In the law of defamation, the jury is “the constitutional tribunal” of fact (J.C.C. Gatley, Libel and Slander, 9th ed. (London 1998), pp. 889-890). The jury’s occupation of this position is usually traced back to Fox’s Libel Act 1792. While confined in terms to criminal trials, the 1792 Act is regarded as declaratory of the common law (see Sir Martin Nourse, “The English Law of Defamation-Is Trial by Jury Still the Best?”, in B.S. Markesinis (ed.), The Clifford Chance Lectures, vol. I, Bridging the Channel (Oxford 1996), ch. 4). One way in which to explain the jury’s role in defamation trials can be found in the ideal of institutional justice. This ideal specifies that institutions should, in order to be legitimate, adequately accommodate the views of those in the society where they operate (G. Cupit, Justice As Fittingness (Oxford 1996), ch. 5). There is, however, reason to regard defamation law’s commitment to institutional justice as qualified. Support for this view can be found in Grobbelaar v. News Group Newspapers Ltd. [2001] 2 All E.R. 437. In Grobbelaar, a unanimous Court of Appeal overturned a jury’s findings of fact on the ground that they were perverse and unreasonable. This decision appears ground-breaking since the Court was unable to point to domestic authorities in which the same step had been taken.

The relationship between ancillary relief and undue influence was considered by the Court of Appeal in First National Bank plc v. Walker [2001] 1 F.L.R. 505. The case is a warning to practitioners that unless carefully advised, divorcing clients may be precluded as a result of ancillary relief proceedings from alleging an O’Brien defence of undue influence in subsequent possession proceedings. The facts of Walker were that husband and wife were joint tenants of the matrimonial home. Three mortgages of the house had been executed: first and third mortgages in favour of Barclays Bank and Lloyds Bank, and the disputed second charge in favour of First National Bank (FNB). This disputed mortgage, created in 1991, was to secure a loan made for the sole business purposes of Mr. Walker and his then partner. The marriage foundered, as did the husband’s business. A decree absolute of divorce was granted in 1993, and in 1994 Mrs. Walker’s petition for ancillary relief was heard. The court ordered that Mr. Walker transfer to his former wife his interest in the matrimonial home and in an endowment policy; an order for nominal periodical payments (of five pence per year) was also made. The transfer was completed in 1995. Mrs. Walker subsequently sought to defend possession proceedings brought by FNB on the ground, inter alia, that her execution of the charge had been procured by her husband’s undue influence and that the bank had actual or constructive notice of the relevant facts.

In view of the restrictions inherent in the law on unfair dismissal, in relation to both the parameters of making a claim and the maximum amount of damages, it is not surprising that in Johnson v. Unisys Ltd. [2001] 2 W.L.R. 1076 the House of Lords was confronted with an attempt to circumvent the statutory system. Mr. Johnson was summarily dismissed in circumstances which were held to amount to an unfair dismissal, and received the maximum amount of damages. Unfortunately for Mr. Johnson, who had been diagnosed with a stress-related illness before, he suffered a mental breakdown, and has since been unable to find employment. He claimed that the manner of his dismissal amounted to a breach of the implied duty of mutual trust and confidence; this argument was rejected by the judge at first instance, the Court of Appeal ([1999] I.C.R. 809) and, on different grounds, the House of Lords.

