It is an essential aspect of the English legal tradition in public law that judicial review should be based upon procedural standards. Lord Brightman has recently insisted that judicial review involves simply an appraisal of the manner in which an administrative decision is made. However, judicial attitudes during the last three years indicate a changing philosophy which appears to admit of greater scope for substantive review. The principle which is referred to succinctly in modern law as Wednesbury unreasonableness has proved, in the hands of some contemporary judges, a uniquely effective instrument for the exercise of this extended jurisdiction. The central problem posed by recent developments relates to the danger of a “surrogate political process” which may erode the foundations of legislative supremacy and political responsibility. Unbridled judicial review, in accordance with some emerging approaches, has basic implications for the future of the relationship between the administration and the courts.

The question of whether a shareholder may bring a personal action to recover diminution in value of his shares as a result of a wrong committed by the defendant against the company appears to be settled by the House of Lords in Johnson v. Gore Wood & Co. (to be referred to as the Johnson case). The facts may be stated briefly. Gore Wood, a firm of solicitors, had acted for Johnson's company, in which he owned almost entirely all the shares. The solicitors were alleged to have acted negligently when they failed to exercise an option to purchase a piece of land for Johnson's company. The solicitors then settled a suit brought by the company. After the settlement, Johnson sued the solicitors, arguing that they also owed a duty to him personally. As some of the losses claimed by Johnson were also losses which the company suffered and which had been settled, the solicitors applied to strike out those claims on the ground that they were “reflective losses”. The House of Lords struck out those claims which were reflective losses, namely, claims for diminution in value of his shares and reduction in dividend stream, but allowed other claims to go to trial. The concern of this article is with a shareholder's personal claim for diminution in value of shares.

This article examines and responds to a doctrinal claim, made by an increasing number of commentators, that English administrative law is in the midst of a “reformation” or “reinvention”, with the notion of “rights” at the heart of this radical recalibration. The article is critical of such claims on several grounds. First, these claims are steeped in ambiguity, such that the nature and doctrinal scope of the claimed metamorphosis are not clear. Second, these commentators have not undertaken the sort of detailed doctrinal analysis which is required to make credible claims about the development of the law, meaning their broad claims have a strong propensity to mislead, and pass over the nuances and complexities of doctrine. An analysis of significant features of doctrine tends to tell against a wholesale recalibration of administrative law around rights, and indicates an increasingly pluralistic rather than unitary legal order. Third, despite the centrality of the idea of “rights” to their claims, these commentators do not squarely address what they mean by “rights”, in general using the term indiscriminately, and thereby plunging their claims into uncertainty. The article demonstrates the importance of conceptual clarity in analysing “rights”-based developments through a doctrinal analysis of “rights” in administrative law, conducted through the prism of W.N. Hohfeld's analytical scheme.

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.

The purpose of this article is to consider uncertainty in European Community law. It will be argued that, for reasons inherent in the nature of the Community, EC legislation is generally less clear and more difficult to interpret than British legislation. Five reasons are put forward as to why this might be so. While always undesirable, uncertainty is perhaps to some extent tolerable where Community legislation gives rights to the individual against public authorities: an uncertain right may, after all, be better than no right at all. It is, however, intolerable where obligations are imposed on the individual. One situation in which this arises is where directives are adopted in the field of private law, a rapidly increasing area of Community legislation. These measures will form the main focus of this study, though our attention will not be confined to them. Before considering these matters, we must, however, set the stage by making some preliminary distinctions.

The flexibility of the doctrine of confidence and its adaptability to illsorted and disparate situations has often attracted academic attention, but although it continues to develop, its ability to protect privacy has not perhaps been sufficiently emphasised in recent discussions of both privacy and confidence,despite the debate generated by the (recently abandoned) proposals for a new tort of invasion of privacy. The notion that developments in the doctrine of confidence could properly render it apt to protect privacy came under attack by Wilson in 1990 on the ground that legal obligations to maintain confidence of intolerably uncertain scope might arise as a result of the normal incidents of social life and friendship.

In 1677 the Statute of Frauds1 introduced2 formalities for the creation of trusts of land. Section 7 required that,

… all declarations or creations of trusts or confidences of any lands, tenements or hereditaments, shall be manifested and proved by some writing signed by the party who is by law entitled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none effect.

This requirement (or something like it) has been adopted in most common law jurisdictions and remains applicable today in England in the form of section 53(1) of the Law of Property Act 1925. Despite the provision's apparently comprehensive and drastic effect, judicial decisions have reduced its impact. Of most importance is the doctrine which I shall name after the case, Rochefoucauld v. Boustead, in which it was authoritatively described by Lindley L.J. He said this:

Classification of Animals

In Roman law all animals are either wild or domestic.

