THE ECtHR has for the second time in three years engaged with the British Government's handling of whole-life prison terms. In Hutchinson v United Kingdom (Application no. 57592/08), Judgment of 3 February 2015, not yet reported, the Fourth Section accepted the authoritativeness of an English court's decision on the meaning of English law relating to the Home Secretary's discretion to reduce a whole-life sentence. It also yielded to national judges on whether this sentence review mechanism complies with the proscription on inhuman and degrading treatment in Article 3 of the ECHR.

THE Supreme Court's decision in Jetivia SA v Bilta (UK) Ltd. (in liquidation) [2015] UKSC 23; [2015] 2 W.L.R. 1168 contains some important developments for the rules of corporate attribution and the defence of illegality.

THE tension between the competing values of security and human rights in the fight against terrorism was the subject of the ECtHR (Fourth Section) decision of Ibrahim v Others v the United Kingdom (Application nos. 50541/08, 50571/08, 50573/08, and 40351/09), 16 December 2014. Two weeks after the London bombings of 7 July 2005, bombs were detonated on the London transport system but failed to explode. After the first three applicants were arrested on suspicion of detonating the bombs, they underwent “safety interviews” which are conducted urgently for the purpose of protecting life and preventing serious damage to property, without any solicitor present and before the suspect can seek legal advice, as authorized under the Terrorism Act 2000. At the start of the “safety interviews”, instead of the “old-style” caution which reminds the suspect of his right to silence and informs him that anything said may be given in evidence, the police wrongly issued the “new-style” caution, which reminds the suspect of his right to silence and informs him that the court can draw adverse inferences at trial from his silence. This was contrary to s. 34(2A) of the Criminal Justice and Public Order Act 1994, which states that adverse inferences cannot be drawn at trial if the defendant did not have the opportunity to consult with a solicitor prior to questioning. During the “safety interviews”, the first three applicants denied any involvement in or knowledge of the detonation, but, at trial, they acknowledged their involvement in the detonation yet claimed that the bombs had been a hoax and were never intended to explode. The statements taken at their “safety interviews” were admitted at trial. The fourth applicant, Abdurahman, was initially interviewed by the police as a witness. When he started to incriminate himself by discussing the assistance he provided to one of the suspects, the police did not, at that stage, arrest him and inform him of his rights to silence and to legal inform as required under the Police and Criminal Evidence Act 1984 Code of Practice C; they only did so after having further questioned him as a witness and having taken a written statement from him. His written statement was admitted at trial.

IN R. (Lord Carlile) v Secretary of State for the Home Department [2014] UKSC 60; [2014] 3 W.L.R. 1404, the Supreme Court held by a four to one majority (Lords Sumption, Clarke, Neuberger and Lady Hale, Lord Kerr dissenting) that the exclusion of an Iranian dissident from the UK was a proportionate interference with the Article 10 ECHR right to freedom of expression of both the dissident herself and the cross-party group of parliamentarians litigating on her behalf. The parliamentarians had wished to invite Mrs. Maryam Rajavi, the exiled leader of the former terrorist group the People's Mojahedin Organisation of Iran, to the Palace of Westminster to speak about democracy and human rights in Iran. The Home Secretary had excluded the invitee on the basis of a risk assessment formulated in cooperation with the Foreign Office. The risk assessment had concluded that admission of Mrs. Rajavi might endanger foreign relations between Britain and Iran, and British national security because of the potential risk to the safety of British diplomatic personnel based in Iran. Lord Sumption put the matter succinctly: “the future is a foreign country” and the Courts should therefore be reticent to interfere with Executive predictions in the realm of “high policy” (at para. [46]). The judgment is of great interest not only for its background facts, which concern the often fraught and complicated diplomatic relationship between the UK and Iran, but principally because the decision engages central constitutional questions regarding the institutional competence of the courts in judicial review.

