The development of the tort of passing-off

This thesis investigates the historical development of the tort of passing-off. Morison said that the term “passing off” indicates the act of offering goods for sale with an accompanying misrepresentation, either by words or by conduct as to the origin of the goods, whereby the purchaser has been misled and business has been diverted from the plaintiff to the defendant.1 It is called a strict liability tort because the plaintiff does not need to show any wrongful intention on the part of the defendant, fraud apparently having been abandoned as an element for proof in the tort of passing-off.The composite research question of the thesis is in two parts, as follows: ‘Has the historical development of the tort of passing off resulted in the tort becoming a strict liability tort? If so, why and how did this development take place?'The tort of passing-off derives from the direct rule by the English Kings of earlier times, and was developed both as a general regulatory instrument to control industry, and in particular to make industry more war-ready.2 The tort of passing-off has a very substantial history in the jurisprudence of the medieval and late middle ages craft gilds and counties of the United Kingdom. The purpose of this thesis is to set out how the tort developed from the ordinances of gild and county jurisprudence into the royal courts, and to see whether, why and how from that form of development it developed as a strict liability tort

Coercive moral hazard

Trauma induced in the workplace may arise from bullying, racism, job insecurity or poor personal boundaries. Workers often conflate workplace trauma with the development of PTSD. Workers have reported long-term impacts on their careers, such as for example altering the form of their career decisions, how they observe and perceive workplace safety, and how they interact with managers. The objective of this chapter is to investigate critically how workplace trauma through the pressures of moral hazard might affect the employment tenure of a fit and proper person. The term “moral hazard” originally carried negative connotations, suggesting fraud or some immoral behavior, but when studied by economists during the 1960s, they ignored the research inputs of fraud and immoral behavior. Economists now use the term “moral hazard” to describe inefficiencies occurring when risks are either displaced or not fully evaluated. The expression ‘fit and proper’ person, on its own, has no precise meaning. ‘Fit and proper’ persons follow from an assessment of a person’s personal qualities and conduct while discharging professional responsibilities, with the central characteristics being knowledge, honesty and ability: “honesty to execute truly without malice, affection or partiality; knowledge to know what one ought duly to do; and the ability to execute one’s office diligently”. The research question arises as to how a fit and proper person’s capacity to execute truly without malice, affection or partiality, and maintain the ability to execute his or her office diligently, might be adversely affected in an employment environment of moral hazard. Argument seeks to sustain the view that moral hazard in the workplace is the deliberate and capricious exploitation by an employer, exercising a perceived disciplinary power abusively, ultra vires the contract of employment, placing the fit and proper person in a non-impartial position to execute his or her professional tasks faithfully and diligently. The research methodology is qualitative research, with the critical literature review allowing the identification of research gaps, research questions, and finally, interview questions, whose responses are duly analyzed through a narrative analysis. The research outcomes are that when principals misrepresent the terms of the employment contract, they will likely exploit their agents towards the end of the agent’s employment, as employers typically had feared agent resignation in the early stages of the agreement. A fit and proper employee could be forced to remain in a state of moral hazard until the unfair employer released him or her from the contract of employment, this force based in duties arising from judicial policies of employee subordination. These are exemplified in coercive duties to endure employer disciplinary powers. An employed fit and proper person can, in theory, be in an ever-increasing state of moral hazard

