INMartinez Sala v. Freistaat Bayern (Case C-85/96, judgment of 12 May 1998, not yet reported), the Court of Justice has taken a step towards the clarification of the real force of the EC Treaty provisions on citizenship. Mrs. Martinez Sala was a Spanish national lawfully resident in Germany since 1968 and employed there at intervals between 1976 and 1989. In 1993, she applied to the State of Bavaria for a child-raising allowance, a benefit granted to all residents in Germany who had a dependent child in their care and were either unemployed or had no full-time employment. Her application was rejected on the grounds that at the time that she applied for the benefit she was not in possession of a residence permit, a requirement that had to be met by all non-German nationals. The central issue in the case was, therefore, whether Mrs. Martinez Sala had been discriminated against.

THE State speaks with one voice in international law. And that voice, of course, is the executive's, usually, but not invariably, that of the Foreign and Commonwealth Office (FCO). Upon a variety of matters a certificate as to certain facts issued by the executive will be regarded by the courts as conclusive of them. This function was, historically, a matter of common law though there are now several statutory provisions in that regard, most notably the Diplomatic Privileges Act 1964 s. 4 and the State Immunity Act 1978 s. 21 identifying defendants who will have immunity from the jurisdiction (see [1998] C.L.J. 4).

THE developments noted here show that conditional fee agreements have become a significant, perhaps even the dominant, means of securing access to civil justice. The political popularity of such agreements is not hard to explain. Since 1949, civil legal aid has enabled the less well-off to litigate in the ordinary courts. But it is notorious that many people are excluded from justice, either because they are deterred by the size of the potential contribution to a legally-aided action or because their modest means disentitle them altogether from that system. Furthermore, legal aid is perceived by Treasury officials to be an excessive drain on the fisc.

EVERYBODY loves a bargain. Supermarkets have found that the sale of cut price designer goods along with the groceries gives them the edge over their rivals, when consumer spending on food is expected to slump (The Times, 22 April 1998). The catch is that trade mark proprietors, such as Calvin Klein, having nurtured brand images, in which high prices and exclusivity reinforce each other, decline to sell their goods to the supermarkets, preferring to control distribution through specialist outlets. The supermarkets' response has been to go shopping on the “grey market”: buying branded goods from third parties, which are sold more cheaply outside the European Community (EC) and the wider European Economic Area (EEA), and importing them into the EEA for resale. The issue decided by the recent judgment of the European Court of Justice, Silhouette International Schmied GmbH & Co. Kg v. Hartlauer Handelsgesellschaft mbH, Case C-355/96 (1998), was whether the importation and resale of such goods without the brand owner's consent constitutes trade mark infringement.

IN September 1992 Christopher Clunis, who had a long history of mental disorder, was discharged from a hospital where he had been detained under section 3 of the Mental Health Act 1983. Under section 117 of that Act, it was the duty of his local Health Authority to arrange to provide after-care services for him until it was satisfied that he no longer needed them. After an interval of twelve weeks, during which he failed to attend three out-patient appointments and a mental health assessment arranged for him, Clunis launched an unprovoked and fatal knife attack on a total stranger, Jonathan Zito, at Finsbury Park tube station. Clunis was charged with murder, but a plea of guilty to manslaughter on the grounds of diminished responsibility was accepted, and the trial judge ordered his detention in a secure mental hospital. Clunis claimed damages for his incarceration from the Health Authority, arguing that it was in breach of a common law duty to treat him with professional care and skill, and that if it had acted more expeditiously he would either have been detained or consented to become a patient before the date of the attack and therefore would not have been able to commit it–in other words, that a timely brief period of hospitalisation would have saved him from an indeterminate but doubtless much longer period. The first instance judge refused to strike out the action, but a unanimous Court of Appeal allowed the Health Authority's appeal: Clunis v. Camden and Islington Health Authority [1998] 2 W.L.R. 902.

WHEN the discussion between Humpty Dumpty and Alice takes on the role of leading case and its interpretation becomes a matter of dispute between a Lord Justice of Appeal and a Lord of Appeal in Ordinary, then it might be thought that the academic lunatics have taken over the legal asylum.

RATHER than buying goods outright, retailers often find it convenient to receive goods under a “sale or return” arrangement. These agreements are not contracts of sale, but rather bailment arrangements that give the bailee the right either to buy or to reject the goods. A sale or return contract may require that the right to reject can be exercised only by the bailee physically returning any unwanted goods; however, in the absence of an express stipulation to this effect, these contracts are generally construed to require merely that the bailee give notice of rejection and make the goods available for collection by the bailor. The question then arises: what form must this notice take, and at what stage must the goods be made available for collection? These matters were considered by the Court of Appeal in Atari Corporation (U.K.) Ltd. v. Electronics Boutique Stores (U.K.) Ltd. [1998] 2 W.L.R. 66.

