The rule against bias has undergone a number of modifications during the last ten years. In particular, two elements of the test for apparent bias have been widely debated, namely the degree of bias and the perspective from which bias should be viewed. The cases before 1992 on each element of the test were difficult to reconcile, but in R. v. Gough, Lord Goff held that the test required a “real danger” of bias when viewed from the perspective of the court. However, attempts were made to amend the test after forceful criticism by the High Court of Australia, and the related observation of Sir Thomas Bingham M.R. that Gough abolished the principle that “justice must not only be done, but must also manifestly be seen to be done”.

This paper follows upon the author’s earlier paper in the preceding issue of the Journal which drew attention to the Court of Appeal’s growing practice of delivering composite judgments. It examines some of the wider issues cast up when courts ring the textual changes, adopting different permutations, and considers the somewhat tendentious matter of ‘judicial style’, a subject dear to some comparatists’ hearts. It explores the knotty question, glossed over even by many writers on precedent: what exactly is the virtue of the concurring judgment? It also considers how the quality of judgments may be affected by collaborative composition in a comparative context, taking in what little comparative evidence there is to inform the debate. It is futile to pretend that this paper offers final answers to any of these questions, for they raise issues of disconcerting complexity. Yet, to pass them over in silence would be scandalous.

Although the transformative influence of the printed word is acknowledged in the history of the common law (I will focus primarily on law books), there is as yet no comprehensive study which looks at how the production and dissemination of that printed word was shaped by “communities of printers, booksellers, readers and (for want of a better word) censors”. Not only does this deprive us of a fascinating narrative on the history of the law book, but also, as a consequence, prevents us from tracking more accurately than before the impact of the printed word on legal development across the centuries. As only a book length study could provide a complete narrative on this history, the present article will focus on one part of this story, namely the impact of the practices of printers and booksellers (who were the most important members of the book trade and will therefore be collectively referred to as “the book trade”) on law book publishing in the eighteenth century.

It seems to be generally accepted that a person who signs a contractual document may not dispute his agreement to any of the terms which it contains, unless he can establish one of three defences: (a) fraud, (b) misrepresentation, or (c) non est factum.

It has been a traditional requirement of rescission (ab initio), even as a response to fraudulent misrepresentation, that it must be possible to restore both parties to the relevant contract to some equivalence of their pre-contract positions. A line of cases involving rescission of guarantees has, however, permitted a surety to be entirely released from the guarantee even though the creditor has relied on it by supplying credit to the principal debtor. The suggested rationalisation is that the traditional requirement is confined to cases where rescission in specie is being sought and the innocent party can be adequately protected by a claim for damages. The article also addresses the relevance to rescission of the restitutionary concepts of change or position and counter-restitution.

There is a lively debate among scholars in Europe about how, if at all, the private laws (tort, contract, property) of the European nation states should be harmonised. Views range from no harmonisation at all, soft law methods such as models contained in Principles, step by step case law developments, to a fully fledged binding European Civil Code. Another hotly debated issue is the disharmonisation (fragmentation) of domestic systems of private law as a result of current and ongoing EC level harmonisation. The prime consequence of this partial legislative intervention is an enhanced role for the judiciaries of those jurisdictions: they are inevitably entrusted with the fine-tuning of the interaction between domestic and EC private law. Alien concepts make their entry into a Member State’s Civil Code or common law doctrine that do not necessarily easily fit (one scholar has called these “legal irritants”). Most likely, for the foreseeable future, piecemeal harmonisation of specific, and more or less narrow, legal fields is the only show in town.

One of the principal features in the development of private law in recent years has been the dramatic increase in the variety of circumstances in which courts are willing to hold that one party owes a duty of care in tort to another. The view that the categories of relationship which attract a duty of care at common law are immutably fixed by precedent and that any decision to extend them must be left to the legislature, expressed by one Law Lord as recently as 1970, now seems somewhat quaint and it is generally accepted that courts can, in appropriate cases, extend the scope of liability for negligence to embrace new types of relationships, conduct and harm. As the boundaries of liability have been rolled back, old immunities have been removed and duties of care (albeit sometimes restricted) have been established in areas previously considered to be beyond the scope of the law of tort. But there are still areas of confusion and difficulty, perhaps the most prominent of which in recent years have been the extent of liability for economic loss and for nervous shock. Another area of doubt, however, is the extent of liability for omissions. While it has not attracted as much attention as economic loss or nervous shock, the distinction between acts and omissions still exercises a powerful influence on judicial decision making on the question of tortious liability. This article considers the question of liability for one such omission, namely liability for a failure to warn someone of imminent danger. Before doing so, however, it is necessary to clarify exactly what is meant by an “omission.”

Which law governs a contract where none has been chosen by the parties? The solution lies in Articles 3 and 4 of the 1980 Rome Convention on the Law Applicable to Contractual Obligations. Article 3 allows a court to infer the parties’ intentions from the circumstances. But such intentions must be “real”, not presumed, and in the absence of genuine consent, Article 4 provides that the applicable law is that most closely connected with the contract. Under Article 4(2) this is (in effect) the law in force where the supplier of goods or services is located, or (if relevant) has a branch—for the supplier’s performance is invariably “characteristic” of a contract, in the sense intended by the Convention. But any clarity thereby won is immediately lost because the presumption is rebuttable under Article 4(5) whenever a contract is better connected with another law, exposing Article 4(2) to the risk of constant challenge. The presumption is especially vulnerable because it will so seldom be appropriate to apply the supplier’s law, the law of the place of performance frequently having a stronger claim to govern. Perplexingly, it is a presumption more apt to be rebutted than applied.