Regulation of the professions in East Asia

This book delves into the “mechanics” of the "fit and proper test", as it functions around the world as de facto Imperial legislation, emanating from Western Europe, and followed without further analysis by systems of governance in East Asia. The meaning of the term “fit and proper”, for assessing people as professionals, in contrast to a well structured good character test, is insufficiently specific to be used as a set of criteria for admission to a profession. The parties to a “fit and proper” assessment are actually the court and members of the public, with the court making a judgment in its own cause, and without the public ever participating in the assessment. A “fit and proper” assessment suggests a systemic inquiry against the applicant, inferring both bias and inherent public denunciation. In today’s western capitalist states, which use the Imperial "fit and proper” test for assessing the propriety of professionals, the rule of kings is gone, so that the bourgeoisie now rules by both domination and by hegemony, free of royal humunculus, where domination is rule by force and hegemony is rule by consent of the working class. This is coordinated by professional advice to subaltern masses, as a de facto transmission of bourgeois ideology, where the advice is set up to have essential value to them. The ‘historical bloc’ is a structural conception that coordinates society just as a king used to do, by use of references to bundles of myths as historical forces. Now, the dominant bourgeoisie must form a unified ideology to articulate this unified ideology to the masses, as a deliberately formed subaltern group, and project onto them what they have learned in their years of higher education. When the masses nevertheless fail to consent, either actively or passively, the state resorts to the exercise of coercive power over them by legally enforcing discipline onto such recalcitrant groups. Similarly, in former times, the king had power to create and dismantle professions, by means of proceedings in quo warranto. The so-called freedom of the city was the device by which the right to make a professional level of living was enforced, now turned into professional regulation. Through this process and structure, the mercantile gilds became today’s hegemonic professions. The historical bloc forming a superstructure to keep these professional groups in this hierarchy amounted to the public fear of deceit in the trades. These hegemonic groups are created and formed deliberately, as subaltern groups, by the constituents of Civil Society, which included the churches, the schools and the NGOs. They deploy the priestly precept of the mysterium tremendum, as a great or profound protean mystery, so that it provides an opportunity for public manipulation of reality. There is therefore an inferred nonpriestly subaltern mass of assumed religious adherents, whose reality is controlled by public practices of forced remembrance, but with operative alterity really having existed prior to the commanding group’s cognising its own apparent moral superiority. If emerging language placed alterity into a structure of existence, then there must have been a second level of alterity, where the one level forever corrected the other, with the first other imagining it had a right from birth to correct the second “fallen” other by altering the canonisation of the meaning of words. This is the professions in their formative phase. In this way, Luther had used gospels to replace, and alter at will, the deity itself, rendering the deity protean, suggesting the construction of a descending chain of meanings between the deity and the gospels. This implies a subaltern group is somehow morally obliged to the commanding social group through the commanders’ moral altitude. To stabilise this social paradigm, women are structured as unifying signifiers, subject at any time to command alteration of the doxa within their significations, to bind together both alterity and the confected religious institution version of the ancient custom of matrimony, in order to command the entire human project of propriety. When propriety is apparently violated, in the view of the commanding elements of society, they use commonplace to attack the target person’s past life events. It sets out to amplify only what the public mind has already acknowledged and hated. It allows the assumption of a mere indicium of hypothesis of guilt, regardless of overwhelming evidence to the contrary. This had allowed délation to rise to the rank of high sacred duty, filling the land with spies, rendering every man an object of suspicion by hegemonic groups. Consequent denunciation, in outline, was to reveal the hidden, to collate small pieces of knowledge gleaned from individuals into a general corpus of understanding, and last, therefore, to protect the state from its opponents. This was a mass exercise in weak inductive reasoning, but persuasive to public opinion. It allowed public debate to convert a paramount duty to save the state into an individual duty and derived right of denunciation. The Jacobins tried to resolve the contradictory locus of the “sovereign people”, as it validated all folk maxims, by grounding the Terror in the expulsion of its opposition. Now, they could peer into the darkness of a newly voiceless imagined opposition personality or character, to make this imaginary secret public. This suggested the genesis in removal of political opposition of declaring a person not "fit and proper". Such "fit and proper" administrative determinations were in the nature of an asystatic question, specifically the asystatic question of “disreputable”, incapable of stasis because it did not have any issue. Without stasis, it could never, in logic, be judged. Thus, the subaltern groups, such as professionals have been constructed to receive less justice from their superior professional associations, while those inside the professional associations are protected as reputable merely by their own definition. To satisfy the axiom of modern stasis, accusing someone of violating either a legal or a moral norm must specify the violated norm, which must be neither unstable nor overly strict or absolute in liability, or else everyone breaches it. With everyone breaching confected moral norms, by dint of the way they are defined, those who command society through bourgeois hegemony may choose at will who to denounce with commonplace. This capriciousness is made easier by deliberate creation of a long term working class, as followers, clients of the bourgoisie, and who are unable to escape their subaltern status. Thus, since children are most easily managed and are not as aware of their rights, the use of child labor significantly prevents the development of children. In Iraq, for example, children’s economic exploitation has now become the norm, preventing them from going to the schools and enjoying any opportunities for social integration. This suggests that the natural hegemonic consequences of the US invasion of Iraq created a long-term working class, unaware of its potential, through the restrictions on it to access to education and to achieve social integration. But what of "fit and proper" people, when they take a job as an employee? These are very highly trained people, at a level of substantive knowledge much higher than that of line managers. When managerial principals misrepresent the terms of the employment contract, they will likely exploit their agents towards the end of the agent’s employment, as employers typically had feared agent resignation in the early stages of the agreement. A "fit and proper" employee could be forced to remain in a state of moral hazard until the unfair employer released him or her from the contract of employment, this force based in duties arising from judicial policies of employee subordination. These are exemplified in coercive duties to endure employer disciplinary powers. An employed "fit and proper" person can, in theory, be in an ever-increasing state of moral hazard, which automatically implies the operation on them of commonplace denunciation