HUNTING with hounds raises fierce passions, which blaze both on and off the field. In our ever more litigious society, it was practically inevitable that these passions would lead to litigation. So it was that the National Trust's decision to stop stag hunting on its estates in Somerset and Devon came to be challenged in court. In Scott v. National Trust [1998] 2 All E.R. 705, Robert Walker J. had to deal with various tactical applications arising in the challenge to the National Trust's decision: his Lordship's judgment was not intended to, and did not, come even close to an opinion on the vexed question of stag hunting itself.

WITH the imminent incorporation of the European Convention on Human Rights and the recent publication of the Report of the Neill Committee on Standards in Public Life (Cm 4057), these are exciting, if fluid, times for those with an interest in party political funding. In tandem these initiatives will begin the long overdue process of reform to the law and practice of elections in the UK. A key difficulty awaiting the new regime is one long familiar to many other Western democracies, namely how to regulate election spending whilst preserving the integrity of an entrenched right to freedom of expression, a question recently considered by the European Court of Human Rights in Bowman v. UK (141/1996/762/959).

A fundamental tension underlies English law's approach to antisuit injunctions. Justice may warrant protecting a defendant from oppressive proceedings in a foreign forum by ordering the plaintiff to desist. But such relief challenges a foreign court's right to police its own process. How can the demands of justice and of comity be reconciled? When should concern for the one give way to respect for the other? Perhaps because antisuit relief reflects wider equitable principles, the prevention of injustice has long been the overriding imperative in such cases. But English courts are increasingly sensitive to the charge of chauvinism and respect for comity has become a real consideration in shaping their approach.

THE imposition of a £10 fine for violating a no-smoking ban on a train to Brighton is an unlikely start for a decision of major constitutional importance–even when the incendiary incident occurred, as here, on 5 November. Nevertheless, Boddington v. British Transport Police [1998] 2 W.L.R. 639 has provided the House of Lords with the opportunity to deliver a strong affirmation of a defendant's right to raise the validity of the administrative action which has resulted in his prosecution as a defence in criminal proceedings.

ON a pleasant evening in Darwin, Australia, in April 1987 Nadia Romeo went with her friends to a popular spot, the Dripstone Cliffs, for a beach party. She was nearly 16 and had little experience of alcohol, but she and a friend consumed about 150ml of rum in 90 minutes. At about 11.45 pm both she and her friend fell over the edge of the cliffs onto the beach below and Nadia suffered high-level paraplegia. Neither of the girls had any recollection of the circumstances in which they fell, but there was an area of eroded ground at the top of the cliffs that might have appeared to the girls as a path to the beach below (although it did not have this appearance in daylight, nor would it have appeared this way to a sober, alert person on the night). In short, it appears that they either walked over the edge with their heads in the air or attempted to jump to the beach below (nearly 20 feet) and woefully misjudged the distance. None the less, Ms Romeo decided to sue the Conservation Commission of the Northern Territory. Although she lost in every court, the 5–2 majority decision of the High Court of Australia in Romeo v. Conservation Commission of the Northern Territory (1998) 72 A.L.J.R. 208 will give little comfort to public bodies responsible for the control and management of land.

CYNICS were unimpressed by the proclamation of the Court of Appeal in Re MB (Caesarean section) [1997] 2 F.C.R. 541 (noted [1997] C.L.J. 509) that the law protects a pregnant woman's right to autonomy and bodily integrity. The Court of Appeal had held that it would be unlawful for a doctor to perform a Caesarean section on a competent woman if she refused to consent to the operation–even if the lives of the woman and unborn child would be endangered if the operation was not performed. Cynics argued that the courts would always circumvent these fine-sounding principles by finding the woman incompetent to make the decision, as they did in Re MB itself. However, subsequently in St. George's Healthcare NHS Trust v. S [1998] 3 All E.R. 673 the Court of Appeal held that a woman was competent and that a doctor acted unlawfully in carrying out a Caesarean section on her. The NHS Trust and doctors were therefore potentially liable in tort for trespass and perhaps even guilty of criminal offences.

ALAGA & Co. was a firm of solicitors representing a number of Somali refugees applying for asylum in the UK. Ali Mohamed, a leading figure in the Somali community in the UK, sued Alaga: Mohamed v. Alaga & Co. [1998] 2 All E.R. 720. He had introduced the refugees to Alaga and wanted to be rewarded for making the introductions. He claimed that Alaga had entered into an oral contract with him whereby it undertook to pay him half of any fees it received from the Legal Aid Board in respect of refugees that he introduced to the firm. Unsurprisingly, perhaps, Alaga denied making any such agreement. It was unlawful for it to do so. The rules of the Law Society have legal force under the Solicitors Act 1974, s. 31. Under rule 3 of those rules a solicitor may accept introductions of business from other people so long as he or she does not reward the introducers of that business in any way. Under rule 7 of the same rules a solicitor is not allowed to share or agree to share his or her fees with anyone else except other practising solicitors, his or her employees and his or her retired partners. Lightman J. assumed, for the purposes of deciding the case, that Alaga did agree to pay Mohamed for any refugees he introduced to the firm.

