Sentencing and Compensation in NI Act

Journal of Sustainable Development Law and Policy (The), 2016

W hy did Antonio agree to give Shylock a pound of his flesh in the Merchant of Venice? Why was Shylock unable to get his pound of flesh? Parties to a contract are allowed to determine their obligations but cannot freely determine the consequences of breach in the event of nonperformance. Such is the paradox in the law of obligations. Virtually every modern contract contains a liquidated damages clause and common law jurisdictions strive to ensure that such clauses do not offend the rule against penalties. This paper examines the principle of contractual freedom within the narrower context of liquidated damages and penalty clauses. It revisits the principles of the law of penalties as expounded in the classic case of Dunlop Pneumatic Tyre Co. Ltd v. New Garage & Motor Co. Ltd, and considers how well they have fared after a century. In making this evaluation, particular attention is paid to English, Australian and Nigerian law. There are issues thrown up by the rigid dichotomy between liquidated damages and penalties and the extent to which commercial partners can negotiate around them. As commercial contracts become more complex and multi-jurisdictional, clarity, certainty and security of transactions have become more fundamental to commercial dealings. This article finds that the dichotomy between penalty and liquidated damages has not only become irrelevant, it also undermines these fundamentals. Arguments made in favour of the dichotomy are self-defeating and confusing. Judicial attempts to bring the penalty rule in consonance with commercial realities also come with problems of their own. Therefore, an abolition of the dichotomy is advocated. This article proposes that in place of the existing unjustifiable paternalistic approach, all agreed * LL.B (Ibadan), B.L, BCL (Oxon), Law Teacher and Doctoral Researcher at the

Law & Society: Private Law eJournal, 2013

In 1915 the House of Lords delivered reasons for judgement in Dunlop Pneumatic Tyre Co Ltd. v. New Garage and Motor Co. Ltd. in which it set out the applicable test and guidelines to determine whether a stipulated sum payable on breach of a contract was to be treated as liquidated damages and enforceable, or as a penalty and hence unenforceable. The test was universally applied throughout the common law world. The High Court of Australia's decision in 2012 in Andrews v. Australia and New Zealand Banking Group has recast the test. This article reviews the first instance decision of Gordon J. from the Federal Court of Australia together with the High Court decision and concludes that the latter is unsatisfactory, as it will be difficult to apply to a wide variety of commercial transactions and thereby lead to uncertainty and confusion in an area of contract law that has been trouble free for nearly a century.

2006

2017

The rule preventing a contracting party from enforcing a penalty clause has been the subject of recent decisions of the highest courts of the United Kingdom and Australia, which has led to a number of significant divergences in the law. This article outlines two potential rationales that can explain the distinct approaches to the law of penalties adopted in England and Australia. It is argued that the Australian or 'equitable' rule against penalties concerns fixed sum clauses that are characterised as being in the nature of security rights. This rule prevents rights or interests taken or retained by way of security from being enjoyed beyond the function or purpose of security in light of how the law attributes value to the underlying secured stipulation or obligation (thereby [*2] preventing the imposition of an unjustifiable detriment or punishment on a contracting party). Whereas the English or 'common law' rule regulates the parties' ability to determine the q...

Cresswell v Potter, supra n81. This was the case in Portal Forest Industries Ltd v Saunders, supra n19. This was the case in the following decisions: Moffat v Moffat, supra n4; K v K, supra n69; Straiton v Straiton, supra n62; Junkin v Junkin, supra n63. 419 Cresswell v Potter, supra n81, 259. 420 Anson's Law of Contract, 26th ed (1984) p210. 421 422 Supra n81. lbid, 259.

Modern Law Review, 1998

The Law Commission has published its final report on aggravated, exemplary and restitutionary damages, the most important recommendation of which is an expansion of the availability of exemplary damages. 1 The Report was preceded by two consultation papers, and this is no doubt indicative of the range of views held on the subject and the problems of reconciling them. Aggravated and exemplary damages have been a perennial source of controversy, since before the famous case of Rookes v Barnard. 2 They raise not only problems of terminology, but also more fundamental problems concerning the relation between civil and criminal procedure, and the rationale for punishment and civil remedies. One source of difficulty may be that the issues tend to span different areas of practical expertise and research. Another may be that theoretical issues are lost in what appear to be matters of practice and procedure. Restitutionary damages are no less controversial. Under this name they are not a traditional remedy; the expression has emerged from the academic development of the law of restitution. Despite the academic attention they have received, it remains 1

The Modern Law Review, 1989

CRIMINAL INJURIES COMPENSATION: THE SCOPE OF THE NEW SCHEME FOR almost 25 years, the Criminal Injuries, Compensation Scheme (the "Scheme") has been compensating the victims of violent crime. Until recently, compensation was paid on an ex grutiu basis, the Scheme comprising simply a set of administrative instructions given to the Criminal Injuries Compensation Board (the "Board") by the Home Secretary.' However, in July of this year, the relevant part of the Criminal Justice Act 1988 came into force and placed the Scheme onto a statutory footing, with the consequence that eligible applicants now have an express legal right to compensation.* The new Scheme is based closely upon its predecessor, although certain adjustments were made. These primarily resulted from a review of the operation of the previous non-statutory Scheme, carried out by an official working party (the "Working Party") entrusted with the task of recommending how the Scheme might best be put into statutory form.3 The purpose of this note is to discuss the way in which the Act attempts to define in precise terms those who are to receive compensation because they have been the victims of criminal violence. Previous versions of the Scheme simply stipulated that the victim of a "crime of violence (including arson or poisoning)" was eligible, but that phrase was not further defined and its interpretation caused both the Board and the courts some diffi~ulty.~ Consequently, section 109 of the Criminal Justice Act sets out a new, more detailed definition of eligibility, intended to cover the same broad group of victims. (Also entitled to compensation under the Scheme, both in its old and new manifestations, are those injured in law enforcement activities, but because this group of applicants is comparatively small, accounting for under 10 per cent. of payments in recent years, it is not my concern here.) At this stage, it is necessary to make a preliminary point. Section For the final non-statutory version of the Scheme, in force since 1979, see the Board's 23rd Report, Cm. 265, App. C. Additionally, see App. D for "the Statement" which the Board issues with each Annual Report in order to provide applicants with some guidance as to the way in which it interprets the provisions of the Scheme. * ss.108-117 of and Schedules 6 and 7 to the Act set out the Scheme. It is interesting to note that under the previous informal arrangement, if the Board refused to pay an eligible applicant, that applicant could in practice enforce payment by means of judicial review of the Board's decision. Home Office and Scottish Home and Health Dept., Criminal Injuries Compensalion: A Stututory Scheme (1986) (henceforth referred to as the "Working Party Re ort").

Tanzania , 2022

THE NATIONAL PROSECUTIONS SERVICE ACT, CAP 430 REVISED EDITION 2022