Ken Holt was a wealthy farmer in Lincolnshire. In 1952 he befriended Geoffrey Gillett and then persuaded the young man to work on the farm instead of continuing at school. For nearly 40 years, Gillett was Holt’s right arm, a relationship that did not falter when Gillett married. Over these years, when Gillett managed the farm and eventually entered into partnership with Holt, Holt repeatedly promised that Gillett would be the principal beneficiary of his will. These were no idle boasts, but were repeated often, in public, and were given effect in several versions of Holt’s will. In 1992, Holt formed a friendship with Mr Wood (a trainee solicitor), the result of which was the eventual breakdown of his relations with the Gillett family and their exclusion from his will. In Gillett v. Holt [2000] 3 W.L.R 815 Geoffrey Gillett asserted that Holt was estopped from changing his will so as to deny Gillett his expected legacy. As we might think, a simple case of proprietary estoppel based on assurance, reliance and detriment. However, Carnwath J. at first instance thought otherwise and rejected estoppel because first, Gillett could not establish that Holt had made an irrevocable promise not to change his will (and everyone knows that wills may be changed), and secondly, Gillett had suffered no detriment.

The UK Supreme Court noted in Smith v Chief Constable of Sussex Police that the approach to causation in claims based on Article 2 of the European Convention on Human Rights (ECHR) is “looser” than in negligence. While the but-for test is generally applied in negligence, in Article 2 claims “it appears sufficient generally to establish merely that [the claimant] lost a substantial chance” of avoiding harm. The English courts have not always been comfortable with this divergence. In Re E. (A Child) Lady Hale stated that she was “troubled by the rejection of the ‘but for’ test” by the European Court of Human Rights (ECtHR). In part this discomfort seems attributable to a lack of detailed exposition as to how the approaches to causation differ in negligence and human rights law. The lack of clarity as to what the “looser” approach consists of is unsatisfactory. Although the reference to causation in Smith was a relatively minor observation in the wider decision not to develop the duty of care owed by the police in negligence to a victim of crime, we cannot appreciate whether the difference in approach is justified without first understanding what the difference actually is. In response, one aim of this paper is to draw together key decisions on causation in the ECHR to identify what the “looser” approach entails and how it differs from the approach in negligence.

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.

In an article in the Canadian Bar Review on the recent case of Bourhill v. Young Dr. Cecil Wright says that this is ‘one of the most important decisions in the law of tort which has appeared since Donoghue v. Stevenson.’ But, as he points out thereafter, it is difficult to determine from the speeches of the law lords exactly what principles it has established concerning the ‘ambit of risk’ or the extent of liability for nervous shock. That this doubt is fully justified is shown by the fact that Professor Winfield in his Text-book of the Law of Tort deals with the case in the section entitled ‘Remoteness of consequence (or damage)’ while Dr. Stallybrass suggests that it is primarily authority on the problem of negligence. Perhaps this difference of opinion reflects a certain degree of uncertainty in the judgments themselves, for their Lordships, although reaching the same conclusion, do not seem to have been in complete agreement concerning the grounds on which they did so.

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.

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.

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.