The need to redress the inequality of power between the citizen and the State, which lies at the heart of public law, is illustrated nowhere more clearly than in the facts of R. v. North and East Devon Health Authority, ex p. Coughlan [2000] 2 W.L.R. 622. As a result of her severe disability Pamela Coughlan was, for many years, looked after as a hospital in-patient. In 1993, however, she agreed to move to a purpose-built care facility on the strength of the respondent’s promise that it would be her “home for life”; yet, only five years later, the health authority decided to close the new home, citing financial reasons. That the applicant possessed a legitimate expectation which would be breached by closure of the home was not in doubt. The difficult question was how the expectation could be protected. Courts have long been willing to enforce procedural promises and to safeguard expectations of substantive benefits by requiring the adoption of a fair procedure (typically consultation) before the benefit is denied. Coughlan, however, makes it clear that courts may go further than this by substantively protecting substantive expectations.

Mary Cooper was one of thousands of investors who advanced funds to Eron Mortgage Corporation, a licensed British Columbia mortgage broker specialising in large syndicated loans. When Eron went out of business it owed the investors over $180 million more than it was able to pay. Unable to recover from Eron, the investors turned their attention to Robert Hobart, the statutory official in charge of regulating mortgage brokers. The investors alleged that Eron had used their money for unauthorised purposes such as funding interest payments on non-performing mortgages. They further alleged that Hobart had been aware of these problems, all serious violations of statute, but that he had delayed in suspending Eron’s licence and had failed to notify investors that he was investigating Eron. Cooper therefore sought to bring a class action on behalf of the investors against Hobart and the provincial government.

Where two parties are liable in respect of the same obligation and one party discharges the obligation, he may be able to recover some or all of his outlay from the other. This article addresses the rationale underlying the relief granted in such circumstances. While restitution theorists tend to emphasise the claimant’s lack of choice, it is argued that this focus is misleading. Moreover, using unjust enrichment to explain relief is unnecessary and inaccurate. An alternative explanation is put forward, which derives support from the case law on contribution—that relief aims to ensure equitable distribution of the burden of liability.

In R. v. Dica [2004] 3 W.L.R. 213, the Court of Appeal decided that a man who knows that he is infected with the HIV virus but who infects his unsuspecting sexual partner through unprotected sexual intercourse should be punishable for inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861. The Court did in fact quash the conviction of the accused, because the judge at the Old Bailey had not instructed the jury to decide whether or not the two infected partners of the accused had known of his infection and agreed to take the risk of contracting it themselves (this having been in dispute at the trial). Yet the case was sent for retrial, and if the next jury, properly directed, should find that his partners did not agree to take the risk of contracting the potentially fatal virus, then Dica would be properly convicted under OAPA, section 20.

It is well established that a party seeking an interlocutory or a Mareva injunction is required to give a cross-undertaking in damages as a condition of being granted the order sought. Equally settled is the principle that the undertaking in damages may be invoked in two situations. First, when the injunction is discharged before trial on the ground that it should never have been granted and, secondly, if at the end of the trial the party enjoined obtains a favourable judgment vindicating his claims in the action. Yet the principles governing a decision whether to enforce the undertaking are inadequately articulated. Two reasons have combined to contribute to this state of affairs: the fact that the award of damages is considered to be discretionary and the small number of instances in which the courts have been asked topronounce on the subject. However, the great rise in applications for interlocutory relief, whether by way of interim or Mareva injunctions or Anton Piller orders, has commensurably increased the importance of this subject. A number of recent decisions stand witness to this tendency and underscore the need for a thorough treatment of the topic.

The protection of human rights through common law principles and values has a greater potential than has been recognised hitherto. First, the adoption at common law of the proportionality test of interferences with rights shows that, when human rights are at issue, the courts will apply an exigent test, allowing interferences only if, amongst other things, a less intrusive measure could not have been used. Secondly, the principle of legality, along with common law constitutionalism as developed recently by the Supreme Court, now means that there is a common law pendant to the rule in s. 3(1) of the Human Rights Act 1998. Thirdly, in cases where the protection offered by the Act is displaced by obligations under the Charter of the United Nations, there is no displacement of common law rights, which continue to operate. Fourthly, common law rights are more open to the influences of the customary international law of human rights than are Convention rights. These factors combine to mean that the future of common law rights is an auspicious one.

TWO important decisions have recently considered the effect of human rights law on domestic property law: Kay v. Lambeth L.B.C.; Leeds C.C. v. Price, and J.A. Pye (Oxford) Ltd. v. United Kingdom. In each case, the claimant brought a domestic proprietary claim, one successfully, the other unsuccessfully, against a defendant. The aggrieved party argued that the domestic legal outcome conflicted with his rights under the European Convention on Human Rights. In each case, the court had to decide whether the Convention had indeed been infringed by the bringing of a proprietary claim and, if so, what the consequences of that infringement might be.

The Sale of Goods Act 1979 (“the Act”) uses two terms, “property” and “title”, which one would normally associate with ownership. Of “title”, there is no definition in the Act; of “property”, there is one. But the definition, as we shall see, does not carry us very far. There has been much debate on the meaning of the two terms. The approach advocated by Battersby and Preston in a deservedly well-known article appears to have gained considerable acceptance.5 This paper hopes to present, as a theoretical possibility, an alternative interpretation of the uses and meanings of those concepts and of their relationship. It would be useful to begin with a brief description of “ownership” since “property” and “title” are associated with it.