The need to redress the inequality of power between the citizen and the State, which lies at the heart of public law, is illustrated nowhere more clearly than in the facts of R. v. North and East Devon Health Authority, ex p. Coughlan [2000] 2 W.L.R. 622. As a result of her severe disability Pamela Coughlan was, for many years, looked after as a hospital in-patient. In 1993, however, she agreed to move to a purpose-built care facility on the strength of the respondent’s promise that it would be her “home for life”; yet, only five years later, the health authority decided to close the new home, citing financial reasons. That the applicant possessed a legitimate expectation which would be breached by closure of the home was not in doubt. The difficult question was how the expectation could be protected. Courts have long been willing to enforce procedural promises and to safeguard expectations of substantive benefits by requiring the adoption of a fair procedure (typically consultation) before the benefit is denied. Coughlan, however, makes it clear that courts may go further than this by substantively protecting substantive expectations.

Given that it was no more than a decision of the Divisional Court, and a pre-War decision at that, the case of Duncan v. Jones [1936] 1 K.B. 218 has exercised a remarkably enduring influence. The case appeared to give the police enormous operational discretion in dealing with actual and prospective breaches of the peace. When a constable reasonably apprehended a breach of the peace, he could take steps (arguably, only reasonable steps) to prevent it or its recurrence. This disarmingly simple formula made it very difficult to challenge, let alone control, the way in which the police exercised their powers.

The M/V “Saiga” (No. 2) (Saint Vincent and the Grenadines v. Guinea) (1999) 38 I.L.M. 1323 was, on the facts if not on the docket, the continuation and conclusion of The M/V “Saiga” 110 I.L.R. 736, the first case to be heard by the International Tribunal for the Law of the Sea (ITLOS) established under the 1982 Convention on the Law of the Sea. The cases arose out of an incident in which the Saiga—a Cypriot-owned, Scottish-managed and Swiss-chartered tanker flying the flag of Saint Vincent and the Grenadines—was detected refuelling fishing vessels at sea (“bunkering”) in the Exclusive Economic Zone, and in violation of the customs laws, of Guinea. Guinean patrol craft forcibly arrested the Saiga, injuring a Ukrainian crewman and a Senegalese painter, and escorted the ship to port, where its Ukrainian master was convicted of customs offences. As well as a suspended sentence of six months’ imprisonment, the court imposed a substantial fine, seizing the vessel and confiscating its cargo by way of guarantee.

The facts of Kent v. Giffiths [2000] W.L.R. 1158 were that the claimant had suffered an asthma attack and was attended by a doctor at her home. At 4.25 p.m. the doctor called an ambulance, gave the patient’s name, address, age and condition, and requested that she be transferred immediately to casualty where she was expected. Ambulance control replied “Okay doctor”. At 4.35 p.m. the claimant’s husband was assured, on making a second call, that the ambulance was on its way. He was told to hang on for another seven or eight minutes. A similar response was given to a third call made sixteen minutes later. The ambulance finally arrived forty minutes after the initial call was made. The claimant suffered respiratory arrest resulting in brain damage and a miscarriage. At trial Turner J. held that the London Ambulance Service (LAS) was liable for breach of a duty of care. He found not only that there was no reasonable explanation for the delay, but also that the ambulance crew had falsified their records ([1999] Lloyds Rep. Med. 424). Had the ambulance arrived when it should, there was a high probability that the respiratory arrest would have been averted.

The claimant was employed for 39 years as a marine fitter, working for various employers. For 24 of those years he was exposed to asbestos, and eventually he developed asbestosis, presumably as a result of that exposure. He sued the defendants, one of the firms that had employed him; about 12 years of his exposure, half the total, were suffered through the defendants’ negligence and breach of statutory duty. General damages were assessed at £32,000. The issue was whether or to what extent those damages should be reduced, to reflect the fact that other firms (now either insolvent or untraceable) shared the responsibility for the claimant’s exposure to risk.

Holbeck Hall Hotel stood on the cliffs at Scarborough with views over a lawn and rose garden to the North Sea. The undercliff below the hotel was owned by Scarborough Borough Council. Over the years, natural erosion of the coastline led to relatively minor landslips in the area. The Council engaged engineers to investigate them and remedial works were carried out in 1989, but in 1993 there was a massive landslip. The lawn and rose garden fell into the sea, and the ground under the seaward wing of the hotel collapsed so badly that the whole building had to be demolished. Its owner claimed damages from the Council, and Judge John Hicks Q.C., applying Leakey v. National Trust [1980] Q.B. 485, held the Council liable for breach of a “measured duty of care”. The Court of Appeal agreed that an occupier could be under such a duty to prevent danger to a neighbour’s land from lack of support due to natural causes, but held the Council not liable because it owed no duty in relation to latent defects which could only have been discovered by extensive geological investigation: Holbeck Hall Hotel Ltd. v. Scarborough Borough Council [2000] 2 W.L.R. 1396.

