This paper follows upon the author’s earlier paper in the preceding issue of the Journal which drew attention to the Court of Appeal’s growing practice of delivering composite judgments. It examines some of the wider issues cast up when courts ring the textual changes, adopting different permutations, and considers the somewhat tendentious matter of ‘judicial style’, a subject dear to some comparatists’ hearts. It explores the knotty question, glossed over even by many writers on precedent: what exactly is the virtue of the concurring judgment? It also considers how the quality of judgments may be affected by collaborative composition in a comparative context, taking in what little comparative evidence there is to inform the debate. It is futile to pretend that this paper offers final answers to any of these questions, for they raise issues of disconcerting complexity. Yet, to pass them over in silence would be scandalous.

This paper chronicles the very recent rise to prominence of the composite judgment, showing that at least one in seven decisions of the Civil Division of the Court of Appeal is now delivered in the form of an agreed, collective judgment of the court. In effect, English courts have quietly espoused something resembling a civilian judicial procedure. The article considers when appellate courts have tended to have recourse to this device and how they allocate responsibilities for drafting composite judgments, and concludes with reflections on some of the consequences that could flow from widespread adoption of this new appellate device. A subsequent paper will explore further the philosophical and comparative ramifications of this significant shift in English judicial method.

This article challenges the commonly expressed view that shareholders wishing to bring a derivative action on behalf of the company must have “clean hands” ie that there must be nothing in the shareholders behaviourwhich renders it unjust to allow the derivative action to proceed. While minority shareholders’ misbehaviour might well have consequences for themselves, such as requiring the repayment of dividends known to have been paid unlawfully, those actions ought, in the normal course of events, to be irrelevant for the purpose of deciding whether to allow a derivative action to proceed. This article suggests some circumstances in which a minority shareholder’s situation or actions may affect the decision to allow a derivative action brought by that particular shareholder to proceed, but these do not spring from the clean hands doctrine, but rather from the particular factual circumstances of the case or from an entirely proper desire on the court’s part to use the derivative action only where it is necessary to achieve justice for the company

This article argues that the express trust should be understood as a species of obligation rather than as a means of organising the ownership of property. Two propositions seem fundamental to the traditional understanding of the trust as an aspect of property law. Firstly, in the nature of the trust, there must be a separation of legal and beneficial ownership. Secondly, there must be trust property. Neither is necessarily true. With many discretionary trusts and other recognised types of express trust it is impossible to locate the beneficial estate. Furthermore, the requirement for there to be trust property is, on closer analysis, a requirement of certainty of obligation in relation to specific subject-matter within which the trust property can be located.

The article explores the implications of understanding the trust as a species of obligation. It allows all express trusts, including charitable trusts, to be explained as resting on the same fundamental concepts. The trust in the common law world may still be distinguished from contract and from the civil law forms of the trust. This new conceptualisation also illuminates what is the irreducible core content of the trust. The article concludes with a new definition of the express trust.

The essay questions the sense and purpose of current debate over the coherence of the ultra vires doctrine. It argues that the dispute is mainly semantic, serving to conceal rather than illuminate genuine questions about the nature and legitimacy of judicial review. If the doctrine’s opponents are right to emphasise the common law basis of the relevant standards of legality, abstractly conceived, the ultra vires school is equally right to insist that, in a statutory context, legislative intention is critical to the application of such standards. To connect the present debate with significant issues of substance, it would have to be recast as one between those favouring a “normativist” grounding of judicial review in the rule of law, on the one hand, and their “functionalist” or “pluralist” opponents, generally hostile to judicial review, on the other. The futility of the present debate is revealed by the simultaneous adherence of both sides to an integrated “rule of law” perspective. A useful analysis of the foundations of judicial review, capable of illuminating issues of substance, must explore the true meaning of the interrelated concepts of parliamentary sovereignty and the rule of law. No attack on the “empty formalism” of the ultra vires doctrine can carry conviction while at the same time affirming the doctrine of absolute parliamentary sovereignty, a doctrine equally malleable in the hands of judicial interpreters of statute, guided by common law precepts.

Arguments are generated in an ad hoc way about the continuation of the monarchy. Such media-led arguments are no substitute for a rational analysis of constitutional issues, although of course public opinion has an important part to play in the future of any constitutional institution. At present there is not even a basic framework against which any such reasoned analysis could begin. While a case against the British monarchy has been constructed by several people, the silence of constitutional lawyers on the central issue of monarchy or republic is surprising, for what is that issue if not one concerning a central part of the constitution, and, indeed, a very pervasive one? The author,a constitutional lawyer, examines the constitutional arguments and implications about the alternatives of monarchy or republic in the United Kingdom and attempts to make clear which matters would require decision if the United Kingdom were to opt for republicanism. He demonstrates that a change to a British republic would require the resolution of many interrelated issues. Even the answer to the apparently simple question of principle of whether a monarchy or a republic is preferred may turn on the type of republic which was on offer. Conversion to a republic would involve wide and deep changes to much of the constitution because of the legal peculiarities of the ancient British monarchy. These are not insoluble difficulties, but they do mean that the abolition of the monarchy would be an intellectually challenging exercise.