THE recent Supreme Court decision in Scott v Southern Pacific Mortgages [2014] UKSC 52; [2014] H.L.R. 48 considered whether a promise made by the buyer of a piece of land, before completion, could give rise to a proprietary estoppel claim. Obiter, the court also considered the width and applicability of the rule in Abbey National B.S. v Cann [1991] A.C. 56, which has traditionally been seen to provide that completion and the creation of a mortgage charge are to be considered as one transaction in cases of acquisition mortgages where the purchaser could not have purchased the property without the mortgage loan.

A medical practitioner's role as adviser prior to treatment is crucial in providing the basis on which the patient consents to a procedure or not. In Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] A.C. 871, the House of Lords confirmed the applicability of the “Bolam” test, historically the province of treatment cases, to cases concerning the disclosure of risks. By a majority decision, although without a clear ratio, the question of what risks a practitioner should disclose was regarded as matter for clinical judgment. Where a practitioner could demonstrate that he had disclosed an amount of information that was in keeping with the practice of a responsible body of medical opinion, this would defeat a claim in negligence. Lord Bridge provided two exceptions: first where there was a substantial risk of grave adverse consequences, an example of which he gave as the 10% risk of a stroke, and, secondly, where the patient had specifically questioned the practitioner. In both circumstances, the risk ought to be disclosed regardless of settled medical practice. Lord Scarman dissented on the basis that the analytical starting point in disclosure cases was the patient's right to know what risks they would be subjected to; this was not a matter for clinical judgment.

THE status of anti-suit injunctions in Europe has long given rise to controversy. The decision of the Court of Justice of the European Union in Case C-536/13, Gazprom OAO [2015] All E.R. (EC) 711 sheds a new light on the relationship between anti-suit injunctions and the European jurisdiction regime embodied in the Brussels Regulation (Regulation No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters). In this much anticipated judgment, the Court of Justice confirmed that, by virtue of the arbitration exclusion in Article 1(2)(d) of the Brussels Regulation, Member State courts are not precluded from enforcing anti-suit injunctions issued by arbitration tribunals and aimed at restraining the proceedings before Member State courts. Although the decision was given before the Recast Brussels Regulation came into force (Regulation No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, effective from 10 January 2015), it can be assumed that the same conclusion would have been reached under the new law.

IN R. (Moseley) v Haringey LBC [2014] 1 W.L.R. 3947, the Supreme Court unanimously upheld a judicial review challenge to the legality of a public consultation carried out by the defendant pursuant to a statutory duty to consult on proposed changes to Council Tax. However, more significant than the outcome is the marked divergence in the reasoning of different Justices. This divergence reflects wider tensions within the field of common law judicial review which have emerged over the last year. In particular, some judges have shown renewed enthusiasm for analysing review cases in terms of “rights”, which may foreshadow a major shift in the nature of review. Common law judicial review is seemingly approaching a crossroads. Which route is taken will have significant implications for the future of the field.

AFTER McCann and Others v the United Kingdom (Application no. 18984/91) (1995) ECHR 31, in which the European Court of Human Rights first read into Article 2 the procedural obligation of effective investigation, Mustafa Tunç and Fecire Tunç (Application no. 24014/05), 14 April 2015, is perhaps one the most interesting decisions on the nature of the obligation to conduct an effective investigation in the Court's recent history. The Court, through its case law, has clarified that, when individuals have been killed by the state or a private party, the Contracting Parties have to undertake an investigation under Article 2, which has to be independent, adequate, prompt, and publicly scrutinised. It has been unclear, however, whether the element of independence had to meet criteria similar to those under Article 6, which guarantees a fair trial, or whether a lower standard was sufficient for an investigation to be considered effective in the context of Article 2. The Strasbourg court went back and forth on the issue (even adopting an absolutist approach in Al-Skeini and Others v the United Kingdom (Application no. 55721/07) (2011) ECHR 1093) and it was not until Mustafa Tunç that the issue of independence under Article 2 was addressed head-on.

