SErVICES FroM SWEEt & MaxWELL

SWEEt & MaxWELL LaW prIzE aND VoCatIoNaL LaW prIzE

the Sweet & Maxwell Law prize enables higher education institutions to award their highest achieving law student/s with the gift of books published by Sweet & Maxwell to the value of £150. the prize is open to all law schools in the UK. You decide what the prize will be awarded for and who the recipient will be. the prize can be awarded to one student or split between two.

In addition, the Sweet & Maxwell Vocational Law prize enables those institutions who offer the LpC or BVC to recognise the achievements of students undertaking the vocational stage of training. the Sweet & Maxwell Vocational Law prize is the gift of books published by Sweet & Maxwell to the value of £100 and again can be awarded to one student or split between two.

If you would like to award either prize for the academic year 2009-2010, please contact us by no later than December 17th 2010 with details of the winner/s. please state clearly what prize you are awarding. after receiving the name and address of the winner, we will send them a prize pack containing a certificate, an order form, and a letter of congratulations detailing how they can claim their prize.

to register your institution, check whether your institution is already registered, or for the full terms and conditions of both prizes, please email [email protected]

our publishing programme is built around your teaching needs so it’s important for us to get out and meet with you as often as possible. Each year, members of the academic team travel up and down the country holding road Shows at various universities. Whilst enjoying a free buffet lunch you can:

• View our range of new titles and editions• request your free inspection copies• provide us with feedback on how we can be of

more help and where you feel there are gaps in your information and teaching resources

• Speak to us about any writing projects you have in mind

plus, all attendees receive a complimentary copy of the new 11th edition of osborn’s Concise Law Dictionary. You can arrange a road Show at your institution by emailing us at [email protected].

In addition, the academic team arrange individual appointments throughout the year. this enables us to discuss your needs on a one-to-one basis and work with you to find the most suitable textbooks for your students. and our service doesn’t stop at finding you the right course material. We can supply promotional material to your campus or local bookshop to support the adoption.

www.sweetandmaxwell.co.uk/lecturers-students 5


FrEE SErVICES FroM SWEEt & MaxWELL

on our website we offer a range of free podcasts for students. these bite sized updates provide thought provoking commentary for students starting a new subject and are perfect refreshers for exams.

the following podcasts are now available: Judith Masson & rebecca probert – Family Lawryan Murray – Contract LawJo Boylan-Kemp – English Legal SystemDavid Llewelyn – Intellectual propertygwyneth pitt – Employment LawCarl Stychin & Linda Mulcahy – Legal MethodsMaureen Spencer – Human rightsElizabeth giussani – Constitutional and administrative Law rebecca probert – Family LawJohn Sprack – Employment LawSara Hadwin & Duncan Bloy – Media LawDavid pope & Dan Hill – Mooting and advocacy Skills

StUDENtS CaN LEarN oN tHE MoVE WItH oUr FrEE poDCaStS!

SUBSCrIBE to oUr aCaDEMIC aLErtEr

By subscribing to the free academic alerter you can ensure you receive all the latest textbook publishing news from Sweet & Maxwell direct to your desktop. Sent to you monthly, the academic alerter details what’s just published, as well as providing news from our online Services, including Westlaw UK and Lawtel. In addition, academic alerter brings you news of other key books you might find of use, such as those from our Common Law Library series.

register today by emailing: [email protected] and start benefiting from this free service.

We are adding new ones all the time so please tell your students to regularly visit www.sweetandmaxwell.co.uk/lecturers-students

SprINg 2010

We can offer you training in a number of formats that can be tailored to your specific needs.

Whether it is on-site, one-on-one over the phone, online or using WebEx, our legally qualified training team are here to help you gain the maximum benefit from using Westlaw UK.

training options include:

– on-Site Sessions

– tailored on-Site practice area Workshops

– tailored WebEx Workshops

TAILOrED ON-SITE SESSIONSour experienced trainers can visit your university for full training sessions, bespoke to your needs.

TAILOrED WEBEx WOrKSHOpSonline training sessions (conducted over the internet and telephone) designed to cover content and functionality at the level your university requires. Lecturers and students alike can benefit from these sessions.

SET A DATEto book a training session or for general help on training, please email [email protected]

WEStLaW UK traININgtraININg IS INCLUDED aS part oF YoUr WEStLaW UK SUBSCrIptIoN, So WHY Not taKE aDVaNtagE oF tHIS FrEE SErVICE?

Your needs, your trainingContact us for more information:Call 0800 028 2200, email [email protected] or visit westlaw.co.uk


SprINg 2010

tHE CHaLLENgES oF UNDErStaNDINg MoDErN LEgISLatIoNINtroDUCINg aNNotatED StatUtES oN WEStLaW UKDaniel greenberg is the general Editor of Annotated Statutes, Westlaw UK; he is also Editor of Craies on Legislation, Stroud’s Judicial Dictionary and Jowitt’s Dictionary of English Law. He was parliamentary Counsel (UK) full- time 1991-2008 and continues to serve part-time. This article is based on a presentation given at the London launch of Annotated Statutes on 16th September 2009.

INTrODUCTIONLegislation increases in volume and complexity every year. there is no way that citizens can possibly know more than a tiny fraction of the law that applies to them; but one of the few things we all know about the law is that ignorance of it is no excuse. the idea that this is a presumption of actual knowledge was dismissed years ago1, but the effect is much the same – wherever we are and whatever we are doing we are constantly affected by thousands of laws, of which we have no actual knowledge but as a result of which we are vulnerable to various kinds of liability and penalty.

Finding access to a text of legislation is only the beginning of the story – the text is generally complex, technical and often obscure. It is generally accepted that the fairness and effectiveness of the rule of law depend on finding effective solutions to these problems.2

ACCESSIBILITY AS A CONDITION OF LAWFULNESSEffective access to legislation may now be more than a question of the fairness of the rule of law. Lawyers in England and Wales used to think little about the lawfulness of legislation, because of the courts’ traditional

reluctance to entertain challenges to it3, but now even primary legislation is increasingly scrutinised for lawfulness, principally because parliament has created justiciable presumptions that legislation is intended to comply with principles of European Law4 and human rights law5. In ZL & VL v Home Secretary6 the Court of appeal considered the effectiveness of an act that had not been published. although the Court found the act effective, it dwelt on the idea that in cases with a human rights or European component effective access for citizens to the text of the law might already be an essential component of anything required to be “prescribed by law”7.

prOBLEM ONE – COMpLExITYthe principal source of complexity in legislation is the mass of express and implied references. a section of an act frequently refers to or implicitly relies on other provisions of the same act, or provisions of other acts. the result is that it is generally impossible to get a clear and complete picture of the effect of a section without being aware of, and looking at, a considerable number of other provisions as well.

one of the functions of the Westlaw UK technical

1 Bowmaker v Tabor [1941] 2 KB 1, 5 per goddard LJ

2 See, for example, “the Lord Chancellor recognises that he has a responsibility, on behalf of the government, to ensure that satisfactory arrangements are made for the publication of the statute book, in order that the citizen may know by what laws he is bound.” – Commons Hansard, 13th June 1991 Wa 613-614. See also toulson LJ’s comments on the “problem of substantial constitutional importance” relating to access to legislation, in R v William Chambers [2008] EWCa Crim 2467.