The stasis of disrepute

In 2022, the broadcaster “Russia Today” had its United Kingdom license revoked, after British watchdog Ofcom ruled it was neither a "fit and proper" nor a "responsible” broadcaster. In the light of the significance of this apparently quasi-judicial characterization, the overall research objective of this research is to investigate critically the stasis of how decisions of fitness and propriety can be formulated. Early rhetoricians described the so-called ‘moving apart’ of opposing contentious assertions, by analogy to what the Sophists called “primary entities”, those combining form with matter. Movement could only be predicated on these primary entities. Thus, when “movement” of the opposing components of a contentious matter came to rest, this was called “stasis”. Stasis theory thus allowed the rhetorician to judge whether or not a conflict of wills really existed, and if so, in what ways. The research question asks whether there can be a stable stasis, between the applicant and the general public, with which the court can render its decision on whether or not the applicant is a “fit and proper” person. Argument seeks to demonstrate that prior denunciation of a fit and proper person is an attempt to make the person disreputable, destroying any chance of safe and stable judicial determination. The research is doctrinal, based on best available authoritative scholarship. In the result, the rhetor could denounce a person simply with a bare persuasive declamation and the situation’s stasis would be one of ‘conjecture’, by default, and all that would remain would be its effect in the public mind. A denunciation of a fit and proper person could have the same moving effect as the conception of murder lingua vel facto, before the matter arrived anywhere near a court of law. In the light of this, fit and proper administrative determinations were in the nature of an asystatic question, specifically the asystatic question of “disreputable”, incapable of stasis because it did not have any issue. The subaltern groups, such as professionals have been constructed to receive less justice from their superior professional associations, while those inside the professional associations are protected as reputable by their own definition. To satisfy the axiom of modern stasis, accusing someone of violating either a legal or a moral norm must specify the violated norm, which must be neither unstable nor overly strict or absolute in liability, or else everyone breaches it

The fitness and propriety of subaltern groups

Jacques Lacan's theory of the mirror stage demonstrates a kind of alterity, occurring during early childhood development. The mirror stage conjures an original image or reflection the "ego ideal", which becomes the child's imaginary self, as he or she tries in vain to reconnect with the ego ideal. In Lacanian terms, this formation of the subject, as a child, sees a splitting of the self into "self" and "other". In the light of the significance of this struggle for the ego ideal, for propriety of the self, the objective of this research is to examine critically the underlying operation of alterity within the conjunctive conception of fitness and propriety. The research question asks how the alterity, that is inherent in the “fit and proper test”, might generate the subaltern groups of fit and proper professions, clients and others. Argument seeks to sustain the view that the fit and proper professions are priestly enterprises of manipulated public memory, by commanding descending chains of the meanings of technical terms, so that the subaltern groups of clients and the general public are somehow morally obliged, inferring a duty, to the institutions of the professions. The research is doctrinal research, based on library research, working with evidentiary sources from the best available analyses of the scholarship. Thus, the research is set out in the structure of five identifiable key themes, in the structure of a legal narrative analysis. The outcomes of the research will conclude that the mysterium tremendum, as a great or profound protean mystery, provides an opportunity for public manipulation of reality. There is therefore an inferred non-priestly subaltern mass of assumed religious adherents, whose reality is controlled by public practices of forced remembrance, but with operative alterity really having existed prior to the commanding group’s cognizing its own apparent moral superiority. If emerging language placed alterity into a structure of existence, then there must have been a second level of alterity, where the one level forever corrected the other, with the first other imagining it had a right from birth to correct the second “fallen” other by altering the canonization of the meaning of words. In this way, Luther had used gospels to replace, and alter at will, the deity itself, rendering the deity protean, suggesting the construction of a descending chain of meanings between the deity and the gospels. This implies a subaltern group is somehow morally obliged to the commanding social group through the commanders’ moral altitude. To stabilize this social paradigm, women are structured as unifying signifiers, subject at any time to command alteration of the doxa within their significations, to bind together both alterity and the confected religious institution version of the ancient custom of matrimony, in order to command the entire human project of propriety

