In R. (McCann and others) v. Crown Court at Manchester and another, Clingham v. Kensington and Chelsea Royal London Borough Council [2002] UKHL 39, [2002] 3 W.L.R. 1313 the House of Lords, dismissing the defendants appeals, unanimously held that the application for an Anti-Social Behaviour Order (ASBO) under section 1 of the Crime and Disorder Act 1998 was civil and not criminal in nature. Therefore the rule against the admissibility of hearsay evidence in criminal proceedings (which can arguably also be inferred from the provision on examination of witnesses in Article 6(3)(d) of the European Convention on Human Rights) did not apply; however, the heightened civil standard of proof, indistinguishable from the criminal standard of proof, would nevertheless be required.

I Do not imagine that there is anyone who has anything to do with personal injuries litigation who has not heard of Mrs. May Donoghue. Her encounter with a partially decomposed snail at the Wellmeadow Café: in Paisley is part of our folklore. The law of liability for negligence was revolutionised by the decision of the House of Lords in Donoghue v. Stevenson. Indeed, one might even say that the modern law of negligence was created by it. Articles which are too numerous to mention have been written about her case. Some years ago alumni of the University of British Columbia organised a pilgrimage to Paisley to celebrate the 60th anniversary of the event. It was sponsored by the Canadian Bar Association, the Law Society of Scotland and the Faculty of Advocates.

In Experience Hendrix LLC v. PPX Enterprises Inc., Edward Chalpin, the Court of Appeal gives further impetus to the radical recasting of the law of damages for breach of contract along restitutionary lines made possible by A.-G. v. Blake (Jonathan Cape Ltd. Third Party). Whilst Blake made it more difficult to argue that hypothetical release damages were compensatory rather than restitutionary in nature, it left a residue of serious uncertainty because it did not make it impossible to do so. Hendrix goes a long way towards eradicating this particular uncertainty by awarding hypothetical release damages on an unambiguously restitutionary basis and saying that an account of profits, though not justified in the circumstances of the case, might also have been awarded on this basis.

“Justiciability determines whether there is a potential availability of judicial review of the exercise of the prerogative of mercy. “Justiciability is the name given to the constitutional concept which recognises the capabilities of the courts are limited. The societal concern is that the courts only perform functions that are appropriate to their place in the constitution and the way they are structured and expected to operate. Is it appropriate that the executive government's decision-making in respect of mercy be subject to judicial review? Different courts have made different assessments of this appropriateness. In a series of decisions in different common law jurisdictions over the last seventeen years the law has moved from the non-availability of judicial review, to recognising the potential for review, then back to denying the potential, and finally in the Privy Council in Lewis v. Attorney-General of Jamaica to accepting again its potential availability.

Much has changed since 1925, even in land law. The emergence of principles of proprietary estoppel has been one of the most striking developments. For some litigants, these principles have been a source of new opportunities; for many judges and academics, they have been a source of new problems. It is therefore no surprise that, by means of what is now section 116 of the Land Registration Act 2002, the Law Commission attempted to deal with one of these problems, albeit only in disputes relating to registered land.

An Introduction to the Law of Restitution was a landmark in private law. More clearly than any preceding work, it unpacked the ambiguity inherent in the notion of “the claimant's expense by delineating two forms of “unjust enrichment. (1) The autonomous action in unjust enrichment involves a subtractive expense. The defendant acquires a benefit from the claimant in circumstances that the law regards as reversible. The response is always restitution. The defendant must give the enrichment, or its value, back to the claimant. (2) Unjust enrichment by wrongdoing, in contrast, is concerned with a normative or wrongful expense. The defendant acquires a benefit, usually from a third party, as a result of breaching an obligation owed to the claimant (e.g. trespass to land). Although the standard response to a civil wrong is compensation for the claimant's loss, a court exceptionally may compel the defendant to give up, or disgorge, his ill-gotten gain.

There is at present something of a schism between restitution scholars. There are those who maintain that restitution may arise as a response, inter alia, to rights in rem and there are those who maintain that it may not. At one level, this is a debate about the internal boundaries of the law of restitution, principally about whether restitution arises exclusively as a response to the principle of unjust enrichment, or whether it may also arise as a response to a number of other causes of action. More fundamentally, however, the schism rests on a difference of view as to whether it is logically and conceptually possible to say that a right in rem is an event that gives rise to or generates other rights, such as to have the asset restored, to have restitution made, or to be compensated for loss suffered, or whether a right in rem can only ever arise as itself a response to other events.

Where a testator died before 1 January 1983, there was no general power for a court to rectify his will. The Courts of Equity had, by tradition, the power to rectify documents inter partessuch as conveyanceswhich did not accurately record what had been agreed by those who were parties to them. This power of rectification applied also to voluntary settlements, where a settlor could obtain rectification by proving that the settlement did not represent his true intention. But, for reasons which are not clear, it had become generally accepted that the equitable doctrine of rectification did not apply to wills.