ACCOUNTABILITY, transparency, and freedom of information are essential to democracy. These values are not absolute; hence the law is used to demarcate how much transparency, access, and freedom are allowed. The Freedom of Information Act 2000 (FOIA) provides a mechanism for accessing information held by public authorities. It has been heavily criticised for not providing sufficient access due to its wide exemptions and section 53 veto power. Nevertheless, it was thought that, where citizens seek information, they should use FOIA. In Kennedy v The Charity Commission [2014] UKSC 20, [2014] 2 W.L.R. 808, the Supreme Court found that this may not always be the appropriate method. The Supreme Court held, by a majority of 5:2, that Kennedy should not have pursued his claim under FOIA; instead he should have sought disclosure via the Charities Act 1993 (“Charities Act”) and judicial review. The majority took this opportunity to criticise the overuse of human rights, and to emphasise the significance of the common law and its role in ensuring accountability and transparency.

AT an airfield in Dorset, a vintage aircraft took to the air and then – as too often seems to happen – fell out of it. The fatal consequences led to Rogers v Hoyle [2014] EWCA Civ 257, [2014] 3 W.L.R. 145 – proceedings brought on behalf of the dependants of the deceased passenger, Orlando Rogers, against the pilot, Scott Hoyle, whose negligence they claimed had caused the crash. As required by law, the accident had been officially investigated by the Department of Transport's Air Accident Investigation Department (the AAID). Its report contained findings about the cause of the accident which were helpful to the claimants' case, so they sought to adduce it as evidence. To this the defendant objected and sought to persuade the courts to exclude it. That he failed in his attempt is unsurprising because, as Leggatt J. put it at first instance, “If any non lawyer was told that the law does not permit a court to have regard to the AAIB report when deciding how the accident was caused, I am sure that he or she would express astonishment at the suggestion”. But if the sensible outcome was so obvious, why were lengthy judgments at two levels, with over 70 authorities cited and discussed, needed to produce it?

THE finality of proceedings, resource constraints, a presumption of guilt, and the existence of the Criminal Cases Review Commission (“CCRC”) all combine to outweigh the principle of fairness for a convicted individual. Such was the stark conclusion of the Supreme Court in dismissing Kevin Nunn's application to force prosecution authorities to grant access to material which he believed would help him get his conviction quashed: R. (Nunn) v Chief Constable of Suffolk Constabulary [2014] UKSC 37, [2014] 3 W.L.R. 77.

FREEDOM of contract is a fundamental principle of English law, but it is of course qualified by numerous protective regimes, some common law, most statutory nowadays, which protect vulnerable parties from untrammelled, unequal free bargaining. It is, quite rightly, exceptional for an experienced commercial party, negotiating at arm's length and with the benefit of specialist professional advice, to succeed in invoking such a regime to escape being bound by what he freely agreed. Yet, in Cavendish Square Holdings BV v Makdessi [2013] EWCA Civ 1539, this was precisely the controversial result.

DOES wrongdoing by a squatter prevent him from acquiring title to another person's land via the law of adverse possession? The answer is plainly “no” where the squatter is a civil, tortious wrongdoer: the law not only condones, but positively requires a successful adverse possession claimant to have committed the tort of trespass over the true owner's land (this condition is inherent in the requirement that the squatter's possession be “adverse”). But what happens where the tortious acts that establish the squatter's adverse possession also constitute a criminal offence? This was the tricky question facing the court in Best v The Chief Land Registrar [2014] EWHC (Admin) 1370.

THE “tripartite” test for the prescriptive acquisition of rights over land, derived from the Roman law of servitudes, has long been a source of confusion. The crucial distinction that underlies it is between use of land that is “as [if] of right” – nec vi, nec clam, nec precario (without force, stealth, or licence) – and use that is “by right” – that is, with a licence. This distinction has been affirmed by the Supreme Court in R. (Barkas) v North Yorkshire County Council & Another [2014] UKSC 31. The court held that use of land pursuant to a statutory entitlement is necessarily use “by right”, and so was not “as of right”.

