Arguments are generated in an ad hoc way about the continuation of the monarchy. Such media-led arguments are no substitute for a rational analysis of constitutional issues, although of course public opinion has an important part to play in the future of any constitutional institution. At present there is not even a basic framework against which any such reasoned analysis could begin. While a case against the British monarchy has been constructed by several people, the silence of constitutional lawyers on the central issue of monarchy or republic is surprising, for what is that issue if not one concerning a central part of the constitution, and, indeed, a very pervasive one? The author,a constitutional lawyer, examines the constitutional arguments and implications about the alternatives of monarchy or republic in the United Kingdom and attempts to make clear which matters would require decision if the United Kingdom were to opt for republicanism. He demonstrates that a change to a British republic would require the resolution of many interrelated issues. Even the answer to the apparently simple question of principle of whether a monarchy or a republic is preferred may turn on the type of republic which was on offer. Conversion to a republic would involve wide and deep changes to much of the constitution because of the legal peculiarities of the ancient British monarchy. These are not insoluble difficulties, but they do mean that the abolition of the monarchy would be an intellectually challenging exercise.

ON 5 October 2016, the International Court of Justice handed down its decision in the three parallel proceedings involving the Marshall Islands (as applicant) and India, Pakistan and the UK (as respondents): Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India). The Marshall Islands claimed that the respondent states had failed to meet their obligation to negotiate the cessation of the nuclear arms race and nuclear disarmament in good faith, either under Article VI of the Non-Proliferation Treaty (claim against the UK) and/or customary law (against all three respondents). All three respondents formulated objections to jurisdiction and admissibility. In all three cases, they objected that a “dispute” did not exist between them and the applicant. The Court, by a narrow majority (extremely narrow in the case against the UK: by the casting vote of the President), declined to exercise jurisdiction on the basis that no dispute existed between the parties.

A significant and relatively recent academic contribution to the problem of exclusion clauses has been to highlight the relevance of contractual terms to the constructional problems that arise in interpreting individual exclusion clauses. The conventional view, that an exemption clause operates as a shield to a claim for damages or repudiation, has been criticised as a failure to recognise this as simply one device available to the draftsman to enable him to delimit the extent of the obligations undertaken by the agreement: a negative statement of positive obligation. The most persistent advocate of the exclusion clause as a method of modifying primary contractual duties is Professor Coote. Judicial response has, until recently, been disappointing, although there has been more enthusiasm in Australia.

In the Court of Appeal recently, Nourse L.J. declared Credit Lyonnais Bank Nederland NV v. Burch to be “as clear a case for the setting aside of a transaction against a mortgagee as it was possible to think of”. Curiously, however, relief on the basis of Barclays Bank pic v. O'Brien was given although: (i) the relationship between the surety and principal debtor, of employee and employer, clearly falls outside that of an “emotional or sexual nature” (and no such relationship existed in fact) particularised in O'Brien as one factor giving rise to a lender's constructive notice of the transaction's potential invalidity and; (ii) the Bank twice wrote to the proposed surety advising of the unlimited nature of the charge and of the desirability of obtaining independent legal advice; moreover, (iii) there is surprising dicta suggesting that the nature and extent of the manifest disadvantage in the transaction to the surety may be so severe that, to be enforceable, the lender must not only urge independent advice, it must insist upon it, and must reasonably believe that the advice was obtained, was competent and even, that it was followed.

The determination of the true measure of damage in any individual case is seldom easy. It depends upon considerations of causation, and causation is primarily a matter for philosophic rather than legal inquiry. Hume was not prepared to adopt the ordinary conception of causation. ‘It were infinite for the law to judge the causes of causes and their impulsion one of another,’ said Bacon. In a modern case the same thought has been expressed in the words ‘Causation is not a chain but a net.’ Faced with metaphysical uncertainty the lawyer must find some base on which to build his structure, and he does it by following the course of the pragmatist and asking of any particular decision: Does it work ? If it does he has to fit it into a scheme which should be consistent with a number of other decisions which also work, but are not always governed by the strict rules of logic.