EVER since the establishment of separate legal personality of companies and their limited liability in the nineteenth century, there have been attempts by voluntary and involuntary creditors of the insolvent or dissolved subsidiary to obtain remedies from the parent company. The orthodox view is that the parent company is neither responsible for the acts and omissions of the subsidiary nor liable for its debts. The Court of Appeal in David Thompson v The Renwick Group plc [2014] EWCA Civ 635 confirmed that the exceptions to this orthodoxy apply only in truly exceptional circumstances. As discussed below, the importance of this judgment extends into the realm of international human rights and environmental litigation and has the potential to set back the existing efforts within the European Union to ensure effective judicial remedy for corporate abuses.

THE tort of passing off is embedded in the world of commerce. Its roots are in an age when customers patronised local speciality shops. Today it operates in a world of e-commerce operating across national boundaries. To succeed in passing off, the claimant must show it has goodwill, that there has been a misrepresentation, and as a result that the claimant has suffered damage or, in a quia timet action, that there is the likelihood of damage. Necessary to establishing goodwill is not only that the claimant's goods and services have a reputation in the relevant jurisdiction, but also that the claimant has customers there. The question raised in Starbucks (HK) Ltd. v British Sky Broadcasting Group Plc. [2015] UKSC 31; [2015] 1 W.L.R. 2628 was whether this principle is still relevant in what Lord Neuberger described as “the age of global electronic communication” (at [1]). The Supreme Court held that it was.

OVER the past 15 years, international surrogacy has grown from a niche practice catering only to a few adventurous couples, to a convenient response to infertility for those who would otherwise be hindered by restrictive national regimes. While the Hague Conference Permanent Bureau continues to debate the desirability, and indeed viability, of an international convention in this area, governments and courts around the world have been confronted by the difficult question of whether to recognise an agreement that takes place legally in another jurisdiction, but which is contrary to their own laws. In this, England is no exception. With approximately 25%. of all surrogacy arrangements now taking place outside its borders, English courts are regularly being asked to confer parenthood on commissioning parents in circumstances in which the statutory requirements have not only not been met, but in some cases flagrantly breached. The latest development in this regard is Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam), where the tension between public policy as evinced in the legislation, and the welfare of the child who will bear the burden of any refusal to recognise parenthood, once again came to a head.

THE media were unsurprisingly interested when the Supreme Court considered the case of a poverty-stricken New Age traveller turned multi-millionaire whose former wife appeared years after divorce to claim a share of his subsequently acquired wealth (Vince v Wyatt [2015] UKSC 14). The case also raised an important point of legal principle.

AT common law, in cases where the substantive claim is governed by foreign law, questions of procedure are nonetheless governed by the lex fori. In the context of damages, although the existence of damage is a question for the lex causae, its quantification and assessment is determined according to the law of the forum (Boys v Chaplin [1971] A.C. 356). The distinction between substance and procedure is preserved by Article 1(3) of Council Regulation (EC) No 864/2007 (“Rome II”) which provides, with certain exceptions, that Rome II “shall not apply to evidence and procedure”. That rule is, however, qualified by Article 15, which requires the law applicable under the Regulation (i.e. “the law applicable to non-contractual obligations”) to govern, inter alia, “the existence, the nature and the assessment of damage or the remedy claimed” (Article 15(c)). The decision of the Court of Appeal in Wall v Mutuelle De Poitiers Assurances [2014] EWCA Civ 138; [2014] 3 All E.R. 340 concerns the definition of “procedure” in Article 1(3) and the meaning of “applicable law” in Article 15(c). It raises the important question of how far Rome II has encroached on the traditional view of national procedural autonomy in the conflict of laws.

