In its judgment in the LaGrand case (Germany v. United States of America), delivered on 27 June 2001, the International Court of Justice found, for the first time in its history, that its orders indicating provisional measures were legally binding. This has long been the subject of extensive controversy, but the Court has traditionally refrained from stating its views on this point, even though such orders are frequently disregarded (e.g., in Anglo-Iranian Oil Co. (1951), Fisheries Jurisdiction (1972), Diplomatic Staff in Tehran (1979) and Genocide Convention (1993)). In LaGrand the Court adopted a positive stand on provisional measures and displayed full readiness to draw serious consequences from non-compliance therewith. One can expect that the important ruling in this case will have a far-reaching impact on future attitudes toward the Court’s provisional measures.

Most people forced to flee across national borders do so to escape the consequences of internal armed conflicts. But the extension of protection to such people by the countries from which they seek asylum has proved to be uncertain. Most of these countries have undertaken protection obligations towards persons claiming refugee status in accordance with the 1951 Convention for the Protection of Refugees (“the Convention”). For the purposes of the Convention, a “refugee” is defined as any person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country” (Article 1A(2)). Although that definition is contained in an international instrument, national immigration laws incorporate or refer to it and its construction and application generally fall to national administrators and judges. It is, therefore, not altogether surprising that decision-makers in different countries reach different conclusions as to its scope and meaning. Such is the case with Minister for Immigration and Multicultural Affairs v. Haji Ibrahim (2000) 175 A.L.R. 585, in which the High Court of Australia rejected the approach of the House of Lords in Adan v. Secretary of State for the Home Department [1999] 1 A.C. 293. At issue in both cases were claims for refugee status made by persons having fled Somalia, a country riddled by internecine clan conflict and lacking any recognisable governmental authority. Although the ultimate decision in each case turned on the appreciation of the specific findings of fact made by the initial adjudicators, a significant difference of approach in the application of the Convention definition may be identified.

The European Convention on Human Rights and Fundamental Freedoms makes no mention of any right to procedural justice in the making of administrative decisions. Any protection for such rights must be found in Article 6(1) which provides that in the determination of their “civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. But Article 6(1) was originally intended to apply to the determination of private law rights only and not to public law matters (see Le Compte, Van Leuven and De Meyere v. Belgium (1981) 4 E.H.R.R. 1, 36 (Sir Vincent Evans, dissenting); Konig v. Germany (1978) 2 E.H.R.R. 170 (Matscher J., dissenting)). The article plainly envisages judicial proceedings, and there are obvious difficulties in applying it straightforwardly to administrative proceedings.

In R. v. A (No. 2) [2001] 2 W.L.R. 1546 the House of Lords knocked a dent in the controversial “rape shield” provision, section 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA). They did so wielding Article 6 of the European Convention on Human Rights, given direct effect by another piece of “flagship” legislation, the Human Rights Act 1998. The decision is important for constitutional law as well as for criminal evidence.

The decision of the House of Lords in R. (Daly) v. Secretary of State for the Home Department [2001] 2 W.L.R. 1622 provides authoritative guidance as to how human rights issues should be treated in judicial review cases. In common with a number of other recent leading cases in this area, Daly concerns prisoners’ rights. All governors of closed prisons were required by the Home Secretary to operate a cell searching policy under which prisoners were not permitted to remain in their cells during searches, so as to prevent intimidation of those conducting searches and to stop prisoners gaining knowledge of search techniques. Prison officers were permitted to examine, but not read, legal correspondence stored in cells. The claimant, who stored such correspondence in his cell, successfully contended that the policy was unlawful to the extent that it precluded prisoners’ presence during examination of legal correspondence. This note highlights four points of general importance which arise from their Lordships’ decision.

