This is a prime example of how radical a court can be in its eagerness to protect human rights. In Jones v. Ministry of Interior of Saudi Arabia [2004] EWCA Civ 1394, the Court of Appeal reached an unprecedented decision by disregarding the relevant legislation, by going against its own previous decisions and higher authorities, and by reading an extremely liberal understanding into an international convention. In this case, the claimants sought damages in tort in civil proceedings against the Ministry of Interior of Saudi Arabia and a number of Saudi officials, including the head of the Ministry of Interior, alleging, among other things, systematic torture while they were in official custody in Saudi Arabia in 2001. What is remarkable about this case is that the alleged torture took place in Saudi Arabia, and that none of the individual defendants was present at any time on UK territory.

The constitutional implications of the decision of the Court of Appeal in Cream Holdings Ltd. v. Banerjee [2003] EWCA Civ 103, [2004] Ch. 650 (noted [2004] C.L.J. 4) to grant an injunction restraining a newspaper from publishing allegations of corruption in local government on the grounds of breach of confidence were such that it was not surprising that leave to appeal to the House of Lords was readily granted and that the matter has been speedily resolved: [2004] UKHL 44, [2004] 3 W.L.R. 918.

A disgruntled former employee of Cream Holdings had approached a local newspaper alleging that her former employers were engaged in the corruption of a local authority official by offering money to secure entertainment licences. The employers sought an injunction restraining both the employee and the newspaper from publication on the grounds of breach of confidence (but no defamation was alleged by those running the company).

English law traditionally draws no distinction between the liability of public bodies and that of private individuals. There is no general right to recover damages in respect of loss caused by an administrative act, even where that act is unlawful according to public law principles. An aggrieved individual must establish an ordinary private law cause of action: Supreme Court Act 1981, section 31(4). One of the most important innovations contained in the Human Rights Act 1998 is the creation of a form of public law liability. Section 6(1) states that it is unlawful for a public authority to act incompatibly with a Convention right. Section 7 enables a victim of an act contrary to section 6 to bring proceedings against the offending authority. Section 8(3) empowers the court to award damages if it is satisfied that such an award is necessary to afford just satisfaction to the victim.

“The law is a ass!” said Mr. Bumble upon being told that he was considered more guilty than his wife in the eye of the law, for the law (quite contrary to Mr. Bumble's humble personal experience of the matter) supposed that his wife acted under his direction (see Charles Dickens, Oliver Twist, ch. 51). A similar sentiment must have stirred in the breasts of Mr. and Mrs. E, the paid carers of Mr. L, a 49-year-old man suffering from autism and severe learning disabilities, when they heard that the highest court of the land had declared that L's prolonged stay in a mental hospital following his informal admission as a ‘‘compliant incapacitated patient’’—devoid of any of the procedural safeguards enjoyed by patients admitted compulsorily under the Mental Health Act 1983—did not amount to unlawful detention.

A Written constitution is a “living instrument” (see, e.g., Commonwealth v. South Australia (1926) 38 C.L.R. 408, Dennis v. United States 341 U.S. 494 (1954) and Tyrer v. United Kingdom (1978) 2 E.H.R.R. 1). The judgments in Bovce v. The Queen, Matthew v. Trinidad and Tobago and Watson v. The Queen [2004] UKPC 32, 33, 34, [2004] 3 W.L.R. 786, 812, 841 accept this proposition but disclose profound disagreement as to its implications in practice.

In Reyes v. The Queen [2002] UKPC 11, [2002] 2 A.C. 235 (noted [2002] C.L.J. 505), the Privy Council held that the mandatory death sentence for murder in Belize was inhuman and degrading and thus contrary to the Constitution. In Boyce, Matthew and Watson the question was whether the same was true in Barbados, Trinidad and Tobago and Jamaica.

The House of Lords may have pondered the proper limits of the criminal law when hearing Attorney General's Reference No. 4 of 2002; Sheldrake v. DPP [2004] UKHL 43, [2004] 3 W.L.R. 976, conjoined appeals which concerned the interpretation of section 5 of the Road Traffic Act 1988 (a blood alcohol offence) and section 11 of the Terrorism Act 2000, but the specific questions they were asked were rather narrower and the answers rather unsatisfactory.

In R. v. Dica [2004] 3 W.L.R. 213, the Court of Appeal decided that a man who knows that he is infected with the HIV virus but who infects his unsuspecting sexual partner through unprotected sexual intercourse should be punishable for inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861. The Court did in fact quash the conviction of the accused, because the judge at the Old Bailey had not instructed the jury to decide whether or not the two infected partners of the accused had known of his infection and agreed to take the risk of contracting it themselves (this having been in dispute at the trial). Yet the case was sent for retrial, and if the next jury, properly directed, should find that his partners did not agree to take the risk of contracting the potentially fatal virus, then Dica would be properly convicted under OAPA, section 20.