3 “ the idea that a court is entitled to disregard a provision in an act of parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution, ...For a century or more both parliament and the courts have been careful not to act so as to cause conflict between them.” British Railways Board v Pickin [1974] a.C. 765 per Lord reid.

4 European Communities act 1972, s.2(1)

5 Human rights act 1998, ss.3, 46 [2003] EWCa Civ 257 the Court of appeal drew in

particular on Sunday Times v United Kingdom (1979-80 2 EHrr 245): “First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case.”


annotations is to provide the reader of a section with links to all related provisions – including provisions which define terms in the section and provisions which gloss its effect for particular purposes8; and also where appropriate to summarise the effect of a reference to other legislation so that the reader can quickly form a judgment as to whether he or she needs to see it in detail.

prOBLEM TWO – TECHNICALITYEven when it is written in apparently clear and natural English, legislation is really using language in a special way, the meaning and effect of which depends on a maze of technical rules of which the reader needs to be aware in order to have a clear and complete understanding of the provision. a good example is the word “person”. Some readers will assume that it means a natural person, while a lawyer may assume that it means anything with legal personality – and both will be wrong9.

Similarly, a reference to the use of post for service assumes and requires knowledge of a number of technicalities provided elsewhere10. and the same is true for references to oaths, parents, children, months, roads and hundreds of other terms that people might read in legislation and mistakenly think that they more or less understood. and that is before one comes to consider the “pure” technicalities of extent, Crown application, extraterritoriality, sunset clauses, purpose clauses, sink clauses and so on.

the general Notes library in the Westlaw UK technical annotations is designed to alert the reader to technicalities of expressions or concepts used, and to help readers find the information that they need to be sure that they have discovered and understood all the potential technicalities that underpin legislation. Wherever a provision depends on or can best be understood by reference to a technical concept, the reader is referred to a general Note that expounds the concept.

prOBLEM THrEE – OBSCUrITYthere are many reasons why legislation may appear obscure: the constraints or technicalities of the

parliamentary process, political reality, the need to reflect the language of related older legislation or European obligations. all these factors and others can combine to make it difficult to be sure of the legislative intention.

although the “battle” between literal and purposive approaches to construction is largely mythical11, it is certainly true that the courts have become increasingly willing to look at a wide range of material in order to determine the context of legislation, by reference to which it must be understood and construed. the use of Hansard in accordance with Pepper v Hart12 is a well-known landmark along the way, but all kinds of other documents are now routinely used by the courts (in particular, Explanatory Notes13 and departmental documents of various kinds14).

But even for forms of explanatory material that the courts have traditionally been prepared to look at, there is an increasing tendency for judges to insist on not being bombarded with vast volumes of debatably relevant material, but to be taken with precision to the most precisely relevant passages15.

one of the functions of the Westlaw UK technical annotations is to bring the reader precise quotes from Hansard, Explanatory Notes and other relevant material, and to provide references to other documents that may help to establish the context of legislation.

In addition, where points of ambiguity or difficulty have already been addressed by the courts, the annotations alert the reader to the existence and effect of the decision.

CONCLUSIONModern technology may have made possible the deluge of legislation with which we are confronted, but it also makes possible new methods of navigating around it, understanding it and putting it into context. Westlaw UK’s annotated Statutes are not a substitute for the thorough research that professional legal advisers car ry out for their clients; but they aim to be a powerful tool to make that research quicker, more efficient and more effective.

8 this could include referring the reader to the provision which sets out the penalties for or other consequences of failure to comply with a duty; or it might involve alerting the reader of, say, a provision about banks that by virtue of a later section it applies to building societies also, but with certain modifications.

9 By virtue of Sched.1 to the Interpretation act 1978 “person” includes unincorporated associations despite their lack of legal personality, unless the contrary is expressly provided or implied.

10 See the postal Services act 2000, Sched.8, the Interpretation act 1978, s.7 and the Scotland act 1998 (transitory and transitional provisions) (publication and Interpretation etc of acts of the Scottish parliament) order 1999, art.4.

11 See All Trains Stop at Crewe: The Rise and Rise of Contextual Drafting, D greenberg, European Journal of Law reform, Vol. VII, no.1/2, pp.31-46.

12 [1993] aC 593 HL; see also Hansard, the Whole Hansard and Nothing but the Hansard, D greenberg, (2008) 124 LQr 181-185.

13 See R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38.

14 For example, regulatory Impact assessments: see (2003) 71(3) Modern Law review 385-412; but note Evans v Amicus Healthcare [2004] EWCa Civ 727.

15 See, for example, “only a bull’s-eye counts. Nothing less will do.” – Effort Shipping v Linden Management [1998] aC 605, 623E-F per Lord Steyn.

ACADEMIC NEWS

tHE DEVIL’S aDVoCatEtHE DoS aND DoN’tS oF aDVoCaCY ExpLaINEDIain Morley

tWo ESSENtIaL StUDENt tItLES

• presents the leading book on advocacy, bridging the gap between reading about advocacy and how you actually do it

• Written in a no-nonsense and engaging style to bring a fresh approach to studying advocacy

• Explains the art of persuasiveness, how to make convincing speeches, and effective cross examination

• Describes well-established techniques and exercises used in court for constantly improving questioning and witness control

• offers punchy advice and insightful comments on all of the necessary skills and processesinvolved in advocating

• Includes a new chapter on the International Criminal tribunals which require an additional set of advocacy skills due to the dynamics thrown up such as the need for simultaneous translations

ISBN: 978-1-847-03768-8prICE: £16.95pUBLISHINg: FEBrUarY 2009

ISBN: 978-0-414-04236-0prICE: £16.95pUBLISHINg: FEBrUarY 2010

available for your students to buy from: www.amazon.co.uk, www.hammickslegal.com and all good bookshops