Foskett v. McKeown [2000] 2 W.L.R. 1299 concerned the aftermath of a property development scheme in the Algarve marketed by one Mr. Murphy. 220 customers (“the purchasers”) entered into contracts which provided that after two years they would each be conveyed a specified plot of land or their money would be repaid with interest. Unless and until the purchasers’ money was used for the stated purposes it was to be held on trust. However, at the expiration of the specified period, it was discovered that the trust money had been misappropriated. While much of the trust money was untraceable, Murphy had applied around £20,000 of it to pay the fourth and fifth premiums of a life insurance policy that was settled in favour of his wife and children (“the beneficiaries”). In 1991, after his malfeasance was exposed, Murphy committed suicide. The insurance policy yielded a death benefit of £1,000,000. The question to be resolved was whether the use of the purchasers’ money to pay some of the premiums gave them any interest in the death benefit.

Twinsectra Ltd. v. Yardley [1999] Lloyd’s Rep. Bank. 438, a unanimous decision of the Court of Appeal, illustrates the various liabilities of a fiduciary who obtains money by a fraudulent misrepresentation. Apart from liability at law for deceit, he may be liable in equity as a resulting trustee or the claimant may rescind the transaction for fraud. This note asks how real the differences are between these two equitable means of reversing the unjust enrichment of the fiduciary.

Directors of BCCI (Overseas) Ltd. deliberately applied its funds in breach of their duties, and Chief Akindele received those funds. Later, the company, acting by its liquidator, sued Chief Akindele both for knowing receipt of the misapplied funds and for dishonestly assisting their misapplication. The High Court dismissed the claim for dishonest assistance: the company could not prove that Chief Akindele had been dishonest. There was no appeal against this ruling. So at the very beginning of his judgment in BCCI (Overseas) Ltd. v. Akindele [2000] 4 All E.R. 221, which was the only reasoned judgment given in the Court of Appeal, Nourse L.J. stated the key remaining question about the claim for knowing receipt: “What must be the recipient’s state of knowledge? Must he be dishonest?”

The important recent decision of Neuberger J. in Oceanic Village Ltd. v. United Attractions Ltd. [2000] Ch. 234 considers the enforceability of a restrictive covenant, contained in a lease, which relates to other adjacent land of the landlord. All relevant title was registered, and the case raised the problem addressed in relation to unregistered land by Dartstone Ltd. v. Cleveland Petroleum Co. Ltd. [1969] 1 W.L.R. 1807 where Pennycuick J. held that, as such covenants were not registrable under the land charges legislation, all depended on an application of the doctrine of notice. Shirayama, the Japanese freeholders and registered proprietors of the old County Hall, granted a lease in February 1997 of premises in the building to the claimants, Oceanic, for a term of 20 years. Oceanic covenanted not to use the premises otherwise than as a high quality gift shop without the landlord’s written consent. By clause 4.6 of the Oceanic lease, the landlord covenanted “not to permit any other gift shop to be operated in the Building provided that the restriction shall not apply to any hotel in the Building”. In July 1998, Shirayama granted a lease of another unit in the building to the defendants, United, for a term of 15 years. Under the United lease, the use of their unit was to be restricted to a Football Hall of Fame and ancillary commercial uses. There was no specific restriction of gift shop use.

Ken Holt was a wealthy farmer in Lincolnshire. In 1952 he befriended Geoffrey Gillett and then persuaded the young man to work on the farm instead of continuing at school. For nearly 40 years, Gillett was Holt’s right arm, a relationship that did not falter when Gillett married. Over these years, when Gillett managed the farm and eventually entered into partnership with Holt, Holt repeatedly promised that Gillett would be the principal beneficiary of his will. These were no idle boasts, but were repeated often, in public, and were given effect in several versions of Holt’s will. In 1992, Holt formed a friendship with Mr Wood (a trainee solicitor), the result of which was the eventual breakdown of his relations with the Gillett family and their exclusion from his will. In Gillett v. Holt [2000] 3 W.L.R 815 Geoffrey Gillett asserted that Holt was estopped from changing his will so as to deny Gillett his expected legacy. As we might think, a simple case of proprietary estoppel based on assurance, reliance and detriment. However, Carnwath J. at first instance thought otherwise and rejected estoppel because first, Gillett could not establish that Holt had made an irrevocable promise not to change his will (and everyone knows that wills may be changed), and secondly, Gillett had suffered no detriment.

For the purposes of creating consensual security interests, are a debt and its proceeds a single indivisible asset or can they be separated? Is a security on book debts and proceeds a single indivisible charge or two charges? If it is a single indivisible charge, can it be a convertible charge, that is a charge which is fixed so long as it attaches to unrealised debts but floating in respect of proceeds of the debts? Recent decisions of the English courts have shrouded these questions in confusion. The appeal from the New Zealand Court of Appeal’s decision in Re Brumark Investments Ltd. [2000] 1 B.C.L.C. 353 gives the Privy Council an opportunity to provide much-needed clarification.