THE background to the Cases concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Jurisdiction and Admissibility) 1998 I.C.J. Rep. is well known; in 1988 Pan Am Flight 103 was blown up over Scotland and 270 people were killed. The USA and the UK accused two Libyans of the bombing and sought their extradition. Libya argued on the basis of the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation that it was not bound to extradite its own nationals but could try them in its own courts, if appropriate. Libya took the cases to the International Court of Justice. It failed in its requests for provisional measures (see Lowe, (1992) 51 C.L.J. 408), but continued with its claims that the USA and the UK should respect its rights under the Montreal Convention and not put pressure on it to surrender the accused. The respondents made preliminary objections to the jurisdiction of the Court and to the admissibility of the application.

After years of uncertainty over the precise scope of Article 30 of the EC Treaty, the decision in Joined Cases C-267/91 and C-268/91 Keck and Mithourd [1993] E.C.R. I-6097 was thought to have introduced some clarity. It will be recalled that in Keck the Court made a distinction between, on the one hand, “production requirements” or “product characteristics” to which the decision in Cassis applies (para. 15) and, on the other, “certain selling arrangements” which do not breach Article 30 provided “that those provisions apply to all affected traders operating within the national territory and provided that they affect in the same manner, in law and in fact, the marketing of domestic products and those from other Member States” (para. 16). The Court continued that where this proviso is satisfied, the national restrictions are not by nature such as to prevent the access of foreign goods to the market or to impede access any more than they impede the access of domestic products (para. 17).

THE decision of the House of Lords in Williams v. Natural Life Health Foods Ltd. [1998] 1 W.L.R. 830, reversing the Court of Appeal's decision ([1997] 1 B.C.L.C. 131), examines the issue of an agent's liability for negligent misstatement. Of course, agents will be personally responsible for their own negligence, even if that tort is committed while on the principal's business, but what is their responsibility for the negligence of their principal? Logically the answer is “none”, and certainly in a company context statements made by directors on behalf of their companies have traditionally led to liability for the principal alone: “a company director is only to be held personally liable for the company's negligent misstatements if the plaintiffs can establish some special circumstances setting the case apart from the ordinary . . .” ([1997] 1 B.C.L.C. 131, 152 per Hirst L.J.). The Court of Appeal's decision in Williams, however, threatened to expand this category of “special circumstances” to such an extent as to make personal liability the norm for directors, at least in the context of small companies.

THE issue addressed in this article pertains to the proper measure of relief to which Pam is entitled in an action in unjust enrichment. There is no doubting her ability to establish the constituent elements of that action. Dave was enriched by the receipt of an incontrovertible benefit because he realised a financial gain from the services rendered. That enrichment was derived at Pam's expense (at least in part) because she paid for the repairs. And Dave's enrichment was unjust because Pam's intention in rendering the benefit was vitiated by her mistaken belief that the car was hers. However, it is unclear whether she should be awarded £1000 (reflecting Dave's gain) or £250 (reflecting her loss). The specific question that arises is whether the second element of the principle of unjust enrichment (“at the plaintiff's expense”) merely determines Pam's standing to sue or whether it also limits her measure of relief. It is suggested, contrary to a growing body of opinion, that the latter alternative is preferable.

ARGUMENT by analogy is one of the oldest methods of decision making. Whenever the similarity between two situations induces someone to decide one case like another, an analogy is drawn. Argument by analogy also forms an integral part of legal reasoning. Arguably, every legal tradition employs some version of it to justify judicial decisions. European law has only just started to develop its own distinct jurisprudence. As the various judicial systems present in the European Union struggle for recognition of their legal heritage, the way in which arguments by analogy will be used on an European level is likely to combine different approaches.

OVER the years there seem to have been a number of cases based ultimately on a general principle that a person who takes the benefit of an arrangement will be bound by any associated burden contained in it despite the fact that he was not a party to the original arrangement. Potentially the most extreme application of this principle, and the most controversial, has been in Halsall v. Brizell and cases which followed it. The idea introduced in Halsall v. Brizell and later developed by Megarry V.-C. in Tito v. Waddell (No. 2) is that a person may, in appropriate circumstances, be bound by an obligation which is imposed by the same transaction that grants a benefit of which he wishes to take advantage but is not a condition of that benefit. Megarry V.-C. referred to this as an application of a pure principle of benefit and burden to contrast the situation with the application of a principle of benefit and burden in the case of a conditional or qualified right. In this article the term “pure principle” will be used to refer to the application of a principle of benefit and burden in Halsall v. Brizell and the cases which have followed it. Since the decision in Halsall v. Brizell, there has been controversy as to this most recent application of a principle of benefit and burden, the perceived problems being the lack of clarity and certainty as to the necessary requirements for its application and its potentially far-reaching effects. Such problems clearly influenced the House of Lords when deciding the case of Rhone v. Stephens and, since that decision, there has been some doubt as to whether the principle of benefit and burden can have the effect that has been suggested. A principle whereby a person can be forced to comply with obligations that would not otherwise bind him has undoubted attractions but will be unacceptable if it directly contradicts clearly established rules which prevent obligations binding non-contracting parties.