INMartinez Sala v. Freistaat Bayern (Case C-85/96, judgment of 12 May 1998, not yet reported), the Court of Justice has taken a step towards the clarification of the real force of the EC Treaty provisions on citizenship. Mrs. Martinez Sala was a Spanish national lawfully resident in Germany since 1968 and employed there at intervals between 1976 and 1989. In 1993, she applied to the State of Bavaria for a child-raising allowance, a benefit granted to all residents in Germany who had a dependent child in their care and were either unemployed or had no full-time employment. Her application was rejected on the grounds that at the time that she applied for the benefit she was not in possession of a residence permit, a requirement that had to be met by all non-German nationals. The central issue in the case was, therefore, whether Mrs. Martinez Sala had been discriminated against.

In British Sugar plc v. James Robertson & Sons Ltd. [1996] RPC 281, Jacob J. asked whether the 1994 Trade Marks Act enables “big business to buy ordinary words of the English language at comparatively little cost”. His answer was a resounding “no”. In Philips Electronics NV v. Remington Consumer Products, 22 December 1997, he asks whether trade mark law, by conferring a perpetual monopoly, can interfere with the freedom to manufacture artefacts of a “desirable and good engineering design”. The educated reader might hazard that he would again answer in the negative. And so it transpires. The thrill of the chase is to see how Jacob J. interprets the Act to reach this conclusion.

Is it really worth having all this fuss and bother about the Human Rights Bill? Over the years the Convention has been interpreted to require United Kingdom courts to change their practices in various ways at the personal level, but what about protecting a person from an unjustified demand for tax? Suppose that the Inland Revenue demands tax from you which the courts later determine to be unlawful because the regulation under which the demand was made was not valid. You were not a party to that litigation but you are clearly within the ambit of the decision supplied by the courts. The Inland Revenue then persuades Parliament to deprive you of the benefit of the decision by retroactive legislation, although leaving the actual party to the litigation with the fruits of that enterprise. Is this the stuff on which the judges at Strasbourg will rush to protect the taxpayer from the State? The answer sadly is no — these judges are not going to risk embarrassing the contracting States by making rights bite where that would be expensive: National Provincial Building Society and others v. United Kingdom [1997] S.T.C. 1466. Of course these judges may fear that contracting States would reduce the powers of the court were they do so such a thing; such a fear would not be irrational since the German and UK Governments proposed that direct tax matters should be removed from the European Court of Justice in the sessions leading to the Treaty of Amsterdam. Perhaps a supra-national body is right to be cautious, but what should our own courts do? Once the Convention is incorporated into our domestic law, will our own judges feel a little more strongly about the matter and perhaps grant a declaration that the legislation is incompatible with the Convention? If they have a right to be incensed about the way in which Parliament protects the Revenue at the expense (literally) of the taxpayer, will they do something or will they just couch like lions under the throne of Parliamentary Sovereignty?

THE State speaks with one voice in international law. And that voice, of course, is the executive's, usually, but not invariably, that of the Foreign and Commonwealth Office (FCO). Upon a variety of matters a certificate as to certain facts issued by the executive will be regarded by the courts as conclusive of them. This function was, historically, a matter of common law though there are now several statutory provisions in that regard, most notably the Diplomatic Privileges Act 1964 s. 4 and the State Immunity Act 1978 s. 21 identifying defendants who will have immunity from the jurisdiction (see [1998] C.L.J. 4).

THE developments noted here show that conditional fee agreements have become a significant, perhaps even the dominant, means of securing access to civil justice. The political popularity of such agreements is not hard to explain. Since 1949, civil legal aid has enabled the less well-off to litigate in the ordinary courts. But it is notorious that many people are excluded from justice, either because they are deterred by the size of the potential contribution to a legally-aided action or because their modest means disentitle them altogether from that system. Furthermore, legal aid is perceived by Treasury officials to be an excessive drain on the fisc.

Names are used to identify and categorise, and hence the power to name is significant. In three recent cases the courts have been faced with disputes over the naming of children (two in the Court of Appeal: Dawson v. Wearmouth [1997] 2 F.L.R. 629; Re P (Parental Responsibility) [1997] 2 F.L.R. 722 and one in the Family Division: Re PC (Change of Surname) [1997] 2 F.L.R. 730). The law following these decisions seems, in outline, to be as follows.