In Novoship (UK) Ltd. v Nikitin, a unanimous Court of Appeal held that an account of profits can be granted against a third party who dishonestly assists a breach of fiduciary duty. This raises fundamental questions as to the status of gain-based relief in relation to secondary wrongs. An account of profits reflects the imperatives of fiduciary duty and it is questionable whether the remedy should be extended to a stranger to that relationship. This article will analyse the spectrum of secondary liability and suggest an appropriate demarcation of compensation and disgorgement.

This article examines the impact on the patent system of rewards for innovation across the eighteenth and early nineteenth centuries. During this period, Parliament would regularly grant rewards to inventors, with many of these rewards being set out in legislation. This legislation provided Parliament with the opportunity to promote a model of state support for inventors: a model that made public disclosure of the invention a precondition for assistance. This had important implications for patent law, in particular, in helping to develop the role of the patent specification and the doctrine of sufficiency of disclosure. In this way, the reward system helped establish the framework under which the state would provide support for inventors. Simultaneously, however, the reward system created a space in which inventors would have to do more than meet the minimum requirement of public disclosure. Rewards allowed the state to distinguish between different classes of inventor and to make special provision for particularly worthy individuals. In this way, the reward system recognised the contribution of the “heroic inventor”, whilst leaving the core of the patent system undisturbed.

This article considers the enforceability of arbitration clauses which are included in trust documentation. It focuses on two main questions. The first is whether internal trust disputes are capable of being settled by arbitration. The article offers arguments in favour of the arbitrability of such disputes. It then addresses the question of whether parties to an internal trust dispute can be forced to arbitrate, rather than litigate, where the trust documentation contains an arbitration clause. It is argued that there are real difficulties in the argument that such clauses can be enforced as arbitration agreements, under the ordinary arbitration statutes, but that the court could potentially enforce such a clause under its inherent jurisdiction to control its proceedings.

Distinguishing “comment” from allegations of “fact” within the defamation defence of fair comment has long been notoriously difficult. While the defence has recently been replaced by a statutory “honest opinion” defence, the distinction remains highly relevant. There is a real need for judicial determination of the treatment of factual inferences within the defence. In recent years, some judgments have equated “comment” with unverifiable opinions, which would exclude verifiable factual inferences from the defence. This is inconsistent with the defence's aims to protect public reasoning and contrary to its history. We explain how a better approach is possible for English courts.

THE issue of whaling has been the subject of considerable controversy in recent years, as the international community remains divided as to how the world's marine resources should be managed: some states prioritise conservation, while others favour sustainable exploitation. Against this background, Australia initiated proceedings against Japan before the International Court of Justice (ICJ) in May 2010, claiming that Japan's continuing whaling activities, carried out under the guise of scientific research, were in breach of its various obligations under the International Convention for the Regulation of Whaling (ICRW). New Zealand later intervened in the proceedings, exercising its right under Article 63 of the ICJ Statute, and oral pleadings involving the three states were held in June and July 2013. On 31 March 2014, the ICJ delivered its judgment in Whaling in the Antarctic (Australia v Japan, New Zealand Intervening), finding that Japan had violated three provisions of the ICRW – the moratorium on commercial whaling, the ban on factory ships, and the prohibition on whaling in the Southern Ocean Sanctuary – by authorising the killing of certain whale species as part of its JARPA II research programme. The decision has largely been welcomed, especially by environmental activists, for offering a measure of protection to endangered marine life, but the judgment carries broader significance for its treatment of a number of points of international law, including the standard of review exercised by international courts, the role of scientific reasoning in international dispute settlement, and the interpretation of treaties.

The economic torts were developed to regulate excessive competitive practice. They had the limited function of stretching existing civil liability where a defendant deliberately inflicted economic harm on a claimant, through the use of an intermediary. However, claimants seek to expand the function of the unlawful means and conspiracy torts so that they can fill “gaps” in existing tort liability, to regulate commercial misbehaviour more generally. In light of this phenomenon, the aim of this article is to analyse the modern approach to these torts in the English, Canadian, Australian, and New Zealand courts.