Sir John Salmond stated in the first edition of his Law of Torts (1907) that a wrongful act is deemed to be done by a servant in the course of employment if it is “either (a) a wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the master”. This passage, to be found at page 443 of Salmond & Heuston on the Law of Torts, 21st ed. (1996), has been cited with approval in many judgments. The first alternative is unproblematic, save that it refers to a situation where the master is primarily rather than merely vicariously liable. But the second can be difficult to apply, particularly where the servant’s tort is intentional. How can it be right to describe conversion by a servant of a fur which he has been told to clean (Morris v. C.W. Martin & Sons Ltd. [1966] 1 Q.B. 716) or deceit of his master’s client (Lloyd v. Grace, Smith & Co. [1912] A.C. 716) as a mode of doing an authorised act, when it is effectively the opposite of what he has been authorised to do? The problem is even more acute when the tort consists of trespass to the person. In Trotman v. North Yorkshire County Council [1999] L.G.R. 584 the Court of Appeal held the defendant Council not liable for a sexual assault by a teacher on a handicapped teenager committed to his care on a foreign holiday, on the ground that it was an independent act outside the course of employment. Trotman has now been overruled by a unanimous House of Lords in Lister v. Hesley Hall Ltd. [2001] 2 W.L.R. 1311, where it was held that the proprietors of a school for children with emotional and behavioural difficulties were vicariously liable for the systematic sexual abuse of two teenage boys by the warden of a boarding house.

In the law of defamation, the jury is “the constitutional tribunal” of fact (J.C.C. Gatley, Libel and Slander, 9th ed. (London 1998), pp. 889-890). The jury’s occupation of this position is usually traced back to Fox’s Libel Act 1792. While confined in terms to criminal trials, the 1792 Act is regarded as declaratory of the common law (see Sir Martin Nourse, “The English Law of Defamation-Is Trial by Jury Still the Best?”, in B.S. Markesinis (ed.), The Clifford Chance Lectures, vol. I, Bridging the Channel (Oxford 1996), ch. 4). One way in which to explain the jury’s role in defamation trials can be found in the ideal of institutional justice. This ideal specifies that institutions should, in order to be legitimate, adequately accommodate the views of those in the society where they operate (G. Cupit, Justice As Fittingness (Oxford 1996), ch. 5). There is, however, reason to regard defamation law’s commitment to institutional justice as qualified. Support for this view can be found in Grobbelaar v. News Group Newspapers Ltd. [2001] 2 All E.R. 437. In Grobbelaar, a unanimous Court of Appeal overturned a jury’s findings of fact on the ground that they were perverse and unreasonable. This decision appears ground-breaking since the Court was unable to point to domestic authorities in which the same step had been taken.

In view of the restrictions inherent in the law on unfair dismissal, in relation to both the parameters of making a claim and the maximum amount of damages, it is not surprising that in Johnson v. Unisys Ltd. [2001] 2 W.L.R. 1076 the House of Lords was confronted with an attempt to circumvent the statutory system. Mr. Johnson was summarily dismissed in circumstances which were held to amount to an unfair dismissal, and received the maximum amount of damages. Unfortunately for Mr. Johnson, who had been diagnosed with a stress-related illness before, he suffered a mental breakdown, and has since been unable to find employment. He claimed that the manner of his dismissal amounted to a breach of the implied duty of mutual trust and confidence; this argument was rejected by the judge at first instance, the Court of Appeal ([1999] I.C.R. 809) and, on different grounds, the House of Lords.

The recognition of the defence of change of position in Lipkin Gorman v. Karpnale Ltd. [1991] 2 A.C. 548 was a landmark for the law of restitution. In the ten years which have followed Lipkin Gorman, courts and academics have been involved in two, closely related, tasks: first, a description of the content and nature of the defence of change of position; and, secondly, an analysis of the relationship between change of position and other defences to restitution. An important aspect of the latter task has been the fundamental re-examination of the role of estoppel by representation as a defence to restitution. Two recent cases in the Court of Appeal, Scottish Equitable plc v. Derby [2001] 3 All E.R. 818 and National Westminster Bank plc v. Somer International (UK) Ltd. [2001] Lloyd’s Rep. Bank. 263, indicate that, although estoppel by representation remains a defence, the practical effect of the defence will often be much more limited than had been previously understood.

