Mr. Farley’s action for breach of contract against his surveyor gave the House of Lords an opportunity to consider the recovery of damages for non-pecuniary loss (Farley v. Skinner [2001] UKHL 49, [2001] 3 W.L.R. 899). Mr. Farley had been considering buying a house and instructed Mr. Skinner to survey the property. In particular, Mr. Farley asked Mr. Skinner to investigate whether the property was affected by aircraft noise, saying he did not want a property on a flight-path. Mr. Skinner subsequently reported that he thought it unlikely that the property would be so affected. Mr. Farley, having acquired and spent significant sums refurbishing the house, was therefore disappointed to discover that his enjoyment of the property was significantly impaired by the sound of aircraft waiting to land at nearby Gatwick airport.

THE tension between the competing values of security and human rights in the fight against terrorism was the subject of the ECtHR (Fourth Section) decision of Ibrahim v Others v the United Kingdom (Application nos. 50541/08, 50571/08, 50573/08, and 40351/09), 16 December 2014. Two weeks after the London bombings of 7 July 2005, bombs were detonated on the London transport system but failed to explode. After the first three applicants were arrested on suspicion of detonating the bombs, they underwent “safety interviews” which are conducted urgently for the purpose of protecting life and preventing serious damage to property, without any solicitor present and before the suspect can seek legal advice, as authorized under the Terrorism Act 2000. At the start of the “safety interviews”, instead of the “old-style” caution which reminds the suspect of his right to silence and informs him that anything said may be given in evidence, the police wrongly issued the “new-style” caution, which reminds the suspect of his right to silence and informs him that the court can draw adverse inferences at trial from his silence. This was contrary to s. 34(2A) of the Criminal Justice and Public Order Act 1994, which states that adverse inferences cannot be drawn at trial if the defendant did not have the opportunity to consult with a solicitor prior to questioning. During the “safety interviews”, the first three applicants denied any involvement in or knowledge of the detonation, but, at trial, they acknowledged their involvement in the detonation yet claimed that the bombs had been a hoax and were never intended to explode. The statements taken at their “safety interviews” were admitted at trial. The fourth applicant, Abdurahman, was initially interviewed by the police as a witness. When he started to incriminate himself by discussing the assistance he provided to one of the suspects, the police did not, at that stage, arrest him and inform him of his rights to silence and to legal inform as required under the Police and Criminal Evidence Act 1984 Code of Practice C; they only did so after having further questioned him as a witness and having taken a written statement from him. His written statement was admitted at trial.

In R. (McCann and others) v. Crown Court at Manchester and another, Clingham v. Kensington and Chelsea Royal London Borough Council [2002] UKHL 39, [2002] 3 W.L.R. 1313 the House of Lords, dismissing the defendants appeals, unanimously held that the application for an Anti-Social Behaviour Order (ASBO) under section 1 of the Crime and Disorder Act 1998 was civil and not criminal in nature. Therefore the rule against the admissibility of hearsay evidence in criminal proceedings (which can arguably also be inferred from the provision on examination of witnesses in Article 6(3)(d) of the European Convention on Human Rights) did not apply; however, the heightened civil standard of proof, indistinguishable from the criminal standard of proof, would nevertheless be required.

When first I was invited to participate in this colloquium, I was given the title of “Constitutional difficulties to the introduction of a system of administrative law,” which I take to imply a full administrative jurisdiction. That subject was, in a sense, not exciting, except as a challenge to produce legal difficulties, under a system such as our own, to doing anything at all. Difficulties undoubtedly do exist, but they exist in the realm of psychology, not of rules of law. Even so they are important. A constitution does not live by legal logic alone, and the positive changes in law which the introduction of such a system would involve run counter to received, but unexamined, notions or myths, particularly those relating to Parliament. Such notions have surprising strength. It would have been difficult to persuade the Pontifex Maximus to lead the other Pontiffs into proclaiming the inadequacy of their mythology, let alone to lead them into propounding the virtues of a rival. Yet under our cult of Parliament this is precisely what the Prime Minister or the alternative Pontifex Maximus has to do. This change is beyond the scope of those subtle shifts which we can achieve by stealth, in the way in which we transferred power from King to Ministers. While these difficulties are real and must be mentioned, I take it that in the form in which the subject is now posed it is broader and that I can treat of the constitutional advantages as well as, and rather more than, these political difficulties.

Propositions about law result from thought about law, which is the business of jurisprudence. We shall be concerned with those propositions in which jurisprudence formulates its most general conclusions. Such propositions are expressed in statements or sentences of the general grammatical form ‘Law is “so and so”’, or more briefly, ‘Law is “X”’. By propositions about law we shall mean propositions, statements or sentences in this form. Similarity in form does not, however, necessarily imply similarity of logical function, any more than the use of the same word, ‘law’, is a guarantee that the same ‘thing’ or ‘entity’ is being referred to. Our propositions may in fact have etymological, defining, explanatory and/or emotive functions. To distinguish and to clarify these functions is the purpose of this article.

The outstanding characteristic of all equitable interests in property is that they do not affect a purchaser who, without notice of their existence, acquires a legal estate in that property in good faith and for value. This rule is of respectable antiquity, and still holds good. As is well known, however, a doctrine of constructive notice was developed by Courts of Equity, whereby purchasers are deemed to have notice of the existence of an equitable interest if they unjustifiably omit to make some enquiry or to inspect some deed which would have revealed it. The consequence of this doctrine was that a purchaser of land, which was subject to equitable interests, was seldom able to say that he purchased without notice of them.

One of the most litigated property law issues over the past decade has been the equitable jurisdiction to set aside a mortgage transaction procured by undue influence or some other vitiating conduct.

The most common scenario is where the complainant has executed a mortgage as co-mortgagor with the principal mortgagor or has otherwise postponed his or her interest in the mortgaged property in order to secure the debts of the principal mortgagor; and, by way of a defence to an action for possession by the mortgagee, the complainant seeks to have the transaction set aside on the ground that it was procured by vitiating conduct on the part of the principal mortgagor. Barclays Bank plc v. O'Brien [1994] A.C. 180 established the structure of the defence.

The situation which is created when rules of quasi-contract are in conflict has been neglected by English writers and has also received little attention on the Continent. It is possible, no doubt, to explain this lack of interest on the ground that the question is not one which occurs very often in practice. The various Continental rules relating to quasi-contract do not, in substance, differ widely from one another. Further, the somewhat narrow view of quasi-contractual liability hitherto taken by English law has probably discouraged foreign creditors from pressing claims of this type in our Courts.

It is the purpose of this article to demonstrate that Lord Herschell's famous statement in Makin of the law relating to similar fact evidence was and is valueless, that it continues to exert a baneful influence both upon the cases and upon much of the academic commentary on them, and that it is overdue for commitment to the scrapheap. The essence of my argument is that English law does not, in truth, regard reasoning from disposition as illegitimate. Hence, there is no negative principle from which positive exceptions need to be carved out and no rational basis for applying different law according to whether or not the prosecution seeks to place reliance on the nature of the accused's disposition. An attempt will be made to explain why, even after Lords Wilberforce and Cross had, in identifying some or all of these truths in Boardman, made the crucial “intellectual breakthrough,” they have not been grasped by the rest of the judiciary.