Resolving the Inconsistency between National and EU Motor Insurance Law. Was Factortame the Solution nobody Sought?

In this article we argue that the continued uncertainty of UK national motor vehicle insurance law when viewed in respect of its EU parent, the Motor Vehicle Insurance Directive (MVID), has not been satisfactorily addressed using the remedy available through the non-contractual liability of the State. The existing enforcement mechanisms have equally been haphazard in their effectiveness and success in affording rights to third-party victims. Given the link between the MVID and the free movement of persons and goods on which the harmonization of insurance protection was based, we present the first article establishing an argument for the offending aspects of UK national law to be disapplied. Whilst the UK has concluded its agreement to withdraw its membership from the EU and thus to be bound by EU law and the jurisprudence of the Court of Justice, until the transitional period is completed the UK remains aligned to EU law. It is committed to follow superior EU law and the judgments of the Court of Justice. Hence the remedy issued from the Factortame line of case authorities may prove to be the most effective way to grant access to rights which continue to be denied to victims in the UK

Challenges facing green space: is statute the answer?

Against a backdrop of austerity, characterised by public-sector funding cuts and a devolutionary agenda, this paper explores how legislation might address two, inter-related challenges which face public urban green space ('greenspace') in England and Wales; namely, responsibility for provision, and identification of supporting funds. It focuses on two proposals; first, the introduction of legislative powers to enable local authorities to create user-charging schemes, and secondly, the imposition of a local authority statutory duty to provide greenspace

The end of the opportunistic breach of contract! The elective theory of repudiatory breach prevails : Societe Generale, London Branch v Geys [2012] UKSC 63

On the 19th December 2012 the Supreme Court provided an answer to the longstanding question as to the consequences of a wrongfully repudiated contract of employment. Was it for the innocent party to elect to accept the repudiation to bring the contract to an end? Or, was the contract automatically ended upon the wrongful repudiation? Previous authorities had moved between these elective and automatic theories. The elective theory held that a wrongful repudiation only became effective where the innocent party elected to accept the repudiation. Conversely, the automatic theory considered that the contract ended automatically upon the repudiation. Whilst in traditional contract law, the elective theory had been established as effective, this was not decided with authority in contracts of employment. In Geys, the Supreme Court had the opportunity to consider which was the applicable theory in relation to an employer’s use of a payment-in-lieu of notice (PILON) clause. The Court resolved the conflict (4-1 with Lord Sumption dissenting) by holding that the elective theory was preferred in instances of wrongful repudiation of a contract of employment. This judgment has significant implications for employers, but also for employees who wrongfully terminate the contract

Holes in the safety net? State liability and the need for private law enforcement

Following Francovich and Bonifaci v Italy[1991] it was widely considered that State Liability would be an enforcement mechanism that would end the problems the European Court of Justice (ECJ) had contended with through its battle over the adoption or denial of Horizontal Direct Effect of Directives (HDE). In the subsequent years it has been demonstrated that the debate for and against HDE's adoption has continued. This has been due in part to the limitations of State Liability as an effective enforcement mechanism which provides individuals not with their rights, but rather a damages action against the State. This article critiques State Liability and demonstrates the severe limitations which this enforcement mechanism has for those who wish to avail themselves of EC rights denied to them. Such limitations include the piecemeal nature of this method of enforcement; whether cases, particularly from employment law issues, should be heard against the State or the employer causing the problem complained of; and the nature of an enforcement mechanism based on the award of damages. It concludes by analysing this evidence as to whether State Liability is an adequate alternative to HDE, and hence should the enforcement of EC law be brought back from a public law action to the private sphere.</p

Access to justice: a deconstructionist approach to horizontal direct effect

Access to justice of European Community (EC) law rights has been a concern of the Member States, the EC Commission, and individuals who have experienced the effect of denial of these rights due to inaction or misapplication by the particular State. This problem has been exacerbated with the continued abjuration of Horizontal Direct Effect of Directives (HDE), which has been exemplified in employment relations where the majority of EC laws are enacted in the form of Directives. This paper considers the issue of HDE and how it impacts on access to EC laws for workers. It investigates the practical problems experienced with the denial of this method of enforcing rights in conjunction with the dismantling of the previous arguments as to its denial. The paper concludes by establishing that HDE can be given effect if the European Court of Justice (ECJ) and the Member States have the desire, and how it would offer true access to justice for workers of their EC rights

The limitations to workers accessing EU rights: awareness, advice and enforcement.

This article investigates the United Kingdom’s membership of the European Union (EU). This examination considers how the EU has provided greater protective employment rights for workers, through provisions in the Treaty and various Directives, than had been achieved through the UK’s own legislative programme. However, these rights are often inaccessible due to governmental intransigence and a lack of awareness by workers of many employment rights. An empirical study was conducted from the perspective of workers and their not-for-profit advisers to consider the consequences of these barriers and to offer potential solutions to the problems

Greenspace governance: statutory solutions from Scotland?

The environmental, social and economic benefits provided by greenspace are well-documented, and the closure of other types of Third Place has popularised them further. Yet, public sector funding cuts have necessitated local authorities prioritising other facilities that they are statutorily obliged to provide, resulting in a facilities-hierarchy which leaves financially-neglected greenspaces facing a vicious circle of decline. The Big Society agenda has seen local authorities increasingly rely on the voluntary sector to help plug the funding gap, yet there are concerns that such groups are not immune from the effects of austerity themselves which limit their panacean abilities. In exploring whether statute could provide any answers to these greenspace governance challenges, this article considers the lessons to be learned from the approach adopted in Scotland, underpinned by the Land Reform (Scotland) Act 2003 ('the 2003 Act'). In particular, the 2003 Act establishes public rights of access over most greenspace, a local authority duty to uphold these rights and local authority powers to take remedial action. Whilst there have been some issues in implementation, this article explores the potential for adopting a similar model in England & Wales to help secure the future of its greenspace infrastructure

Motor vehicle insurance law: ignoring the lessons from King Rex

Following a review in 2013, the Motor Insurers’ Bureau (MIB) established the Uninsured Drivers Agreement (UDA) 2015. The aim was to implement aspects of the Motor Vehicle Insurance Directives (MVID). The UDA 2015 contained numerous errors in its drafting and led to widespread criticism due to its incompatibility with EU law and common law principles. In January 2017 the MIB provided its Supplementary Uninsured Drivers Agreement. If its aim was to remedy these problems we argue that it has substantially failed. Further, the updated Agreement continues the uncertainty of the law in this area and, with reference to Fuller’s ‘Eight Ways to Fail to Make Law’, we present an argument that the Secretary of State for Transport should again redraft the UDA 2015 and the 2017 Supplement to provide legal certainty, remove the inconsistencies between national and EU law, and provide the protection to which third-party victims of uninsured drivers are entitled under EU law