Carlo Vellino, who had numerous convictions for burglary, theft and other offences, received frequent visits in his second-floor flat from the police. To their knowledge, he often sought to evade arrest by leaving through a window, normally lowering himself to the ground from a balcony. In September 1994 three police officers arrested him in the flat for failure to appear in court. In circumstances of which there was conflicting evidence, the two officers who were holding Vellino let go of him, and he leaped out of the window, fracturing his skull when he hit the ground. He claimed damages for the resulting brain damage and tetraplegia, alleging that the Chief Constable was vicariously liable for the officers’ negligence. The Court of Appeal (Schiemann L.J. and Sir Murray Stuart-Smith, Sedley L.J. dissenting) upheld Elias J.’s decision to dismiss the claim, on the grounds that: (i) the police owed an arrested person no duty to take care that he was not injured in a foreseeable attempt to escape from lawful custody; (ii) the claimant was the author of his own misfortune; and (iii) as a matter of policy he should not be allowed to base a claim on his own criminal act of escaping from lawful custody (ex turpi causa non oritur actio): Vellino v. Chief Constable of the Greater Manchester Police [2001] EWCA Civ 1249, [2002] 1 W.L.R. 218.

Director General of Fair Trading v. First National Bank plc [2001] 1 UKHL 52, [2001] 3 W.L.R. 1297 marks the beginning of an evolution in the common law of contract. The House of Lords considered for the first time whether a contractual term was an unfair term under the Unfair Terms in Consumer Contracts Regulations 1994, S.I. 1994/3159 (which implemented Council Directive (EEC) 93/13, now implemented by the Unfair Terms in Consumer Contracts Regulations 1999, S.I. 1999/2083). The case arose when the Director General sought injunctive relief, pursuant to regulation 8(2), to restrain the use of a contractual term.

In Rees v. Darlington Memorial Hospital NHS Trust Ltd. [2002] EWCA Civ 88, [2002] 2 W.L.R. 1483, the Court of Appeal (Hale and Walker L.JJ., Waller L.J. dissenting) ruled that although the birth of a healthy but unplanned child brings blessings, it also brings costs, and that a disabled mother of such a child could be compensated for the extra costs of child care occasioned by her disability if the birth resulted from medical negligence.

It is well established that in the tort of private nuisance an occupier of land is liable not only for those nuisances which he has created, but also for those which he has continued. An occupier continues a nuisance which exists on his land if, with actual or constructive knowledge of its existence, he fails to take reasonable steps to eliminate it. Two recent decisions, in the rather different contexts of root encroachment by a London plane tree and flooding from a sewer, have provided guidance on the legal consequences of continuing a nuisance.

Mr. Farley’s action for breach of contract against his surveyor gave the House of Lords an opportunity to consider the recovery of damages for non-pecuniary loss (Farley v. Skinner [2001] UKHL 49, [2001] 3 W.L.R. 899). Mr. Farley had been considering buying a house and instructed Mr. Skinner to survey the property. In particular, Mr. Farley asked Mr. Skinner to investigate whether the property was affected by aircraft noise, saying he did not want a property on a flight-path. Mr. Skinner subsequently reported that he thought it unlikely that the property would be so affected. Mr. Farley, having acquired and spent significant sums refurbishing the house, was therefore disappointed to discover that his enjoyment of the property was significantly impaired by the sound of aircraft waiting to land at nearby Gatwick airport.

You receive information that someone you know is having an affair. Do you tell the person’s spouse? It is not an easy question. Should you think, “This is none of my business?” But the spouse might rightly blame you for not telling him or her. Whatever you think, however, you are unlikely to conclude that you should ring a newspaper and sell it the story for several thousand pounds. As a way of informing the wronged spouse, it lacks a certain fitness for purpose.

When the gods looked down and spied lusty Ares entangled with lovely Aphrodite in the net which her grimy husband used to entrap them, there arose on Mount Olympus “unquenchable laughter”—in Homer’s words “asbestos gelos”. In the modern world, however, asbestos is no laughing matter: inhale the fibres of that mineral wool and you may contract asbestosis, a debilitating lung disease, or, as was discovered 30 years later, mesothelioma, a fatal cancer. Asbestosis is cumulative—you get worse the more you inhale—so that everyone who culpably fails to protect you contributes to your ultimate condition. Mesothelioma is quite different, for it is most likely caused by a single fibre: of course the more you inhale, the greater the risk of getting that fatal fibre, but until you get it, exposure makes you no more likely to get it, and once you have got it, you are a dead man, and further exposure makes no difference. Thus if you get mesothelioma after being exposed to fibres in six successive employments, each employer has contributed to the risk of your getting the disease, but the disease itself is due to only one of them. To ascertain in which employment the fatal fibre struck is, however, quite impossible and will likely remain so whatever advances are made in medical science, since the symptoms take up to forty years to manifest themselves, and before then no one can tell whether, much less when, the victim has been hit.