The disclosure of confidential records such as those of doctors, counsellors, and therapists may be sought by the defence as a means of undermining the credibility of complainants in rape and sexual assault trials. It is not clear that the procedure under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965, under which disclosure of the records of third parties may be sought, offers sufficient protection for the interests of complainants. This article discusses the weaknesses of section 2 and the implications of public interest immunity as well as Article 8 of the ECHR in this context. It also explores the different approaches taken in Canada, New South Wales and certain American jurisdictions to meet this problem. It concludes by making some suggestions for the amendment of the 1965 Act.

An important rule of criminal evidence is that evidence of a defendant’s previous misconduct (evidence of bad character) is prima facie inadmissible. The usual justification for this rule is that, in most cases, such evidence is either irrelevant or likely to have an unduly prejudicial effect on the fact-finder. This article questions this justification. After reviewing the psychological research on character, it examines statistical data on recidivism. The statistics suggest that those with previous convictions are much more likely to offend than are those without a criminal record, which implies that evidence of bad character will usually be sufficiently probative to justify its admission as proof of guilt. The remainder of the article examines various criticisms which can be levelled at this argument, in particular, that the recidivism data are misleading and that the way in which fact-finders reason renders evidence of bad character uninformative.

The author focuses on the voluntary use by judge or counsel of foreign law and foreign legal ideas as a means of shaping national law when this is unclear, contradictory, or otherwise in need of reform, as distinct from the formal presentatin of foreign law through expert witnesses where such law has to be applied. The number of instances in which this kind of borrowing may happen must, of necessity, be limited. The problem is that foreign law is unlikely to come in a simple form, attractively packaged; and language is a major problem in judicial attempts to be inspired by a foreign idea if not to transplant the actual solution. This has led the author to advocate a more co-ordinated use of the different talents that judges, practitioners, and academics bring to the process of creating and interpreting law and to assist the process by provision, in the English language, of easily accessible accounts of relevant foreign material. The approach finds an excellent practical illustration in the judgment of the High Court in Greatorex v. Greatorex.

The Law Commission’s proposal for an offence of “corporate killing” (modelled on the common law crimeof gross negligence manslaughter) is criticised for vagueness and imprecison, for not comprehending serious non-fatal injuries, and for failing to recognise that in the absence of clear rules of attribution, any criminal liability imposed on an organisation can only be for failing to prevent something happening. It is suggested that offences (patterned on those of causing death by dangerous, or by careless and drunken driving) of causing death or serious injury by breaking (statutory) regulations would be a much better way of holding businesses and similar bodies as well as individuals liable for death and serious injuries that would not have occurred if those regulations had been obeyed.

This article considers the approach taken to devices that are designed to avoid tenancy legislation, exploring the doctrines of sham, pretence, contracting out and the “artificial device doctrine” developed in tax cases. It is argued that the legal response takes two stages. The first judicial task is to determine which legal route is being followed, an enquiry which is designed to identify what the genuine relationship is between the parties and incorporating the doctrines of sham, pretence and labelling. Having determined the true nature of the legal relationship, the task of the court is then to apply the legislation to that relationship, which will include a consideration of whether any “contracting out” by the tenant is lawful. Having reviewed the legal response to devices, the article discusses the decision of the Court of Appeal in Bankway Properties v Pensfold-Dunsford.

There are a number of situations where it is possible to say that a person may, and in some cases almost certainly will, get an interest in property at some time in the future. However, until that time there is some degree of uncertainty: there is usually some risk that no interest will be acquired and there may be uncertainty as to the identity of the property or the nature of the interest. This article deals with the interim period between the act or event that initiates the interest and its final acquisition. It considers the approaches taken by the courts to the question of what rights, if any, come into existence during that interim period and whether there is a distinct entity or interest that can be described as a “floating right”.

The decision of the House of Lords in Vandervell v. IRC [1967] 2 AC 291 is difficult to explain but highly convenient in everyday commerce. This article uses the doctrine of overreaching to explain and justify their Lordships’ approach to the formalities for dealing with trust property at the direction of beneficiaries. It seeks to explore the limits of that justification, and thereby suggest answers to practical questions left unresolved by the decision. These questions remain highly relevant, particularly in the age of widespread electronic communication without formality.

Being an action on the case, it has long been supposed that negligence is consummated only upon the occurrence of damage. Physical damage ordinarily occurs where there is some change in the state or structure of a person’s body, or where there is some change in the state or structure of tangible property. The author argues that courts have, in recent wrongful conception and contamination cases, widened the orthodox notion of what constitutes physical damage. The courts have employed an ordinary bystander test in order to determine whether particular failures of care, arising in circumstances of high or unnecessary risk of physical harm, should be treated as if they give rise to physical damage. These are cases of a new form of actionable damage, that is, damage of a socially constructed kind.