• takes students through each step of the route to pupillage from legal education through to the application process itself

• Covers key developments including changes to the Bar course (now the BptC) and the launch of the pupillage portal – the new application process

• Draws on the authors’ own personal experiences – between them they have attended over forty pupillage interviews

• Brings together advice and pearls of wisdom from over 50 contributors – from recently qualifi ed barristers through to senior barristers and judges – on everything such as what impresses them at an interview, to how to make the most of the BVC

• goes through the academic stage of training, looking at the pros and cons of the various variables such as a law degree verses a law conversion

• Discusses the vocational – BptC – part of training, looking in depth at the four Inns

tHE patH to pUpILLagE: a gUIDE For tHE aSpIrINg BarrIStErtHE FIrSt DEFINItIVE gUIDE to oBtaININg a pUpILLagE at tHE Bar oF ENgLaND aND WaLESgeorgina Wolfe and alexander robson

NEW2ND EDITION

ACADEMIC NEWS



A rICH VArIETY OF pErSpECTIVESLegal method and systems is a subject which is taught very differently across the UK. those aspiring to provide a qualifying law degree work to certain guidance provided by the professional bodies about what should be taught across the course of a law degree. at the same time, there is generally considerable scope to experiment with material.

In the most recent edition of Legal Methods and Systems: Text and Materials, professor Stychin and professor Mulcahy offer us a library of carefully selected abstracts from key writers on legal system and legal method. In doing so these experienced teachers of the subject provide us with an approach to the subject which offers us a rich variety of perspectives on the core topics. this text allows students to be exposed to a range of perspectives which provides a thorough intellectual grounding for more advanced courses.

FACILITATINg INDEpENDENT THINKINgStychin and Mulcahy argue that there are a number of legal methods or approaches to the legal system and that the answer to any essay question or exam paper will be dependent on the intellectual tradition on which one draws. rather than giving priority to any one tradition or approach their aim in each chapter is to invite the reader to engage with policy, doctrinal, socio-legal and critical approaches to the same issue.

By offering a variety of perspectives on methods and systems the editors aim to facilitate independent thinking and to encourage students to engage in debates between scholars about what constitute the most convincing or rigorous ways to analyse questions which might arise around such issues as interpretation of human rights legislation or the purpose of a modern litigation system.

LEgaL MEtHoDS aND SYStEMS – CoNtINUItY aND CHaNgEthe new edition of Legal Methods and Systems: Text and Materials, authored by Carl F Stychin, professor of Law at University of reading and Linda Mulcahy, professor of Law at the London School of Economics, publishes in august. In the following article we examine the approach the work takes and highlight the benefits of recommending it to your students.

an example of this approach is the chapter on ‘New forms of dispute resolution’. this chapter helps students to understand what alternatives to the courts exist and why. after introducing them to the justifications which policy makers have offered for the shift towards mediation and out of court settlement, the chapter outlines the various ideologies which underpin the different models of dispute resolution available to litigants and concludes with a review of the various concerns about informal justice which have been raised within the academic and practitioner community. the reader is introduced to each of these topics by reference to extracts from seminal work in the field. In this way the accounts of mediation protagonists are set out next to the accounts of critics of informalism arguing from a feminist or left wing position.

While this new edition fully incorporates new developments in the field, it also provides a high level of continuity with the successful format of previous editions. Extensive and innovative material on statutory interpretation and common law analysis pervades this edition. the authors have retained an extensive element of comparative material, designed to broaden students’ perspective on the cultural distinctiveness of the common law tradition. Constitutional foundations are also retained, although updated to reflect the ongoing

reform agenda.

NEW FOr THE FOUrTH EDITIONthe latest edition of this popular text and materials book also includes mind maps for each chapter. this new feature aims to give students a sense of the key ideas which are of relevance to the topic under discussion and how the concepts to be discussed in each chapter relate to each other. In addition, each chapter concludes with a set of problems and essays questions which can be used to structure seminars, tutorials or revision. readers are also provided with a number of links to trusted websites which will provide them the most up to date information on a topic.

Fully updated this new edition includes materials on the new developments in legal method and legal systems by reference to new case law, discussion of the implications of the opening of a new Supreme court and reflections on the success of the Woolf reforms of the civil litigation system.

the overall aim of the book remains to provide a comprehensive volume which enables tutors to draw on material in such a way that it matches the emphasis of any course.


You can obtain your free inspection copy of Legal Methods and Systems: Text and Materials, by completing and returning the inspection copy request form on page 15. alternatively you can call the inspection copy hotline on 020 7393 7293 or visit us at www.sweetandmaxwell.co.uk/lecturers-students.


KEY NEW tExtBooKS


BIrDS’ MODErN INSUrANCE LAWJohn Birds

• presents a concise yet analytical explanation of the fundamental principles of insurance law

• Covers everything from the history of insurance and regulation through to the various forms of insurance such as life, and liability

• analyses the increasingly complex legal rules affecting contracts of insurance

• Includes recent case law on, in particular, increase of risk, breaches of condition and waiver, subrogation and motor insurance and MIB liability

• Includes the third parties (rights against Insurers) Bill 2009

• Considers the Law Commissions’ recommendations for reform of consumer insurance disclosure and representation and their continuing review of the law

• reflects the latest conduct of business rules made by the Financial Services authority

8th Edition paperback • £29.95 • June 2010

THE ECONOMICS OF EC COMpETITION LAW: CONCEpTS, AppLICATION AND MEASUrEMENT Simon Bishop and Mike Walker

• Examines the economic theory and analysis as it is applied to EC competition law

• Discusses the basics economic principles underpinning competition law including market power, market definition and effective competition

• Looks at the economic techniques used by the Commission in applying its guidelines

• Examines the way in which economic theory relates to article 81 (tFEU 101), article 82 (tFEU 102) and merger control

• Discusses the economic concepts and analytical techniques in a clear and accessible way, with case studies and examples to illustrate the application of those concepts and techniques

• Demonstrates the use of economics in Commission decisions and Court judgments through discussion of the key cases

University Edition paperback • £41.95 • June 2010

MEDIA LAWpeter Carey along with Nick Armstrong, Duncan Lamont and James Quartermaine

• provides a succinct and lucid introduction to all areas of the law relating to print, broadcast and electronic media

• goes through the key issues and explains the complex principles of media law

• Clarifies complex issues using diagrams, flow charts, bulleted lists and tables

• Contains extracts from the European Convention for the protection of Human rights, the press Complaints Commission’s Code of practice and the Independent television Commission’s programme code


CHArLESWOrTH’S COMpANY LAWStephen girvin along with Specialist Editors: Dr Sandra Frisby and Alastair Hudson

• presents a comprehensive and detailed account of company law to help readers develop a full understanding of what can, at times, be a complex subject.