Parliament has imposed on the Law Commission the duty to review the law of England and Wales “with a view to its systematic development and reform, including in particular the codification of [the] law … and generally the simplification and modernisation of the law”. There are a number of points which flow from this. First, as a body which reviews great swathes of the common law to see if they require to be modernised or simplified, the Law Commission has a unique standpoint from which to view the strengths and weaknesses of the common law method. Second, it has unique experience of law reform and the Parliamentary process. Third, in discharge of its functions, it has an interest in seeing that, if codification is appropriate, a recommendation to that effect is made to the Lord Chancellor. It need not be the Law Commission which carries out the recommendation, and indeed the Law Commission could not carry out a project purely of its own initiative.

Floating charges have been an integral part of company financing for over 100 years, and yet their most fundamental characteristic remains the subject of debate: what interest does the floating chargee have prior to crystallisation? The answer to this question is not academic: disputes between the chargee and interested third parties depend for their resolution on the view taken. Moreover, it is becoming increasingly difficult to rely upon precedent or statutory provisions for simple rules to resolve these disputes: the complexity of modern commercial transactions and the ingenuity of advisers now give rise to rights which cannot always be equated with more traditional security devices and which may not need to be registered. This makes resort to fundamental principles necessary, and the elucidation of those principles crucial.

Of the two most often-quoted definitions of the royal prerogative, Dicey's definition as “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown,” has often received the express or implied approval of the courts. Thus, besides the weight of the authority of its great author, the above definition also enjoys the privilege of official and almost universal recognition and acceptance. It was therefore with great diffidence that the present writer decided to “re-visit the prerogative” and examine it critically. Yet, he has done so in the belief that the passage of time is bound to have had some effect on a definition which is nearly ninety years old and which, when first published, naturally reflected the nineteenth-century theory on this subject.

One of the more intriguing mysteries raised by the action of assump sit in the sixteenth century is that of the Indebitatus count. We know that the most common form of declaration in assumpsit by the middle of the sixteenth century took this form: whereas the defendant had bought a cow from the plaintiff, the defendant promised to pay to the plaintiff £10. The sequence of tenses, from the pluperfect to the perfect, sometimes reinforced by perantea or postea indicates that the promise which constituted the cause of action had been made subsequently to the creation of the initial liability. In effect the cause of action was a promise to perform an existing duty. The same result could be achieved by using the strict Indebitatus count: the defendant, being indebted to the plaintiff in £10, promised to pay £10. The purpose of the present paper is to examine why this form of count developed, and how it was justified in terms of the newly-formulated ideas of consideration.

The history of lunacy administration can be traced back with reasonable certainty to 1339, the assumed date of the Statute de Prerogativa Regis, which limited the King's jurisdiction (already existing) over the estates of idiots or natural fools, whose profits he was to take, but for whom he was to find necessaries. For anyone ‘that beforetime hath had his wit and memory’ and should ‘happen to fail of his wit’ or, as would now be said, became a lunatic or of unsound mind, the King was to keep his estate safe and maintain him and his household competently out of the profits, but the King was to take nothing for his own use. By the Statute 32 Hen. VIII, c. 46 (1540), which established the Court of the King's Wards, the residue on the lunatic's death was to be paid over to his Executors or Administrators.

The cause célèbre of King v. William Joyce, subsequently reported as Joyce v. Director of Public Prosecutions, was concerned to a large extent with matters of interest for international law, and it is mainly from this point of view that it is proposed to discuss it in the present article. Obviously the case is also of considerable importance both for criminal law, in so far as it is concerned with the crime of treason, and for constitutional law inasmuch as it bears directly on the question of the nature and the obligations of allegiance. However, it is probable that the case books which will claim it most insistently will be those of international law. For the decision in Rex v. Joyce is not only an authority on certain aspects of allegiance owed by aliens and of the right of a State to assume jurisdiction over acts committed by aliens abroad. It sheds light on such questions as the nature of diplomatic protection of citizens, the right of a State to protect diplomatically persons who are not its citizens, the obligation of allegiance of so-called protected persons, and some others. Not all these questions were judicially answered, but they loomed large in argument and imparted to the proceedings the complexion of a case concerned predominantly with international law. In view of this it may be pertinent to preface this article by drawing attention to a point which appears to be a mere matter of terminology but which, it is believed, raises an issue of wider significance.

This article examines the implications of the E.C.J.'s decisions in Überseering and Inspire Art against the background of the principal competing theories relating to lex societatis. It considers the tension between freedom of establishment (EC Treaty, arts 43 and 48) and the protective objectives of national corporate law regimes aimed at defeating the so-called Delaware effect. It goes on to argue that significant issues remain unresolved. More particularly, it questions whether creditor protection mechanisms contained in national insolvency laws will, in future, be viewed as obstacles to freedom of establishment.