Appeals in cases noted in earlier numbers of the Journal have now been disposed of as shown:

Aneco Reinsurance Underwriting Ltd. v. Johnson & Higgins Ltd., noted [2000] C.L.J. 446. Appeal dismissed: [2001] UKHL 51.

Turner v. Grovit, noted [2000] C.L.J. 45. Question on the interpretation of the Brussels Convention of 1968 referred by the House of Lords to the European Court of Justice: [2001] UKHL 65, noted [2002] 1 All E.R. 960.

War may be hell but it’s a godsend for litigators. Having previously ruled on the threshold questions of effective service of the writ and State immunity, and then in respect of an allegation of perjured evidence, the House of Lords was called on in Kuwait Airways Corporation v. Iraqi Airways Company (Nos. 4 & 5) [2002] UKHL 19, [2002] 2 W.L.R. 1353 to consider the merits of this complicated case arising out of Iraq’s invasion and annexation of Kuwait in August 1990.

Apart from the more high-profile questions of public and private international law noted above, Kuwait Airways also raised some nice issues about the often enigmatic English tort of conversion.

At common law the penalty for murder was death. This simple rule came to apply to many territories of the Crown. It persisted, sometimes in modified form, in many territories now independent States. At independence such States adopted entrenched Constitutions heavily influenced by the European Convention on Human Rights (ECHR). The final appeal from several of these States lies to the Judicial Committee of the Privy Council.

Let us start with what seems like an easier question: how long should a prison sentence be? The Criminal Justice Act 1991 confirmed that the basic rule is that the length should be commensurate with the seriousness of the offence committed (section 2(2)(a) of the 1991 Act, now section 80(2)(a) of the Powers of the Criminal Courts (Sentencing) Act 2000). Exceptionally a sentence may be longer, in order to protect the public from serious harm (section 2(2)(b) of the 1991 Act, now section 80(2)(b) of the Powers of the Criminal Courts (Sentencing) Act 2000). Discretionary life sentences fall into this latter category: the indeterminate sentence is imposed because of the risk that the offender is perceived to present to the public (see section 80(4) of the Act of 2000; Baker [2001] 1 Cr.App.R.(S) 551). These longer than commensurate life sentences are seen to fall into two parts: one, the “tariff” (though the Lord Chief Justice in a Practice Statement on 31 May 2002 stated that the term “minimum term” should now be used), commensurate with the seriousness of the offence, and the second for public protection. Because the factors which cause an offender to be dangerous may vary over time, the European Court of Human Rights has long held that those detained for such reasons are entitled to a review of that part of their sentence at regular intervals by a “court”. After years of reluctance the British Government agreed in the 1991 Act to create panels of the Parole Board, chaired by judges, to review whether post-tariff discretionary lifers are still dangerous. But the detention of those sentenced simply for “punishment” is justified by the original sentencing decision, even though their release date is fixed in accordance with a flexible and discretionary early release scheme.

The European Court of Human Rights recently confirmed that the exceptionless prohibition of assisted suicide under section 2(1) of the Suicide Act 1961, which had been unsuccessfully challenged by the applicant in the House of Lords because of its effects on persons physically unable to commit suicide unassisted by another (R. (Pretty) v. DPP, [2001] UKHL 61, [2001] 3 W.L.R. 1598, noted by Keown (2002) 61 C.L.J. 8), is compatible with the United Kingdom’s obligations towards the applicant under the European Convention on Human Rights: Pretty v. United Kingdom, judgment of 29 April 2002. As she had before the House of Lords, Mrs. Pretty put forward arguments under Articles 2, 3, 8, 9 and 14 of the Convention. Important differences between the decisions of the European Court of Human Rights and the House of Lords emerged only in the assessment of the merits of Mrs. Pretty’s case with regard to Article 8 and Article 14.

Once upon a time, the Crown faced almost no difficulties in securing convictions for breaches of the Official Secrets Act 1911, particularly section 2. After the somewhat embarrassing decision to proceed had been taken, it was like shooting fish in a barrel. Occasionally, the jury revolted, as they did in Ponting [1985] Crim. L.R. 315, producing something like a perverse verdict in the face of the judicial direction that it was no defence that the defendant believed himself to be acting in the public interest. That decision, and the ruling of the House of Lords in the Spycatcher litigation [1990] 1 A.C. 109 to the effect that the former security service agent Peter Wright did not commit an actionable breach of confidence by making his allegations of improper practices within the services, prompted the government of the day to promote legislation that purported to impose life-long obligations of confidence upon members and former members of the security intelligence services. “Purported” because, with the enactment of the Human Rights Act 1998, it is now open to the courts inter alia to declare that Parliament has acted incompatibly with one of the rights protected by that Act.

