“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.

Here we are concerned with two cases involving the same parties. The first is reported as Re Cosslett (Contractors) Ltd. [1997] Ch. 23, [1998] Ch. 495, and was noted in [1997] C.L.J. 257 and [1998] C.L.J. 22. Cosslett, an engineering firm, had brought two large coal-washing machines on to a site belonging to the local council pursuant to a contract to reclaim land on which colliery waste had been dumped. Cosslett ran into financial difficulties and abandoned the work, and was later put into administration. The council, acting under a power conferred by the contract, used the machines to finish the job (employing a second contractor, Burrows). The first action was brought by Cosslett’s administrator under the Insolvency Act 1986, s. 234, demanding summarily that the machines be handed over to him. The Court of Appeal held that the contract did indeed authorise the council to use the machines in this way, and that so long as the work was continuing the administrator’s claim must fail. But there was a second point. Another provision in the contract (Clause 63) gave the council power to sell the abandoned machines and use the proceeds to discharge any debts owed to it by Cosslett. The Court of Appeal held that this clause created a floating charge which, not having been registered under the Companies Act 1986, s. 395, was void in the ensuing administration. However, this did not affect the council’s right to use the machines, and judgment was given in favour of the council.

In John Pfeiffer Pty. Ltd. v. Rogerson (2000) 201 C.L.R. 552, the High Court of Australia had reconsidered the choice of law rules for “intra-national torts”, i.e. torts involving elements occurring in more than one Australian state. There, the Court rejected the rule of double actionability derived from Phillips v. Eyre (1870) L.R. 6 Q.B. 1 in preference for the rule that all questions of substance should be governed by the lex loci delicti. In Régie National des Usines Renault v. Zhang (2002) 187 A.L.R. 1, the High Court was asked to extend this preference to international torts as well. It did so emphatically. Except as regards a limited number of specific torts, for which the Court expressly reserved its consideration, the Australian common law rule is now that the substantive elements of tort actions are to be determined in accordance with the law of the place of the act or omission giving rise to the action.

In three judgments delivered on 27 September 2001 (Cases C-63/99 R. v. Secretary of State for the Home Department, ex p. Gloszczuk and Gloszczuk; C-235/99 R. v. Secretary of State for the Home Department, ex p. Kondova; C-257/99 R. v. Secretary of State for the Home Department, ex p. Barkoci and Malik), the ECJ ruled on the legal effects of provisions in the so-called “Europe Agreements” (EAs), Association Agreements concluded in the early 1990s between the European Communities and their Member States, of the one part, and certain Eastern European countries, of the other part, with a view to promoting harmonious economic development with and within these countries and to acknowledging the ultimate political objective on the part of these States eventually to become Members of the European Union.

When is a monopoly not a monopoly? Following the decision of the European Court of Justice in Case C-383/99 P Procter & Gamble v. Office for Harmonisation of the Internal Market (OHIM) [2002] E.T.M.R. 3, the answer appears to be when it is a registered trade mark.

A Question which is increasingly asked is whether there is a right to be a parent. The recent decision of the House of Lords in Re B (Adoption: Natural Parent) [2002] 1 F.L.R. 196 may provoke some debate about whether there is a right not to be one.

R. (on the application of Morgan Grenfell & Co. Ltd.) v. Special Commissioner of Income Tax [2002] UKHL 21, [2002] 3 All E.R. 1 is an exercise in statutory interpretation in which different courts came to diametrically opposite views. The Revenue were trying to decide how MG, the taxpayer, should be assessed in relation to certain transactions and so asked MG to supply certain documents. MG declined, in part because these documents consisted of advice which MG had obtained from leading counsel and solicitors about whether the scheme behind the transactions would work; so the issue was the scope and nature of legal professional privilege (“LPP”). The Revenue asked for—and obtained—the consent of the Presiding Special Commissioner (His Honour Stephen Oliver Q.C.) for the issue of a notice by them to MG under Taxes Management Act 1970, s. 20(1), which allows an inspector by notice in writing “to require a person to deliver to him such documents as are in the person’s possession or power and which … contains information relevant to any tax liability of that person”. MG applied for judicial review to quash the notice, failing before the Divisional Court ([2000] S.T.C. 965, Buxton L.J. and Penry-Davey J.) and the Court of Appeal ([2001] EWCA 329, [2001] S.T.C. 497, Schiemann, Sedley L.JJ. and Blackburne J.), so that all six judges were for the Revenue; MG must therefore have been both delighted and perhaps surprised when a unanimous House of Lords, led by Lord Hoffmann, decided in its favour.

