The European Court of Human Rights' decisions T. v. The United Kingdom (16.12.1999 E.C.H.R. No. 24724/94) and V. v. The United Kingdom (16.12.1999 E.C.H.R. No. 24888/94) represent one of the final stages in the notorious Bulger murder proceedings. The Court considered a number of applications by the defendants regarding the legality of their trial and sentences. The Court issued separate judgments for each applicant but, as they differ only in the details, they are considered here together. There are two main decisions that are of particular significance.

When the news came forth from Downing Street last November that a fourth child was to be born to the premier and his wife, joy spread throughout the land. Gloom and despondency, by contrast, reigned in the McFarlane household when it transpired that Mrs. McFarlane was pregnant yet again, for in order to ensure that there would be no fifth child the couple had come to a decision: rather than rely on the physics of the condom or the chemistry of the pill the husband, like 9,000 other Scotsmen every year, was to resort to the surgery of vasectomy. So he did, and the health authority reported that the operation had been successful, but vital nature had counteracted medical art … and Catherine was born. She was in perfect health. Mrs. McFarlane claimed £10,000 for the pain of pregnancy and childbirth and both parents claimed £100,000 for the cost of keeping Catherine. They thereby joined the long line of those who, relying on the Court of Appeal's judgment in Emeh v. Kensington and Chelsea and Westminster A.H.A. [1985] Q.B. 1012, sought to throw on to the medical profession the cost of bringing up the child they had engendered and conceived, healthy though it was and in the event welcome—except for the expense.

In five years on the statute book, the Unfair Terms in Consumer Contracts Regulations 1994, S.I. 1994/3159, generated great interest and very little case law. Their first consideration by an appellate court came in Director General of Fair Trading v. First National Bank plc [2000] 1 All E.R. (Comm.) 371. And while these proceedings were on their way to the Court of Appeal, the Regulations were repealed and replaced by the Unfair Terms in Consumer Contracts Regulations 1999, S.I. 1999/2083. Both developments are of considerable interest.

Insurance brokers are liable to their clients in both contract and tort for any failure to carry out their mandate with reasonable care and skill. In most cases it makes no difference to the outcome whether a claim against a broker is based in contract or in tort. In the event of a dispute between broker and client on whether the broker has fulfilled his mandate, in the past the first question was to establish what the broker had agreed to do and then whether the broker had breached that duty. Until recently, it could be assumed that, if breach of duty by the agent was established, the kinds of loss recoverable by the client against the agent were those which were not too remote, i.e., those which were not only caused in fact (according to the “but for” test) but also caused “in law”: loss would be too remote unless it was of a kind reasonably foreseeable (tort) or reasonably contemplated (contract) by the agent, as a consequence of breach of duty.

Louise Rose, born with serious physical and mental disabilities as a result of medical negligence at delivery, obtained £250,000 by way of settlement of her claim against the defendant health authority. This sum, administered by the Court of Protection, was used to enable her mother, Mrs. Bouette, to purchase a house in which they could both live. Its price was met as to three-quarters by the damages fund and as to one-quarter by her mother, and beneficial interests were declared in the property to represent their respective contributions. Mrs. Bouette received regular payments from the Court of Protection to cover Louise's living expenses and to purchase equipment for Louise, as well as social security benefits from the State in respect of her care for Louise. On Louise's death, at the age of fourteen, the rules of intestacy dictated that her estate, comprising her 75% share in the house and the residual fund, was to be divided in equal shares between her parents. Although Louise's father had separated from her mother when Louise was eight months old, he had an equal entitlement to the daughter's property, and realisation of his share would inevitably involve sale of the house. Mrs. Bouette accordingly brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975, arguing that she was dependent on her daughter immediately before her death, and that she had not obtained reasonable financial provision as a result of the operation of the intestacy rules. The father applied to strike out the mother's claim, and the question of her dependency was tried as a preliminary issue: Bouette v. Rose, sub nom. Re B (deceased) [2000] 1 All E.R. 665.

A Landlord's service of a notice to quit by prior arrangement with the tenant is no longer tantamount to a surrender, according to the House of Lords in Barrett v. Morgan [2000] 2 W.L.R. 284. Lord Millett's sensible judgment draws a clear distinction between the termination of a periodic tenancy by a notice to quit and the termination of a tenancy by surrender. It emphasises that the two processes are quite different, in origin and effect. The innocent reader may wonder why the House of Lords was called upon to affirm such an apparently unexceptional principle, but in the curious looking-glass world of leases, nothing can be taken for granted.

In Gencor v. Commission (Case T-102/96, judgment of 25 March 1999, not yet reported) the Court of First Instance of the European Communities favoured a bold construction of the jurisdiction of the Commission and of the concept of joint dominance in merger cases. The judgment is also likely to have implications beyond the context of mergers for the use of Article 82 EC to control oligopolies. The case concerned the proposed merger of the platinum and rhodium operations of Gencor, a South African company, and of Lonrho, a company incorporated under English law. In particular, Gencor and Lonrho sought to acquire joint control of Implats, the South African company that brought together Gencor's activities in the platinum and rhodium sector, and through Implats, of the two South African companies that brought together Lonrho's activities in the same sector. The arrangements were notified to the South African competition authorities and to the EC Commission. The South African authorities did not oppose the merger. The Commission, however, issued a decision (Commission Decision 97/26/EC (O.J. 1997 L 11/30)) pursuant to the EC Merger Regulation (Council Regulation 4064/89 (O.J. [1989] L 395/1)) declaring that the proposed concentration was incompatible with the Common Market because it would lead to the creation of a collective dominant position between the entity arising from the concentration and Amplats, the leading world-wide supplier of platinum metal. Gencor challenged the decision of the Commission before the Court of First Instance.

