Michael Douglas and Catherine Zeta-Jones, the first and second claimants, sold the exclusive rights to publish their wedding photographs to OK! magazine, the third claimant; however, in spite of elaborate security arrangements, Hello! magazine obtained unofficial photographs, publication of which the claimants sought to restrain in the present proceedings. Although an injunction was granted at first instance, it was discharged by the Court of Appeal which held that, on the facts, damages would constitute an adequate remedy should the claimants succeed at trial. Given the interlocutory nature of the proceedings, Douglas v. Hello! Ltd. [2001] 2 W.L.R. 992 does not provide determinative answers to the substantive questions raised by the facts. Nevertheless, it supplies useful guidance as to the role of privacy in English law and tentatively addresses the “horizontal effect” of the Human Rights Act 1998 by considering whether that legislation may found claims against private parties as well as public authorities.

In R. (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2001] 2 W.L.R. 1219 a former resident of the British Indian Ocean Territory (“BIOT”) successfully challenged the lawfulness of banishment from his own country.

A Couple of thugs entered the Burger King near King’s Cross and beat up the manager. They not only beat and kicked him, but also struck him in the eye with a gold knuckle-duster. The eye needed to be operated on, but the operation went wrong, and he can no longer see out of it. In consequence of these experiences he is now a total psychological wreck, unable to work for the foreseeable future. His employer, the first defendant, was held liable for failing to protect him from attack, and the hospital, the second defendant, admitted liability for the negligent operation: Rahman v. Arearose Ltd. [2000] 3 W.L.R. 1184 (C.A.). Quid iuris?

The Misrepresentation Act 1967, with its three brief sections, illustrates perfectly that, where statutory drafting is concerned, short is not necessarily sweet. Section 2 is particularly troublesome, containing both the puzzling “fiction of fraud” in subsection (1) whereby misrepresentations are to be treated as if they were fraudulent (unless the misrepresentor can show he had reasonable grounds to believe their truth), as well as the discretion in subsection (2) to award damages “in lieu of rescission” for non-fraudulent misrepresentations. Much judicial ink has been spilled construing these provisions, and in Government of Zanzibar v. British Aerospace (Lancaster House) Ltd. [2000] 1 W.L.R. 2333 section 2 (2) was again under scrutiny.

In The Star Sea (Manifest Shipping Co. Ltd. v. Uni-Polaris Shipping Co. Ltd. [2001] 2 W.L.R. 170) the main judgment was given by Lord Hobhouse with whom Lord Steyn and Lord Hoffmann agreed. An insurance claim in respect of the loss of the eponymous vessel was unsuccessfully defended on two grounds.

Many of the details surrounding the circumstances when shareholders can sue are shrouded in obscurity, but it is clear that where a company and a shareholder have overlapping claims the shareholder cannot pursue its personal claim if its loss is merely reflective of the company’s loss. The scope and rationale of the rule barring shareholders from bringing personal actions to recover reflective loss were authoritatively restated by the House of Lords in Johnson v. Gore Wood & Co. [2001] 2 W.L.R. 72.

Adverse possession is a contentious subject. The possibility of a squatter knowingly acquiring title to land “as of wrong” is one which disturbs the general public and indeed causes qualms in some members of the judiciary. Thus, at first instance, Neuberger J. felt very unhappy with the jurisprudence that caused him to find for the squatter in J.A. Pye (Oxford) Ltd. v. Graham [2000] Ch. 676. The Court of Appeal (The Times, 13 February 2001) has now reversed this decision, and has upheld the title of the registered proprietor to the disputed land. However, although the result may seem desirable with regard to fairness and the integrity of land registration, the judgments seem less satisfactory, and only serve to re-emphasise the difficulties in this area of the law.