In Sutradhar v. Natural Environment Research Council [2004] EWCA Civ 175 the claimant, who lived in Bangladesh, suffered arsenic poisoning from drinking contaminated water. 699 other villagers suffered the same harm. The defendant, a research organization paid for by the British overseas development budget, had written a report for the Bangladeshi authorities which those authorities reasonably and foreseeably took to indicate that the water supply in the claimant's area was safe to drink. In fact, the researchers had omitted to test for arsenic and to tell the Bangladeshis that their tests did not include arsenic. The claimant sued in negligence. The defendant applied to strike out the action. The defendant failed at first instance, but, by a majority, the Court of Appeal (Kennedy and Wall L.JJ.; Clarke L.J. dissenting) dismissed the claimant's action.

Where an asset freezing injunction is granted against a defendant in civil litigation it is usually essential to the enforceability of the order that it also binds any banks holding accounts to which the defendant is beneficially entitled. If the defendant, in breach of the injunction, disposes of assets subject to the order of the court, there may be few, if any, effective steps that can be taken against it. The defendant may not be amenable to the contempt jurisdiction of the court and may not fear being barred from defending the action (a suggestion of Lord Donaldson M.R. in Derby and Co. Ltd. v. Weldon (Nos. 3 and 4) [1991] Ch. 65, at 80-82). The ability to require the bank to preserve the defendant's assets is what really makes the injunction “stick’’.

Negligence lawyers have long appreciated that the apparently procedural rules of limitation drive the substance of the law, because one can only understand when a cause of action accrues by analysing precisely what its essential elements are. Sometimes the substance is distorted in the process: we only worry about concurrent liability in tort and contract, and tort actions by clients against their advisers, because the limitation period for breach of contract accrues, and thus runs out, earlier than the negligence period. But occasionally, and paradoxically, limitation leads the courts into misunderstanding the elements of the cause of action, as happened, alas, in Daniels v. Thompson [2004] EWCA Civ 307.

The House of Lords in Chester v. Afshar [2004] UKHL 41, [2004] 3 W.L.R, 927, by a 3-2 majority, has upheld the Court of Appeal's decision, which extended the principles of causation in medical nondisclosure cases. The claimant, who had long suffered back pain, underwent spinal surgery by the defendant, a highly regarded neurosurgeon who negligently failed to inform her of a 1-2% risk of paralysis. The risk materialized and the issue was whether causation of damage could be established. This depended on what the claimant would have done had she been warned of the risk. If she would have avoided the procedure or sought alternative treatment, it could be argued that the failure to inform caused the claimant to be exposed to the risk and consequently the injury that resulted (cf. McAllister v. Lewisham and North Southwark Health Authority (1994) 5 Med. L. Rev. 343).

Despite the complexity of the facts in Niru Battery Manufacturing Co. v. Milestone Trading Ltd. (No. 2) [2004] EWCA Civ 487, [2004] 2 All E.R. (Comm.) 289, the issue before the Court of Appeal was straightforward: could one party which had discharged the liability of another claim restitution from that other party? This would seem to raise an issue of contribution. However, the Court of Appeal treated the case as primarily involving issues of subrogation and “recoupment” and, whilst the judges sought to achieve a result which was just and equitable, their decision was both unjust and fatally flawed by virtue of confusion as to the operation of the underlying principles.

In Niru Battery (No. 1) [2003] EWCA Civ 1446, [2004] Q.B. 985 (noted [2004] C.L.J. 276) two parties were found to be jointly and severally liable to the claimant.

Once the inspiration for the novel Watership Down, Newtown Common in Hampshire has become the breeding ground for litigation. In Bakewell Management Ltd. v. Brandwood [2004] UKHL 14, [2004] 2 A.C. 519, the House of Lords attempted to clarify the relationship between prescriptive acquisition of easements and illegality.

Several homes bordered the common. For decades, owners reached their properties by driving on tracks across the common. No-one questioned this state of affairs until Bakewell Management (BM), having acquired the freehold of the common, wrote to the homeowners explaining that they had no right to drive over the common, but offering “an amnesty” whereby the residents could buy an easement to access their dwellings “at a favourable rate”: 6% of the value of their property (£30,000 in some cases). Many residents refused, insisting that their properties already enjoyed prescriptive easements over the common.