EVERYBODY loves a bargain. Supermarkets have found that the sale of cut price designer goods along with the groceries gives them the edge over their rivals, when consumer spending on food is expected to slump (The Times, 22 April 1998). The catch is that trade mark proprietors, such as Calvin Klein, having nurtured brand images, in which high prices and exclusivity reinforce each other, decline to sell their goods to the supermarkets, preferring to control distribution through specialist outlets. The supermarkets' response has been to go shopping on the “grey market”: buying branded goods from third parties, which are sold more cheaply outside the European Community (EC) and the wider European Economic Area (EEA), and importing them into the EEA for resale. The issue decided by the recent judgment of the European Court of Justice, Silhouette International Schmied GmbH & Co. Kg v. Hartlauer Handelsgesellschaft mbH, Case C-355/96 (1998), was whether the importation and resale of such goods without the brand owner's consent constitutes trade mark infringement.

A Bank that wishes to advance money to a customer who has an account in credit may wish to utilise that credit balance as security for the loan. Similarly, a bank might find it advantageous if a third party who is guaranteeing a loan has an account in credit at the bank so that, in the event of the principal debtor's failure, the bank is in a position to set-off any sums outstanding on the loan against its own obligations to repay the surety. Surety arrangements of this kind provided the background for two test cases examined in Re Bank of Credit and Commerce International SA (No. 8) [1997] 3 W.L.R. 909. The bank had given loans to companies secured by arrangements pursuant to which third parties with deposit accounts at the bank (the “depositors”), first, purported to grant charges over those accounts, and secondly, accepted that they were not entitled to repayment until the loans had been repaid in full.

Remanded in custody on charges of fraud and failure to answer to bail, Martin Lynch, 29 years old, was placed in a very bare cell at Kentish Town Police Station just before one o'clock on 23 March 1990. The doctor called by the police, who knew that he was a suicide risk and had consequently removed his belt, thought him quite sane. At 1.57 p.m. the police checked his well-being, but on the next visit only eight minutes later he was found irremediably unconscious: he had hanged himself by threading his shirt through the hatch in the door and the much smaller spy-hole above it. This was possible only because the glass lens was missing from the spy-hole and the flap of the hatch had been left open, contrary to standing orders.

IN September 1992 Christopher Clunis, who had a long history of mental disorder, was discharged from a hospital where he had been detained under section 3 of the Mental Health Act 1983. Under section 117 of that Act, it was the duty of his local Health Authority to arrange to provide after-care services for him until it was satisfied that he no longer needed them. After an interval of twelve weeks, during which he failed to attend three out-patient appointments and a mental health assessment arranged for him, Clunis launched an unprovoked and fatal knife attack on a total stranger, Jonathan Zito, at Finsbury Park tube station. Clunis was charged with murder, but a plea of guilty to manslaughter on the grounds of diminished responsibility was accepted, and the trial judge ordered his detention in a secure mental hospital. Clunis claimed damages for his incarceration from the Health Authority, arguing that it was in breach of a common law duty to treat him with professional care and skill, and that if it had acted more expeditiously he would either have been detained or consented to become a patient before the date of the attack and therefore would not have been able to commit it–in other words, that a timely brief period of hospitalisation would have saved him from an indeterminate but doubtless much longer period. The first instance judge refused to strike out the action, but a unanimous Court of Appeal allowed the Health Authority's appeal: Clunis v. Camden and Islington Health Authority [1998] 2 W.L.R. 902.

WHEN the discussion between Humpty Dumpty and Alice takes on the role of leading case and its interpretation becomes a matter of dispute between a Lord Justice of Appeal and a Lord of Appeal in Ordinary, then it might be thought that the academic lunatics have taken over the legal asylum.

Two recent decisions afford contrasting examples of the operation of section 10 of the Contempt of Court Act 1981, which grants a writer or publisher a limited privilege to withhold the source of published information. The privilege acknowledges the importance of maintaining the flow of information to the public about matters of legitimate public concern, a process which may depend on a journalist's ability to keep a promise of anonymity or non-attributability made to his source. The privilege is lost, however, where it is “established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime”. Since these exceptions are widely stated and reflect public interests of (potentially) equal importance with the flow of information to the press, the application of section 10 inevitably depends on the court's assessment of the comparative weight of the conflicting interests in the circumstances of the particular case.

StoczniaGdanska SA v. Latvian Shipping Co. [1998] 1 W. L. R. 574 concerned six contracts to “design, build, complete and deliver” six ships. The buyers were to pay 20 per cent. of the price after receiving notice that the keel had been laid. The contract gave the seller the right to terminate if payments were not made and to retain any instalments paid and, if it terminated, to sell the vessel whether completed or not. Keels were laid for vessels 1 and 2 but the buyers failed to pay and the seller terminated. It then renumbered the keels, gave notice for payment under the third and fourth contracts, terminated those contracts when payment was not forthcoming, and renumbered the keels again and gave notice for payment under the fifth and sixth contracts. It then exercised its right of sale, appropriating the keels to a contract with a third party. As well as damages, the seller claimed the 20 per cent. instalments under all six contracts.