The relationship between ancillary relief and undue influence was considered by the Court of Appeal in First National Bank plc v. Walker [2001] 1 F.L.R. 505. The case is a warning to practitioners that unless carefully advised, divorcing clients may be precluded as a result of ancillary relief proceedings from alleging an O’Brien defence of undue influence in subsequent possession proceedings. The facts of Walker were that husband and wife were joint tenants of the matrimonial home. Three mortgages of the house had been executed: first and third mortgages in favour of Barclays Bank and Lloyds Bank, and the disputed second charge in favour of First National Bank (FNB). This disputed mortgage, created in 1991, was to secure a loan made for the sole business purposes of Mr. Walker and his then partner. The marriage foundered, as did the husband’s business. A decree absolute of divorce was granted in 1993, and in 1994 Mrs. Walker’s petition for ancillary relief was heard. The court ordered that Mr. Walker transfer to his former wife his interest in the matrimonial home and in an endowment policy; an order for nominal periodical payments (of five pence per year) was also made. The transfer was completed in 1995. Mrs. Walker subsequently sought to defend possession proceedings brought by FNB on the ground, inter alia, that her execution of the charge had been procured by her husband’s undue influence and that the bank had actual or constructive notice of the relevant facts.

Case C-443/98 Unilever Italia v. Central Food (judgment of 26 September 2000) concerned a dispute between two private undertakings over a contract for the supply of olive oil. Central Food refused to accept delivery because the oil did not comply with labelling requirements imposed by recent Italian legislation. Unilever claimed that the Italian rules were themselves governed by the provisions of Directive 83/189 [1983] O.J. L109/8. Under Article 8 of the Directive, member States must notify draft technical regulations to the Commission. In Case C-194/94 CIA Security [1996] ECR I-2201, the ECJ held that breach of this obligation rendered the relevant technical regulations inapplicable, and thus unenforceable before the national courts, even in a dispute between two private parties based on domestic rules prohibiting unfair trading. Italy had notified its draft labelling rules to the Commission as required by Article 8, but nevertheless continued to enact those proposals into law contrary to the standstill obligations contained in Article 9. Unilever argued that the principle in CIA Security should extend also to Article 9, obliging Central Food to accept delivery in accordance with its contractual duties.

The relationship between national legal orders and Community law is one of the most difficult problems of European legal integration. In an order of 7 June 2000 (2 BvL 1/97, text at <http://www.bverfg.de>, English translation in (2000) 21 H.R.L.J. 251), the German Federal Constitutional Court (FCC) had to address one aspect of this problem, namely the question to what extent national courts are competent to review Community legislation by reference to the standards of national constitutions. While the order first and foremost is concerned with German constitutional law, it touches upon a general problem facing the courts in all EU member States.

Over the last 20 years judicial attitudes to tax avoidance schemes have varied dramatically, especially in the House of Lords. The judicial power to ignore tax avoidance schemes was first recognised in Ramsay [1982] A.C. 300 and reached its high-point of principled analysis in Furniss v. Dawson [1984] A.C. 474. There followed a period of a generally restrictive interpretation of the law, but recently there have been signs of a more interventionist approach, in McGuckian [1997] 1 W.L.R. 991 especially. But with the most recent decision in Macniven v. Westmoreland Investments Ltd. [2001] 2 W.L.R. 377 it is clear that the House of Lords has again sought to curtail its power to deal with tax avoidance schemes.

Depending on your point of view, the appeal in Cerberus Software Ltd. v. Rowley [2001] I.R.L.R. 160 involved either a “troublesome little point” or a “fundamental issue” of employment law (per Ward and Sedley L.JJ. respectively). Where an employment contract contains provision for a payment in lieu of notice, does a summary dismissal, not justified on grounds of gross misconduct, constitute a breach of the obligation to give notice or an election to make the payment in lieu?

An address on the unveiling in Westminster Abbey of a memorial to F.W. Maitland (1850–1906). The main propositions are: (1) It was the lawyer’s power of synthesis that gave the historians’ work uniquely enduring authority. (2) Maitland’s achievement was in arranging details, which in themselves he hardly ever mistook, into a convincing framework. (3) The extreme concentration behind so much work in just 22 years carries a risk that details were left out of account. (4) The emergence of details which do not fit increasingly suggests anachronism in the essentially 19th-century assumptions upon which medieval historians have ever since worked.

