Recent media reports have revealed a substantial number of highly-paid senior civil servants and BBC presenters have been using “off payroll” arrangements and personal services companies to reduce the tax paid on their earnings. This article examines the tax and National Insurance contribution (NIC) savings that can be had by carrying on economic activity through a company rather than as an unincorporated business or an employee. These savings derive from a combination of favourable tax and NIC rates on companies, and can be further increased through family income-splitting arrangements, as witnessed in the case of Jones v Garnett. Several possible reforms to address the distortions and inequity in the present tax and NIC regimes in favour of companies are considered, including amendments to the IR35 “disguised employment” regime and the anti-income-splitting rules known as the settlement provisions. Applying the new statutory general anti-abuse rule, which the Government plans to introduce in Finance Act 2013, is another possible approach. The preferred option, however, is to deal with the root problem and pursue closer alignment of the tax and NIC treatment of activity carried on in different legal forms.

As students of the Law of Contract learn to their bemusement, in Fisher v Bell,1 although caught by a member of the constabulary in the most compromising circumstances, the owner of Bell's Music Shop, situate in the handsome Victorian shopping Arcade in the bustling Broadmead area of Bristol, was unsuccessfully prosecuted for offering for sale a flick knife contrary to s.1(1) of the Restriction of Offensive Weapons Act 1959. The statute penalised “any person who manufactures, sells or hires or offers for sale or hire, or lends or gives to any other person” a flick knife. Mr Bell had done all in his power to make a sale. The switchblade had been displayed in his shop window with a label that read, “Ejector knife—4s”. The police officer, who spotted the display and then took the knife away to show to his superintendent, was told by the shopkeeper that he had had other policemen in the shop inquiring about the knives. When the officer returned to tell Mr Bell that he would be prosecuted, the latter simply retorted “Fair enough.”

This paper identifies the source, content and limits of the controls that might be imposed by a court on the way a party exercises discretionary powers conferred under the terms of a contract. It is argued that such controls boil down to a requirement of “good faith”, in the sense that the party exercising the discretion must do so honestly, and that this can be tested by asking whether the decision is one that no reasonable person acting reasonably could have reached in the circumstances. It is suggested that a similar requirement should apply when a contracting party exercises a right to terminate for breach, whether at common law or under a termination clause.

Drawing upon the history of the doctrine of the old use, Professor John Mee has suggested both that the extent of the authority for a “retention” approach to “automatic” resulting trusts has been overlooked, and that while as a matter of history a “retention” approach has significant support, as a matter of principle in the modern law it is not fully satisfactory, so that it is necessary to look elsewhere for a theoretical explanation for the “automatic” resulting trust. This article examines the reasons for the inconsistency identified by Professor Mee, seeking to elucidate the relationship between uses and trusts, to contribute to the history of resulting uses and trusts, and to explain why the modern “automatic” resulting trust has become a rule in search of a rationale.

Under English law a child born disabled, for instance by Tay Sachs disease, as a result of negligent embryo selection by preimplantation genetic diagnosis (‘PGD’), can sue the relevant health professionals by means of a 1990 amendment to the Congenital Disabilities (Civil Liability) (‘CD’) Act 1976. By contrast, a second child conceived outside the in vitro fertilisation (‘IVF’) clinic, whose Tay Sachs is not detected in utero by means of prenatal diagnosis, can have no claim against the relevant health professionals due to the decision in McKay and Another v Essex Area Health Authority, which held that a child can have no claim for so-called “wrongful life”. This paper argues that this difference is anomalous and inequitable. It highlights the inadvertent way in which the legislative exception was crafted and shows that there are no relevant differences between the selection practices of PGD and PND that would in any event justify such different treatment. It critiques the English common law position on wrongful life by analysing the ethical and legal foundations of such a claim, arguing that the action should be permitted on the basis of a certain degree of severity, namely where a future child is likely to think that his or her life is not worth living. The analysis makes particular reference to developments since McKay in the law relating to the selective non-treatment of neonates, selective abortion, wrongful birth, and the action for wrongful life itself, as well as to the legal position of pregnant women in relation to the fetus, and the critique by people with disabilities of the practices of PGD and PND. The paper argues that McKay and those parts of the CD Act that purport to deny a claim for wrongful life to children born outside the IVF context should be revisited when the opportunity arises. The duty that health professionals already owe prospective parents to advise of a condition in a developing fetus that would give rise to serious impairments in the future child (which sounds in an action for so-called “wrongful birth”) should be owed at the same time to the future child, realised by advice to the pregnant woman, where a child is likely to be born with a condition that is so severe that any goods in life are outweighed by the burdens.

In English law, mens rea terms can be defined differently depending on the context. This article attacks this approach, arguing that it pays insufficient attention to the criminal law's twin needs to communicate effective guidance to citizens who wish to avoid punishment, and to control the discretion accorded to the criminal law's institutions. It would be preferable to have clear definitions of mens rea terms applied uniformly across the criminal law. If there are gaps, these ought to be filled by additional mens rea terms. The practical issues raised by this argument are considered briefly.

This paper considers whether unlawful means conspiracy might have a role to play in extending liability from insolvent companies to those who stand behind them. A reason for thinking that the tort might have such a role is that, where an agreement to injure exists, liability can be found not only in those who commit unlawful acts but in any other persons who take steps to further the conspiracy. The paper argues, furthermore, that courts should accept that unlawful means conspiracy might be committed between even the smallest company and its controlling shareholder. This would strengthen the propositions that the company is a separate legal person with its own rights and responsibilities and that it is competent to deal with all comers, including its controller.