In its judgment in the LaGrand case (Germany v. United States of America), delivered on 27 June 2001, the International Court of Justice found, for the first time in its history, that its orders indicating provisional measures were legally binding. This has long been the subject of extensive controversy, but the Court has traditionally refrained from stating its views on this point, even though such orders are frequently disregarded (e.g., in Anglo-Iranian Oil Co. (1951), Fisheries Jurisdiction (1972), Diplomatic Staff in Tehran (1979) and Genocide Convention (1993)). In LaGrand the Court adopted a positive stand on provisional measures and displayed full readiness to draw serious consequences from non-compliance therewith. One can expect that the important ruling in this case will have a far-reaching impact on future attitudes toward the Court’s provisional measures.

Michael Douglas and Catherine Zeta-Jones, the first and second claimants, sold the exclusive rights to publish their wedding photographs to OK! magazine, the third claimant; however, in spite of elaborate security arrangements, Hello! magazine obtained unofficial photographs, publication of which the claimants sought to restrain in the present proceedings. Although an injunction was granted at first instance, it was discharged by the Court of Appeal which held that, on the facts, damages would constitute an adequate remedy should the claimants succeed at trial. Given the interlocutory nature of the proceedings, Douglas v. Hello! Ltd. [2001] 2 W.L.R. 992 does not provide determinative answers to the substantive questions raised by the facts. Nevertheless, it supplies useful guidance as to the role of privacy in English law and tentatively addresses the “horizontal effect” of the Human Rights Act 1998 by considering whether that legislation may found claims against private parties as well as public authorities.

As a result of previous appeals to the Privy Council from death row, many Caribbean States are in a difficult position. If they proceed to execution before the applicant has exhausted all possible avenues for seeking clemency, they may violate due process rights; if they delay the death penalty for too long, execution will constitute inhuman treatment. The latest and most significant of the recent decisions is Lewis & others v. Attorney-General of Jamaica [2000] 3 W.L.R. 1785.

In R. (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2001] 2 W.L.R. 1219 a former resident of the British Indian Ocean Territory (“BIOT”) successfully challenged the lawfulness of banishment from his own country.

Most people forced to flee across national borders do so to escape the consequences of internal armed conflicts. But the extension of protection to such people by the countries from which they seek asylum has proved to be uncertain. Most of these countries have undertaken protection obligations towards persons claiming refugee status in accordance with the 1951 Convention for the Protection of Refugees (“the Convention”). For the purposes of the Convention, a “refugee” is defined as any person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country” (Article 1A(2)). Although that definition is contained in an international instrument, national immigration laws incorporate or refer to it and its construction and application generally fall to national administrators and judges. It is, therefore, not altogether surprising that decision-makers in different countries reach different conclusions as to its scope and meaning. Such is the case with Minister for Immigration and Multicultural Affairs v. Haji Ibrahim (2000) 175 A.L.R. 585, in which the High Court of Australia rejected the approach of the House of Lords in Adan v. Secretary of State for the Home Department [1999] 1 A.C. 293. At issue in both cases were claims for refugee status made by persons having fled Somalia, a country riddled by internecine clan conflict and lacking any recognisable governmental authority. Although the ultimate decision in each case turned on the appreciation of the specific findings of fact made by the initial adjudicators, a significant difference of approach in the application of the Convention definition may be identified.

In Three Rivers District Council and others v. Bank of England [2000] 2 W.L.R. 1220, the House of Lords answered two questions. What are the defining conditions of the tort of misfeasance in public office? What was the potential liability of the Bank of England under an EC directive relating to the exercise of its supervision over a credit institution? The questions had been raised as preliminary legal questions before further trial of the issues arising in the proceedings.

A Couple of thugs entered the Burger King near King’s Cross and beat up the manager. They not only beat and kicked him, but also struck him in the eye with a gold knuckle-duster. The eye needed to be operated on, but the operation went wrong, and he can no longer see out of it. In consequence of these experiences he is now a total psychological wreck, unable to work for the foreseeable future. His employer, the first defendant, was held liable for failing to protect him from attack, and the hospital, the second defendant, admitted liability for the negligent operation: Rahman v. Arearose Ltd. [2000] 3 W.L.R. 1184 (C.A.). Quid iuris?

The European Convention on Human Rights and Fundamental Freedoms makes no mention of any right to procedural justice in the making of administrative decisions. Any protection for such rights must be found in Article 6(1) which provides that in the determination of their “civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. But Article 6(1) was originally intended to apply to the determination of private law rights only and not to public law matters (see Le Compte, Van Leuven and De Meyere v. Belgium (1981) 4 E.H.R.R. 1, 36 (Sir Vincent Evans, dissenting); Konig v. Germany (1978) 2 E.H.R.R. 170 (Matscher J., dissenting)). The article plainly envisages judicial proceedings, and there are obvious difficulties in applying it straightforwardly to administrative proceedings.

