In Sutradhar v. Natural Environment Research Council [2004] EWCA Civ 175 the claimant, who lived in Bangladesh, suffered arsenic poisoning from drinking contaminated water. 699 other villagers suffered the same harm. The defendant, a research organization paid for by the British overseas development budget, had written a report for the Bangladeshi authorities which those authorities reasonably and foreseeably took to indicate that the water supply in the claimant's area was safe to drink. In fact, the researchers had omitted to test for arsenic and to tell the Bangladeshis that their tests did not include arsenic. The claimant sued in negligence. The defendant applied to strike out the action. The defendant failed at first instance, but, by a majority, the Court of Appeal (Kennedy and Wall L.JJ.; Clarke L.J. dissenting) dismissed the claimant's action.

Where an asset freezing injunction is granted against a defendant in civil litigation it is usually essential to the enforceability of the order that it also binds any banks holding accounts to which the defendant is beneficially entitled. If the defendant, in breach of the injunction, disposes of assets subject to the order of the court, there may be few, if any, effective steps that can be taken against it. The defendant may not be amenable to the contempt jurisdiction of the court and may not fear being barred from defending the action (a suggestion of Lord Donaldson M.R. in Derby and Co. Ltd. v. Weldon (Nos. 3 and 4) [1991] Ch. 65, at 80-82). The ability to require the bank to preserve the defendant's assets is what really makes the injunction “stick’’.

Negligence lawyers have long appreciated that the apparently procedural rules of limitation drive the substance of the law, because one can only understand when a cause of action accrues by analysing precisely what its essential elements are. Sometimes the substance is distorted in the process: we only worry about concurrent liability in tort and contract, and tort actions by clients against their advisers, because the limitation period for breach of contract accrues, and thus runs out, earlier than the negligence period. But occasionally, and paradoxically, limitation leads the courts into misunderstanding the elements of the cause of action, as happened, alas, in Daniels v. Thompson [2004] EWCA Civ 307.

The House of Lords in Chester v. Afshar [2004] UKHL 41, [2004] 3 W.L.R, 927, by a 3-2 majority, has upheld the Court of Appeal's decision, which extended the principles of causation in medical nondisclosure cases. The claimant, who had long suffered back pain, underwent spinal surgery by the defendant, a highly regarded neurosurgeon who negligently failed to inform her of a 1-2% risk of paralysis. The risk materialized and the issue was whether causation of damage could be established. This depended on what the claimant would have done had she been warned of the risk. If she would have avoided the procedure or sought alternative treatment, it could be argued that the failure to inform caused the claimant to be exposed to the risk and consequently the injury that resulted (cf. McAllister v. Lewisham and North Southwark Health Authority (1994) 5 Med. L. Rev. 343).

Despite the complexity of the facts in Niru Battery Manufacturing Co. v. Milestone Trading Ltd. (No. 2) [2004] EWCA Civ 487, [2004] 2 All E.R. (Comm.) 289, the issue before the Court of Appeal was straightforward: could one party which had discharged the liability of another claim restitution from that other party? This would seem to raise an issue of contribution. However, the Court of Appeal treated the case as primarily involving issues of subrogation and “recoupment” and, whilst the judges sought to achieve a result which was just and equitable, their decision was both unjust and fatally flawed by virtue of confusion as to the operation of the underlying principles.

In Niru Battery (No. 1) [2003] EWCA Civ 1446, [2004] Q.B. 985 (noted [2004] C.L.J. 276) two parties were found to be jointly and severally liable to the claimant.

IT is now well settled in English law, as well as in several other common law jurisdictions, that when their company is in some form of financial difficulty, directors cannot ignore the interests of their companies’ creditors, but rather they have a duty to their company to consider those interests. This is all well and good, but while this general principle has been stated on many occasions by various courts, the courts have been slow to define important aspects of this responsibility. There are two major issues that have not been clarified. The first is this: from what point is the duty to consider creditor interests imposed on directors? There has been no unanimous judicial pronouncement on this issue, and this has produced some uncertainty. We know with some certainty that the duty does not operate where a company is clearly solvent. At the other extreme, we have certainty in that courts have said that the duty does apply where a company is insolvent.

Once the inspiration for the novel Watership Down, Newtown Common in Hampshire has become the breeding ground for litigation. In Bakewell Management Ltd. v. Brandwood [2004] UKHL 14, [2004] 2 A.C. 519, the House of Lords attempted to clarify the relationship between prescriptive acquisition of easements and illegality.

Several homes bordered the common. For decades, owners reached their properties by driving on tracks across the common. No-one questioned this state of affairs until Bakewell Management (BM), having acquired the freehold of the common, wrote to the homeowners explaining that they had no right to drive over the common, but offering “an amnesty” whereby the residents could buy an easement to access their dwellings “at a favourable rate”: 6% of the value of their property (£30,000 in some cases). Many residents refused, insisting that their properties already enjoyed prescriptive easements over the common.

One of the most litigated property law issues over the past decade has been the equitable jurisdiction to set aside a mortgage transaction procured by undue influence or some other vitiating conduct.

The most common scenario is where the complainant has executed a mortgage as co-mortgagor with the principal mortgagor or has otherwise postponed his or her interest in the mortgaged property in order to secure the debts of the principal mortgagor; and, by way of a defence to an action for possession by the mortgagee, the complainant seeks to have the transaction set aside on the ground that it was procured by vitiating conduct on the part of the principal mortgagor. Barclays Bank plc v. O'Brien [1994] A.C. 180 established the structure of the defence.