FHR bought a long lease for €211.5 million. Cedar Capital conducted the negotiations on FHR's behalf, but also received a €10 million commission from the vendor. On becoming aware of this commission, FHR sought to recover it from Cedar Capital. As its negotiating agent, Cedar Capital owed fiduciary duties to FHR, and had not obtained FHR's fully informed consent to the commission. Cedar Capital therefore had to account to FHR for the commission. However, applying the Court of Appeal's decision in Sinclair Investments (UK) Ltd. v Versailles Trade Finance Ltd. [2011] EWCA Civ 347, [2012] Ch. 453, Simon J. held that the remedy was purely personal; FHR could not assert a proprietary constructive trust over the €10 million: FHR European Ventures LLP v Mankarious [2011] EWHC 2999 (Ch). The Court of Appeal allowed an appeal as to remedy, distinguishing the facts from those in Sinclair v Versailles, but also casting some doubt on the correctness of that decision: [2013] EWCA Civ 17, [2014] Ch. 1. The Supreme Court was thus required to pass judgment on the voluminous debate as to whether English law should follow Lister & Co. v Stubbs (1890) 45 Ch.D. 1, or Attorney-General for Hong Kong v Reid [1994] 1 A.C. 324.

THE decision of the Court of Appeal in AB v CD [2014] EWCA Civ 229; [2014] 3 All E.R. 667 concerned a distinctive feature of equity's auxiliary jurisdiction. Unlike situations in which a claimant invokes equity's exclusive jurisdiction to enforce or protect the claimant's purely equitable rights, a claimant seeking equitable relief in aid of his or her legal rights must show that the relief available at common law, if any, would be inadequate to do justice. Thus, a contract party (for example) must cross a threshold before an injunction or specific performance will be granted. Equity's refusal to intervene where adequate relief is available at law properly makes equitable relief in the auxiliary jurisdiction special. The ordinary operation of the law of contract, and that of the courts, could be unjustifiably disrupted if every threatened or actual breach attracted these forms of discretionary equitable relief. But can a contract party tilt the balance of discretion towards the grant (or the refusal) of such relief by relying on a particular term in the contract?

IN Relfo Ltd. (in liquidation) v Varsani [2014] EWCA Civ 360, the defendant (Bhimji Varsani) had received US$878,469.35 which allegedly represented £500,000 of Relfo's funds that its director (Gorecia) had improperly caused to be paid away, without authority and in breach of his duties as director. Relfo's liquidator subsequently sued the defendant to recover what it had lost. Though Relfo's proprietary claim failed, the Court of Appeal held, affirming Sales J.'s judgment, that Relfo had a personal claim for the sums received by the defendant on two bases: (1) a cause of action for knowing receipt; and (2) a cause of action in unjust enrichment. In so holding, the Court faced several questions of substantial wider significance.

WHEN do resulting trusts arise, and why? These questions were the subject of serious inquiry in the 1990s, following influential work by Peter Birks and Robert Chambers, which argued that resulting trusts arise to reverse unjust enrichment. The House of Lords in Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] A.C. 669 remarked that the Birks/Chambers thesis was “avowedly experimental, written to test the temperature of the water”, but that “the temperature of the water must be regarded as decidedly cold”. Following Westdeutsche, the issue has received little consideration, although academic interest in the debate remains. The recent decision of the Singapore Court of Appeal in Chan Yuen Lan v See Fong Mun [2014] SGCA 36 considered this issue in detail and is therefore worth examining.

THE English Court of Appeal in Fons Hf v Corporal Ltd. [2014] EWCA Civ 304 has recently confirmed that the phrase “debenture” when used in a charge agreement should be given its ordinary wide meaning. Some caution should be attached to this holding. Although the word “debenture” commonly appears in legislation or in private contractual documents, the precise meaning that should be ascribed to the word varies with the context. But, if the decision in Fons can be taken as laying down a general definition of “debenture”, then it seems that any contract or legislative drafter seeking to give it a narrower meaning would have to provide specifically for that.