Are sex or gender crucial components of modern marriage? In Bellinger v. Bellinger [2001] EWCA Civ 1140, [2001] 2 F.L.R. 1048, the Court of Appeal returned to the question of the relevance of biological sex to the validity of marriage, first considered thirty years ago by Ormrod J. in Corbett v. Corbett (otherwise Ashley) [1971] P. 83. Both cases involved male-to-female transsexuals who had undergone gender reassignment surgery but in Bellinger, Mrs. Bellinger sought a declaration under section 55 of the Family Law Act 1986 that her marriage to Mr. Bellinger was valid at its inception and still subsisting (unlike Corbett, which involved a nullity petition). The Court, by a majority, upheld the decision of Johnson J. refusing the declaration.

In R. v. Quereshi [2002] 1 W.L.R. 518 the defendant, who was Asian, was convicted of arson with intent to endanger life, for which he was sentenced to four years’ imprisonment. A few days after the verdict a juror made a series of allegations to the court administrator which the administrator later summarised as follows:

On hearing this, Quereshi unsurprisingly appealed, asking the Court of Appeal to have the allegations properly investigated.

The decisions of the House of Lords in R. v. Allen [2001] UKHL 45, [2001] 3 W.L.R. 843 and R. v. Dimsey [2001] UKHL 46, [2001] 3 W.L.R. 843 concerned appeals against convictions for cheating and conspiring to cheat the public revenue. The appeals were heard together before the Court of Appeal (noted (2000) 59 C.L.J. 42) and before the House of Lords, although separate decisions were handed down in the latter court. Both cases arose from the evasion of tax through the use of overseas companies. Allen had evaded his own tax liability by, inter alia, making false declarations of his income and Dimsey, a financial services adviser, had administered overseas companies for various clients, including Allen, to evade their tax liability. The grounds of appeal fell under two main headings. A third ground, relating to Allen alone, was that benefits in kind received by him from overseas companies of which he was a shadow director were not taxable. It was held that he was liable to pay tax on such benefits, even though the link between those benefits and the services he provided as a shadow director might be tenuous.

In his recent book “Euthanasia, Ethics, and Public Policy”, John Keown puts forward two slippery slope arguments against the legalisation of voluntary euthanasia. One of these arguments claims that a defender of voluntary euthanasia is logically committed to the permissibility of non-voluntary euthanasia. This paper seeks to show that Keown’s argument either rests on a logical confusion or on a misunderstanding of the value of autonomy.

It has long been recognised that Industrial and Intellectual Law is territorial. A comparison with laws relating to landed property led English courts to conclude that they should refrain from exercising jurisdiction when any such foreign laws are involved. The Brussels Convention has eliminated this self-restraint. However it has been overrruled that in reality a special choice of law is in issue. The territoriality of legislation has a positive as well as a negative effect. Negatively no foreign law will be applied locally. Choice of law is replaced by a division of laws territorially.

Which law governs a contract where none has been chosen by the parties? The solution lies in Articles 3 and 4 of the 1980 Rome Convention on the Law Applicable to Contractual Obligations. Article 3 allows a court to infer the parties’ intentions from the circumstances. But such intentions must be “real”, not presumed, and in the absence of genuine consent, Article 4 provides that the applicable law is that most closely connected with the contract. Under Article 4(2) this is (in effect) the law in force where the supplier of goods or services is located, or (if relevant) has a branch—for the supplier’s performance is invariably “characteristic” of a contract, in the sense intended by the Convention. But any clarity thereby won is immediately lost because the presumption is rebuttable under Article 4(5) whenever a contract is better connected with another law, exposing Article 4(2) to the risk of constant challenge. The presumption is especially vulnerable because it will so seldom be appropriate to apply the supplier’s law, the law of the place of performance frequently having a stronger claim to govern. Perplexingly, it is a presumption more apt to be rebutted than applied.

