Although the decision of the House of Lords in Kleinwort Benson Ltd. v. Lincoln C.C. [1998] 3 W.L.R. 1095 has done much to rationalise the law on restitution of mistaken payments, the law remains unclear in certain important respects. Two recent decisions have, however, sought to clarify the law.

The decision of the European Court of Human Rights in Chassagnou v. France (judgment of 29 April 1999) has wide legal and practical implications of which only some can be explored here.

The obvious, and potentially most effective, remedy for breach of a repairing covenant in a lease is specific performance. All such decrees are of course discretionary. Although there are “well-established principles which govern the exercise of the discretion . . . these, like all equitable principles, are flexible and adaptable to achieve the ends of equity” (per Lord Hoffmann in Co-operative Insurance Society Ltd. v. Argyll Stores (Holdings) Ltd. [1998] A.C. 1, 9). However, since the decision of Lord Eldon L.C. in Hill v. Barclay (1810) 16 Ves. 402, specific performance of repairing covenants was considered generally unavailable on three grounds: the want of mutuality between landlord and tenant; the impossibility of defining adequately the works to be done; and the need for the constant supervision of the court to ensure that effective compliance is obtained. In its 1996 Report on Landlord and Tenant: Responsibility for State and Condition of Property (Law Com. No. 238), the Law Commission recommended legislation to give the court power to make orders for specific performance in any lease or tenancy. Now, the High Court appears to have made legislation unnecessary. In Rainbow Estates Ltd. v. Tokenhold Ltd. [1999] Ch. 64 (Lawrence Collins Q.C. sitting as a deputy) it has done Parliament's work for it.

In Kleinwort Benson v. Lincoln City Council [1998] 3 W.L.R. 1095 the House of Lords heard consolidated appeals arising out of the failure of interest rate swap transactions entered into between various banks and local authorities. Having paid out considerable sums under the swap arrangements, the banks were disconcerted to find them declared ultra vires and void (Hazell v. Hammersmith and Fulham L.B.C. [1992] 2 A.C. 1). The Lords have now held that sums paid by the banks may be recovered back, by action in restitution for mistake. In so holding, they have abrogated the rule that a mistake of law is not actionable, and denied (at least on these facts) any defence that the parties acted on the basis of “settled law”.

When can English defendants be sued in England for the infringement of a foreign copyright? They were once immune, for two distinct reasons. English law formerly governed liability even for foreign torts, the effect of the rule in Phillips v. Eyre (1870) L.R. 6 Q.B. 1. Such claims were therefore pointless because English copyright protection extends only to English infringements; English law, although in principle applicable, could not be applied. Less convincingly, foreign intellectual property rights, like rights in foreign land, were generally regarded as non-justiciable under the rule in British South Africa Co. v. Cia. de Moçambique [1893] A.C. 602.

The system of land registration was, according to Lord Wilberforce in Williams & Glyn's Bank v. Boland [1981] A.C. 487, 503, “designed to free the purchaser from the hazards of notice—real or constructive—which, in the case of unregistered land, involved him in enquiries, often quite elaborate, failing which he might be bound by equities”. The hapless purchaser of land may well consider the remedy just as hazardous as the complaint. Certainly, in the light of Ferrishurst Ltd. v. Wallcite Ltd. [1999] 2 W.L.R. 667, no obituary can yet be written for elaborate enquiries.

When is a promise to benefit someone on one's death an enforceable promise? This was the question for the High Court in Gillett v. Holt and Another [1998] 3 All E.R. 917. As Carnwath J. recognised, the difficulty lies in reconciling proprietary estoppel with the principle that “[s]ubject to specific exceptions (such as for dependants), the right to decide, and change one's mind as to, the devolution of one's estate is a basic and well understood feature of English law”.

In the recent case of Cadbury Schweppes Inc. v. FBI Foods Inc. (1999) 167 D.L.R. (4th) 577, the Supreme Court of Canada considered the case of an action for breach of confidence involving “Clamato” juice (a mixture of clam broth and tomato juice). For the uninitiated, Clamato juice is mixed with vodka, oregano and Worcestershire sauce to become a “Bloody Caesar”, a drink popular with Canadians but apparently few others.

