In November, 1921, Lord Haldane delivered to the Cambridge University Law Society an address on the Judicial Committee of the Privy Council (Cambridge Law Journal, vol. i, p. 143). He was then an ex-Lord Chancellor and for thirty-eight years had had experience of that tribunal-for twelve years as one of its judges. If it seems unnecessary and even unfortunate that the same subject should be given to me, I may point out—though only by way of confession and avoidance—that Lord Haldane on that occasion insisted that ‘You cannot learn much about it from documents’—‘unless you have lived in it and in the atmosphere you do not know what happens there’—‘the only way to study it is to watch it’.

“The law is no stranger to the philosophy of ‘As if’. It has built up many of its doctrines by a make-believe that things are other than they are.” In writing these words, Benjamin Cardozo could easily have had in mind the English law of evidence. For a number of its rules can be seen to proceed upon postulates about human nature and about the structure of the world which are unverified and, one has reason to suspect, all too seldom accurate. This paper will examine one of the more arresting examples of this phenomenon, section 1(f) of the Criminal Evidence Act 1898, where English law adheres to a doctrine which, it is feared, derives from a blend of misconceptions and wishful thinking.

The relationship between the jurisdictions of local courts and central courts in late-medieval and early-modern England remains largely unexplored. It is nevertheless important to an understanding of the development of the common law, because of the prevailing notion that the great increase in litigation in the royal courts in the early Tudor period was connected with a decline in the use made of local courts. A massive transfer of business to the centralised royal courts might have affected the common law in ways other than the purely numerical, in that it could have brought a reception of legal ideas and remedies already well known out in the country. On that footing, the appearance of new kinds of action in the central courts at this period may represent transfers of jurisdiction rather than changes in legal thinking.

A plaintiff who is deprived of a thing might seek out that very thing in order to assert his rights. The victim of a car thief tries to find the car. This is a natural response to such a misfortune, although it is not necessarily a fruitful one. Alternatively, the plaintiff might find that the original thing has been used to acquire some new asset: for example, the thief has swapped the car for a motorcycle. In that case, especially if for some reason the plaintiff will be unlikely or unable to establish a claim in relation to the car, the plaintiff might choose to assert a claim in relation to the motorcycle.

IN Mellish v Motteux (1792) 170 E.R. 113, 157, Lord Kenyon observed that “in contracts of all kinds, it is of the highest importance that courts of law should compel the observance of honesty and good faith”. This passage echoes a similar statement by Lord Mansfield 25 years earlier in Carter v Boehm (1766) 97 E.R. 1162, 1910. Despite these early statements of principle, the modern common law has been notoriously hostile to the notion that contracting parties are under a general duty of good faith in the performance of their obligations (see W.P. Yee, “Protecting Parties' Reasonable Expectations: A General Principle of Good Faith” (2001) 1 Oxford U. Commonwealth L.J. 195), and there is certainly “no firm line of modern cases to support such an obligation” in English law (see L.E. Trakman and K. Sharma, “The Binding Force of Agreements to Negotiate in Good Faith” [2014] C.L.J. 598). Nevertheless, some recent decisions in Australia, Canada, and England have begun to imply obligations to perform certain types of promises, in certain classes of contracts, in an honest manner, crafting, in the words of Lord Bingham, “piecemeal solutions in response to piecemeal problems” (Interfoto Picture Library v Stiletto Visual Programmes Ltd. [1989] 1 QB 433, 439 (CA)). A recent English example is Yam Seng Pte Ltd. v International Trade Corporation Ltd. [2013] EWHC 111 (QB) in which Leggatt J. found there to be an implied duty of “honesty” and “fidelity to the bargain” in the context of a long-term distribution contract. Importantly, His Lordship emphasised that whether such obligations can be implied is a matter of construction, which involves ascertaining the parties' objective intentions through conventional techniques such as the principle of business efficacy. As implying such obligations depends entirely on the context of each contract (at paras [137]–[143]) there is, at present, no general principle of good faith performance in English contract law, despite some case-by-case recognition (see Mid-Essex Hospital Services N.H.S. Trust v Compass Group UK and Ireland Ltd. [2013] EWCA Civ 200, at [105], [150]).

Companies, being legal abstractions, can act only through human agents. A necessary consequence of a company's legal abstraction is the development of rules of attribution, such as those that govern the company's liability for the wrongful acts of its agents. Given that companies have been a significant feature of the economic, social, and legal landscape since the nineteenth century, it is not surprising that those rules are fairly well settled, if not always easy to apply.

Perhaps surprisingly, there is less agreement on the rules governing the attribution of liability to agents acting in the course of a company's business. In recent years, Commonwealth courts have seen repeated challenges to the boundaries of corporate agents’ liability, with claims against corporate agents being made in deceit, in negligent misstatement, for infringement of copyright, for negligent property damage, and even for breach of contract. The courts have yet to offer a coherent response.

It may be of interest if, after the lapse of fifty years, I record my memories, now dim, of the birth of the Cambridge Law Journal in 1921. Credit for the initiation of the venture belongs to the Committee of the Cambridge University Law Society, an undergraduate club founded in January 1901. In the academic year 1920–21 I was treasurer of the society and the junior officers were A. T. Harries of Emmanuel, R. Branston of Christ's, R. M. Hughes of Downing, and T. Simpson Pedler of Queens'. This group came to see me and propounded the proposal that the society should publish an annual magazine. T. S. Pedler was the most active spokesman, and I have always regarded him as the ultimate founder of the Journal. The original idea of the group was to publish a magazine containing an account of the doings of the society and of other matters relating to the law school in general. My contribution to the venture was to persuade the officers that if the society was to have a magazine it should be a scholarly production edited by a law don and embodying some of the features of the Harvard Law Review.