How far should we as a society concerned to protect children be prepared to run the risk of trampling on the rights of potentially innocent parents? Once the technicality is stripped away, this was essentially the issue which the House of Lords confronted in Lancashire County Council v. B [2000] 2 W.L.R. 590. The courts may only make a care or supervision order where the local authority can satisfy the “threshold conditions” in the Children Act 1989, s.31(2).

Recent years have witnessed considerable controversy over the principles that determine when a court has jurisdiction to hear claims against foreign publishers who circulate defamatory material in several jurisdictions, including England. This is the situation that arose in the recent decision of the House of Lords in Berezovsky v. Michaels [2000] 1 W.L.R. 1004. In 1996 Forbes Magazine, a company incorporated in the United States, published an article about certain activities in Russia of two prominent businessmen, Mr. Berezovsky and Mr. Glouchkov, who were resident in Russia. The magazine containing the article was primarily circulated in the United States, but did have an English circulation accounting for approximately 0.2% of its global circulation. In 1997 Mr. Berezovsky and Mr. Glouchkov issued proceedings in England alleging that the article contained defamatory material. The claimants, however, limited their claims to the damage done to their reputations in England as a result of the magazine’s English publication. The issue before the House of Lords was whether the claimants should be given permission to serve their claim form on the publisher out of the jurisdiction, pursuant to R.S.C. Order 11, rule 1(l)(f), now C.P.R Part 6.20(8). At first instance Popplewell J. had refused such permission, but had subsequently been overturned by the Court of Appeal ([1999] E.M.L.R. 278: judgment of the court delivered by Hirst L.J.). The House of Lords by a majority (Lords Hoffmann and Hope dissenting) dismissed the appeal and held that permission should be given for the trial of the action to proceed in England.

The decision itself in Tanfern Ltd. v. Cameron-MacDonald [2000] 1 W.L.R. 1311 (C.A.) hardly merits attention (held: the court lacked jurisdiction to hear the instant appeal). But Brooke L.J.’s judgment, endorsed by his colleagues, contains an analysis of the new system of civil appeals which took effect on 2 May 2000. He rightly describes these as “the most significant changes in the arrangements for appeals in civil proceedings in this country for over 125 years”.

In the criminal justice system’s scheme of unpleasant things, what official part is played by “naming and shaming” the offender?

An accused is charged with rape. He will claim that the complainant consented. The Crown can prove that on four previous occasions that selfsame accused has been tried on other counts of rape, but on all but one of them has been acquitted. The trial judge rules that, had the accused been convicted of all four earlier rapes, such evidence would have been admissible at the fifth trial under the similar fact evidence principles enunciated by the House of Lords in D.P.P. v. P [1991] 2 A.C. 447. The single earlier conviction, however, standing alone, does not qualify as admissible similar fact evidence. These, in essence, were the facts confronting the House of Lords in R. v. Z [2000] 3 W.L.R. 117, the general question for the House being: despite three of Z’s previous trials having resulted in acquittals, was the Crown entitled to lead evidence of all four earlier incidents, including testimony from the three complainants whose allegations had failed to persuade juries in the past?

This article seeks to uphold the Interest Theory of legal rights by arguing that such a theory can withstand objections and handle difficulties that are often posed against it. Building on the author’s previous defences of the Interest Theory, the present article also seeks to expose some serious shortcomings in competing theories. Among the topics covered are the role of legal powers of enforcing or waiving legal rights; the possibility of rights to be mistreated; and the status of inoperative rights. In each case, so the article argues, the complexities of the issues involved can best be handled by a theory which maintains that the essential function of legal rights is the protection of various aspects of people’s well-being.

Rescission (the process by which a voidable contract or other disposition is avoided) is frequently described as a remedy which can be effected both by judicial decree and by the act of the innocent party. This article seeks to explore the latter notion, that it is possible to rescind a contract or disposition by self-help means. It explains that the law is in some disarray, caused primarily by confusion between the dual historical development of rescission at law and in equity. Rescission was traditionally regarded as the act of the innocent party only for vitiating factors (such as fraud) actionable at common law, not those actionable in equity, but this separation was not maintained following the Judicature Acts. Moreover, there are practical and conceptual difficulties with the notion of rescission as a self-help remedy, both in the idea that rescission can be effected by the election of the innocent party without judicial intervention and that, even where judicial rescission is obtained, the court order is back-dated to the earlier date of the innocent party’s election. The principal difficulty arises when an executed or partly executed transaction is rescinded, for then there are restitutionary implications and implications for the security of third party title. The conclusion is that the notion of rescission as a self-help remedy serves only to confuse in the modern law of obligations and should be abandoned.

This article examines how courts determine whether proximity exists as between parties to a dispute in the “borderland” between two categories of negligence, viz. that concerning acts which cause physical harm and that concerning misstatements which cause pure economic losses. It is argued that these case categories cannot be delineated as neatly as the courts have assumed and that the kind of proximity typical of each is likely to be founded upon, at minimum, the presence of a close causal connection between ‘action’ and damage. In light of these findings, the article also considers the place of the notion of ‘directness’ in the tort of negligence.