May an English court, having jurisdiction under the Brussels or Lugano Convention, decline to entertain proceedings on the basis that a court in a non-Contracting State is the forum conveniens? Many would doubt it-can national law oust jurisdiction conferred by the Conventions? But the Court of Appeal famously decided otherwise in Re Harrods (Buenos Aires) Ltd. [1992] Ch. 72. The Conventions, it concluded, are designed to harmonise the jurisdictional rules of Contracting States only to the extent necessary to facilitate the enforcement of judgments between such States, their primary concern. That objective is unaffected if a case is eventually tried in a non-Contracting State, so stays in such cases are permitted. The House of Lords in Harrods referred the point to the European Court of Justice, but the case was settled, creating uncertainty about the correct solution, yet leaving all courts but the House of Lords bound by the Court of Appeal’s decision.

The Misrepresentation Act 1967, with its three brief sections, illustrates perfectly that, where statutory drafting is concerned, short is not necessarily sweet. Section 2 is particularly troublesome, containing both the puzzling “fiction of fraud” in subsection (1) whereby misrepresentations are to be treated as if they were fraudulent (unless the misrepresentor can show he had reasonable grounds to believe their truth), as well as the discretion in subsection (2) to award damages “in lieu of rescission” for non-fraudulent misrepresentations. Much judicial ink has been spilled construing these provisions, and in Government of Zanzibar v. British Aerospace (Lancaster House) Ltd. [2000] 1 W.L.R. 2333 section 2 (2) was again under scrutiny.

In R. v. A (No. 2) [2001] 2 W.L.R. 1546 the House of Lords knocked a dent in the controversial “rape shield” provision, section 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA). They did so wielding Article 6 of the European Convention on Human Rights, given direct effect by another piece of “flagship” legislation, the Human Rights Act 1998. The decision is important for constitutional law as well as for criminal evidence.

It is not often that those of us who toil in one of the remotest vineyards of legal academe are rewarded. Choice of law questions over intangible property rarely seem to trouble the courts, though there are many issues of considerable intellectual interest which also raise hugely important practical implications. Maybe the area is just too difficult or perhaps all concerned are crossing their fingers that the harsh winds of a judgment will not rock the vine and bruise their fine crop (illustrated by angst following Macmillan Inc. v. Bishopsgate Investment Trust plc (No. 3) [1996] 1 W.L.R. 387). Questions such as the way in which notice must be given to an insurer when the benefit of the policy is assigned must be an everyday practicality. The consequences of giving notice improperly ought to keep some people awake at night. When so much business is done cross-border it seems astounding that the choice of law rule is almost untouched by judicial pronouncement since Le Feuvre v. Sullivan (1855) 10 Moo. P.C. 1; 14 Eng. Rep. 389, Lee v. Abdy (1886) 17 Q.B.D. 309 and the like over one hundred years ago. Raiffeisen Zentralbank Osterreich AG v. Five Star General Trading LLC [2000] 1 All E.R. (Comm) 897 raised precisely this issue. Is the notice to be given in the manner required by: (i) the lex fori; (ii) the law of the contract of assignment of the benefit of the insurance; (iii) the lex situs of the policy; or (iv) the law of the contract of insurance? Is this question proprietary or contractual?

Is the State Immunity Act 1978 the sole basis for deciding on State immunity? It is and it is not. This seemingly self-contradictory reply is due to the fact that, on the one hand, any proceedings directly or indirectly against a foreign State must be brought under the 1978 Act while, on the other, certain provisions of that Act might paradoxically render the Act itself inapplicable and therefore entail recourse to rules outside the Act for settling the issue of State immunity. This is amply illustrated by the decision of the House of Lords in Holland v. Lampen-Wolfe [2000] 1 W.L.R. 1573, which involved a claim for defamation brought by a US university professor teaching international relations at a US military base in England as part of an education programme provided by her university under a commercial agreement with the US Government. The claim was brought against the education services officer at the base, who had written a memorandum listing serious complaints about the plaintiff’s performance and questioning her professional competence. The US Government claimed immunity on the defendant’s behalf.

The decision of the House of Lords in R. (Daly) v. Secretary of State for the Home Department [2001] 2 W.L.R. 1622 provides authoritative guidance as to how human rights issues should be treated in judicial review cases. In common with a number of other recent leading cases in this area, Daly concerns prisoners’ rights. All governors of closed prisons were required by the Home Secretary to operate a cell searching policy under which prisoners were not permitted to remain in their cells during searches, so as to prevent intimidation of those conducting searches and to stop prisoners gaining knowledge of search techniques. Prison officers were permitted to examine, but not read, legal correspondence stored in cells. The claimant, who stored such correspondence in his cell, successfully contended that the policy was unlawful to the extent that it precluded prisoners’ presence during examination of legal correspondence. This note highlights four points of general importance which arise from their Lordships’ decision.