IN Hämäläinen v Finland (Application no. 37359/09), 16 July 2014, the Grand Chamber of the European Court of Human Rights held that Contracting States of the Council of Europe may require the dissolution of an existing marriage before extending the right to legal gender recognition.

UMBRELLA effects arise where anti-competitive conduct by one or more market actors results in general price rises across the sector concerned. The Court of Justice of the European Union has, with its preliminary ruling in Case C-557/12, Kone and others v OBB-Infrastruktur AG, Judgment of 5 June 2014, EU:C:2014:1317, now addressed the potential legal implications of such umbrella effects. In confirming that the right to compensation stemming from breach of EU competition law extends to umbrella claims as a matter of principle, the Court of Justice has offered its most expansive, and arguably most emphatic, interpretation of the scope and importance of private antitrust enforcement to date.

The British constitution is famously unentrenched: constitutional laws are not intrinsically more difficult to override than ordinary laws. However, in the largely overlooked 2012 case of H v Lord Advocate, the Supreme Court said that the Scotland Act 1998 cannot be impliedly repealed due to its “fundamental constitutional” status. Unless judicial thinking changes, courts in the future may treat constitutional statutes, like the Scotland Act, as capable only of express repeal, making such statutes “quasi-entrenched”. In this article, we argue that, as a judicial innovation, the quasi-entrenchment of constitutional statutes lacks a sound legal basis. Parliament can make its intention to repeal a constitutional statute clear without making it express, and judges cannot, on their own initiative, ignore Parliament's clear decision to repeal even a constitutional statute.

Defamation law has historically occupied a position of overwhelming dominance in the vindication of the traditional right to reputation. Nevertheless, liberalisation of this legal framework including through the Defamation Act 2013 has led to a concern that, when analysed from a fundamental rights perspective, “gaps” in the protection provided for natural persons may have emerged. In this new context, there has been a renewed focus on whether data protection may fill the potential lacunae. Data protection law contains a number of important limitations and exceptions and its jurisprudence has been both limited and sometimes confused. Nevertheless, this article argues that its broad purpose and complex structure ensure it will play a significantly augmented role in the future, especially in actions against website operators facilitating the dissemination of information posted by a third party, the publication of opinion, or where either injunctive relief or the correction of inaccurate information is sought (in particular in cases of continuing online disclosure).

Third Party Funding is governed by a unique and unparalleled legal framework in English law. That framework consists of: the recent 2014 Code of Conduct for Litigation Funders, its supervision by the Association of Litigation Funders, and sporadic judicial oversight of Litigation Funding Agreements – and with some unenacted legislation in the background for good measure. The purpose of this article is to analyse and critique this unique regulatory regime in several key respects. These include: the capital adequacy required of Funders; the key anti-champerty factors either judicially stipulated or contained within the 2014 Code; the efficacy and fairness of the so-called “Arkin cap”; the grounds upon which a Funder may legitimately withdraw funding; and the impact of recent contingency fee reforms. Overall, Third Party Funding represents an evolving and controversial landscape, both legally and politically.

This article evaluates the established judicial proposition that an agreement to negotiate in good faith is antithetical to the principles of the common law. English courts are reluctant to enforce such agreements on the ground that they constitute unenforceable “agreements to agree”. Recently, courts have started to recognise an exception in cases where parties agree to negotiate over a term mandated by an existing agreement, such as to review a price clause or resolve a dispute by undertaking negotiations in good faith. The primary arguments against enforcing an independent agreement to negotiate in good faith are threefold. First, parties engaged in good faith negotiations are assumed to lack a serious legal intention to contract. Second, such an agreement is substantively uncertain in nature and does not promise to produce a contract. Third, the failure of parties to conclude their negotiations does not lead to an easily identifiable loss. In light of these considerations, this article considers the viability of enforcing an agreement to negotiate in good faith in the absence of a pre-existing contract. It argues that the legal obstacles to recognising agreements to negotiate have been overstated. Given the commercial value of enforcing such agreements, it proposes that agreements to negotiate in good faith should be recognised and given legal content by common law courts.