For at least a century and a quarter one of the most settled and invariable maxims of the criminal law, founded upon a decision of 15 judges in the Court for Crown Cases Reserved (Prince (1875) 2 C.C.R. 154; see, also, Robins (1844) 1 C. & K. 456), has been that the prosecution did not have to prove fault on the defendant’s part in respect of the element of age in statutory offences created for the protection of the young. Many statutes have been drafted (or amended), and thousands upon thousands of defendants have been convicted, on this basis. But no longer. For the Appellate Committee has decreed, without giving any reasons for doing so-there is just a bare assertion (B. v. D.P.P. [2000] A.C. 428, reversing a unanimous decision of a strong Divisional Court: [1998] 4 All E.R. 265)—that “an age-related ingredient of a statutory offence stands on no different footing from any other ingredient”, and that proof of fault (in the shape of the absence of a belief-reasonable or unreasonable—that the child is above the proscribed age) is required unless excluded by Parliament either expressly or by “necessary implication, … [that is, by] an implication which is compellingly clear” (Lord Nicholls). “Such an implication”, we are told, “may be found in the language used, the nature of the offence, the mischief sought to be prevented, and any other circumstances which may assist in determining what intention is to be attributed to Parliament when creating the offence” (ibid.). This is, of course, none other than the all too depressingly familiar litany of vague, overlapping criteria which from time out of mind has signally failed to compel from the judges predictable answers to the question whether, when Parliament has been silent on the point, a person must, if she is to be convicted of a given offence, be presumed to have been at fault in respect of all, or some, of its external elements. The reference to a silent legislature’s intention is to a fiction—a mere rhetorical device. There is, as everyone knows, only one sure and compelling guide: the express provision of a no-fault defence logically precludes a requirement to prove fault in regard to the matter to which it refers.

Case C-443/98 Unilever Italia v. Central Food (judgment of 26 September 2000) concerned a dispute between two private undertakings over a contract for the supply of olive oil. Central Food refused to accept delivery because the oil did not comply with labelling requirements imposed by recent Italian legislation. Unilever claimed that the Italian rules were themselves governed by the provisions of Directive 83/189 [1983] O.J. L109/8. Under Article 8 of the Directive, member States must notify draft technical regulations to the Commission. In Case C-194/94 CIA Security [1996] ECR I-2201, the ECJ held that breach of this obligation rendered the relevant technical regulations inapplicable, and thus unenforceable before the national courts, even in a dispute between two private parties based on domestic rules prohibiting unfair trading. Italy had notified its draft labelling rules to the Commission as required by Article 8, but nevertheless continued to enact those proposals into law contrary to the standstill obligations contained in Article 9. Unilever argued that the principle in CIA Security should extend also to Article 9, obliging Central Food to accept delivery in accordance with its contractual duties.

An acutely difficult question of principle arises when a person commits an offence because the police incite him to do so. For the civil libertarian, “undercover agents” (as the prosecution will seek to call them) usually go by another and nastier name: secret police. Even for authoritarians entrapment is of dubious value, because policemen find the crimes they have themselves incited particularly easy to solve—and if we condone entrapment too readily we risk having a police force which expends its energy on committing new crimes instead of solving old ones. But regrettably, the use of entrapment is something effective crime prevention occasionally requires.

The recognition of the defence of change of position in Lipkin Gorman v. Karpnale Ltd. [1991] 2 A.C. 548 was a landmark for the law of restitution. In the ten years which have followed Lipkin Gorman, courts and academics have been involved in two, closely related, tasks: first, a description of the content and nature of the defence of change of position; and, secondly, an analysis of the relationship between change of position and other defences to restitution. An important aspect of the latter task has been the fundamental re-examination of the role of estoppel by representation as a defence to restitution. Two recent cases in the Court of Appeal, Scottish Equitable plc v. Derby [2001] 3 All E.R. 818 and National Westminster Bank plc v. Somer International (UK) Ltd. [2001] Lloyd’s Rep. Bank. 263, indicate that, although estoppel by representation remains a defence, the practical effect of the defence will often be much more limited than had been previously understood.

“The essence of contract is performance”. So argued Professor Daniel Friedmann in discussing the rationale of remedies for breach of contract ((1995) 111 L.Q.R. 628, 629). The House of Lords’ decision in Attorney-General v. Blake [2000] 3 W.L.R. 625 lends new support to this view. It holds that a claimant’s interest in performance of his contractual rights may, exceptionally, entitle him to recover restitutionary damages from the defaulting party. Measured by the defendant’s gain from the breach, rather than the claimant’s expectation or reliance loss, restitutionary damages transfer to the claimant the profit that the defendant makes by his wrong. Failing any other adequate remedy for the claimant, liability to restitutionary damages encourages the defendant to perform his duty by depriving him of the monetary incentive to commit a breach.