• Specialist Editors ensure that each chapter is as comprehensive and up-to-date as can be

• Considers the latest legislative and case law developments including full coverage of the changes brought about by the Companies act

• Contains a new chapter addressing the European Company


CONSTITUTIONAL LAW OF THE EUrOpEAN UNIONKoen Lenaerts, piet Van Nuffel; Editor: robert Bray; Special Editor for the Third Edition – Nathan Cambien

• provides a rigorously structured analysis of the institutional structure of the EU, its jurisdiction, its legal instruments and the main substantive principles underlying EU law

• Develops a detailed overview of EU substantive law and of the effect the various sources of EU law have within the legal order of every Member State

• Covers significant developments in the EU, including the many changes brought about by the ratification of the Lisbon treaty

• Explores the concept that the constitutional character of EU law is not limited to its “administrative law” aspects

3rd Edition paperback • c. £37.95 • September 2010

COrNISH AND LLEWELYN INTELLECTUAL prOpErTY: pATENTS, COpYrIgHT, TrADE MArKS AND ALLIED rIgHTSWilliam Cornish, David Llewelyn and Dr Tanya Aplin

• provides authoritative coverage of the whole spectrum of Ip law as it applies to the UK

• goes through the main types of Ip chapter by chapter, making it easy for the reader to find what they are looking for

• Explains what the different types are and the common grounds they share

• Includes chapters on Ip rights under EU law, Ip and personal privacy, Ip and digital technology, Ip and biotechnology

• Enables understanding of the text with supporting cases, references and explanatory narrative putting everything into context

• Draws on legislation from UK, EU and international sources

• Contains tables including European Legislation and International treaties, Conventions and agreements

7th Edition paperback • £38.95 • July 2010

CrIMINAL LAW: TExT AND MATErIALSCMV Clarkson, HM Keating and Sr Cunningham

• Examines the main principles and rules of criminal law and explores the theoretical bases upon which they are founded in an easily digestible text

• Combines the best features of a standard “textbook” with those of a “cases and materials” book to provide guidance and direction on the law, whilst presenting a substantial amount of key primary material selected from a diversity of sources

• Includes extracts from cases and academic articles, carefully edited to make them accessible to students

• Draws on non-legal contextual material to provide a social context to the law rather than a mere analysis of the rules

• Includes analysis of key legislative developments leading case decisions including Kennedy (No 2) (2008) (manslaughter); Rahman (2008) (joint unlawful enterprise); R v G (2009) (rape of child under 13) Evans (2009) (omissions)




CrIMINAL LAW – THE FUNDAMENTALSChristina McAlhone and rebecca Huxley-Binns

• Introduces students to the principles of criminal law by using clear text combined with charts, grids and diagrams

• Sets out a clear framework and explains the intricacies of the law as clearly as possible without sacrificing the detail that is required for a proper understanding

• provides a question along with answer and answer tips at the end of each chapter

• Follows a new and improved layout with more pedagogical features than before, such as ‘over to You’ boxes to truly engage students and get them thinking more critically about the subject

2nd Edition paperback • £22.95 • June 2010

DENNIS: THE LAW OF EVIDENCEIan Dennis

• analyses the law of evidence, while placing the subject within its theoretical context

• presents the information in a logical structure following on from the introduction of the basic concepts through to the exclusionary rules of the law of evidence

• offers an integrated approach to evidence which includes essential doctrinal analysis

• takes account of evidence theory, psychological research on information processing and retrieval, socio-legal work on police investigations, and jury research projects


ELLIOTT AND WOOD’S CASES AND MATErIALS ON CrIMINAL LAWMichael J Allen and Simon Cooper

• presents an extensive collection of cases, statutory provisions, recently published articles and comments designed to define, explain and illustrate the main principles of criminal law

• places the emphasis on the cases and materials, using text for introductory and explanatory purposes

• Uses notes and questions to assist and stimulate students to think critically about the subject and to promote further study

• Incorporates a wealth of important key case law and covers the latest statutory developments

10th Edition paperback • £31.95 • May 2010

LAND LAW: TExT & MATErIALSNigel p gravells

• acts as a one-stop shop providing comprehensive coverage of all major legislative developments, prominent cases and pertinent materials combined with a strong supporting narrative

• Explains and critically analyses each important legal issue with a discussion of possible defects in the law and proposals for reform to help readers develop an understanding of the materials

• refers to more than a hundred new articles and casenotes in the major academic journals

• Includes extracts or reference to hundreds of new cases

• Discusses in detail the recommendations in the Law Commission report on termination of tenancies for tenant Default (2006) and the proposals in the Law Commission Consultation paper on Easements and Covenants (2008)

• Covers recent legislative developments with reference to the Civil partnerships act 2004, the Housing act 2004, the Consumer Credit act 2006, the tribunals, Courts and Enforcement act 2007 and the Housing and regeneration act 2008


CASES AND MATErIALS ON INTErNATIONAL LAW David Harris

• Draws together in one volume an exhaustive selection of cases, materials and background Information on public International law

• Supplements cases and materials with authoritative commentary and expert analysis

• provides broad and comprehensive treatment of the subject making it a sound basis for any public International Law course

• Incorporates all major developments in the subject, including the expansion of human rights issues in International law

• revised layout ensures clarity and ease of use

7th Edition paperback • c. £36.95 • June 2010

FrOM STUDENT TO SOLICITOr: THE COMpLETE gUIDE TO SECUrINg A TrAININg CONTrACTCharlotte Harrison

• presents the first definitive guide to securing a training contract and becoming a solicitor in England and Wales

• takes the reader through both the academic stage of training and the vocational – LpC – part of training

• goes through the application process itself discussing what firms are looking for, how to target applications, and the options available if unsuccessful

• Brings together advice and pearls of wisdom from a host of contributors – from LLB law students, trainees and recently qualified solicitors through to senior partners – on everything such as first steps into law and how to make the most of your studies

• Includes contributions from specialist recruitment consultants

• Details the extra-curricular activities that readers should undertake in order to enhance their prospects

• Looks at the various firms and practice areas to demonstrate the different opportunities available

