Under the present law, policy-based reasoning plays a major role in the judicial determination of private law disputes. The propriety of this type of reasoning, however, has been the subject of much debate. Whilst many argue that there is nothing objectionable about using policy-based reasoning, others, particularly those who believe in a rights and/or corrective justice-based view of private law, argue that policy should play no role in the determination of private law disputes, and that courts should instead rely on what they call “principle”. This article will examine both sides of the debate, initially exploring what is actually meant by “principle” and “policy”, and then providing an overview of the primary arguments relied on in favour of both a policy- and principle-based approach to resolving private law disputes. Finally, a compromise between the two approaches, the so-called “pluralist” approach, will be examined.

In the preface to his memoirs, Casanova outlined his reasons for writing them in French. Having noted that the clarity, precision and grace of the French language are such that a cultivated person cannot help but fall beneath its spell, he went on to mention one further feature:

It is worth observing that among all the living languages in the republic of letters, French is the only one which its presiding judges have sentenced not to enrich itself at the expense of the other languages.

Arguably this is a proud posture for a language to strike, hermetically cocooned within a self-imposed cultural bridewell. Nevertheless, Casanova's observation was, to a degree, an accurate representation of the cultured French of his day and, curiously, is probably truer today that it has ever been.

It is well established that a party seeking an interlocutory or a Mareva injunction is required to give a cross-undertaking in damages as a condition of being granted the order sought. Equally settled is the principle that the undertaking in damages may be invoked in two situations. First, when the injunction is discharged before trial on the ground that it should never have been granted and, secondly, if at the end of the trial the party enjoined obtains a favourable judgment vindicating his claims in the action. Yet the principles governing a decision whether to enforce the undertaking are inadequately articulated. Two reasons have combined to contribute to this state of affairs: the fact that the award of damages is considered to be discretionary and the small number of instances in which the courts have been asked topronounce on the subject. However, the great rise in applications for interlocutory relief, whether by way of interim or Mareva injunctions or Anton Piller orders, has commensurably increased the importance of this subject. A number of recent decisions stand witness to this tendency and underscore the need for a thorough treatment of the topic.

TWO important decisions have recently considered the effect of human rights law on domestic property law: Kay v. Lambeth L.B.C.; Leeds C.C. v. Price, and J.A. Pye (Oxford) Ltd. v. United Kingdom. In each case, the claimant brought a domestic proprietary claim, one successfully, the other unsuccessfully, against a defendant. The aggrieved party argued that the domestic legal outcome conflicted with his rights under the European Convention on Human Rights. In each case, the court had to decide whether the Convention had indeed been infringed by the bringing of a proprietary claim and, if so, what the consequences of that infringement might be.

The new UK internal market, as embodied in the UK Internal Market Act 2020 and the common frameworks, is the latest example of market integration, but it is far from being the only one. A myriad of composite market structures exists across the world, including in Australia, Canada, Germany, Spain, Switzerland, the US and the EU. This article investigates how the UK internal market compares to other internal markets: to what extent does it follow pre-existing paths, to what extent does it depart from them? It is argued that the UK has diverged from international blueprints in several important aspects. Despite drawing on methods that are frequently employed for achieving economic integration, it reinterprets and combines these in a unique way. The result is an internal market which is defined by an unusual degree of centralisation, strong trade rights and a high potential for deregulation.

Rejecting the competing positions of Swadling and Chambers, this article argues that the law of presumed resulting trusts reflects a very old rule that, upon a voluntary transfer, the fate of the beneficial interest in the property depends on the intention of the transferor. The case law shows that the presumption is of an intention to create a trust for the transferor or provider of the purchase money. It makes no difference if, reflecting the historically important concept of “retention”, this is phrased in negative terms as a presumption that the intention of the transferor was not to pass the beneficial interest to the transferee.

I want first to explore what is happening to crime in an international context. If we look only at our own country the perspective is too narrow, the explanations and remedies too parochial. We cannot hope to comprehend ourselves without taking account of others.

The value of hire-purchase transactions has remained at a fairly steady level during the past few years, and it would be pleasant to think that the law affecting them has reached a comparable stage of maturity and stability. This is unfortunately not the case. Instead, the number of legal problems continues to multiply and some aspects of the law of hire-purchase have reached a state of complexity which must baffle even the most expert lawyer. Of these none is more confusing than the law relating to the so-called “minimum payment clause.”

The charge of conspiring to defraud is the most important and frequently employed branch of the law of criminal conspiracy. Yet it has been largely ignored in most general discussions of the law of conspiracy, or at best treated as a special case to be exempted from the general attack on a crime which can only be described as an agreement to act illegally. The reasons for this tacit acceptance are largely pragmatic: the charge is clearly useful in bringing to justice a significant number of persons involved in large-scale frauds who might otherwise escape prosecution. A thorough-going assessment of its place in the criminal law is nonetheless long overdue.

As far back as 53 years ago, the adaptability of the common law to changing circumstances whereby new rights have been created by the courts, has been observed and accepted as a function of the judiciary. Scott L.J. in his dictum in Haseldine v. Daw stated: The common law has throughout its long history developed as an organic growth, at first slowly under hampering restrictions of legal forms of process, more quickly in Lord Mansfield's time, and in the last 100 years at an ever increasing rate of progress as new cases, arising under new conditions of society, of applied science and of public opinion, have presented themselves for solution.

Freedom of establishment has been a promise not only to individuals, but also to companies, ever since the foundation of the EEC, and the relevant articles in the EEC Treaty have long been declared to have direct effect (Reyners v. Belgium [1974] E.C.R. 631). Yet until recently companies faced extra hurdles. A majority of the Member States applied the so-called “theory of the real seat” (for references see H. Xanthaki, “Centros: is this really the end for the theory of the siège réel?” (2001) 22 Company Lawyer 2). In essence, the theory is a rule of private international law that a company will be treated according to the law of its central place of management (the “real seat”), notwithstanding that it may have been incorporated in a different jurisdiction. In such a case, the company will not fulfil the formal requirements of registration in the jurisdiction of its real seat and will normally lack the quality of a legal person there. The aim of the theory is to preserve national company law as a policy instrument in areas such as corporate governance, by disallowing pseudo-foreign companies, i.e. companies set up to do business mainly or exclusively in one jurisdiction, but evading local regulation there by incorporating abroad. But the theory can strike beyond this goal, as the facts of Case C-208/00 Überseering BV v. Nordic Construction Company Baumanagement GmbH demonstrate.