In judicial review of administrative action, the pivotal distinction between decisions about “jurisdiction” (for the reviewing court) and “the merits of the case” (for the administrative decision maker) is a source of much confusion. This article argues that jurisdiction should be understood as the scope of legitimate authority, the best theory of which is Joseph Raz's service conception of authority. As well as explaining how to determine jurisdiction, this article explains that a legitimate authority's intra-vires decision “pre-empts” the reviewing court's judgment on the merits, and that the concept of jurisdiction precludes any standard of reasonableness for reviewing a legitimate authority.

IS the mass collection of communications metadata legally equivalent to surveillance of the content of those communications? If so, does EU fundamental rights law have any bearing on its application? If it does, what is the appropriate relationship between the Court of Justice of the European Union and Member States’ courts in balancing in the competing interests at stake? These questions came before a Grand Chamber of the CJEU in Joined Cases C-203/15 and C-698/15, Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v Tom Watson and Others ECLI:EU:C:2016:970 (Watson).

A shipper does not have unlimited freedom as to what he may have transported by sea. Restrictions on the goods which a charterer or cargo-owner may ship are imposed by the common law, the terms of the contract and statute. The statutory sources of control of what are normally referred to as dangerous goods may be divided into three categories: those under the Hague-Visby Rules (principally art. IV(6)); those under the Merchant Shipping Act 1995; and other legal sources. Provision is also made by the Hamburg Rules. Where a prohibition against the shipment of goods is not laid down by an express contractual obligation or specific rule of law, it is likely to be treated as depending on an implied term or collateral warranty.

This article examines the backgrounds of a sample of 77 English and Welsh judges in an ambitious research project sponsored by the Nuffield Foundation, in which I work-shadowed and interviewed a core sample of 40 judges at every level of the court structure, in 2003–5, with the aim of finding out what modern judges do and what they are like. I interviewed a further 37.

Negative attitudes towards litigants in person (LiPs) are long-standing. But despite their persistence, no study has ever considered: how did we get here? This is what this article sets out to do, analysing when the term LiP first appears, and the context in which this occurs. I argue this moment is a by-product of broader changes taking place for the legal profession in the nineteenth century. Drawing on Larson's “professional project” I argue the new county courts become a battleground for attorneys to distinguish themselves, and it is the introduction of certain kinds of distinction that undermines the self-represented party. This article ultimately argues that the LiP role is not simply self-representation, but is rather self-representation that can only occur in the latter stages of the professional project. This means, perversely, that the creation of the term LiP does not indicate the facilitation of lay participation in legal forums; it marks instead the moment when they are displaced. As I conclude, this displacement has profound consequences for LiPs to this day.

Control of the abuse of discretion is arguably the central and most controversial part of judicial review of administrative action. Within abuse of discretion, review of improper purposes is probably the most difficult ground to define and expound. It is not seen easily as a separate and unique concept. There is no clear approach to it as a mechanism of review. On the other hand, review for the consideration of irrelevant factors appears to offer greater certainty. There has been, therefore, a tendency to bring both grounds together in terms of the latter. As a result, the line between improper purposes and irrelevant considerations has become blurred, and often they are seen as identical. A number of questions arise from this. Are the two grounds of review different? What is their content? How are they to be manipulated? Is the apparently expansive import of Padfield v. Minister of Agriculture, Fisheries and Food a significant development? If so, is it a shift in the right direction? Problems in review for abuse of discretion stem from several sources. The problems compound one another in a context of limited legal structures and judicial analysis. Abuse of discretion is too easily regarded as a “grab-bag” from which a ground of review can always be found to suit the conclusion sought to be reached on the merits. Judicial review is a flexible tool but each ground has a limited use. “Improper purposes” and “irrelevant factors” exist as distinct phrases because each represents a separate mode of analysis which is particularly useful in a given situation.

This article critiques the model for implementation of good faith suggested by Leggatt J’s obiter comments in Yam Seng Pte Ltd v International Trade Corp Ltd. He considered that a general term of good faith may be implied as a matter of construction or as a factual implication under traditional implied terms rules; and that further terms might be implied as specific manifestations of the general term. These further terms would reflect “shared values and norms of behaviour”, including the “core value of honesty”. The article contends that the reasoning to support the general implication contradicts the proposition — accepted by Leggatt J — that good faith has not been recognised “as a duty implied by law”; and that, for several reasons, the analysis used to support implication on the basis of shared norms is flawed.

THE main facts of Blackstone's life are well known, and so are the qualities of his Commentaries. I do not intend to add to the number of Blackstone's biographers, nor to give an exhaustive account of his Commentaries. But I must begin by stating shortly some of the salient facts and dates in Black-stone's life in order that my remarks upon some aspects of his Commentaries may be the better understood. Then I shall say something, first, of Blackstone's intellectual characteristics; secondly, of the manner in which these intellectual characteristics have worked together to make the Commentaries a classical book; and, thirdly, of certain alleged defects in the Commentaries.