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.

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.

This is a prime example of how radical a court can be in its eagerness to protect human rights. In Jones v. Ministry of Interior of Saudi Arabia [2004] EWCA Civ 1394, the Court of Appeal reached an unprecedented decision by disregarding the relevant legislation, by going against its own previous decisions and higher authorities, and by reading an extremely liberal understanding into an international convention. In this case, the claimants sought damages in tort in civil proceedings against the Ministry of Interior of Saudi Arabia and a number of Saudi officials, including the head of the Ministry of Interior, alleging, among other things, systematic torture while they were in official custody in Saudi Arabia in 2001. What is remarkable about this case is that the alleged torture took place in Saudi Arabia, and that none of the individual defendants was present at any time on UK territory.

Great honour as it is, it is nonetheless daunting to deliver the Sir David Williams Lecture in the presence of Sir David himself, and on a subject close to his own interests. The ideal David Williams Lecture would obviously be a lecture given by David Williams. But as that is not to be—at any rate not this evening—my lecture, by definition then not the ideal lecture, will I hope be received as at least a personal tribute to an inspiring constitutional lawyer.

A Note on the legality of the mandatory life sentence in (2002) 61 C.L.J. 5 concluded that once the gap between the Government's rhetoric and the reality was recognised, the mandatory life sentence could no longer be justified. After a bit of kicking from the European Court of Human Rights (see Stafford v. UK (2002) 35 E.H.R.R. 32, (2002) 61 C.L.J. 508), the House of Lords has at last recognised that the Home Secretary's involvement in fixing the “tariff” can no longer be justified. Nearly six months after their Lordships issued a declaration that the existing legislative provisions were incompatible with the European Convention on Human Rights, it appears that the Home Office has still not decided what to do. We should expect late amendments to the already dense Criminal Justice Bill 2002, but at the time of writing (April 2003) the proposed amendments have not been published despite the fact that the Bill has reached its Report stage in the House of Commons.

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 his ground-breaking book The Paths to Privity V.V. Palmer has identified the period between 1500 and 1680 as the “formative period”of the doctrine of privity of contract. Within that period there were, he suggests, “basically four individual paths to privity for the beneficiary”: the interest theory, the benefit theory, the agency cases, and the consideration theory. This article is concerned with the first of these theories, and in particular with the role played within that theory by the concepts of use and trust.