This article is concerned with the question of whether malice is an appropriate touchstone of liability in tort law. It begins by identifying four torts in which malice may properly be regarded as an ingredient of liability (distinguishing various other torts, such as private nuisance and defamation, in which malice plays a merely secondary and contingent role). Having identified these four torts – namely malicious prosecution, abuse of process, misfeasance in a public office and lawful means conspiracy – the article then seeks to identify a common juridical thread which links them together. So doing serves to rebut the allegation, often made in respect of all them, namely, that they are anomalous actions. It then concludes by considering the individual worth of these torts, bearing in mind the important difference between not being anomalous on the one hand, and being positively meritorious on the other. It concludes that a respectable defence of each of the four torts can be made even though malice is an atypical touchstone of liability.

This article rejects the position that individual responsibility and collective responsibility are opposing and incompatible points of view about how to deal with misfortune. It proposes that we should distinguish between two forms of individual responsibility. One form of individual responsibility, the “social view”, is not just compatible with collective responsibility, it also cannot be attacked without simultaneously attacking collective responsibility. The other view of individual responsibility, the “asocial view”, is indeed incompatible with collective responsibility, but it is equally incompatible with the social view of individual responsibility. The distinction allows us to understand collective responsibility as lifting the burden of individual responsibility to compensate others we have harmed, rather than as lifting the burden of looking after oneself, and thus better illuminates the relationship between the welfare state and tort law than the conventional view.

This article considers the interpretive significance of legislative inaction. Section I considers the nature of arguments based on legislative inaction. Section II explores the practical, conceptual and constitutional problems with trying to rely on legislative inaction as an interpretive aid. Section III concludes that attempts to draw inferences from legislative inaction alone are deeply flawed, but that inferences might legitimately be drawn from inaction if it forms part of the context against which the legislation is enacted. Even then, however, there are practical difficulties in determining what inferences to draw.

This article compares two models of discharge for repudiation. The first – termed the “mirror image model” – has come to the fore only in recent years. It treats the applicable principles as the mirror image of those that govern discharge for failure to perform a contractual term. Under the second model – the “differentiated model” – repudiation is analysed in terms of various criteria that respond to conceptual diversity within the basis for discharge. The two models diverge, at the heart of the repudiation doctrine, when the issue is whether a reasonable person would regard the promisor as having refused to perform the contract. It is argued that the differentiated model is the better model, and also the preferred view of the common law.

Vicarious liability was, and it remains, curiously unsatisfactory. After a period of stability from the Middle Ages into the early modern period in the late seventeenth into the early eighteenth century, the existing law of vicarious liability began to be challenged. The mid-nineteenth century saw another reappraisal coinciding with the rise of notions of fault. The period that follows, from the late nineteenth century until after the Second World War period has not attracted much comment. One key debate in this period and earlier which provides a useful lens to examine the doctrine was whether vicarious liability should be properly characterised as a master's or servant's tort theory. The history of the doctrine during this period goes some way to explaining why the modern law remains incoherent.

The article addresses the public policy issues associated with former client confidentiality and law firm mergers and, in the light of these, it examines the claim, endorsed by City firms and others, that market-based solutions, such as Chinese walls, promote the interests of the profession without imperiling the interests of justice. The House of Lords' ruling in Prince Jefri Bolkiah V. KPMG and Laddie J's interpretation of it in Young V. Robson Rhodes are analysed with the aim of assessing the impact of both decisions on the above claim and their consequences for the legal profession generally.

“No oral modification” (NOM) clauses should be enforced in English law. Parties should be permitted to impose formality requirements upon themselves. Entire agreement clauses are (rightly) enforced and this provides a compelling parallel. The reasoning of two Court of Appeal decisions holding NOM clauses unenforceable is critically analysed. The extent to which NOM clauses should be defeasible by estoppel and unfair terms legislation is considered.

Most writing on the early history of the Inns of Court reflects an assumption which was very clearly stated by Sir Frederick Pollock,

On the whole then the constitution of the Inns of Court was settled about the middle of the fourteenth century on the lines which in all cssentials are much the same at this day. The only considerable formal change was that two centuries later the original governing committee of the Bench gave way to a single principal officer, the Treasurer.