In 1993 Leggatt L.J. said in Abu Dhabi National Tanker Co. v. Product Star Shipping Ltd. (The Product Star) [1993] 1 Lloyds Rep. 397, 404:

Jason Costello, who made “something of a living” by doing up and selling cars, was found by the Police in possession of a turbo-charged Ford Escort. Although he was the car’s registered keeper, the Police (rightly) suspected that it was stolen. They seized it under section 19 of the Police and Criminal Evidence Act 1984 (“PACE”). In this they acted lawfully. They questioned Costello but never actually prosecuted him—despite the original vehicle identification and engine numbers’ having been ground off; Costello’s having acquired the car through a “friend” with multiple convictions for handling stolen cars; and his keeping a “car ringing kit” for forging registration numbers under the back seat.

Is there a difference between the duty of care owed by an occupier to a trespasser under the Occupiers’ Liability Act 1984 and that owed to a lawful visitor under the Occupiers’ Liability Act 1957, as far as personal injuries are concerned? Not really, in the light of Tomlinson v. Congleton Borough Council [2002] EWCA Civ 309, where the Court of Appeal (Ward and Sedley L.JJ., Longmore L.J. dissenting) held the defendant Council liable for spinal injuries sustained by an 18-year-old who dived into the Council’s lake, having seen one or more notices reading “DANGEROUS WATER: NO SWIMMING”, and hit his head on the bottom. His damages were reduced by two-thirds for contributory negligence.

The House of Lords in Royal Bank of Scotland plc v. Etridge (No. 2) [2001] UKHL 44, [2001] 3 W.L.R. 1021 refined and reformulated the principles laid down in Barclays Bank plc v. O’Brien [1994] 1 A.C. 180. Among other things, Etridge sets out new minimum requirements for mortgagees who take third party security from wives or partners and for solicitors whose task it is in such cases to advise the surety.

Chancery lawyers have for many years awaited a definitive House of Lords ruling on the mental element required to make strangers to a trust liable for knowing or dishonest assistance in a breach of trust, and for knowing receipt of trust property. The appeal in Twinsectra Ltd. v. Yardley [2002] UKHL 12, [2002] 2 All E.R. 377 provided the opportunity for resolution of the issue in the former case but not the latter; the degree of knowledge required for a knowing receipt claim remains for final determination on another occasion.

The doctrine of mistake in contract law has had a chequered history. Indeed, its very existence has been questioned (see, e.g., Slade, (1954) 70 L.Q.R. 385 and Atiyah and Bennion, (1961) 24 M.L.R. 421). But, like a bad penny that will not go away, the doctrine remains stubbornly embedded in the contractual landscape and has in fact witnessed a small revival of sorts in recent years (see, e.g., Clarion Ltd. v. National Provident Institution [2000] 2 All E.R. 265 (noted Phang, (2002) 1 J.O.R. 21)).

Two fraudsters persuaded Dextra Bank to draw a cheque for $US2,999,000 payable to the Bank of Jamaica (“BOJ”). They led Dextra to believe that BOJ wished to borrow the money as a loan. BOJ, however, was a victim of the same fraud and knew nothing of the loan. The fraudsters had caused it to believe that Dextra was selling US currency to it. BOJ’s foreign currency agents received Dextra’s cheque, and forwarded it to BOJ which duly received payment on it. Shortly before the agents received Dextra’s cheque—and the timing was significant—they had drawn Jamaican dollar cheques on BOJ’s behalf, payable to the supposed sellers of the US currency. In this they acted on the fraudsters’ instructions. Most of the payees of the cheques were fictitious, and once the proceeds had been paid into the relevant accounts, the fraudsters appropriated them.