The decisions of the House of Lords in Barclays Bank plc v. O'Brien [1994] 1 A.C. 180 and CIBC Mortgages plc v. Pitt [1994] 1 A.C. 200 sought to balance the legitimate commercial interests of banks and other lenders against the rights of spouses (usually, and hereafter for purposes of exposition, wives) or cohabitees in residential property, where the wife had been induced to accede to the transaction by the borrower's undue influence, duress or misrepresentation. This balance, necessary, in Lord Browne-Wilkinson's words, so that “a law designed to protect the vulnerable does not render the matrimonial home unacceptable as security to financial institutions”, was largely to be achieved by application of the doctrine of notice. A wife could therefore successfully resist attempts to recover possession where the bank had actual, constructive or imputed notice of her equity to set its charge aside. Constructive (and imputed) notice begs two questions: when will a bank be put upon enquiry, and what level of enquiry will be reasonable? O'Brien indicated that a bank should warn the wife, in a personal interview, of the amount of potential liability she was undertaking, of the risks involved, and of the desirability of obtaining her own independent legal advice. Experience since O'Brien has shown a reluctance by banks to conduct personal interviews, which would, they feel, carry greater risks. The practice adopted has been to refuse to complete the loan transaction until the wife has in fact obtained independent legal advice, proof thereof being made by the production of a certificate to that effect to the lender. The eight conjoined appeals in Royal Bank of Scotland v. Etridge (No. 2) [1998] 4 All E.R. 705 consider, at great length, the meaning and significance of “independent legal advice” in this context, and its consequential impact on the enforceability of security by a bank. Rather like O'Brien, Etridge seeks to provide clear guidelines and to facilitate a workable banking practice so that the likelihood of litigation against banks is substantially reduced. Where O'Brien failed, Etridge may well succeed. At its most basic level, it is good news for banks, and very bad news for solicitors.

Under what circumstances may a solicitor or forensic accountant who has obtained confidential information from a client act against him? This question was considered by the House of Lords in H.R.H. Prince Jefri Bolkiah v. KPMG [1999] 2 W.L.R. 215, where the House reconsidered Rakusen v. Ellis, Munday&Clarke [1912] 1 Ch. 831 and found the criticisms, both academic and judicial, of the test laid down by the Court of Appeal to be well founded.

The shape of the unfair prejudice remedy—sections 459–461 of the Companies Act 1985—owes much to the influence of Lord Hoffmann, for throughout his judicial career he has played a leading role in the remedy's development (see, e.g., Re a Company [1986] B.C.L.C. 376 and Re Saul D. Harrison & Sons plc [1995] 1 B.C.L.C. 14 (C.A.)). In Re a Company (No. 00709 of 1992) [1999] 1 W.L.R. 1092 (O' Neill v. Phillips), the House of Lords considered sections 459–461 for the first time. In a strong, wide-ranging judgment, Lord Hoffmann delivered the opinion of the House. By reasserting the remedy's contractual focus, he sought to bring greater certainty to its operation; in so doing, he signals a restriction in the remedy's ambit.

The ruling of the European Court of Human Rights in A v. United Kingdom (Human Rights: Punishment of Child) [1998] 2 F.L.R. 959 that to beat repeatedly a nine-year-old boy with a garden cane, leaving linear bruises on his thighs and buttocks which remained for up to one week, amounted to “torture or inhuman or degrading treatment or punishment” contrary to Article 3 of the Convention will occasion little suprise. What will have come as unwelcome news to some is the unanimous decision of the Court that the Government of the United Kingdom could itself be held liable for failing to take measures which could have prevented these beatings by the child's stepfather.

Adverse possession and registered land are unlikely bedfellows—the one originating in the common law idea that a freehold estate results from possession and the other premised upon registration validating title. Indeed, when registration of title was introduced into England and Wales in the nineteenth century, acquisition of title to registered land by adverse possession was prohibited—see section 21 of the Land Transfer Act 1875. However, a more pragmatic approach then ensued, and the Land Registration Act 1925, s. 75, expansively provided that the Limitation Acts should apply to registered land in the same manner and to the same extent as those Acts applied to unregistered land. But technically, of course, this was impossible, and the section detailed a special trust mechanism for registered land alone. Section 75 thus clearly illustrates the inherent difficulties in trying to retain the substantive law of unregistered land within a registered context. Tensions are inevitable, because of the very different conceptual bases of the two systems. In Central London Commercial Estates Ltd. v. Kato Kagaku Ltd., The Times, 27 July 1998, Sedley J. was directly faced with such tension, as he strove to determine the effect of section 75.

This article attempts to explain the meaning of the term “constructive trustee” and to understand why allegations of personal liability on the part of third parties to trusts are pleaded in the language of constructive trusteeship. The author concludes that the language of constructive trusteeship is dictated by the structure and historical context of the trust. Although this terminology could usefully be abandoned, an understanding of its origins suggests that as a matter of linguistic logic there is no room for third party liability which is somehow different from liability “as a constructive trustee.”

