Suppose a collection of ictures is held by a trustee T on trust for beneficiary B. A picture is stolen by X, a thief; or alternatively, it is wrongfully sold by T to Y. What causes of action are open to B? At first sight this looks an easy question, involving straightforward application of the principles of equity and personal property. In the former situation (the theft example), T, who has the legal title, can clearly sue X in conversion. As for B, he in his capacity of equitable owner can no doubt force T to do so, if necessary by himself bringing proceedings against X and joining T as a party. In the second case, that of wrongful sale, T is clearly guilty of a breach of trust and liable to compensate B accordingly. As to the liability of Y, B will be able in equity to recover the picture from him in specie he has it, or its value if he does not (assuming Y's acts were sufficient to make him liable on the basis of “knowing receipt” of trust property).

In English law, the recovery of pure economic loss falls mainly within the province of the law of contract. Only in very limited circumstances does the law of tort provide for the recovery of such losses. As Cardozo C.J. explained in Ultramares Corporation v. Touched, tort is concerned not to permit “liability in an indeterminate amount, for an indeterminate time to an indeterminate class”. Notwithstanding this reticence, their Lordships' speeches, though not the final decision, in the seminal case of Hedley Byrne & Co. Ltd. v. Heller and Partners Ltd. provided a notable inroad into the rigidity of this stance. Since Hedley Byrne, the question has become, instead, how far, not if, pure economic loss is and should be recoverable in the law of negligence.

As far back as 53 years ago, the adaptability of the common law to changing circumstances whereby new rights have been created by the courts, has been observed and accepted as a function of the judiciary. Scott L.J. in his dictum in Haseldine v. Daw stated: The common law has throughout its long history developed as an organic growth, at first slowly under hampering restrictions of legal forms of process, more quickly in Lord Mansfield's time, and in the last 100 years at an ever increasing rate of progress as new cases, arising under new conditions of society, of applied science and of public opinion, have presented themselves for solution.

The sale by the Churchill trustees of Sir Winston Churchill's pre-1945 personal papers to Churchill College, Cambridge early in 1995 caused much controversy. Over £12 million, generated by the National Lottery, was used by the National Heritage Memorial Fund to make the purchase, producing the jibe that the Trust's beneficiaries (notably the great man's grandson, Winston Churchill, MP) had won the Lottery without having to buy a ticket. This little drama brought into focus a number of constitutional questions about state papers.

The freedom to criticise government, and even to counsel disobedience or revolt, is widely considered the principal mark of a free society. Where the dissident voice is silenced by laws against sedition, it has been argued, there is no genuine freedom of speech and, accordingly, no real political freedom.2 The force of this suggestion stems from the underlying idea that government, if constitutional and legitimate, should be government by consent: laws against sedition, or which otherwise curtail political debate in order to silence opposition, repudiate that idea by denying the legitimacy of dissent.

The doctrine of ultra vires has been aptly described by Sir William Wade as “the central principle of administrative law” but in recent years it has been subjected to criticism. First the academics weighed in and, increasingly, eminent judges speaking or writing extra-judicially have described the doctrine as a “fairy tale” or a “fig leaf” and declared its redundancy and lack of utility.