Délation of character

The Metropolitan Opera of New York, in the United States, has now banned Internationally famous Russian soprano Anna Netrebko for two years because she is Russian. In the light of the obvious contradiction, and absence of reasoned elaboration, of this determination of Netrebko’s fitness and propriety, identifying the significance of denunciation in hegemonic groups’ control of skilled work, the objective of this research is to examine critically the relevant aspects of public denunciation. Today’s publicly announced purpose of licensure is “protection of the public through assurance of minimum level of competence”, and appears to have had the effect of continually recreating the medieval monopolies, for the stated avowed purposes of public good. The commonplace oratory could access people’s hatred for non-criminal errors, when stated in the public domain as maxims. When embedded within a judicial denunciation, commonplace served as a criminal judgment without a crime. Although it is said to be unnecessary to make an account of an acknowledged crime or error, commonplace had instead a goal of amplifying only what has been already acknowledged, such as for example a folk maxim. As such, it can assume guilt regardless of the overwhelming circumstances to the contrary. The research question asks whether a negative finding of fitness and propriety constitutes commonplace denunciation, through a judicial failure of sufficient reasoned elaboration. Argument seeks to demonstrate the proposition that fitness and propriety is nothing more than inadequately defended commonplace denunciation. Lord Coleridge had failed to elaborate the conception of being protean, and therefore the conception of the public interest was not elaborated in reason. Without this, nobody could be unfit and improper. The conception of the public interest therefore fell to the implied lessons of general and folk maxims, forcing Lord Coleridge’s final judgment into the form of a commonplace denunciation. Lord Coleridge had decided to avoid the contradictions of commonplace and reach the same judgment in another way. Since there was a maritime custom in operation, the egregious act was not a crime. Therefore, a crime must be found in another way. A speaker could always construct an illusory enthymeme and present it as a delight to the audience. Commonplace attacks the target person’s past life events. It sets out to amplify only what the public mind has already acknowledged and hated. It allows the assumption of a mere indicium of hypothesis of guilt, regardless of overwhelming evidence to the contrary. This had allowed délation to rise to the rank of high sacred duty, filling the land with spies, rendering every man an object of suspicion by hegemonic groups. Consequent denunciation, in outline, was to reveal the hidden, to collate small pieces of knowledge gleaned from individuals into a general corpus of understanding, and last, therefore, to protect the state from its opponents. This was a mass exercise in weak inductive reasoning, but persuasive to public opinion. It allowed public debate to convert a paramount duty to save the state into an individual duty and derived right of denunciation. The Jacobins tried to resolve contradictory locus of the “sovereign people”, as it validated all folk maxims, by grounding the Terror in the expulsion of its opposition. Now, they could peer into the darkness of a newly voiceless imagined opposition personality or character, to make this imaginary secret public. This suggested the genesis in removal of political opposition of declaring a person not fit and proper