1st Edition paperback • £14.95 • June 2010

HAYTON & MITCHELL: COMMENTArY AND CASES ON THE LAW OF TrUSTS AND EQUITABLE rEMEDIESCharles Mitchell

• offers a thorough and perceptive treatment of modern English trust law

• Uniquely combines textbook and casebook in one compact volume

• Uses questions and problems to promote analysis and discussion

• Investigates the “grey” areas often favoured by examiners

• Illuminates the nature of the English trust concept with comparative references to foreign jurisdictions

• Illustrates text with excerpts from cases, statutes, and Charity Commission publications

• revised structure increases accessibility of discussion


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HOW TO STUDY LAW – LEgAL SKILLS SErIESAnthony Bradney, Fiona Cownie, Judith Masson, Alan C Neal and David Newell

• an excellent introduction to the common law system ideal for all students of law from a Level to degree level

• takes a practical approach to demonstrate how to find, read and analyse a variety of legal materials – cases, statutes, articles and textbooks – both online and in print

• Uses exercises to help students negotiate their way around complex legal materials and grasp the skills required

• Incorporates a full account of vital legal resources available via the web

6th Edition paperback • £19.95 • March 2010

LEgAL METHODS AND SYSTEMS: TExT AND MATErIALSCarl F Stychin and Linda Mulcahy

• provides a mini library and integrated teaching tool for legal method, English legal system and Introduction to Law courses

• Introduces students to a range of different ways of thinking about the study of law including doctrinal, socio-legal and critical perspectives

• provides a wealth of materials and commentary, along with a series of focused questions suitable for tutorials and essays

• Discusses the implications of the opening of the new Supreme Court and reflects on the success of the Woolf reforms of the civil litigation system

4th Edition paperback • £28.95 • august 2010

A gUIDE TO EUrOpEAN UNION LAWDr pSrF Mathijsen

• the perfect first-stop introduction to EU Law• offers a comprehensive overview of the

European Union’s institutions and their functions

• Fully up-to-date with the changes brought about by the ratification of the Lisbon treaty

• analyses the substantive law of the European Community, from competition and agriculture to, among others, environment, culture, health protection and consumer protection

• Keeps the text simple and uncluttered by keeping references to treaty provisions or Community acts to the extended footnotes at the end of each chapter


THE pATH TO pUpILLAgE: A gUIDE FOr THE ASpIrINg BArrISTEr georgina Wolfe and Alexander robson

• presents the first definitive guide to obtaining a pupillage at the Bar of England and Wales

• takes the reader through each step of the route to pupillage from legal education through to the application process itself

• Covers key developments including changes to the Bar course (now the BptC) and the launch of the pupillage portal – the new application process

• Brings together advice and pearls of wisdom from over 50 contributors on everything such as the challenges and risks of becoming a barrister, what impresses them at an interview, and how to make the most of the BptC

2nd Edition paperback • £16.95 • February 2010

SUCCESSFUL LEgAL WrITINg– LEgAL SKILLS SErIESEdwina Higgins and Laura Tatham

• Uses worked examples and exercises to guide students through the legal writing process

• Focuses on improving writing skills in both assignments and exams

• offers guidance on how to write a case note, how to write a critical review and how to prepare and draft a dissertation

• New edition includes colour and a new text design to make it more accessible and readable

2nd Edition paperback • £19.95 • July 2010

gLANVILLE WILLIAMS: LEArNINg THE LAWATH Smith

• a must-have book for every student considering a career in the law, about to study for a law degree or law module of a non-law degree

• gives an overview of the English legal system in a clear and accessible style and introduces students to the core foundation subjects and syllabus of the LLB degree

• Corrects basic misunderstandings about the law

• Explains how to interpret statutes and look up points of law

• Covers key developments such as the new Supreme Court, the ratification of the Lisbon treaty and the effects of the recession on learning to earning


WINFIELD & JOLOWICZ ON TOrTWVH rogers

• the leading textbook on tort available providing students with the definitive and all embracing guidance they need to achieve top marks

• Centred firmly on English law but covers significant developments in Commonwealth countries, and where appropriate European systems of tort law

• Covers all key areas of tort law so students don’t have to refer to a number of different textbooks

• Includes extensive use of case citations• Covers developments including those in

causation; liability of public authorities; human rights and tort law; the development of privacy and the “reynolds defence”; and the recasting of the economic torts

• analyses key case law including Barker v Corus; Jameel v Wall St Journal; Mitchell v Glasgow CC; OBG v Allan; and Rotherwell v Chemical & Insulating Co


WOODrOFFE AND LOWE’S CONSUMEr LAW AND prACTICEgeoffrey Woodroffe MA (Cantab) and robert Lowe

• presents a concise but comprehensive guide to consumer law

• Focuses on the types of problems most likely to arise or be encountered in real life and uses examples to explain how the law deals with such situations

• Includes key cases including the Supreme Court decision OFT v Abbey National

• Covers the latest developments including the Consumer protection from Unfair trading regulations 2008 implementing the 2005 EU Directive which repeal most of the trade Descriptions act 1968 and the Consumer protection act 1987, pt III, the latest EU Consumer Credit Directive 2008, the nine oFt approved codes of practice, and the Cancellation of Contracts made in a Consumer’s Home or place of Work etc. regulations 2008 which revoked the 1987 ‘Doorstep Selling’ regulations

• Contains a selection of County Court precedents supplied by a District Judge which highlight the practical applications of this book



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LESS TIME TO DO THINgSat my age there is always a danger of a rose tinted filter between your vision and the past, but perhaps I am not the only one who gets the impression that the academic year is a bit like an anti-tardis – looks much the same on the outside (though Milord Mandelson may change that) but every time you go inside it seems to be a bit smaller. Maybe it’s semesters and modules and examinations twice a year but there seems to be less time to do things. the inevitable consequence is that what has to give is the breadth of the coverage.

Nowhere is this more so than in torts, if only because you can to some extent get away with presenting it as slabs of more or less disconnected material. What do negligence, conversion and defamation have in common? Not a great deal, and you could – not that I would commend it – know a great deal about any one of them without knowing much about the others.

When as a student you have spent a good part of the first semester in the trenches of the duty of care wars in pursuit of the definitive answer (Winfield’s fourth edition of his textbook in 1948, his penultimate, had four and a half pages on the topic and six on breach of duty) it is unlikely that you will ever be exposed to, say, Allen v Flood, even though that case is just as important for the shape or structure of the law as Donoghue v Stevenson.