The phrase “hierarchy of norms” sounds alien or continental to the ears of most British constitutional lawyers: generations have been taught that, in order to respect the sovereignty of Parliament, they should compare statutes only in temporal terms, preferring a more recent statute over incompatible older ones. In Thoburn v. Sunderland City Council and related appeals [2002] EWHC 195 (Admin), [2002] 3 W.L.R. 247, four greengrocers and a fishmonger, backed by the UK Independence Party, unsuccessfully invoked this doctrine of implied repeal to challenge the validity of the UK’s messy implementation of European Metrication Directives. If obiter dicta by Laws L.J. are followed, it will be not for our political representatives but for our courts to decide whether to prefer older statutes protecting “constitutional rights” over more recent statutes, and to rank constitutional rights.

Occasionally, the report of a case provides a disturbing depiction of a particular aspect of contemporary life, a narrative which is all the more powerful because of the scrupulously neutral language which is used to describe the relevant details. Uratemp Ventures Ltd. v. Collins [2001] UKHL 43, 3 W.L.R. 806 is one such case. It deals with legal issues surrounding the bleak world of residential private hotels and such other spartan accommodation as is available in city centres for the single and rootless. In Uratemp, the House of Lords adopted a purposive construction of the Housing Act 1988 in a well-intentioned attempt to protect those on the precarious bottom rungs of the housing ladder. The result of the case will no doubt be beneficial in the short-term to those individuals clinging on to their meagre accommodation, but the long-term effects of the judgment are, as ever, more uncertain.

Despite the absence of fraud on the part of the beneficiary of a letter of credit, is the issuing or confirming bank entitled to refuse to pay the beneficiary on the ground that a tendered document is a “nullity” in the sense that it was forged by a third party or has been executed without the authority of the person by whom it purports to be issued?

When does a proprietor of a trade mark consent to goods bearing that mark being placed on the market in the EEA? Article 7(1) of the Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Members States relating to trade marks [1989] O.J. L040/1 raises this question, the answer to which is critical since consent will “exhaust” the proprietor’s trade mark rights in respect of those goods, subject to the operation of Article 7(2). In Silhouette International Schmiedt GmbH & Co. KG v. Hartlauer Handelsgesellschaft mbH [1998] E.T.M.R. 539 the ECJ held that Article 7(1) does not support international exhaustion: this is where trade mark rights cannot be used to prevent imports into the EEA of goods placed on the market anywhere in the world under the trade mark. In Zino Davidoff v. A & G Imports Ltd. [2002] 2 W.L.R. 321 the ECJ gave a preliminary ruling on the interpretation of “consent” in Article 7(1). A broad or uncertain interpretation of consent to the marketing of goods in the EEA would have undermined the rule against international exhaustion established in Silhouette. The ECJ in Davidoff opted for a narrow and well-defined interpretation of “consent” within Article 7(1).

In its Keck judgment—famous or notorious according to taste—the Court of Justice drew a distinction, for the purposes of the application of the prohibition in Article 28 EC against measures having equivalent effect to quantitative restrictions (“MEEQRs”), between two categories of national measures. On the one hand were “product requirements”: measures specifying requirements to be met, in order to obtain access to the market of a Member State, by products coming from other Member States where they are lawfully manufactured and marketed, like the minimum alcohol requirement for fruit liqueurs in Cassis de Dijon (Case 120/78 [1997] E.C.R. 649). Such product requirements are liable to constitute MEEQRs, and therefore require specific justification, in order to escape prohibition, on one of the public interest grounds recognised by Community law. On the other hand was the category of measures described in the judgment as “provisions restricting or prohibiting certain selling arrangements”. An example was the legislation at issue in the main proceedings in Keck, which prohibited the resale of products below their purchase price, thereby depriving retailers of a form of sales promotion. Other examples, attested by the case law post-Keck, are measures regulating advertising methods, the kind of shop in which goods of a certain description can be sold, shops’ opening hours and Sunday trading. National provisions in this latter category are not normally such as to hinder trade between Member States under the test formulated by the Court in Dassonville (Case 8/74 [1974] E.C.R. 837, at para. 5), and so do not call for justification; not, that is, “so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and those from other Member States”: see Joined Cases C-267 and 268/9 [1993] E.C.R. I-6097, at paras. 15–17.

“The problem is more with what the [Children] Act does not say than with what it does”: Hale L.J., Court of Appeal at para. [50]. Therein lay the problem addressed in Re S (Minors) (Care Order: Implementation of Care Plan) [2002] UKHL 10, [2002] 2 W.L.R. 720; reversing in part [2001] EWCA Civ 757, [2001] 2 F.L.R. 582. This case involves key issues in child protection under the Children Act 1989 and provides further guidance regarding the courts’ interpretation of legislation under the Human Rights Act 1998.