In Rees v. Darlington Memorial Hospital NHS Trust Ltd. [2002] EWCA Civ 88, [2002] 2 W.L.R. 1483, the Court of Appeal (Hale and Walker L.JJ., Waller L.J. dissenting) ruled that although the birth of a healthy but unplanned child brings blessings, it also brings costs, and that a disabled mother of such a child could be compensated for the extra costs of child care occasioned by her disability if the birth resulted from medical negligence.

When the gods looked down and spied lusty Ares entangled with lovely Aphrodite in the net which her grimy husband used to entrap them, there arose on Mount Olympus “unquenchable laughter”—in Homer’s words “asbestos gelos”. In the modern world, however, asbestos is no laughing matter: inhale the fibres of that mineral wool and you may contract asbestosis, a debilitating lung disease, or, as was discovered 30 years later, mesothelioma, a fatal cancer. Asbestosis is cumulative—you get worse the more you inhale—so that everyone who culpably fails to protect you contributes to your ultimate condition. Mesothelioma is quite different, for it is most likely caused by a single fibre: of course the more you inhale, the greater the risk of getting that fatal fibre, but until you get it, exposure makes you no more likely to get it, and once you have got it, you are a dead man, and further exposure makes no difference. Thus if you get mesothelioma after being exposed to fibres in six successive employments, each employer has contributed to the risk of your getting the disease, but the disease itself is due to only one of them. To ascertain in which employment the fatal fibre struck is, however, quite impossible and will likely remain so whatever advances are made in medical science, since the symptoms take up to forty years to manifest themselves, and before then no one can tell whether, much less when, the victim has been hit.

Is there a difference between the duty of care owed by an occupier to a trespasser under the Occupiers’ Liability Act 1984 and that owed to a lawful visitor under the Occupiers’ Liability Act 1957, as far as personal injuries are concerned? Not really, in the light of Tomlinson v. Congleton Borough Council [2002] EWCA Civ 309, where the Court of Appeal (Ward and Sedley L.JJ., Longmore L.J. dissenting) held the defendant Council liable for spinal injuries sustained by an 18-year-old who dived into the Council’s lake, having seen one or more notices reading “DANGEROUS WATER: NO SWIMMING”, and hit his head on the bottom. His damages were reduced by two-thirds for contributory negligence.

Chancery lawyers have for many years awaited a definitive House of Lords ruling on the mental element required to make strangers to a trust liable for knowing or dishonest assistance in a breach of trust, and for knowing receipt of trust property. The appeal in Twinsectra Ltd. v. Yardley [2002] UKHL 12, [2002] 2 All E.R. 377 provided the opportunity for resolution of the issue in the former case but not the latter; the degree of knowledge required for a knowing receipt claim remains for final determination on another occasion.

The phrase “hierarchy of norms” sounds alien or continental to the ears of most British constitutional lawyers: generations have been taught that, in order to respect the sovereignty of Parliament, they should compare statutes only in temporal terms, preferring a more recent statute over incompatible older ones. In Thoburn v. Sunderland City Council and related appeals [2002] EWHC 195 (Admin), [2002] 3 W.L.R. 247, four greengrocers and a fishmonger, backed by the UK Independence Party, unsuccessfully invoked this doctrine of implied repeal to challenge the validity of the UK’s messy implementation of European Metrication Directives. If obiter dicta by Laws L.J. are followed, it will be not for our political representatives but for our courts to decide whether to prefer older statutes protecting “constitutional rights” over more recent statutes, and to rank constitutional rights.

When does a proprietor of a trade mark consent to goods bearing that mark being placed on the market in the EEA? Article 7(1) of the Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Members States relating to trade marks [1989] O.J. L040/1 raises this question, the answer to which is critical since consent will “exhaust” the proprietor’s trade mark rights in respect of those goods, subject to the operation of Article 7(2). In Silhouette International Schmiedt GmbH & Co. KG v. Hartlauer Handelsgesellschaft mbH [1998] E.T.M.R. 539 the ECJ held that Article 7(1) does not support international exhaustion: this is where trade mark rights cannot be used to prevent imports into the EEA of goods placed on the market anywhere in the world under the trade mark. In Zino Davidoff v. A & G Imports Ltd. [2002] 2 W.L.R. 321 the ECJ gave a preliminary ruling on the interpretation of “consent” in Article 7(1). A broad or uncertain interpretation of consent to the marketing of goods in the EEA would have undermined the rule against international exhaustion established in Silhouette. The ECJ in Davidoff opted for a narrow and well-defined interpretation of “consent” within Article 7(1).