IT’S TOrT LAW, BUT NOT AS WE KNOW ITFortunately things are not quite so bad for those who write textbooks because it still seems to be accepted that they can have in their contemplation readers who want more than the minimum necessary to pass the torts exam. But there is another problem of a different kind, though it also impacts on the shrinking tardis phenomenon in teaching. You have to find some means to cope with a fast growing body of material which is not “tort law as we know it” but which is highly relevant if you want to impart any understanding of how tort law operates.

Let me give a very simple example from the law of defamation (despite the “disconnected slabs” point, I think lots of us still teach this, partly for the perfectly good but probably no longer acceptable reason that it is entertaining). If you had to explain qualified privilege in Noddy’s first class on torts you would give the example of writing a reference. perfect. Everyone knows what that involves and it’s not too difficult to grasp the “duty/interest” idea which underpins the privilege.

then along came the HL in Spring v Guardian Assurance and said that was not the whole story because you might

in some cases be liable for negligence. Well, you might grumble at the complication but you could hardly refuse to take it on board. after all, it was still mainstream tort law and on reflection it might even prove useful in enabling you to demonstrate how it really was a law of torts in the plural and how the nature of the reference had changed from its original paradigm of giving a character to your butler.

But if you stop there you have told only part of the story. For example, the defendant may be a public authority for the purposes of the Human rights act 1998. Now most of us have been brought up on an assumption that the European Convention on Human rights is, via article 10, a restriction on the legal protection of reputation in favour of freedom of expression. However, it is now accepted that reputation is one of the rights protected by article 8, so where the defendant is a public authority it may be possible


tort LaW – WHat’S IN It?W V H rogers, Barrister, is currently a Senior Fellow at the University of Nottingham and has been the sole author of Winfield & Jolowicz on Tort since the ninth edition. In the following article he examines the law of tort, in particular the impact of the European Convention on Human rights.


You can obtain your free inspection copy of Winfield & Jolowicz on Tort, by completing and returning the inspection copy request form on page 15. alternatively you can call the inspection copy hotline on 020 7393 7293 or visit us at www.sweetandmaxwell.co.uk/lecturers-students.

to sue on the basis of article 8 as an alternative to libel. Under article 8 there is no concept of qualified privilege, the touchstone is proportionality. So it is possible you might win under article 8 even if the defendant is honest for the purposes of qualified privilege. It is even possible that not all instances

of absolute privilege might meet a claim based on article 8, though the parliamentary variety has been accepted in Strasbourg.1

NOT THE END OF THE STOrYanother complication is that even if the claim for damages fails, it may be that the court could grant a declaration of falsity under article 8, something not possible in a common law claim except in a roundabout way in the summary procedure under the Defamation act 1996. Nor is this the end of the story because even where no public authority is involved it is on the cards that somewhere along the line leading to a claim there will have been processing of data such as to attract the Data protection act 1998, which contains provisions for compensation where, for example, data are inaccurate or have not been processed fairly.

So we have yet another potential cause of action, again not necessarily leading to the same result as libel law.

these are not idle academic speculations, all of these points have surfaced in the case law.2 I suppose that technically speaking a claim for damages under s.13 of the Data protection act is a claim in tort, as is a claim for, say, damages for breach of copyright. But no general tort book could hope to give even a moderately comprehensive account of the act. one can of course refer the reader elsewhere but it is not the sort of material which is easily absorbed. the Ca’s description of it as “cumbersome and inelegant”3 is polite.

this particular example is of course the tip of an iceberg. Students of recent years will have come across it under article 2 of the Convention, the “right to life”. Mitchell v Glasgow CC4 will no doubt become the leading case for a good while on omissions and negligence but, as is commonly the case nowadays, there was an alternative claim (also unsuccessful) based on article 2. We now know that the common law of tort is not a mere local mirror of the Convention which must always be modified to conform with it: it is possible for the common law to say No and for the Convention (via the Human rights act) to say Yes – or vice versa.5

pArALLEL LEgAL SYSTEMBut again we cannot simply stop there, we have to give some basic indication of what would be done under the Convention and how it would differ from the common law. For example, we must take care not to slide into the easy assumption that the Convention idea of “real and immediate danger” can simply be equated with breach of duty at common law, but explaining how the concepts differ without substantial reference to local and Strasbourg case law may be difficult. Indeed, without a fairly close examination of Convention law it is difficult for a student even to see rather basic questions which ought to be asked about what we have done in creating this parallel legal system which has advanced a very long way from its origin in the aftermath of WWII.

For example, although the point has either tended to go by default or to be “lost” in the overall failure of the claims on appeal for other reasons, it appears at least possible that persons may bring proceedings based on article 2 who would have no locus standi to sue in tort and/or who would not qualify for damages in tort.6 that may be justifiable because Convention rights are “different” but the student surely should have the opportunity to learn why that is so.

What will we do? given the constraints on us, the only real answer is “the best we can”. of course law books will continue to get longer and there is no doubt a limit to publishers’ (and readers’) tolerance. there seems no prospect in any foreseeable future of Convention law becoming a “core” subject, which is probably what ought to happen. I have to confess, though, that I have a secret sympathy with the student’s question (they have been brought up with more exact expectations in this regard than used to be the case) “What exactly do I have to know about the Convention?”


1 A v United Kingdom, app No 35373/97; (2003) EHrr 51.

2 W v Westminster CC [2004] EWHC 2866 (QB); W v JH [2008] EWHC 399 (QB); Clift v Slough BC [2009] EWHC 1550 (QB).

3 Campbell v MGN [2002] EWCa Civ 1373, [2003] QB 633 at [72].

4 [2009] UKHL 11, [2009] 1 a.C. 874.

5 Smith v CC Sussex (sub nom van Colle v CC Hertfordshire) [2008] UKHL 50, [2009] 1 a.C. 225.

6 See van Colle, above, where there is some discussion in the Ca but there had been no appeal against the basic question of an award to the parents; and Savage v S Essex etc NHS Trust [2008] UKHL 74, [2009] 1 aC 681, where the question of locus standi was not before the court – but see Lord Scott.


CHaLLENgE YoUr prEJUDICESWe are all guilty of pre-judging, or sticking by an opinion that if challenged, we find changes. In the following article, we explain why the Nutshells and Nutcases series should no longer be loathed. read on if you are ready to challenge your prejudices.


LOATHED NOT LOVEDLet’s get it out in the open straight away: you probably don’t like the Nutshells and Nutcases series, and you wouldn’t be alone in that opinion. For good reason we hear you cry – students need to be reading textbooks and carrying out extensive research, not relying on a Nutshell. We couldn’t agree more!