The fit and proper person test: the theory

In 2020, the Securities and Futures Commission of Hong Kong banned a former China Bank relationship manager for life from coming back into the banking industry. The ban was announced 1 year after his fraud conviction by a Hong Kong magistrate. The regulator determined he was “not a fit and proper person to be licensed or registered to carry on regulated activities as a result of his criminal conviction”. Therefore, pursuant to the significance of this event, and its severe consequences, the objective of this chapter is to examine critically the concept of being “fit and proper”, to discover the term’s use and meaning. In the 2016 case of Re “A”, in the High Court of Hong Kong, “A” applied under s. 27 of the Legal Practitioners Ordinance, Cap 159 (Ordinance), for admission as a barrister of the High Court of Hong Kong. The question for the court was if the Applicant was a “fit and proper person” for admission as a barrister, a requirement under s. 27(1) of the Ordinance, and were not about the private rights of any parties. Australian, New Zealand and Hong Kong cases, and English rules, apply in Hong Kong. The principle of “fit and proper person” is Imperial legislation. The question is what meaning the term “fit and proper” imports into the general law of Hong Kong. The meaning of the term “fit and proper”, in contrast to a well structured good character test, is insufficiently specific to be used as a set of criteria for admission to a profession. The research methodology of this critical literature review will be a legal narrative analysis. The parties to a “fit and proper” assessment are the court and members of the public, without the public ever participating in the assessment. A “fit and proper” assessment suggests a systemic inquiry against the applicant, inferring both bias and public denunciation

The ‘Fit and Proper Person’ in Malaysia and Singapore

A person to be admitted in Malaysia into any professional body such as architect, medical, engineer, or legal must, besides having the requisite professional qualifications from a recognized university, be assessed in terms of his character. The Board of Architects, Medical Council, Board of Engineers, and the Malaysian Bar are the professional bodies established pursuant to the Registration of Engineers Act 1967 (Malaysia), Architects Act 1967 (Malaysia), Medical Act 1971 (Malaysia), and Legal profession Act 1976 (Malaysia). The tasks of the above-mentioned bodies include ensuring that the members are better regulated with higher standards of practice. The requirement to be ‘fit and of good character’ also reflects the growing importance of issues concerning the problems within the profession and maintaining integrity and honor of the profession. In Singapore, any person who wishes to be admitted to the Singapore Bar shall be a ‘qualified person’ as specified in the Legal Profession Act 1966 (Singapore), the Legal Profession (Qualified Persons) Rules (Singapore), and the Legal Profession (Admission) Rules 2011 (Singapore)

Risk of COVID-19 after natural infection or vaccinationResearch in context

Background: While vaccines have established utility against COVID-19, phase 3 efficacy studies have generally not comprehensively evaluated protection provided by previous infection or hybrid immunity (previous infection plus vaccination). Individual patient data from US government-supported harmonized vaccine trials provide an unprecedented sample population to address this issue. We characterized the protective efficacy of previous SARS-CoV-2 infection and hybrid immunity against COVID-19 early in the pandemic over three-to six-month follow-up and compared with vaccine-associated protection. Methods: In this post-hoc cross-protocol analysis of the Moderna, AstraZeneca, Janssen, and Novavax COVID-19 vaccine clinical trials, we allocated participants into four groups based on previous-infection status at enrolment and treatment: no previous infection/placebo; previous infection/placebo; no previous infection/vaccine; and previous infection/vaccine. The main outcome was RT-PCR-confirmed COVID-19 >7–15 days (per original protocols) after final study injection. We calculated crude and adjusted efficacy measures. Findings: Previous infection/placebo participants had a 92% decreased risk of future COVID-19 compared to no previous infection/placebo participants (overall hazard ratio [HR] ratio: 0.08; 95% CI: 0.05–0.13). Among single-dose Janssen participants, hybrid immunity conferred greater protection than vaccine alone (HR: 0.03; 95% CI: 0.01–0.10). Too few infections were observed to draw statistical inferences comparing hybrid immunity to vaccine alone for other trials. Vaccination, previous infection, and hybrid immunity all provided near-complete protection against severe disease. Interpretation: Previous infection, any hybrid immunity, and two-dose vaccination all provided substantial protection against symptomatic and severe COVID-19 through the early Delta period. Thus, as a surrogate for natural infection, vaccination remains the safest approach to protection. Funding: National Institutes of Health