A Case which will be of interest to students of medical law, public law and human rights, North West Lancashire Health Authority v. A, D, & G [1999] Lloyd's Rep. Med. 399, concerned three transsexuals who wanted “sex-change” operations. The health authority's policy was to give low funding priority to procedures it considered of little or no clinical benefit; the authority would not fund “gender reassignment” except in cases of “overriding clinical need” or other exceptional circumstances, though it would fund psychotherapy.

In Re C (A Child ) (HIV Test) [1999] 2 F.L.R. 1004, a local authority applied for a specific issue order to test a four-month-old baby girl for HIV. The mother of the child first tested positive for HIV in 1990, but adopted a highly sceptical stance towards generally accepted theories about HIV and AIDS, and refused conventional therapy for herself, preferring to rely on a healthy lifestyle as a prophylactic. The case arose when the baby's physician became aware not only that the mother was breast-feeding the child (despite the risk of transmission of HIV), but that the parents refused even to have their daughter tested for the virus in the belief that a healthy lifestyle was the optimal treatment even if she were HIV-positive.

In Flannery v. Halifax Estate Agencies Ltd. [2000] 1 W.L.R. 377, the purchasers of a flat in Manchester sued a valuer, on whose report they had relied, for negligence. At the trial there was a conflict of expert evidence. The judge preferred the evidence of the defendant's experts and dismissed the claim. It was accepted that the judge's conclusion was one that was open to him on the evidence. The Court of Appeal set aside the judgment and ordered a new trial.

The Court of Appeal in Awwad v. Geraghty & Co. (a firm) [2000] 1 All E.R. 608 has confirmed that conditional fee agreements are invalid at common law. The court rejected the contrary decision in Thai Trading Co. (a firm) v. Taylor [1998] Q.B. 781, C.A. (noted [1998] C.L.J. 469).

The White Queen, probably parodying Tertullian, boasted to Alice that she could sometimes believe as many as six impossible things before breakfast. Students of the law of evidence must occasionally perform similar feats.

A Particular problem for English criminal procedure is the defendant on a murder charge who is (to put it crudely) so mad that he believes that he is sane—and instead of running the obvious defences of insanity or diminished responsibility, runs some other defence that seems plausible to him but no one else. In Weekes [1999] 2 Cr.App.R. 520 the Court of Appeal departed from its earlier case law on the subject and pointed the law in what this commentator feels to be a sounder direction.

The philosophical concept of acting intentionally does not entail a perceptible time gap between intention and action. We may say of a person who acts on the spur of the moment that their action was intended or intentional; but in such circumstances, intention and action may seem to merge in a way that makes it difficult to disentangle the mental and physical elements of the person's conduct. The author argues that in this context the tools and techniques used by philosophers of mind and action may not provide us with the best understanding of the social practices of blaming found in the criminal law.

The author considers the proposal of the Law Commission that the Rule against Perpetuities should be amended rather than abolished and emphasises the need for a balance between the freedom of the current generation and the freedom of future generations to control property. The article draws attention to the experience of Canada and the United States and suggests that experience undermines the Rule's economic rationale and that the Law Commission should consider recommending the Rule's abolition.

The author finds the English judicial style and technique more informative than the German and argues that German jurists, be they academic or practitioners, would derive some benefit by studying how the English judges craft their judgments. However, English judges would stand to benefit by looking at German substantive law and its techniques of keeping litigation under control.

English law provides inadequate protection for vulnerable testators, a growing class. Those thinking of challenging suspicious wills are deterred by the cost and poor prospects of success. Traditionally, probate lawyers have been reluctant, when challenging wills, to allege misconduct and the leading case of White v. Nye has caused general confusion by attempting to disguise a plea of fraud as though it were a plea of lack of knowledge and approval.

Previous work on the wrongful trading provisions of the Insolvency Act 1986 (s. 214) has been content with description, or with statutory construction. This paper employs the tools of agency theory and the creditors' bargain heuristic to analyse the need for these provisions, their structure, role, and effect. It examines why those interested in the company's undertaking would demand and accept a s. 214-type duty. The analysis reveals that the duty would not be equally relevant for all types of companies, and that the influence of the market for managerial labour ensures most s. 214 actions are likely to be brought against directors of closely-held companies, and against shadow directors. The analysis, by pointing out that security plays a role similar to s. 214 itself, also justifies a recent Court of Appeal decision which precludes secured creditors from any recoveries under that section. Finally, the incentives created by the provisions for the managers of both healthy and distressed companies are examined. It is suggested that these incentives are generally socially efficient.

The article addresses the public policy issues associated with former client confidentiality and law firm mergers and, in the light of these, it examines the claim, endorsed by City firms and others, that market-based solutions, such as Chinese walls, promote the interests of the profession without imperiling the interests of justice. The House of Lords' ruling in Prince Jefri Bolkiah V. KPMG and Laddie J's interpretation of it in Young V. Robson Rhodes are analysed with the aim of assessing the impact of both decisions on the above claim and their consequences for the legal profession generally.