So here’s the deal. For the next ten minutes, we ask you to put aside your pre-formed views and let us explain why you should consider the benefits of these two series.

AN ADDITIONAL LEArNINg rESOUrCE, NOT A rEpLACEMENTLet’s take the Nutshells series. Launched over 20 years ago, the original aim of the series was to be an effective revision guide, providing students with key revision tools to help them achieve top marks. this is still a main aim of the series. But, in recent years we’ve noticed that students also use the series as a starter guide – a quick route to grasping the crucial principles, cases and legislation of a subject.

But that’s an issue! or is it? Finding a way to fit in and teach all areas of a subject is getting harder and harder. on top of that, students are now often lacking in the ‘soft skills’ such as knowing how to undertake legal research effectively. So wouldn’t it be great if your students came to the subject with some semblance of knowledge?

Wouldn’t that make your task a little easier and give you more time to get them to fully grasp and understand all elements of the subject?

that’s a benefit of the Nutshell series. It’s not to be a replacement for a textbook, it’s an additional resource. It’s a way for your students to quickly get up to speed with a subject and ready to absorb all that you have to teach them. a side benefit is that it increases the chances of them reading that high level textbook on your reading list as they’ll have a guide to dip into for a quick explanation if they get stuck.

A NEW WAY OF STUDYINgNo, it’s not the way that students used to learn. But with some students struggling more with the traditional textbooks and being as time-pushed as you, isn’t a resource that gives them a safety net when using a traditional textbook better than them not even attempting to read one? Even solicitors and other members of the legal profession use them as a quick back-up resource. It may not be the way that things were done before, but it’s the way things are done now.

ESSENTIAL AT rEVISION TIMErevision time is where the Nutshells and Nutcases come into their own. Since the revision and revamp of the series last year, they really do provide all the essential revision tools your students need to succeed come exam time.



the Nutshells series contain a range of tools that help your students optimize their revision time. Key defi nitions and explanation of key cases and legislation are boxed throughout to help highlight the essential points to remember. Diagrams help them to remember diffi cult concepts and checklists highlight all the key points to remember. What’s more, a model question with answer plan is included at the end of each chapter so that students can practice what they’ve learnt.

Nutcases present in-depth case analysis of the facts, principles and decisions of the most important cases in an area of law. Each chapter breaks the subject down into key topics relating to the curriculum, enabling your students to identify and concentrate on all of the cases they need to know about. Court of appeal and House of Lords cases are highlighted so that students can easily identify the relative signifi cance of the case.

WHAT ABOUT THE OTHEr rEVISION BOOKS?In recent years, a number of other revision series have launched. Some of these even making it on to reading lists. Strange. If any of the series should be making it on to reading lists it should be the Nutshells and Nutcases.

Unlike other series, Nutshells encourage your students to engage with a subject, rather than just helping them to memorise the facts. Nutshells encourage your students to absorb information, analyse and think critically about their subjects, before applying what they’ve learnt in their exams. Nutcases do much the same, helping students to analyse the case law, not just memorise it, and encouraging them to think critically – crucial if they wish to succeed as lawyers. a huge benefi t is that come exam time this approach will help them recall the cases quickly.

OUr TEN MINUTES ArE Upthat’s it. We could talk about the two series for longer and further explain the benefi ts of them as an additional resource. But maybe, just maybe, you could put away your preconceptions, request a couple on free inspection and investigate for yourself?

and yes, it’s true that there will always be a small minority of students that will attempt to use just these, or any other revision title for that matter, to scrape through their course. But, is it not worth considering them as a useful, additional resource that will benefi t both you and most importantly, those students that want to come to your subject with a little bit of base knowledge?

You can obtain your free inspection copy of any of the Nutshells or Nutcases listed below by calling the inspection copy hotline on 020 7393 7293 or by visiting our website at www.sweetandmaxwell.co.uk/lecturers-students.

SUBJECTS COVERED IN THE NUTSHELLS AND NUTCASES SERIES

• Company Law• Constitutional and administrative Law • Consumer Law• Commercial Law• Contract Law• Criminal Law• Employment Law• English Legal System• Equity & trusts• European Union Law• Evidence• Family Law• Human rights• Intellectual property• International Law• Land Law• Medical Law• tort



JUDICIaL CoopEratIoN IN CIVIL MattErS

robert Bray is the editor of Constitutional Law of the European Union by Koen Lenaerts and piet Van Nuffel, the fourth edition of which will be available in September 2010. In the following article he discusses judicial cooperation in civil matters.

HISTOrICAL BACKgrOUNDoriginally, the activity of the European Community in the field of judicial cooperation in civil matters was based solely on intergovernmental cooperation. on the basis of article 200 EC, the Member States could conclude conventions on conflicts of laws in the civil field. this was superseded by judicial cooperation in civil matters as between the Member States.

then the amsterdam treaty empowered the Council to adopt measures in the field of judicial cooperation in civil matters (article 61(c) and article 65 EC). Subsequently with the entry into force of the treaty of Nice, the European parliament and the Council acted jointly under the co-decision procedure (article 67 EC). “aspects relating to family law”, however, constituted an exception with the Council acting unanimously after consulting the European parliament.

the first result was the transformation of the former Brussels Convention on jurisdiction and enforcement of judgments into a Council regulation. Subsequently, regulations on the law applicable to non-contractual and contractual obligations were adopted under the co-decision procedure (the “rome II” and “rome I” regulations).

However, the measures that could be adopted in the area of judicial cooperation in civil matters did not relate only to conflict of laws and jurisdiction but also to (i) improving and simplifying (a) the system for cross-border service of judicial and extrajudicial documents, (b) cooperation in the taking of evidence and (c) the recognition and enforcement of decisions in civil and commercial cases, including decisions in extrajudicial cases, together with (ii) eliminating obstacles to the good functioning of civil proceedings, if necessary by “promoting the compatibility of the rules on civil procedure”.

as far as judicial review is concerned, questions on the validity or interpretation of acts of Community institutions based on the relevant title of the treaty could be referred for a preliminary ruling only by a national court against whose decisions there was no judicial remedy under national law. In addition, only the Council, the Commission or a Member State could request the Court to give a ruling on a question of interpretation.

LEgISLATIONthere has been a very substantial amount of legislative activity in these areas in recent years, with regulations adopted on the trans-border service of documents and the

taking of evidence; the adoption of a European Enforcement order for uncontested claims; the establishment of the European Judicial Network; the introduction of minimum common rules relating to legal aid and of a European Small Claims procedure, and the adoption of a directive on aspects of mediation in civil and commercial matters, to name but the most conspicuous examples.