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.

It has been a traditional requirement of rescission (ab initio), even as a response to fraudulent misrepresentation, that it must be possible to restore both parties to the relevant contract to some equivalence of their pre-contract positions. A line of cases involving rescission of guarantees has, however, permitted a surety to be entirely released from the guarantee even though the creditor has relied on it by supplying credit to the principal debtor. The suggested rationalisation is that the traditional requirement is confined to cases where rescission in specie is being sought and the innocent party can be adequately protected by a claim for damages. The article also addresses the relevance to rescission of the restitutionary concepts of change or position and counter-restitution.

For five centuries most lawsuits claiming land hinged on the exercise of a right of entry whereby the claimant had become instantly seised. Historians have assumed that he had previously been disseised, the disseisor’s wrongful possession not having matured into a protected seisin. But the mechanism, not confined to reversing disseisins, was the alternative to a real action and therefore claimed title by inheritance. Inheritance did not start as the automatic devolution of a non-existent ownership. On each death the lord made a new grant to the heir and put him in seisin, which was not an abstraction like possession but by definition conferred by the lord. Changes beginning in the 12th century eroded the lord’s part in inheritance: instead of putting heirs in seisin lords athorised them to put themselves in; and finally one had the right of entry if a supposed lord could have given authority.

Section 3(1) Human Rights Act 1998 appears to limit the powers of the court; statutes can only be interpreted in a manner compatible with Convention rights ‘so far as possible’. However, in practice, Parliament has given the judiciary carte blanche to determine when it is impossible to interpret statutes in a manner compatible with Convention rights. The express words of section 3(1) are so vague as to provide no clear outline of the limits of possibility. Nor does the legislative history of the Act provide any clear boundary. Should the judiciary so wish, section 3(1) could have the same effect in practice as if it impliedly repealed the provisions of all statutes contrary to Convention rights. It is the judiciary and not Parliament that determine how far human rights will be protected.

This article analyses Uratemp Ventures Ltd v Collins [2001] UKHL 43, [2001] 3 W.L.R. 806 in which, for the first time, the House of Lords considered the meaning of the word “dwelling” (an essential ingredient of security under the Rent Act 1977 and the Housing Acts of 1985 and 198) and overturned the previously accepted proposition that premises cannot be a dwelling unless cooking facilities are provided. The implications of the decision are considered not only in the context of the private rented sector but also in relation to secure tenancies granted by local authorities and certain other public landlords.

This article examines the draft Declaration on Population Transfer and Implantation of Settlers developed within the framework of the UN Sub-Committee on the Prevention of Discrimination and the Protection of Minorities. The draft declaration provides for the criminalisation of involuntary population transfer. This article argues that the Declaration will be ineffective in practice and will introduce inconsistency and confusion into the law. However, the attempt to introduce a crime of unlawful population transfer reflects a lacuna in existing law. And yet, this gap is unlikely to be filled by extending existing international crimes to cover ethnic cleansing. This is because existing crimes do not address the international community’s sense of what it is that makes ethnic cleansing so heinous. Thus some action needs to be taken. However, this article argues that the ability of the international community to proceed appropriately is stymied by the fact that international criminal lawyers lack the basic tools and the concepts by which to categorise different types of harm.

Views about the nature and extent of the “fusion” effected by the Judicature Acts frequently focus narrowly on those cases which determined the doctrinal position, with insufficient regard for the accompanying changes to practice, procedure and structures.

This article examines the means by which the promoters of the legislation and other interested parties sought to promote or restrain its formidable fusionist potential. It explores the use of cross-jurisdictional appointments to infuse equity into the common law divisions; the successive changes to the membership and working arrangements of the court of appeal; and the short-lived experiment of sending Chancery and appellate judges on circuit. It suggests that a more detailed examination of the effect of these structures and the role of individual judges of the Supreme Court of Judicature in its formative years is needed for a full understanding of the limited fusion that emerged.