“The problem is more with what the [Children] Act does not say than with what it does”: Hale L.J., Court of Appeal at para. [50]. Therein lay the problem addressed in Re S (Minors) (Care Order: Implementation of Care Plan) [2002] UKHL 10, [2002] 2 W.L.R. 720; reversing in part [2001] EWCA Civ 757, [2001] 2 F.L.R. 582. This case involves key issues in child protection under the Children Act 1989 and provides further guidance regarding the courts’ interpretation of legislation under the Human Rights Act 1998.

In John Pfeiffer Pty. Ltd. v. Rogerson (2000) 201 C.L.R. 552, the High Court of Australia had reconsidered the choice of law rules for “intra-national torts”, i.e. torts involving elements occurring in more than one Australian state. There, the Court rejected the rule of double actionability derived from Phillips v. Eyre (1870) L.R. 6 Q.B. 1 in preference for the rule that all questions of substance should be governed by the lex loci delicti. In Régie National des Usines Renault v. Zhang (2002) 187 A.L.R. 1, the High Court was asked to extend this preference to international torts as well. It did so emphatically. Except as regards a limited number of specific torts, for which the Court expressly reserved its consideration, the Australian common law rule is now that the substantive elements of tort actions are to be determined in accordance with the law of the place of the act or omission giving rise to the action.

R. (on the application of Morgan Grenfell & Co. Ltd.) v. Special Commissioner of Income Tax [2002] UKHL 21, [2002] 3 All E.R. 1 is an exercise in statutory interpretation in which different courts came to diametrically opposite views. The Revenue were trying to decide how MG, the taxpayer, should be assessed in relation to certain transactions and so asked MG to supply certain documents. MG declined, in part because these documents consisted of advice which MG had obtained from leading counsel and solicitors about whether the scheme behind the transactions would work; so the issue was the scope and nature of legal professional privilege (“LPP”). The Revenue asked for—and obtained—the consent of the Presiding Special Commissioner (His Honour Stephen Oliver Q.C.) for the issue of a notice by them to MG under Taxes Management Act 1970, s. 20(1), which allows an inspector by notice in writing “to require a person to deliver to him such documents as are in the person’s possession or power and which … contains information relevant to any tax liability of that person”. MG applied for judicial review to quash the notice, failing before the Divisional Court ([2000] S.T.C. 965, Buxton L.J. and Penry-Davey J.) and the Court of Appeal ([2001] EWCA 329, [2001] S.T.C. 497, Schiemann, Sedley L.JJ. and Blackburne J.), so that all six judges were for the Revenue; MG must therefore have been both delighted and perhaps surprised when a unanimous House of Lords, led by Lord Hoffmann, decided in its favour.

In his recent book “Euthanasia, Ethics, and Public Policy”, John Keown puts forward two slippery slope arguments against the legalisation of voluntary euthanasia. One of these arguments claims that a defender of voluntary euthanasia is logically committed to the permissibility of non-voluntary euthanasia. This paper seeks to show that Keown’s argument either rests on a logical confusion or on a misunderstanding of the value of autonomy.

Where two parties are liable in respect of the same obligation and one party discharges the obligation, he may be able to recover some or all of his outlay from the other. This article addresses the rationale underlying the relief granted in such circumstances. While restitution theorists tend to emphasise the claimant’s lack of choice, it is argued that this focus is misleading. Moreover, using unjust enrichment to explain relief is unnecessary and inaccurate. An alternative explanation is put forward, which derives support from the case law on contribution—that relief aims to ensure equitable distribution of the burden of liability.

For five centuries most lawsuits claiming land hinged on the exercise of a right of entry whereby the claimant had become instantly seised. Historians have assumed that he had previously been disseised, the disseisor’s wrongful possession not having matured into a protected seisin. But the mechanism, not confined to reversing disseisins, was the alternative to a real action and therefore claimed title by inheritance. Inheritance did not start as the automatic devolution of a non-existent ownership. On each death the lord made a new grant to the heir and put him in seisin, which was not an abstraction like possession but by definition conferred by the lord. Changes beginning in the 12th century eroded the lord’s part in inheritance: instead of putting heirs in seisin lords athorised them to put themselves in; and finally one had the right of entry if a supposed lord could have given authority.

Views about the nature and extent of the “fusion” effected by the Judicature Acts frequently focus narrowly on those cases which determined the doctrinal position, with insufficient regard for the accompanying changes to practice, procedure and structures.

This article examines the means by which the promoters of the legislation and other interested parties sought to promote or restrain its formidable fusionist potential. It explores the use of cross-jurisdictional appointments to infuse equity into the common law divisions; the successive changes to the membership and working arrangements of the court of appeal; and the short-lived experiment of sending Chancery and appellate judges on circuit. It suggests that a more detailed examination of the effect of these structures and the role of individual judges of the Supreme Court of Judicature in its formative years is needed for a full understanding of the limited fusion that emerged.