In the area of family law, there have been noteworthy advances, namely the regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility and the recent regulation on maintenance obligations, although a proposal to introduce rules concerning applicable law in matrimonial matters could not muster unanimous support in the Council.

a further significant development is the Union’s accession to the Hague Conference on private International Law.



Judicial cooperation in civil matters was subject to a protocol on the position of the UK and Ireland and a corresponding protocol on the position of Denmark, which contained a general opt-out for that country. to date, the UK and Ireland have only infrequently decided not to participate in the adoption of legislation relating to judicial cooperation in civil matters.

INNOVATIONS INTrODUCED BY THE TrEATY OF LISBONIn the Lisbon treaty, judicial cooperation in civil matters forms part of the “area of freedom, security and justice without internal frontiers” (aFSJ). article 3 EU includes the aFSJ among the tasks of the Union for the first time. at the same time, the “pillar” system has been superseded.

although the Union’s competences in the field of judicial cooperation in civil matters are determined by article 81 tFEU, the provisions of article 68, 69, 70 and 74 tFEU which apply generally as regards the aJSJ should be mentioned.

according to article 68 tFEU, the European Council retains the right to define the strategic guidelines for legislative and operational planning. article 69 tFEU provides for national parliaments to check on compliance with the principle of subsidiarity. article 70 tFEU empowers the Council to adopt measures whereby national authorities may conduct objective and impartial evaluation of the Union policies in the aFSJ in particular in order to facilitate full application of the principle of mutual recognition. Lastly, article 74 tFEU empowers the Council to adopt measures to ensure administrative cooperation between the competent national authorities and between them and the Commission.

as far as the substantive competences of the Union in the area of judicial cooperation in civil matters as set out in article 81 tFEU are concerned, paragraph 1 provides a clear statement of principle: The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.

the requirement contained in article 65 EC for any measures adopted to be necessary for the proper functioning of the internal market has been dropped. the second paragraph of article 81 tFEU provides instead that measures may be adopted “particularly when necessary for the proper functioning of the internal market”. accordingly, although judicial cooperation in civil matters may still not be regarded as an autonomous project separate from that of the internal market, the use of the word “particularly” may leave some leeway which did not exist before. However, the requirement for judicial cooperation in civil matters to have cross-border implications is retained.

as far as the catalogue of areas for possible legislative activity is concerned, article 81(2) tFEU may appear disappointing.

the additions represent innovations only as regards their express mention in primary law, since measures have already been adopted in these areas on the basis of the less specific provisions of the EC treaty, namely measures relating to the cross-border service of documents (point b), the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction (point c), cooperation in the taking of evidence (point d), the development of alternative methods of dispute


settlement (point g) and support for the training of the judiciary and judicial staff (point h).

the express power to adopt measures to promote effective access to justice (point e) is interesting. However, it is arguable whether mutual recognition is the right instrument to secure effective access to justice. In any event, the provision on access to justice reflects awareness of the principle of the equality of citizens before the law and of the rule of law, even if its scope will in future be limited to the elimination of discrimination and is likely to be confined to the full achievement of the internal market. also with regard to the limited catalogue of areas for possible legislative activity set out in article 81(2) tFEU, the scope for action with regard to access to justice appears limited.

the last area, support for the training of the judiciary and judicial staff, is important since the success of mutual recognition is dependent upon the quality of national judgments and judges’ trust in one another.

as far as judicial review through preliminary rulings is concerned, the Lisbon treaty no longer contains any limitations, since article 267 tFEU will be applicable in the whole area of judicial cooperation in civil matters (subject to a transitional period).

as regards the legislative procedure, article 76 tFEU provides that measures are to be adopted either on a proposal from the Commission or on the initiative of a quarter of the Member States. this means that proposals from individual Member States are no longer possible. It should also be noted that a citizens’ initiative under article 11(4) EU could conceivably relate to the aFSJ.

the tFEU also provides for the possibility of enhanced cooperation involving at least nine Member States.

For the rest, the Union is to adopt measures “in accordance with the ordinary legislative procedure”. the only exception, still, is measures concerning family law with cross-border implications, where the Council is to act unanimously after consulting the European parliament. However, there is a “passerelle” clause under which the Council may decide by unanimity to move to the ordinary legislative procedure.

In this very sensitive area which is strongly marked by national traditions it is at least theoretically possible that article 69 tFEU will come into play. Under that provision, national parliaments ensure that legislative proposals comply with the principle of subsidiarity. Under the protocol on the application of the principles of Subsidiarity and proportionality, national parliaments may cause infringement proceedings to be brought in the Court of Justice.

Lastly, the protocols on the position of the UK and Ireland remain. However, it will now be possible for those countries not to opt in to a measure amending a measure to which they had formerly opted in (possibly at some financial cost). Denmark retains its opt-out, but may decide to elect for an opt-in of the British and Irish variety, while Ireland may decide to abandon its opt-in arrangements.

FUTUrE DEVELOpMENTSIn the light of the Stockholm programme adopted by the European Council in December 2009, considerable activity may be expected in the area of judicial cooperation in civil matters. a proposal on jurisdiction and applicable law in the area of wills and successions (and proposing a European certificate of inheritance) has already been presented. a green paper on matrimonial property regimes is expected shortly and it is likely that the proposal for a Council regulation concerning applicable law in matrimonial matters will be re-launched under the enhanced cooperation procedure between at least nine Member States. a review of the Brussels I regulation has already begun.

proposals for a European system for the attachment of bank accounts and the temporary freezing of bank deposits are also likely. areas in which the European parliament would like action taken are the protection of vulnerable adults, the recognition of international adoptions and the whole question of the mutual recognition of national civil status documents.

E-justice will also be focused on, with the creation of a European portal and the launching of certain European measures, such as the small claims procedure, on-line. Much attention is likely to be paid to judicial training, with the emphasis on the creation of a “European judicial culture”, that is to say, the creation of more understanding among judges and practitioners of the legal systems and traditions of the other Member States. the contract law project, which will now come under the responsibility of the new Justice Commissioner, will continue to attract considerable interest in the Member States.

You can obtain your free inspection copy of Constitutional Law of the European Union, by completing and returning the inspection copy request form on page 15. alternatively you can call the inspection copy hotline on 020 7393 7293 or visit us at www.sweetandmaxwell.co.uk/lecturers-students.

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