We are met here this evening in memory of Stanley de Smith to pay a tribute to his labours in the field of English public law. His name will always be associated with the constitutional law of the British Commonwealth in its decline and the administrative law of England in its renaissance. It was in connection with the first of these topics in the nineteen fifties that I first met him when he was a brilliant young law don at the London School of Economics and I was a fairly senior silk instructed on behalf of the Kabaka in the constitutional dispute about Buganda. The depth of knowledge on constitutional matters which he then displayed encouraged me to seek his help in the last constitutional case in which I was engaged before I went on to the High Court bench. It involved appearing before the Federal Court in Pakistan and, unless my memory plays me false, it was de Smith who drew my attention to opinions given by the Law Officers in the seventeenth century about the government of the Plantations, that supplied the basis for the argument that was ultimately accepted by that court.

The rapid constitutional changes which followed on the attainment of independence by former colonial territories have, perhaps, converted into legal history much of de Smith's work in this particular field of public law. So I propose to take as the subject of this memorial lecture that other field of public law which he was to make his own: administrative law and, in particular, judicial review of administrative action.

The decision in 1907 to grant habeas corpus in favour of Eddie Guerin, a notorious criminal widely known as the man who escaped from Devil's Island, attracted attention at the time in the popular press but has been largely ignored by lawyers. The judgment of the court was brief and the issue decided appeared to be entirely factual. Yet the case was a remarkable one from a legal perspective which merits further attention. It deals with a difficult and crucially important legal point—the burden of proof and the resolution of issues of disputed fact on habeas corpus—in a most unusual and intriguing way.

The apparently straightforward definition of redundancy contained in section 139 of the Employment Rights Act 1996 has generated a disproportionate and confused body of case law. In essence, redundancy pay is payable in three situations: the business disappears (s. 139(1)(a)(i)); the workplace disappears (s. 139(1)(a)(ii)); the job disappears (s. 139(1)(b)). As far as the disappearing workplace is concerned, recent cases have shown the courts taking a more pragmatic approach. The old contractual test laid down in UK Atomic Energy Authority v. Claydon [1974] I.C.R. 128 (where, by my contract, can I be required to work?) has been replaced by the geographic approach (where, in practice, do I work?): Bass Leisure Ltd v. Thomas [1994] I.R.L.R. 104 (E.A.T.) and High Table v. Horst [1997] I.R.L.R. 513 (C.A.). A similar pragmatism can be detected in the House of Lords' ruling in Murray v. Foyle Meats Ltd. [1999] I.R.L.R. 562 concerning the third aspect of the definition of redundancy, the disappearing job (s. 139(1)(b)).

I want to start from the basic position in which I was brought up (I expect you were all brought up in it too) that the terms of a contract consist of conditions and warranties, the distinction between them being that the condition is something that is essential to the contract, while the other terms that are collateral or ancillary are merely warranties. If a condition is broken the aggrieved party is discharged from his obligations and can rescind the contract. If it is a warranty that is broken, the breach sounds only in damages.

The Hongkong case—a new approach to breach

The traditional thinking on this point has recently been rather mystified by references to something which is called the fundamental term and which has not yet, so far as I know, been judicially defined. Then there have been some suggestions that what matters is not the fundamental term but the fundamental breach. And finally there is the very important judgment of Diplock L.J. in the Hongkong case in which he opens up new vistas, suggesting that the traditional classification of terms into conditions and warranties has been outmoded and ought to be scrapped in favour of a new approach altogether based on the event.

It must be accepted that whatever sort of approach is made to this topic, whether a new or a traditional one, there must be some way of defining the situation in which the aggrieved party is entitled to rescind. He cannot be allowed to do so for every breach of every term.

IN a groundbreaking decision, the Supreme Court of Canada in Carter v Canada (Attorney General) 2015 SCC 5 has declared the criminal law measures prohibiting the provision of assistance in dying unconstitutional. In doing so, the Supreme Court unanimously overruled its previous decision (Rodriguez v British Columbia (Attorney-General) [1993] 3 S.C.R. 519) upholding the blanket prohibition on assisted suicide.

This article considers various legal aspects arising from the problem of “nuisance neighbours” and in particular the recent cases of Hussain v. Lancaster C.C. and Lippiatt v. South Gloucs. C. The central argument is that the restrictive approach to the liability of landlords for nuisances of their tenants (Smith v. Scott) is incompatible with Sedleigh-Denfield v. O’Callaghan. There is also consideration of the special position of local authority landlords (given recent developments in the tort of negligence, including Osman v. U.K.), the scope of the tort of private nuisance, and a survey of statutory remedies which might be used in addition to those in tort.

A Purchaser of land who fails to complete his contract for some reason stands to lose his equitable estate in the land and may also forfeit any deposit or other prepayments that have been made. The purpose of this article is to investigate the circumstances in which such a purchaser may obtain equitable relief against forfeiture, and to argue that the jurisdiction to give relief is broader than has been thought in recent years. The matter has been the subject of two recent decisions of such importance that an appraisal of the law seems apposite. To define the field of inquiry, it is helpful to consider two preliminary matters

The modern law of unjust enrichment is unique in many respects. In one sense, it is the newest and most significant development in the private law for a very long time. While it can claim ancient roots, as a discrete body of law unjust enrichment has only emerged from the long shadows of the law of contract in the last 20 years. The development and content of the law of unjust enrichment has, to a greater extent than perhaps anywhere else in the private law, been driven and shaped by academic rather than judicial influences. The law of unjust enrichment is also distinguished from the other principal heads of civil obligation in that its focus is on stripping the defendant of gains made rather than making good losses suffered by the plaintiff. Perhaps most controversially, the role or function of unjust enrichment may differ from the other principal parts of the private law in that the source of the entitlement protected is not found within the law of unjust enrichment, but in other areas of the law.

This article argues that it is important for the International Court of Justice to be given an opportunity, for instance through a request for an Advisory Opinion, to explain what exactly it meant when it suggested that the ordinarily applicable international law on immunities need not be an obstacle “before certain international criminal courts, where they have jurisdiction”. Two international criminal courts have built a structure of case law on this one obiter comment, which it seems unable to support.

When should a contractual right be assignable to a non-party? English law's answer to this question is complex, and many of its rules are difficult to justify. In some respects, the law appears unreasonably pro-assignment, whereas sometimes it denies assignability to rights that should be assignable. This article contends that, in developing the law of assignability, the judiciary and Parliament have relied on a series of dubious ideas that deviate from the law's usual approach to contracts, and the current law rests partly on intuitive policy rationales that do not withstand scrutiny. The main aim of the article is to propose a new framework for thinking about the law of assignability that is more closely aligned with general ideas about contract law.