The relationship between national legal orders and Community law is one of the most difficult problems of European legal integration. In an order of 7 June 2000 (2 BvL 1/97, text at <http://www.bverfg.de>, English translation in (2000) 21 H.R.L.J. 251), the German Federal Constitutional Court (FCC) had to address one aspect of this problem, namely the question to what extent national courts are competent to review Community legislation by reference to the standards of national constitutions. While the order first and foremost is concerned with German constitutional law, it touches upon a general problem facing the courts in all EU member States.

Once a petition to wind-up a company has been presented, a balance must be struck between two competing interests. On the one hand, the allegedly insolvent company must be allowed to continue trading until the court has had an opportunity to examine the bien-fondé of the petition; on the other hand, the company’s directors must be prevented from dealing with the corporate assets in a way detrimental to the interests of the general creditors. This balance is struck by the Insolvency Act 1986, s. 127, which provides that, upon the granting of a winding-up order, any “dispositions” of the company’s property in the period following the presentation of the petition are retrospectively avoided, unless the court orders otherwise. The courts have, however, had considerable difficulty in applying this provision to the post-petition operation of a company’s current account and, in particular, have failed to adopt a consistent approach to the potential liability of a bank for continuing to operate such an account. The Court of Appeal addressed this problem in Hollicourt (Contracts) Ltd. v. Bank of Ireland [2001] 2 W.L.R. 290.

The Privy Council decision in Agnew v. Inland Revenue Commissioner [2001] B.C.C. 252 (on appeal from the New Zealand Court of Appeal in Re Brumark Investments Ltd.) decides that where a charge over the uncollected book debts of a company leaves the company free to collect and then to use the proceeds for its own benefit in the ordinary course of business, the charge is inevitably a floating charge and not a fixed charge, whatever the debenture might say. The court’s reason for this, in short, was that it makes no commercial sense to separate a book debt from its proceeds and so, if the company can use the proceeds at will, then the charge on the debt itself must be a floating charge.

Over the last 20 years judicial attitudes to tax avoidance schemes have varied dramatically, especially in the House of Lords. The judicial power to ignore tax avoidance schemes was first recognised in Ramsay [1982] A.C. 300 and reached its high-point of principled analysis in Furniss v. Dawson [1984] A.C. 474. There followed a period of a generally restrictive interpretation of the law, but recently there have been signs of a more interventionist approach, in McGuckian [1997] 1 W.L.R. 991 especially. But with the most recent decision in Macniven v. Westmoreland Investments Ltd. [2001] 2 W.L.R. 377 it is clear that the House of Lords has again sought to curtail its power to deal with tax avoidance schemes.

In the conjoined appeals Smith v. Lloyds TSB Group plc; Jones v. Woolwich plc [2000] 3 W.L.R. 1725 the Court of Appeal had the opportunity to consider the single issue of whether the true owner of a cheque or banker’s draft, which it was accepted had been “materially altered”, and so, subject to irrelevant exceptions, avoided within the terms of the Bills of Exchange Act 1882, s. 64, and subsequently converted, is entitled to damages equivalent to the face value of the instrument. In Smith the Insolvency Service drew a cheque crossed “account payee” in favour of the Inland Revenue, on behalf of the claimants, who were the joint liquidators of ILG Travel Ltd. An unknown third party stole the cheque, altered the payee’s name to “Joseph Smitherman” and paid it into an account held in that name with the defendant, Lloyds Bank plc. The cheque was cleared before the fraud was discovered and the claimants sued the collecting bank for its conversion. The facts of Jones were in all material respects identical, save that the claim was brought against the paying bank in respect of a banker’s draft. Applications were made for the summary disposal of both cases. In Smith Blofeld J. struck out the claim against the collecting bank ([2000] 1 W.L.R. 1225), but in Jones Judge Hallgarten Q.C. awarded the claimants the face value of the draft. A unanimous Court of Appeal (Pill, Potter and Stuart-Smith L.JJ.) held that the claimants in both cases were only entitled to nominal damages.

Depending on your point of view, the appeal in Cerberus Software Ltd. v. Rowley [2001] I.R.L.R. 160 involved either a “troublesome little point” or a “fundamental issue” of employment law (per Ward and Sedley L.JJ. respectively). Where an employment contract contains provision for a payment in lieu of notice, does a summary dismissal, not justified on grounds of gross misconduct, constitute a breach of the obligation to give notice or an election to make the payment in lieu?

