The decision of the European Court of Human Rights in Chassagnou v. France (judgment of 29 April 1999) has wide legal and practical implications of which only some can be explored here.

It is not often that cases concerning bankers' commercial credits reach the Court of Appeal; such a case was W. J. Alan & Co. Ltd. v. El Nasr Export and Import Co. hereafter referred to as the El Nasr case. It would be regrettable that such a case should pass without comment, particularly as the decision also touched important principles of the general law of Contract. This paper will consider firstly the opening of a bankers' commercial credit in two respects: (i) it has recently been contended that whether the credit binds the issuing bank to the seller depends on whether the buyer's duty to procure the credit is a condition precedent to the contract of sale; it will be suggested that the buyer's duty is usually no more than an ordinary term of the contract. (ii) It has been argued that the procuring of a credit by the buyer discharges absolutely his duty to pay the seller under the contract of sale. It will be seen that the courts have now rejected this argument and for good reason. The second part of this paper considers the waiver of duties under the credit, leading to an appreciation of the doctrine sometimes called equitable or promissory estoppel. In particular it will be contended that (i) he who benefits from the waiver must suffer a detriment, although of a rather diluted kind; and (ii) that the waiver may not always be withdrawn, even after the giving of reasonable notice.

Practice directions are made by the courts under a jurisdiction usually called “inherent”. Directions do not have statutory authority but are sometimes used to introduce important procedural innovations. Now, the Civil Procedure Act 1997 envisages that a rule of court, instead of providing for something, may refer to directions, actual or to be made: directions covered by this do have statutory authority.

Practice directions “supplementing” many of the Parts of the Civil Procedure Rules 1998 were issued alongside the rules. Not all of these fall within the Act of 1997, but the “inherent” jurisdiction, which has not been displaced, can justify them. In the result, there are now two kinds of practice direction: some have the authority of statute and others do not. This article examines a confusing situation and makes some suggestions.

Some years ago the position of the unborn child in the English law of tort attracted my attention and it is chiefly in connection with that branch of the law that I wish to discuss the topic. But, as almost invariably happens in legal research, I soon found that there were other aspects of the subject which at least deserved passing notice, and at most might be useful for analogy with or distinction from the aspect in tort. It is the old tale of going out to catch a whale and landing several other fish in the process. The three other branches of the law with which I made contact were the law of property, criminal law and the law of contract. I shall touch upon these, but I have no intention of investigating them in detail. There are plenty of books which cover the topic in Property Law and Criminal Law respectively. In the law of contract there is a significant blank. The order of discussion in this article will be:—

I—The law of property.

II—Criminal law.

III—The law of contract.

IV—The law of tort.

Professor Williams has done much to explicate and defend the subjectivist account of mens rea, which makes conscious risk-taking central to the idea of recklessness. It is thus not surprising that he should be critical of the rulings in Caldwell and Lawrence; nor would I quarrel with many of his objections to those decisions. My concern here is with his own views on the proper definition of “recklessness,” and on the proper use of that definition, in the criminal law: for his Textbook of Criminal Law suggests, and his discussions of Caldwell show, that he is willing to extend the concept of recklessness beyond the strict limits of subjectivism. Such an extension is indeed warranted: but I will argue that it can be explained and justified only by a more radical revision of subjectivism than he seems to allow (I ignore Lawrence and reckless driving here: Professor Williams is willing to accept an objectivist account of recklessness as gross negligence in the context of reckless driving, so long as it retains a suitably subjective meaning in other criminal contexts (R.R. 273–275)).

In Flannery v. Halifax Estate Agencies Ltd. [2000] 1 W.L.R. 377, the purchasers of a flat in Manchester sued a valuer, on whose report they had relied, for negligence. At the trial there was a conflict of expert evidence. The judge preferred the evidence of the defendant's experts and dismissed the claim. It was accepted that the judge's conclusion was one that was open to him on the evidence. The Court of Appeal set aside the judgment and ordered a new trial.

The EEC rules concerning restrictive business combinations are sanctioned not only by the imposition of substantial penalties in the event of intentional or negligent infringement but also by depriving offending agreements of their validity in civil law. Thus Article 85 (2) of the Treaty provides in uncompromising terms: “Any agreements or decisions prohibited pursuant to this Article shall be automatically void.” This is a directly effective provision which has become part of the law of the member states and must be applied as such by their courts. It must be stressed that the nullifying force of the Article operates automatically, rendering agreements void without the need for a decision by the Commission or by a court. This contrasts with the position under United Kingdom legislation where agreements within Part I of the Restrictive Trade Practices Act 1956 only become void following a decision of the Restrictive Practices Court that the provisions in question are contrary to the public interest.