Over the last decades, rationing of medical treatment in the National Health Service (NHS) has moved from implicit to being increasingly explicit about what is being denied and about the procedures and reasons for such decisions. This article argues that the courts have had an important role in this process. By applying a heightened scrutiny of rationing decisions, courts have forced health authorities to make better-informed decisions and to take procedural justice more seriously to comply with, respond to and avoid judicial review. The analysis in this article reveals that litigation has contributed to incremental, but significant and enduring, changes in a social policy. It also offers insights to the paradoxes of judicial accountability in health care policies.

Martha Nussbaum's recent article “Equity and Mercy” eloquently advocates the continued relevance of a tradition of ethical and legal thought—the “equity tradition”—that has been neglected by legal philosophers in recent times. That neglect is partly due to the fact that contemporary legal philosophy (as in the debate between H.L.A. Hart and Ronald Dworkin) has concerned itself with the prior question of whether judges should or need to exercise discretion. The equity tradition presupposes an affirmative answer to that question where the rigorous application of a law yields a sufficiently grave injustice in the circumstances of a particular case or where such an injustice would arise because of a “gap” in the law. Yet it might have been thought prudent for those who assert the ineradicability and value of adjudicative discretion to have embraced and developed the idea of equity.

The story is told of F.E. Smith, the future Lord Birkenhead L.C., that he and a friend were once walking along a narrow residential street when they came upon a couple of men arguing with each other from the upper floors of houses on opposite sides of the street. “They will never agree”, Smith is supposed to have said, “they're arguing from different premises!”

Central banks have enormous sums of money in various forms of investments. When claims are made either against the banks themselves, or against other governmental bodies, issues arise as to whether these assets can be attached, and made available to satisfy judgments. The article explains how central banks are treated in English law. It explains the special provision made in respect of their assets under the State Immunity Act 1978. There is wide immunity from attachment, though questions can arise as to the ownership of such assets. The UK legislation is, in some respects, wider than its counterpart, the US Foreign Sovereign Immunities Act 1976. Recent case law is described in which the English courts have recognised that the public responsibilities of central banks have to be taken account of when determining the extent of their liability to attachment.

A comprehensive review, or what has been variously described as the classification or mapping or taxonomy, of constructive trusts would require analysis of areas of law as diverse as vendor and purchaser transactions, the perfection of imperfect gifts, fully secret and half secret trusts, breach of fiduciary duty, and accessory liability for breach of trust, among several others. The search for an acceptable, universally acknowledged, principle for the establishment of a constructive trust, which gives coherence to past decisions and provides a clear guide for the future, will certainly prove elusive in relation to the many different areas of law and fact in which constructive trusts arise.

We are all familiar with the paradox that while medieval English society set great store in promises and their performance, the law of its central courts paid them little attention. The marital arrangement, which could be undone only rarely; the system we have learned to call feudalism, infidelity to which was sometimes called felony; the heavy emphasis in medieval literature on keeping faith: all these support the proposition that an important tenet of medieval morality was that promises ought to be kept. Yet the common law of promises was curiously retarded, thus creating what seems an odd gap between law and morality.

The Human Rights Act 1998 applies only to “public authorities”. This article begins by examining the Act's definition of a “public authority” and how this will interact with existing distinctions between public and private law in domestic judicial review and EU law. It is then argued that the Act may, through two different routes, have a limited horizontal impact between private bodies – although certain technical obstacles will need to be overcome. The article considers, finally, the operation between private bodies of the requirement that legislation be interpreted as far as possible in accordance with the European Convention on Human Rights.

THE relativity of titles to land is a fundamental feature of property holding in the common law system. It is treated as one of the features that distinguishes it from civilian systems of property holding and proves the pragmatic stuff from which the common law is made.

It is unlikely that those who were responsible for giving the World Court the power to indicate interim measures of protection could have anticipated the controversy which was ultimately to surround its exercise. Applications for interim measures have been few, even by the inexacting standards of international litigation, but the cases in which such measures have been sought have raised questions of fundamental importance. Controversial issues have included the power of the Court to indicate interim measures on its own initiative, the binding nature and enforceability of interim measures, their purpose and their relation to the Court's substantive jurisdiction, that is its jurisdiction to rule upon the merits of a dispute.

