I. ProblemsCreated byTheseCases

TheHigh Trees and Tool Metal cases have this in common: both deal with rights that a creditor is said to confer on his debtor by gratuitously agreeing to suspend periodic payments. Beyond that, they present differences more striking than their similarities.

ACCESSION to the European Convention on Human Rights (ECHR) has long been on the EU's political agenda. The EU's membership of the ECHR is not only seen as symbolically significant, but is also aimed at filling an important gap in the enforceability of human rights across Europe. At present, the EU cannot be brought before the European Court of Human Rights (ECtHR) and, while all EU Member States are parties to the ECHR, as long as the EU protects fundamental rights to a standard equivalent to that required under the ECHR, Member States cannot be held responsible for alleged violations of the Convention resulting from EU law either (Bosphorus v Ireland (2006) 42 E.H.R.R. 1).

“Not only would it be a bold and brave judge … who would seek to interfere with the discretion of doctors acting under the Abortion Act 1967, but I think he would really be a foolish judge who would try to do any such thing, unless, possibly, where there is clear bad faith and an obvious attempt to perpetrate a criminal offence.” So said Sir George Baker P. in Paton v. B.P.A.S. and his view has been repeated at apposite judicial moments in subsequent cases. Recently, however, a legal attempt was indeed made to question the discretion of doctors in Jepson v. The Chief Constable of West Mercia Police Constabulary. Reverend Joanna Jepson asked the West Mercia Police to investigate doctors who had authorised an abortion for bilateral cleft lip and palate at 28 weeks under the disability ground of the Abortion Act 1967 (as amended by the Human Fertilisation and Embryology Act 1990). Abortion is legal under that section if two doctors have formed an opinion in good faith that “there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped”.

A series of recent cases have extended the liability of employers for intentional wrongdoing by their employees. The article explores the implications of these decisions, arguing that they evidence the revival of the “master’s tort” theory of vicarious liability, and have the potential for a further, undesirable, widening of liability rules.

When should a contractual right be assignable to a non-party? English law's answer to this question is complex, and many of its rules are difficult to justify. In some respects, the law appears unreasonably pro-assignment, whereas sometimes it denies assignability to rights that should be assignable. This article contends that, in developing the law of assignability, the judiciary and Parliament have relied on a series of dubious ideas that deviate from the law's usual approach to contracts, and the current law rests partly on intuitive policy rationales that do not withstand scrutiny. The main aim of the article is to propose a new framework for thinking about the law of assignability that is more closely aligned with general ideas about contract law.

Until recently, it was widely accepted that a recipient of company distributions such as dividends paid in breach of the requirements of the Companies Act 1985 (“the Act”) could only be made to repay such distributions if he knew of the illegality. Whether one looked to the Act (to wit, section 277) or beyond (to the “knowing receipt”-type liability encountered in Precision Dippings Ltd. v. Precision Dippings Marketing Ltd.), liability required knowledge. In Bairstow v. Queen’s Moat House plc, however, there appears to be the faintest of suggestions that this position may be open for re-examination. This is reinforced by Lord Nicholls’ recent speech in Criterion Properties Plc v. Stratford UK Properties LLC.

This article considers how problems in legal historiography can lead to real legal problems, through a case-study of two recent judgments which appear to revolutionise the law on overreaching under section 2(1)(ii) of the Law of Property Act 1925. Their reasoning ignored plain wording in the Act, in a way foreshadowed by problems in the historiography of the 1925 property legislation; and the legislative history shows that the version of overreaching they promote, one with a clear political meaning, was rejected by Parliament. One of these decisions has now been reversed on appeal, but on reasoning so untenable as to invite further challenge; and now two Court of Appeal judgments on overreaching contradict, without even mentioning, two prior Court of Appeal decisions and a decision of the House of Lords. The court should reaffirm the law on overreaching, and academics should develop a new historiography.

This article considers various legal aspects arising from the problem of “nuisance neighbours” and in particular the recent cases of Hussain v. Lancaster C.C. and Lippiatt v. South Gloucs. C. The central argument is that the restrictive approach to the liability of landlords for nuisances of their tenants (Smith v. Scott) is incompatible with Sedleigh-Denfield v. O’Callaghan. There is also consideration of the special position of local authority landlords (given recent developments in the tort of negligence, including Osman v. U.K.), the scope of the tort of private nuisance, and a survey of statutory remedies which might be used in addition to those in tort.