The standing of natural and legal persons to bring annulment proceedings is one of the most difficult and controversial issues in EC law. Article 173(4) EC states that non-addressees of a Community decision can only challenge it if they are directly and individually concerned by it. In Plaumann v. Commission (Case 25/62 [1963] E.C.R. 95) the Court explained that a decision is of individual concern to non-addressees if it “affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the person addressed”. But what degree of factual or legal differentiation must an applicant show to be individually concerned? The standard test is that the applicants need to belong to a “closed category”, namely one the membership of which had become fixed and ascertainable when the measure in question was adopted. The mere capacity of an applicant as a trader, importer or exporter does not suffice to render him individually concerned (Case 38/64 Getreide-Import Gesellschaft v. Commission [1965] E.C.R. 203; Case 191/89 Co-Frutta v. Commission [1989] E.C.R 793).

In Oscar Bronner GmbH & Co. KG v. Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG and others (Case C-7/97, [1999] 4 C.M.L.R. 112), the European Court of Justice has clarified the scope of the application of the “essential facilities” doctrine to EC competition law. The Commission defined an “essential facility” as a “facility or infrastructure without access to which competitors cannot provide services to their customers” (B&I Line plc v. Sealink Harbours Ltd., Commission Decision of 11 June 1992, [1992] 5 C.M.L.R. 255 at paragraph 41). Under the doctrine, a dominant undertaking that owns or controls such a facility and refuses, without an objective justification, to make it available to competitors—or makes it available on discriminatory terms—abuses its position of dominance.

Christopher Staughton, a former Lord Justice of Appeal, writes of the four principal rules for the interpretation of written contracts. First, there is the exclusion of negotiations and subjective evidence of intention. Secondly he considers what material can qualify as background evidence, or as some would say matrix. Thirdly, there is the rule that a meaning which is less obvious =N but still consistent with the words used =N may be preferred. Fourthly, he deals with the very limited extent to which evidence of market practice is admissible.

The article contrasts recent observations of Lord Hoffmann in two cases in the House of Lords with other authority, both ancient and modern.

In Case C-188/95 Fantask A/S and Others v. Industriministeriet (Erhvervsministeriet) [1997] E.C.R. I-6783 the European Court of Justice provided further guidance on the interpretation of Council Directive 69/335 EEC of 17 July 1969 concerning indirect taxes on the raising of capital (O.J. English Special Edition 1969 (II), p. 412), as most recently amended by Council Directive 85/303/EEC of 10 June 1985 (O.J. 1985 L 156, p. 23), and elaborated its case law concerning Member State remedies and procedural rules. More particularly, it was held that a national rule which would have allowed Danish authorities to escape the duty to refund charges levied in breach of the Directive on the ground of “excusable error” rendered Community law impossible in practice or excessively difficult to enforce (Case 199/82 Amministrazione delle Finanze dello Stato v. San Giorgio [1983] E.C.R. 3595), while a five-year time limit for bringing proceedings under Danish law was upheld as a reasonable limitation period (cf. Case C-208/90 Emmott v. Minister for Social Welfare and the Attorney General [1991] E.C.R. I-4269).

Where, following divorce, a mother remarries, it is not uncommon for her to wish to change the surname of the children to that of the stepfather. In these cases the jurisprudence of the courts has established over a substantial period of time that a parent may not unilaterally change the name of a child but that, if the matter is brought before the court, the question of a proposed change must be determined on the basis of the welfare principle. The Children Act 1989 (section 13) had made this explicit where a residence order was in place but, surprisingly, some had questioned whether the automatic prohibition had survived the Children Act in the much larger number of cases where no such order is made. The direct issue before the House of Lords in Dawson v. Wearmouth [1999] 1 F.L.R. 1167 was whether the Court of Appeal had correctly exercised its discretion in allowing an appeal by a mother against the judge's decision to sanction a change of name. In unanimously holding that it had, the House must be taken to have tacitly affirmed the above principles, which will govern the situation in the absence of a court order (for a review of the authorities see the commentary on the Court of Appeal's decision by Jonathan Herring at [1998] C.L.J. 266).

In the 1730s English criminal procedure abandoned its centuries-old rule forbidding the defendant in cases of felony to be assisted by counsel. The judges began to allow counsel to examine and cross-examine witnesses on the defendant's behalf, presaging the beginnings of the distinctive Anglo-American adversary system of criminal trial. This article points to two innovations in pretrial practice in the early decades of the eighteenth century that motivated the judges' decision: (1) the increasing influence of solicitors in investigating and preparing witnesses for institutional and private prosecutors; and (2) the growing danger of false witness in prosecutions inspired by a series of reward statutes enacted from 1692 onward. These developments – one-sided lawyerisation and the incentive for false prosecution – unbalanced the old lawyer-free criminal trial and led the judges to allow the assistance of counsel to offset the new advantages of the prosecution.