One of the most litigated property law issues over the past decade has been the equitable jurisdiction to set aside a mortgage transaction procured by undue influence or some other vitiating conduct.

The most common scenario is where the complainant has executed a mortgage as co-mortgagor with the principal mortgagor or has otherwise postponed his or her interest in the mortgaged property in order to secure the debts of the principal mortgagor; and, by way of a defence to an action for possession by the mortgagee, the complainant seeks to have the transaction set aside on the ground that it was procured by vitiating conduct on the part of the principal mortgagor. Barclays Bank plc v. O'Brien [1994] A.C. 180 established the structure of the defence.

Having been promised 15% per annum returns on their investments, hundreds of investors paid a total of over £6m to Mr. Prentis’ firm of solicitors, to be invested in short term, high interest mortgages. The payments were held on trust in a client account pending investment. Only some of the payments received were in fact invested in mortgages. For those that were, the documentation was woefully inadequate; frequently it did not identify which investor's money had been applied towards each mortgage or in what amount. There were substantial shortfalls, both in capital and in income. The Law Society intervened and Mr. Prentis was struck off, preventing the firm from continuing to act as trustee. In Russell-Cooke Trust Co. v. Prentis [2002] EWHC 2227 (Ch), [2003] 2 All E.R. 478 the replacement trustee sought directions as to how it should distribute between the various investors the investments which had been made and the surplus funds remaining in the client account.

When Item Software was seeking to renegotiate an important contract with a client, its duplicitous sales director, Fassihi, sought to take the contract for himself. In conduct deserving of a “Janus award”, Fassihi disparaged the negotiating parties to each other, and encouraged the company to raise its price even as he made his own advances to the client. Ultimately, neither the company nor Fassihi got the contract. Item Software (UK) Ltd. v. Fassihi [2004] EWCA Civ 1244 concerns the company's claim, having dismissed Fassihi, for compensation for lost profits in relation to the contract.

Compensation, whether in the form of damages or equitable compensation, is only available where the loss is causally linked to the breach of duty: Target Holdings Ltd. v. Redferns [1996] A.C. 421, 432, 434.

On 19 December 2003, a Football Association (“FA”) disciplinary hearing found Rio Ferdinand, the Manchester United and England defender, guilty of failing to submit to drug testing, and imposed a fine of £50,000 and an eight-month playing ban. Alex Ferguson publicly attributed United's failure to win the 2003/04 Premiership title in part to the loss of his key defender. However, United's loss was not merely sporting: reports suggest that the cost of the club's decision to continue paying Ferdinand's wages in full during his eight months of inactivity was more than £2.4 million. Chelsea was far less supportive in October 2004 when its Romanian striker Adrian Mutu tested positive for cocaine: in addition to receiving a £20,000 fine and a seven-month playing ban from the FA, Mutu had his contract terminated by the club on the ground of gross misconduct.

In Three Rivers District Council v. Governor and Company of the Bank of England (No. 6) [2004] UKHL 48, [2004] 3 W.L.R. 1274 (“Three Rivers (No. 6)”) the House of Lords held that legal advice privilege is not restricted to advice about legal rights and liabilities but extends to “presentational advice”.

The claim for privilege arose in litigation following an inquiry into the collapse of the Bank of Credit and Commerce International SA (“BCCI”). The inquiry considered the manner in which the Bank of England (“the Bank”) discharged its statutory role to supervise financial institutions in particular. The Bank engaged Freshfields, and appointed officials within the Bank (the Bingham Inquiry Unit (“BIU”)) to co-ordinate communications with and submissions to the inquiry. Section 1(4) of the Banking Act 1987 relieves the Bank of any liability unless it discharged its obligations “in bad faith”.

PROTESTORS of many types have featured in recent news reports—including both those who would hunt animals and those who would save them. The devastating impact of the activities of animal rights protestors on research facilities in Cambridge and elsewhere is well known. One response has been to seek injunctive relief under section 3 of the Protection from Harassment Act 1997 (“the Act”). These claims allege that the defendants seek to achieve the objective of closing laboratories in which experimentation on live animals is conducted by a concerted campaign of unlawful harassment and intimidation directed at laboratories, their customers and suppliers and their employees.

Over the past 30 years, in a series of cases where one person has been in some way involved in the death of another from a drugs overdose, the courts have struggled to explain the basis on which the first person should be guilty of manslaughter. Two connected issues have arisen: where, as is normally the case, D has been charged with unlawful act, or constructive, manslaughter, an unlawful act on D’s part has had to be identified; and a chain of causation between D’s act and the death has had to be established.