Various authors have drawn attention to the fact that a new European law of civil procedure is in the process of being created. The kernel of this new law is the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. Further areas of law are in part harmonised by the 1965 Hague Service Convention and the 1970 Hague Evidence Convention. While a certain set of “core” European rules has been established, there remains a penumbra: an area within which it is unclear how far traditional national rules may retain a role.

Restitution has always been part of the common law. Yet in recent years a startling transformation has taken place: an active and determined group of scholars have collected together the hitherto scattered materials, insisting that this is the only way in which these materials can be understood; and have claimed that despite the apparent diversity they are all bound together by a single notion, that of “unjust enrichment”. A great deal of attention has been paid to elaborating this notion, and to defending particular conceptions of it.

There is something peculiar, perverse and extravagant about the behaviour of the courts when confronted with drink-driving offences under the Road Traffic Act 1988. Drivers who have manifestly committed such offences all too often escape conviction, or have their convictions overturned on appeal, as a result of trivial, bona fide and otherwise inconsequential procedural errors supposedly made by the police when obtaining specimens of breath or blood for analysis.* This is peculiar, in that trivial or inconsequential procedural errors in the gathering of evidence do not ordinarily lead to acquittals in criminal cases. It is perverse, in that it largely ignores a major redrafting of the drink-driving law, which was specifically intended to prevent such unmeritorious acquittals; and it is extravagant, in that it wastes court time and public money, whilst generating an excessive amount of highly technical case law. Worst of all, it leads to glaring and absurd failures of justice, which can only drag the law into disrepute.