The shift away from Aristotelian jurisprudence had a number of consequences. It gave rise to a vision of political order spawning two contrasting traditions of juridical thought (exemplified by Grotius and Hobbes) that continue to exert their influence. By erasing the idea that all understanding of human action and institutions must draw upon the evaluative understandings of practical wisdom, it enforced upon us an exhaustive division between the neutral cognition of social facts and the evaluation or prescription of action. This rendered problematic the nature of the doctrinal scholar’s exposition of the law, for the doctrinal scholar appears upon the face of things to render the law intelligible by relating its content to comprehensible values. Finally it generated a split between prescriptive and analytical jurisprudence that obscured important issues and sent generations of legal theorists on a largely time-wasting errand.

The role of English courts in reviewing the substance of administrative decisions (as opposed to the procedure by which such decisions are made) has traditionally been confined by the Wednesbury doctrine, which permits judicial intervention only if the decision is unreasonable or aberrant. The European Court of Human Rights, however, adopts a more intrusive approach to substantive review which is founded on the principle of proportionality. This article examines the likely implications of the Human Rights Act 1998 for substantive review in the English courts. Two specific issues, concerning the scope of the proportionality test in English administrative law, are considered. First, is the proportionality principle’s impact likely to be felt beyond the human rights context such that it may, in time, wholly displace the Wednesbury doctrine? Secondly, given that intending claimants under the Human Rights Act must satisfy a stricter test of standing than claimants for judicial review, must litigants who wish to question the legality of administrative action on human rights grounds but who are unable to satisfy the Act’s standing requirement rely on the orthodox principle of Wednesbury review, rather than on the more incisive proportionality test?

In a lecture to the Northern Chancery Bar Association, the author, a Chancery Silk, examines the approaches of equity and the common law to questions of causation and attempts to identify (1) where the rules of causation now stand, (2) some incongruities in those rules and (3) how those incongruities might be resolve. He discusses three problems: the question of causation and equitable remedies generally; the growing disparity between the rules of causation where positive advice or representation is given and those where there is a failure to advise or inform; and, thirdly, the measure of dependance upon culpability, in intentional torts on the one hand and in torts of strict liability on the other. He identifies various stages of causation and concludes that they are not all relevant in each of these cases.

The Contracts (Rights of Third Parties) Act 1999 allows third parties to sue for breach of contract even though they are not parties to the contract. The Act also allows third parties to take the benefit of other types of promise, notably the benefit of exclusion clauses. This article explains the common law background to this important legal development and the Law Commission’s preparation for this legislation (L.Com. No. 242). But the main discussion is devoted to the Act’s effects. In particular, the author examines in detail the test for ascribing to a third party a right under the 1999 Act and the rules determining when the third party’s rights cease to be revocable by the main contracting parties.

This article considers various legal aspects arising from the problem of “nuisance neighbours” and in particular the recent cases of Hussain v. Lancaster C.C. and Lippiatt v. South Gloucs. C. The central argument is that the restrictive approach to the liability of landlords for nuisances of their tenants (Smith v. Scott) is incompatible with Sedleigh-Denfield v. O’Callaghan. There is also consideration of the special position of local authority landlords (given recent developments in the tort of negligence, including Osman v. U.K.), the scope of the tort of private nuisance, and a survey of statutory remedies which might be used in addition to those in tort.

The article considers the dangers of too readily imposing liability for environmental damage on banks lending to environmentally sensitive industries. There is evidence from the United States that businesses in environmentally sensitive industries have found it more difficult to raise money from banks and that insurance companies have limited environmental cover. The author expresses the hope that the English courts will not go down the “capacity to influence” route that has been so recently rejected in the United States. Lenders not exercising operational control should not be liable. He then considers the safe lending practices by which the risk of environmental liability can be considerably reduced. These safe lending practices attempt to tread the line between the lender being fully aware of all risks in respect of the lending and avoiding conduct which might be characterised as participation in or control of the borrower’s business.