The law has long recognised a right to recover an enrichment transferred on a consideration which has failed. However, the consideration has to fail totally. Much ink has been spilled arguing that the limit is a bad one. Less has been written about quite what a total failure of consideration actually is. In this paper, it is argued that the best understanding of the total failure rule is that it prevents restitution when the failure is insubstantial; only substantial failures justify restitution. This shows that the limit is integral to the justification of the award of restitution.

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.

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.

This article explores the process and impact of liberalisation on the legal profession in England and Wales. Liberalisation brings a tendency to consider the profession in market-focused terms, with the professional–client relationship reconfigured in overtly economic fashion as constituting the interaction of supply and demand. The article examines the past and present structure of the profession, arguments for liberalisation and manifestations of liberalisation efforts. Having identified the distinctive dynamics of supply and demand within legal services markets, the article considers the potential implications, both immediate and in broader societal terms, of reconceptualising the legal profession in this manner.

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).

The “good Constitution” in a democratic country seeks to balance the morality of law and the morality of government. The good Constitution can be considered at the levels of abstraction of the relationship to human rights or of the progression from parliamentary to constitutional supremacy. But this article suggests that the level of the balance between the two moralities is more fruitful. The morality of law focuses on individual rights, the morality of government on the public interest. The constant task of the Constitution is to achieve an accommodation by restraint on the part of both the judges and the executive.

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.

THE appeal in R. (on the application of SG) (previously JS) v Secretary of State for Work and Pensions (Child Poverty Action Group and another intervening) [2015] UKSC 16 concerned a challenge to the cap on welfare benefits, one of the measures introduced as part of the Government's austerity-driven economic and social policy. The “benefit cap” operates to limit the amount of welfare benefits that can be received by non-working households, to the equivalent net median earnings of a working household. The Welfare Reform Act 2012 contains provisions allowing the Secretary of State to make regulations providing for a “benefit cap” scheme. It is implemented through the Benefit Cap (Housing Benefit) Regulations 2012 and operates by a reduction in housing benefit once a specified maximum amount is reached. Benefits covered by the cap include housing benefit, child benefit, and child tax credit. Once the cap is reached, no account is taken of the number of children in the family. The lawfulness of the Act itself was not challenged. The appellants’ argument was that the implementation of the scheme was discriminatory and contrary to the Human Rights Act 1998.

In the phrase “moral responsibility”, the term “moral” can register two different ideas. On the one hand, it may introduce a particular field of application and a corresponding class of consequences, which are informal and social rather than formal and supported by force. Used in this way, “moral responsibility” is distinguished from legal responsibility. A quite different use of the term is involved when “moral” is introduced to imply a certain basis of assessment, one that places particular emphasis on the voluntary. In this sense, moral responsibility can be proposed as a basis of assessment even when what is in question is legal responsibility, for instance in relation to the criminal law.

When Sir Anthony Blunt's misdeeds were exposed to public gaze by revelations that he was the so-called fourth man in the notorious group who had spied for Russia, an important area of the criminal justice process was partially uncovered as a result. The Prime Minister confirmed in a House of Commons Written Answer that Mr. Blunt (as he later became) had been granted immunity from prosecution as long ago as 1964 by the Attorney-General, Sir John Hobson. No attempt was made to suggest that this was a routine occurrence, but in the ensuing debate, the Prime Minister asserted that “it is not unusual for the Attorney-General to be asked to authorise immunity from prosecution in return for co-operation in pursuit of inquiries. It happens from time to time in the course of criminal investigations.”

Suppose a collection of ictures is held by a trustee T on trust for beneficiary B. A picture is stolen by X, a thief; or alternatively, it is wrongfully sold by T to Y. What causes of action are open to B? At first sight this looks an easy question, involving straightforward application of the principles of equity and personal property. In the former situation (the theft example), T, who has the legal title, can clearly sue X in conversion. As for B, he in his capacity of equitable owner can no doubt force T to do so, if necessary by himself bringing proceedings against X and joining T as a party. In the second case, that of wrongful sale, T is clearly guilty of a breach of trust and liable to compensate B accordingly. As to the liability of Y, B will be able in equity to recover the picture from him in specie he has it, or its value if he does not (assuming Y's acts were sufficient to make him liable on the basis of “knowing receipt” of trust property).

The history of commercial law has often been written as if it were merely a product of the common law, disregarding the role played by legislation. The principal exception to this has been work on company law. Until recently, the prevailing view has been that the Companies Acts 1844–62 represented the triumph of the free market and the expulsion of the state from business. But, although these laws did make incorporation easier and granted companies privileges, what this view ignores is that they also imposed regulation, such as obligations to register the company and charges on its assets and to hold shareholder meetings. At the forefront of these legal changes were insurance companies. Yet, in spite of the proliferation of these companies and their role in, for example, the inquiry that led to the 1844 Act, they have been neglected. This may be because, while the successful campaign in 1824 to remove restrictions on access to the marine-insurance market would seem to support the view of legislation driven by free-market ideas, that explanation seems contradicted by the closing of access to the life-assurance market and the imposition of various obligations on life offices in 1870, a time when the liberalisation of company laws seemed at their peak. Neither development can, however, be so easily explained, and both show the effect of fierce divisions within the insurance industry.