(i) Wild: this category includes particularly those of an innate or natural feritas, and generally all animals not normally owned. Wild animals may, however, be owned and, as will be seen later, the owner may be under legal liability in respect of any damage done by them.

(ii) Domestic: these are normally owned. As a species they do not show feritas, though individually they may. Those which do show feritas are therefore regarded as acting contra naturam (of the species). So a horse which is a kicker, or a bull which gores, both of vicious disposition, are nevertheless governed by the rules relating to domestic animals; and a fortiori the domestic animal which has temporary lapses into feritas, e.g., the mare which is touchy, does not cease to be a domestic animal in law.

Third Party Funding is governed by a unique and unparalleled legal framework in English law. That framework consists of: the recent 2014 Code of Conduct for Litigation Funders, its supervision by the Association of Litigation Funders, and sporadic judicial oversight of Litigation Funding Agreements – and with some unenacted legislation in the background for good measure. The purpose of this article is to analyse and critique this unique regulatory regime in several key respects. These include: the capital adequacy required of Funders; the key anti-champerty factors either judicially stipulated or contained within the 2014 Code; the efficacy and fairness of the so-called “Arkin cap”; the grounds upon which a Funder may legitimately withdraw funding; and the impact of recent contingency fee reforms. Overall, Third Party Funding represents an evolving and controversial landscape, both legally and politically.

Copyright law is in crisis. The law, as it currently stands, is considered by some to be technologically challenged, discriminatory, and overly complex; others wonder about its ability to address effectively the many challenges thrown up by the digital and internet revolutions. Both the US and the EU have responded to such concerns in the guise of the American Digital Millennium Copyright Act and the new European Copyright Directive respectively. This time of unprecedented technological development demands a necessary reappraisal of the copyright regime; we need to ask, what should copyright law do? Should its primary concern lie with the author (the copyright owner) or with society (the copyright user)? Traditional analyses suggest that at common law the author had a natural right to print and reprint his work, but that this common law right was impeached with the passing of the Statute of Anne of 1709 in the interests of the encouragement of learning and the dissemination of ideas. In short, the pre-existing common law rights of the author were impinged upon in the interests of society. This reading of the origins of the nature of copyright first took root with the seminal decision of Donaldson v. Becket (1774). It is this orthodox analysis that the author seeks to challenge.

Heading 4. “Fraud on a Minority,” where the Wrongdoers have “Control.”

It was stated above, in the discussion of ultra vires, that actions falling under the fourth Heading of the “exceptions” to Foss v. Harbottle must be “corporate” and not “personal” actions. That is why a minority action brought on the grounds of “fraud” has usually been regarded as a real “relaxation” of the Rule. It is a special procedure, only allowed to the minority in order to avoid “an action in the name of the company, and then a fight as to the right to use its name” in which the minority must lose because the wrongdoers control the company. As such, it is “an excellent illustration of the golden principle that procedure with its rules is the handmaid and not the mistress of justice.” The representative form of the minority shareholders' action must not be permitted to obscure the fact that the “only relief possible in this action is corporate relief.” For this reason, those cases establishing a personal right to prevent any alteration of the articles which would be a fraud on the minority, do not fall under this Heading, and were placed under Heading 3. In the cases now to be discussed, all the rules appropriate to corporate actions apply —notably, that the plaintiff must sue in representative form and cannot join a personal claim; can attack wrongs anterior to his own membership; must join the company as a party; and can join the wrongdoers to assert the company's rights against them.

A highly paid agent sets out to undermine his principal’s business. A doctor wangles sex-for-drugs favours from a patient. An advisor offers self-interested advice to his client. A father engages in an incestuous relationship with his child. In each case the perpetrator is clearly a wrongdoer and the law must somehow respond. But what is the legal wrong and how should the law respond?

That much-flogged unruly horse, public policy, is still at large. It is therefore the purpose of this article to examine the nature, justification and operation of public policy and to consider whether this is an area of law ripe for reform. It clearly would be unrealistic to attempt to do this on a broad front in the space available, and so this survey will be limited mainly to the crude and superficially obvious case where a contract is tainted with criminality or where the party seeking a contractual remedy relies on his own criminal act. It will primarily be concerned with such statements of principle as “no man shall be permitted to profit from his own wrong” or “ex turpi causa non oritur actio.” This immediately raises a problem for the common lawyer, for such general statements are not readily recognisable as working law, and he will wish to reduce them to a more precise set of rules. Such an attempt will lead us, however, into the centre of a major jurisprudential debate.

