Common Law World Review

Both third-party litigation funders and plaintiff lawyers have attempted to improve their competitive positions in the class action market. First, in an environment with very little regulation, litigation funders have sought court approval for the introduction of a ‘common fund’ that would dramatically tilt the cost-benefit calculus in favour of the funder, providing them with far greater certainty about the risks involved in funding a particular action. Second, entrepreneurial lawyers have tested some questionable strategies designed to circumvent the prohibition on lawyers charging contingency fees. To date, neither has succeeded but their efforts have prompted discussion about the way class action litigation should be funded, who should be allowed to fund it and the need for greater regulation.

The rules governing the distribution of an intestate estate applied pursuant to s. 46 of the Administration of Estates Act 1925 as amended by s. 1 of the Inheritance and Trustee’s Powers Act 2014 ensure very generous provision for surviving spouses in England and Wales. However, notwithstanding the merits of such provision, the extent to which the regime strikes an appropriate balance in distributing such an estate, in particular between the surviving spouse and a deceased’s children from a former relationship, if present, appears somewhat dubious. The first part of this paper briefly positions the intestacy regime adopted in England and Wales in an international context, placing a special emphasis on the protection afforded to the interests of a deceased’s children from a former relationship in a number of different jurisdictions. The next part critiques the arguments recently advanced by the Law Commission for England and Wales against reform in this area and argues that such reform is, in fact, warranted. On this basis, the final part presents a novel proposal for consideration.

This article analyses the common law doctrine of piercing of the corporate veil in the context of tort liabilities of a company. It is generally accepted that the veil piercing doctrine can be applied where a company is used to evade existing legal obligations but not where a company is used to avoid future legal obligations. In the tort context, the prevailing view is that it is permissible to establish a company to carry on activities to enable the controllers of the company to escape personal tort liabilities arising from the activities. However, it is argued in this article that such a situation potentially involves the use (misuse) of a company to evade existing tort obligations and that there is greater scope than traditionally understood for piercing of the corporate veil to impose a company’s tort liabilities on its controllers.

This note discusses the High Court of Australia decision of Paciocco v Australia and New Zealand Bank Group Limited on the rule against penalty clauses and situates its importance in light of the UK Supreme Court decision of Cavendish Square Holding BV v Talal El Makdessi and Beavis v ParkingEye Ltd. It compares the analytical frameworks laid down in the two cases and points out some unresolved issues in this area of law even following these cases.

This case note comments on a recent English Court of Appeal judgment departing from the pre-existing duty rule in contract law found in Foakes v Beer and extending the concept of practical benefit as good consideration to this situation. The note addresses the questions of precedent, the nature of the purported benefit in pre-existing duty situations, its relationship with the vitiating factor of economic duress and the future of the doctrine of promissory estoppel. The note argues that the Court of Appeal’s method of sidestepping recent Court of Appeal decisions upholding Foakes v Beer is open to question, that the Court of Appeal failed to consider the relationship between practical benefit and economic duress and that the future of the doctrine of promissory estoppel is in doubt.