Once a petition to wind-up a company has been presented, a balance must be struck between two competing interests. On the one hand, the allegedly insolvent company must be allowed to continue trading until the court has had an opportunity to examine the bien-fondé of the petition; on the other hand, the company’s directors must be prevented from dealing with the corporate assets in a way detrimental to the interests of the general creditors. This balance is struck by the Insolvency Act 1986, s. 127, which provides that, upon the granting of a winding-up order, any “dispositions” of the company’s property in the period following the presentation of the petition are retrospectively avoided, unless the court orders otherwise. The courts have, however, had considerable difficulty in applying this provision to the post-petition operation of a company’s current account and, in particular, have failed to adopt a consistent approach to the potential liability of a bank for continuing to operate such an account. The Court of Appeal addressed this problem in Hollicourt (Contracts) Ltd. v. Bank of Ireland [2001] 2 W.L.R. 290.

The Privy Council decision in Agnew v. Inland Revenue Commissioner [2001] B.C.C. 252 (on appeal from the New Zealand Court of Appeal in Re Brumark Investments Ltd.) decides that where a charge over the uncollected book debts of a company leaves the company free to collect and then to use the proceeds for its own benefit in the ordinary course of business, the charge is inevitably a floating charge and not a fixed charge, whatever the debenture might say. The court’s reason for this, in short, was that it makes no commercial sense to separate a book debt from its proceeds and so, if the company can use the proceeds at will, then the charge on the debt itself must be a floating charge.

The statutory security of tenure conferred upon the tenants of private residential property has long been (to mix two metaphors) a fertile battle ground, with landlords and their legal advisers showing great ingenuity in devising agreements designed to circumvent the provisions of the legislation. Most famously, of course, there was the loophole of disguising the lease as a mere licence to occupy, which was effectively closed off by the House of Lords in Street v. Mountford [1985] A.C. 809. It is perhaps surprising that although security of tenure was first introduced as long ago as 1920, landlords are still able to come up with new devices in the attempt to ensure that they can regain possession of their property whenever they wish. One such device was the recent subject of consideration by the Court of Appeal in Bankway Properties Ltd. v. Pensfold-Dunsford [2001] 1 W.L.R. 1369.

Mr. and Mrs. Collings were the unremarkable registered proprietors of their house, until they had the misfortune to deal with Mr. Lee. Lee purported to act for them in finding a purchaser for the house, and he found a Mr. Styles. Mr. and Mrs. Collings then executed a transfer of the house to Styles in consideration of £250,000, but “Styles” was simply an alias used by Lee, and no part of the £250,000 was ever paid to them. The net result, therefore, was that Lee fraudulently procured the transfer of the house from Mr. and Mrs. Collings to himself, for no consideration. Once registered as proprietor of the house, Lee mortgaged it to the Leeds Permanent Building Society and took the mortgage proceeds. Mr. and Mrs. Collings remained in actual occupation of the house throughout. When Lee’s fraud came to light, Mrs. Collings sought rectification of the register, to reinstate her as proprietor of the house free of the mortgage. (Her husband had died in the meantime, and she had acquired his rights by survivorship.) The Court of Appeal upheld her claim: Collings v. Lee [2001] 2 All E.R. 332.

Having made a successful takeover bid for Western United, Kia Ora found that it had paid $25.7m in cash and issued 67.9m $1 shares in return for Western United shares worth only $6.4m. Kia Ora successfully sued several former directors. The High Court of Australia’s decision in Pilmer v. Duke Group Ltd. (in liq.) (2001) 180 A.L.R. 249 concerns aspects of the liability of Kia Ora’s accountants, Nelson Wheeler, for providing a report stating that the price proposed for the Western United shares was fair and reasonable. The report was prepared incompetently and Nelson Wheeler were held liable by the Full Court of the Supreme Court of South Australia for breach of contract, negligence and breach of fiduciary duty. The High Court allowed an appeal by Nelson Wheeler.