The nature of the test of dishonesty in offences under the Theft Acts 1968 and 1978 and in conspiracy to defraud has long been a matter of dispute. There have been several conflicting decisions of the Court of Appeal and of the Divisional Court. In essence, two lines of authority had emerged. Both agreed, following Feely, that, on trial on indictment, the question of dishonesty was one for the jury, and both agreed that the test was, at least in part, one of moral judgement. One line, however, said that the moral judgement was that of the accused himself, the other that it was the moral judgement of the reasonable and honest man (or some variant of this.)

The police use “entrapment” to detect and apprehend one whom they suspect is about to commit a crime by providing him with, or urging him to take advantage of, an opportunity to do so. The practice is much commoner in England than was once thought; it raises a number of relatively undiscussed problems which fall into two groups, one centring on the trapper, the other on the entrapped accused. The first group comprises such issues as: Is the trapper criminally responsible? Does the rule relating to the corroboration of accomplice evidence apply to him? If not, should there be any warning about his testimony? Does his conduct sometimes require the exclusion of his testimony as being unfairly obtained? Secondly, has the accused a defence? Has he grounds for pleading in mitigation of sentence? Before looking at these issues, we shall examine the purposes and dangers of entrapment, and we shall see how the practice sometimes prevents either trapper or accused being criminally responsible for certain offences.

A system of registration of title to land was first introduced int England by the Land Transfer Act 1862. Many commentators have since charted its development and have described the struggle between those espousing title registration and those advocating a reformed system of unregistered conveyancing. There has, however, been little discussion of an alternative which was strongly advocated in the nineteenth century; a general register of deeds, rather than title. The article explains the difference between the two systems and describes the various proposals for the establishment of a deeds register. It then analyses the relative strengths and weaknesses of the two systems of registration and suggests that the eventual ascendancy of title registration was due less to any inherent superiority than to external factors.

The possibility that defendants may plead that, through no fault of their own, they lacked the capacity for free agency at the time of the alleged offence, raises the most fundamental issues of principle in the criminal law. The recent decision in R. v. T gives fresh impetus to a full discussion of those issues. In the course of this article we will see that the law is ill-equipped to deal with the full variety of kinds of involuntary lack of capacity, as I shall call it, that ought wholly or partially to excuse. In this the law is hampered by the partial and ill-defined character of its understanding of how people identify harmful conduct for which they were (not) responsible, and by the related fact that it can deal with involuntary lack of capacity only through the blunt instrument of acquittal on the grounds of insane or non-insane automatism. Through enriching the theoretical underpinnings of the law's conception of the scope for pleas of involuntary lack of capacity, and giving the judiciary a more sophisticated armoury of remedies to deal with them, it is in fact possible to sift out the deserving from the undeserving amongst such pleas in accordance with workable principles.

It is sometimes supposed by English lawyers that one of the principal differences between their law and other European legal systems is that the common law is founded on decided cases, whereas systems influenced by Roman law depend on texts and doctrinal literature. Some Civilians might accept the distinction. But the canonist knows that it is hardly accurate. In the first place, his decretals can be regarded both as case-law and as texts. Moreover, once the pope began to commit his adjudicative authority to a court composed of doctors of law, canon law became increasingly the jurisprudence of a learned tribunal. The supreme papal court was the “Audience,” where cases were heard before the auditors of the papal palace (domini auditores sacri palacii apostolici). The pope had appointed auditors of causes since early times, and their procedure had become regularised during the thirteenth century. By the fourteenth century, when these judges were lawyers of distinction from all over Europe, the Court of Audience had become a collegiate body; and under Pope John XXII (1316–34) it was given a written constitution and a settled home. John settled his curia at Avignon, and built a hall of audience alongside his palace there. In 1331 he promulgated the bull Ratio iuris, which was intended to govern for all time what it described as “the highest court established under divine inspiration, where the quality of justice abounds in excellence and brilliance.”

This article suggests that Jeremy Bentham's principle of utility plays a crucial role in his work as a ground not only of moral or censorial judgment but also of expositorial legal judgment. If we are to reject the characterisation of Bentham as a natural lawyer, the most coherent re-interpretation of his position, a morally sceptical interpretation of his insistence on law as a cause of social order, would be as a noble or enlightened despotism, a decision to defend utility as a politically authoritative but philosophically unjustified principle. It concludes that other rationalist legal positivists face similar versions of this dilemma.