In an earlier article it was suggested that fiduciary relationships could be classified under four heads, in accordance with the different principles which govern each class. It would, of course, be pedantic to insist that these rules, necessarily among the most flexible in equity, should be regarded as rigidly codified and invariably applied strictly and to the letter; but for some purposes it is important to keep the differences between the categories clearly in mind. This is particularly the case with the classes which were referred to in the previous article as categories I and II: in the first group the beneficiary has the advantage of all the proprietary equitable remedies against a trustee, and the fiduciary has comparable duties, while in the second, the beneficiary's remedies (apart from the remission of contracts) are based on equitable obligation only. We shall now examine in more detail the principles governing fiduciaries in these two categories.

The main thesis of this article is that the public-private divide has to be considered as a multifunctional and context-dependant divide. This thesis is demonstrated by comparing English law and Dutch law. The authors describe two areas in which the divide is relevant: judicial review and the applicability of public law standards including human rights. In both legal systems discussions concerning the private-public divide relate to the transfer of power to private bodies. However, in the Dutch – continental – legal system the label ‘public law’ is used in fewer kinds of cases than in the English legal system. This remarkable finding might be explained by the characterization of the public-private division as multifunctional and context-dependant.

The shift away from Aristotelian jurisprudence had a number of consequences. It gave rise to a vision of political order spawning two contrasting traditions of juridical thought (exemplified by Grotius and Hobbes) that continue to exert their influence. By erasing the idea that all understanding of human action and institutions must draw upon the evaluative understandings of practical wisdom, it enforced upon us an exhaustive division between the neutral cognition of social facts and the evaluation or prescription of action. This rendered problematic the nature of the doctrinal scholar’s exposition of the law, for the doctrinal scholar appears upon the face of things to render the law intelligible by relating its content to comprehensible values. Finally it generated a split between prescriptive and analytical jurisprudence that obscured important issues and sent generations of legal theorists on a largely time-wasting errand.

The disclosure of confidential records such as those of doctors, counsellors, and therapists may be sought by the defence as a means of undermining the credibility of complainants in rape and sexual assault trials. It is not clear that the procedure under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965, under which disclosure of the records of third parties may be sought, offers sufficient protection for the interests of complainants. This article discusses the weaknesses of section 2 and the implications of public interest immunity as well as Article 8 of the ECHR in this context. It also explores the different approaches taken in Canada, New South Wales and certain American jurisdictions to meet this problem. It concludes by making some suggestions for the amendment of the 1965 Act.

If students of company law know just one case, that case will be Salomon v. A. Salomon & Co. Ltd. which firmly established the English law principle that a company is a legal person entirely separate and distinct from the members ofthat company. It is trite law that a rather hefty veil is drawn between these two that can be lifted only in a limited number of circumstances that seem to fluctuate according to current judicial thinking. However, it “is well established that the courts will not allow the corporate form to be used for the purposes of fraud or as a device to evade a contractual or other legal obligation”, a principle which is referred to hereafter as the “fraud exception” to the Salomon principle.

This article looks at the public disclosure of political donations as a case study to examine the role of transparency in addressing concerns about undue influence and corruption. The article will explore three issues. The first is to understand what it means to say that a political donation is corrupt. There is considerable disagreement on the ethics of political fundraising and this article will show how public opinion has a role in setting the standards expected of politicians. The second issue is what role the public disclosure of political donations plays in deterring and detecting corruption. While the disclosure requirements were introduced to promote greater trust in politics, it will be argued that increases in transparency have fed a growing culture of mistrust. The logic of the transparency requirements also requires the free public discussion of particular political donations and related ethical issues. The third issue is how that process of free discussion can come into tension with rights to privacy and reputation. The article will explore how the attempts to reconcile the different areas of law both reflect and shape the political culture.

This article argues that the express trust should be understood as a species of obligation rather than as a means of organising the ownership of property. Two propositions seem fundamental to the traditional understanding of the trust as an aspect of property law. Firstly, in the nature of the trust, there must be a separation of legal and beneficial ownership. Secondly, there must be trust property. Neither is necessarily true. With many discretionary trusts and other recognised types of express trust it is impossible to locate the beneficial estate. Furthermore, the requirement for there to be trust property is, on closer analysis, a requirement of certainty of obligation in relation to specific subject-matter within which the trust property can be located.

The article explores the implications of understanding the trust as a species of obligation. It allows all express trusts, including charitable trusts, to be explained as resting on the same fundamental concepts. The trust in the common law world may still be distinguished from contract and from the civil law forms of the trust. This new conceptualisation also illuminates what is the irreducible core content of the trust. The article concludes with a new definition of the express trust.