Though it is unusual for a point of law to be decided by distinguishing a case apparently regarded as virtually having the authority of holy writ, that occurred in T. Choithram International SA v. Pagarani [2001] 1 W.L.R. 1 (P.C.).

In Germany v. European Parliament and Council (Case C-376/98, judgment of 5 October 2000) the European Court of Justice held that Directive 98/43/EC on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products ([1998] O.J. L 213/9), the legality of which had been challenged in various earlier cases (e.g., Cases T-172/98 and T-175/98 to T-177/98 Salamander AG et al. v. European Parliament and Council; Case C-74/99 The Queen and Secretary of State for Health ex parte Imperial Tobacco Ltd. and Others), was invalid.

One of the more drastic results of marital breakdown can occur where a mother decides to leave the country permanently and relocate with a child. Such cases can pose an acute dilemma where, as in Payne v. Payne [2001] 1 F.L.R. 1052, the father has enjoyed substantial contact with the child which is bound to be severely curtailed (if not entirely destroyed) by the mother’s relocation on the other side of the world. Here the mother, a New Zealander, had been ordered by a New Zealand court to return the child to England, following her “wrongful retention” there, under the Hague Convention which governs international child abduction. In the present proceedings she sought leave to return home to her original family with her four-year-old daughter. The father had substantial staying contact, which was sufficiently extensive that it might almost be termed “time-sharing”, and he countered with an application for a residence order. It was not in dispute that the child had an exceptionally good relationship with the father and with the paternal relatives in Newmarket. The mother, who by this time had grown to loathe her home in London, was adamant that she could only provide the child with a happy and secure upbringing if allowed to return to New Zealand. The father unsuccessfully opposed her application in the Cambridge County Court but appealed on the basis that the settled principle applied by the courts was in breach of the European Convention on Human Rights and in conflict with the Children Act 1989. The essence of the argument was that the Convention enshrined a right of contact between parent and child as an aspect of respect for family life under Article 8 and that the Children Act also required much greater significance to be attached to the preservation of such contact.

This article is the Sir David Williams Lecture delivered by Justice Sandra Day O’Connor, a Justice of the U.S. Supreme Court, in Cambridge in May 2001. In it the author considers the operation of the twin processes of devolution and federalism in the United Kingdom and contrasts it with their operation in the United States, where the different premises have produced different historical trajectories and different contemporary challenges. Yet federalism and devolution in the two countries also reflect many of the same values and thus present many of the same opportunities.

Developments in the law since The Liesbosch was decided in 1933 have made it increasingly difficult in principle to justify special treatment of the plaintiff’s impecuniosity in the context of any of the four aspects of damages considered in this article. Almost certainly, had The Liesbosch not been a decision of the House of Lords, it would before now have been overruled. To state the obvious, litigation by the impecunious is not frequently taken to the very highest level. Even when it is, the Court may still not feel prompted or required to undertake a fundamental reconsideration. Alcoa was such a case and an opportunity was missed.

This article discusses the case of Brock and Wyner (2001) (the “Wintercomfort Case”) and considers its implications for private citizens who traditionally have not incurred criminal liability merely for failing to prevent a third party from committing an offence unless they have some specific legal responsibility for the victim or for the business or motor-vehicle in connection with which it is committed. The wide and vague interpretation placed on section 8 of the Misuse of Drugs Act 1971, which applies to everyone who occupies or manages premises, is contrasted sharply with the House of Lords’ views of its predecessor (section 8 of the Dangerous Drugs Act 1965) in Sweet v. Parsley. The author draws attention to the clearer and more circumscribed section 19 of the Terrorism Act 2000 and argues for an equally specific provision to be substituted for a Section 8 of the 1971 Act.