When the news came forth from Downing Street last November that a fourth child was to be born to the premier and his wife, joy spread throughout the land. Gloom and despondency, by contrast, reigned in the McFarlane household when it transpired that Mrs. McFarlane was pregnant yet again, for in order to ensure that there would be no fifth child the couple had come to a decision: rather than rely on the physics of the condom or the chemistry of the pill the husband, like 9,000 other Scotsmen every year, was to resort to the surgery of vasectomy. So he did, and the health authority reported that the operation had been successful, but vital nature had counteracted medical art … and Catherine was born. She was in perfect health. Mrs. McFarlane claimed £10,000 for the pain of pregnancy and childbirth and both parents claimed £100,000 for the cost of keeping Catherine. They thereby joined the long line of those who, relying on the Court of Appeal's judgment in Emeh v. Kensington and Chelsea and Westminster A.H.A. [1985] Q.B. 1012, sought to throw on to the medical profession the cost of bringing up the child they had engendered and conceived, healthy though it was and in the event welcome—except for the expense.

In Great Peace Shipping Ltd. v. Tsavliris Salvage (International) Ltd. [2002] 3 W.L.R. 1617 the Court of Appeal considered the circumstances in which a contract, entered into as a result of a mistaken assumption shared by the parties, would be invalidated. In that case, the defendant, a salvage operator, agreed to provide its services to the owners of The Cape Providence, which had suffered severe structural damage. Unfortunately, the only tug that the defendant could find to perform these services was six days away from the vessel. This gave rise to concerns over crew safety if the vessel sank whilst awaiting the tug. The defendant’s brokers, therefore, sought to hire a vessel which was sufficiently close to be able to evacuate the crew if necessary. The brokers were informed by a well-respected information agency that The Great Peace, a vessel owned by the claimant, was “in close proximity” to the stricken vessel, approximately 35 miles away. As a result, the defendant’s brokers negotiated with the claimant for the hire of The Great Peace for a period of five days, both parties assuming that the information as to The Great Peace’s location was correct. On discovering that the vessels were in fact some 410 miles apart, the defendant hired an alternative vessel and sought to cancel the contract with the claimant. Proceedings were commenced to recover the full amount of the hire, or alternatively damages for breach of contract. The defendant resisted the claim on the ground that the contract was either void at common law or voidable in equity, as both parties had laboured under a fundamental mistake at the time of contracting. Both arguments were rejected by Toulson J., at first instance, and by Lord Phillips of Worth Matravers M.R. delivering the judgment of the Court of Appeal.

Character merchandising is big business and any case concerning its legal protection is bound to arouse considerable interest. This is certainly true of the recent Court of Appeal decision in Elvis Presley Trade Marks [1999] R.P.C. 567, where the character concerned was “the King” himself. Earlier, in the “Ninja Turtles” passing-off case, Mirage Studios v. Counterfeat Clothing Co. Ltd. [1991] F.S.R. 145, the High Court had apparently endorsed the view that the public's awareness of merchandising practices means that it will assume that products carrying the likeness or name of a celebrity (real or fictional) will come from one “genuine” source. This decision, together with the provisions of the 1994 Trade Marks Act which swept away previous anti-trafficking provisions and liberalised the licensing regime, seemed, to many, to herald a new dawn for the protection of character merchandising, However, the Elvis Presley decision suggests that character merchandising in the UK will remain relatively unprotected compared to other jurisdictions.

In the criminal justice system’s scheme of unpleasant things, what official part is played by “naming and shaming” the offender?

When a court seeks the meaning of a written contract, it meets a barrier on the outskirts of the document, a barrier imposed by the parol evidence rule. Traditionally, if a court wants to go beyond the barrier for a wider perspective of what the document might mean, it requires a permit on one or more of three grounds. The first is “technicality”: that, although the words appear clear, they have a technical meaning that is not apparent without seeking extrinsic evidence. The second is “ambiguity”: that the words are not clear and the ambiguity must be resolved from a wider perspective. The third is “absurdity”: that a literal reading is not just unreasonable but unworkable or absurd and that that reading must be avoided by taking once again a wider perspective. The perspective is one which takes in the purpose and background (also called the matrix) of the document.