In The Star Sea (Manifest Shipping Co. Ltd. v. Uni-Polaris Shipping Co. Ltd. [2001] 2 W.L.R. 170) the main judgment was given by Lord Hobhouse with whom Lord Steyn and Lord Hoffmann agreed. An insurance claim in respect of the loss of the eponymous vessel was unsuccessfully defended on two grounds.

Sir John Salmond stated in the first edition of his Law of Torts (1907) that a wrongful act is deemed to be done by a servant in the course of employment if it is “either (a) a wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the master”. This passage, to be found at page 443 of Salmond & Heuston on the Law of Torts, 21st ed. (1996), has been cited with approval in many judgments. The first alternative is unproblematic, save that it refers to a situation where the master is primarily rather than merely vicariously liable. But the second can be difficult to apply, particularly where the servant’s tort is intentional. How can it be right to describe conversion by a servant of a fur which he has been told to clean (Morris v. C.W. Martin & Sons Ltd. [1966] 1 Q.B. 716) or deceit of his master’s client (Lloyd v. Grace, Smith & Co. [1912] A.C. 716) as a mode of doing an authorised act, when it is effectively the opposite of what he has been authorised to do? The problem is even more acute when the tort consists of trespass to the person. In Trotman v. North Yorkshire County Council [1999] L.G.R. 584 the Court of Appeal held the defendant Council not liable for a sexual assault by a teacher on a handicapped teenager committed to his care on a foreign holiday, on the ground that it was an independent act outside the course of employment. Trotman has now been overruled by a unanimous House of Lords in Lister v. Hesley Hall Ltd. [2001] 2 W.L.R. 1311, where it was held that the proprietors of a school for children with emotional and behavioural difficulties were vicariously liable for the systematic sexual abuse of two teenage boys by the warden of a boarding house.

Many of the details surrounding the circumstances when shareholders can sue are shrouded in obscurity, but it is clear that where a company and a shareholder have overlapping claims the shareholder cannot pursue its personal claim if its loss is merely reflective of the company’s loss. The scope and rationale of the rule barring shareholders from bringing personal actions to recover reflective loss were authoritatively restated by the House of Lords in Johnson v. Gore Wood & Co. [2001] 2 W.L.R. 72.

The House of Lords has upheld, by a majority, the decision of the Court of Appeal in Hinks [2000] 3 W.L.R. 1590 (noted (1999) 58 C.L.J. 10), giving a positive answer to the certified question: “Whether the acquisition of an indefeasible title to property is capable of amounting to an appropriation of property belonging to another for the purposes of section 1(1) of the Theft Act 1968”. The appellant had persuaded a somewhat simple-minded man to make her the “gift” of a quite considerable sum of money. No deception was alleged to have been employed, and so far as the civil law was concerned, the “gift” might well have been a perfectly valid transaction; the question was never determined by the jury, because it was deemed to be irrelevant by the trial judge. But the decision of the House of Lords is to the effect that she was properly convicted of theft however that question might have been answered. So, it would seem, a person may become the indefeasible owner of property and nevertheless be accounted a thief of that very same property, and by the very act of acquiring the ownership of it.

In Smith [2000] 3 W.L.R. 654 the House of Lords by a bare majority affirmed the decision of the Court of Appeal (noted at (1999) 58 C.L.J. 7) and in doing so resolved a long-standing dispute as to which characteristics of the defendant are relevant when determining whether the reasonable person would have lost self-control and killed the victim (the objective test of provocation). Two distinct lines of authority had developed. First, a group of House of Lords and Privy Council cases had recognised that a characteristic would only be relevant where it affected the gravity of the provocation. Secondly, a line of Court of Appeal cases had recognised a wider test, whereby a characteristic would also be relevant if it affected the defendant’s ability to exercise self-control. The House of Lords has now confirmed the latter test. Consequently, in Smith itself the defendant’s severe depression was relevant because it made him less able to exercise self-control.

Adverse possession is a contentious subject. The possibility of a squatter knowingly acquiring title to land “as of wrong” is one which disturbs the general public and indeed causes qualms in some members of the judiciary. Thus, at first instance, Neuberger J. felt very unhappy with the jurisprudence that caused him to find for the squatter in J.A. Pye (Oxford) Ltd. v. Graham [2000] Ch. 676. The Court of Appeal (The Times, 13 February 2001) has now reversed this decision, and has upheld the title of the registered proprietor to the disputed land. However, although the result may seem desirable with regard to fairness and the integrity of land registration, the judgments seem less satisfactory, and only serve to re-emphasise the difficulties in this area of the law.