The statutory security of tenure conferred upon the tenants of private residential property has long been (to mix two metaphors) a fertile battle ground, with landlords and their legal advisers showing great ingenuity in devising agreements designed to circumvent the provisions of the legislation. Most famously, of course, there was the loophole of disguising the lease as a mere licence to occupy, which was effectively closed off by the House of Lords in Street v. Mountford [1985] A.C. 809. It is perhaps surprising that although security of tenure was first introduced as long ago as 1920, landlords are still able to come up with new devices in the attempt to ensure that they can regain possession of their property whenever they wish. One such device was the recent subject of consideration by the Court of Appeal in Bankway Properties Ltd. v. Pensfold-Dunsford [2001] 1 W.L.R. 1369.

While the precise time allowed for a buyer to reject faulty goods is by no means clear, it has been understood to be short. A buyer who thought in terms of weeks, rather than days, for effecting a return might easily find himself out of time. And while the Sale of Goods Act 1979 (as amended) now guarantees a reasonable opportunity for the inspection of the goods, there are some situations where buyers who have acted with complete circumspection might still find themselves unable to reject. It is therefore quite surprising (if, indeed, stronger expressions are not called for) to find rejection of goods permitted after more than a year had passed since delivery—and this in a case where the defect could readily have been discovered on the day of delivery: Truk (UK) Ltd. v. Tokmakidis GmbH [2000] 2 All E.R. (Comm) 594. While the case does not directly conflict with any prior precedent, it does indicate an important new departure, considerably more generous to buyers.

An address on the unveiling in Westminster Abbey of a memorial to F.W. Maitland (1850–1906). The main propositions are: (1) It was the lawyer’s power of synthesis that gave the historians’ work uniquely enduring authority. (2) Maitland’s achievement was in arranging details, which in themselves he hardly ever mistook, into a convincing framework. (3) The extreme concentration behind so much work in just 22 years carries a risk that details were left out of account. (4) The emergence of details which do not fit increasingly suggests anachronism in the essentially 19th-century assumptions upon which medieval historians have ever since worked.

The recent decision in Chelsea Yacht and Boat Co. Ltd. v. Pope [2000] 1 W.L.R. 1941 may be considered a timely reminder from the Court of Appeal that real property law applies to real property and not to chattels. The wonder of the case lies in how this, hardly particularly profound, proposition came to require two appeals for its elucidation, and how the learned judges in the District and West London County Courts came, in their desire to tread nimbly through the thickets of a short point of statutory interpretation, to lose sight of the particular wood into which they had wandered.

Mr. and Mrs. Collings were the unremarkable registered proprietors of their house, until they had the misfortune to deal with Mr. Lee. Lee purported to act for them in finding a purchaser for the house, and he found a Mr. Styles. Mr. and Mrs. Collings then executed a transfer of the house to Styles in consideration of £250,000, but “Styles” was simply an alias used by Lee, and no part of the £250,000 was ever paid to them. The net result, therefore, was that Lee fraudulently procured the transfer of the house from Mr. and Mrs. Collings to himself, for no consideration. Once registered as proprietor of the house, Lee mortgaged it to the Leeds Permanent Building Society and took the mortgage proceeds. Mr. and Mrs. Collings remained in actual occupation of the house throughout. When Lee’s fraud came to light, Mrs. Collings sought rectification of the register, to reinstate her as proprietor of the house free of the mortgage. (Her husband had died in the meantime, and she had acquired his rights by survivorship.) The Court of Appeal upheld her claim: Collings v. Lee [2001] 2 All E.R. 332.

The shift away from Aristotelian jurisprudence had a number of consequences. It gave rise to a vision of political order spawning two contrasting traditions of juridical thought (exemplified by Grotius and Hobbes) that continue to exert their influence. By erasing the idea that all understanding of human action and institutions must draw upon the evaluative understandings of practical wisdom, it enforced upon us an exhaustive division between the neutral cognition of social facts and the evaluation or prescription of action. This rendered problematic the nature of the doctrinal scholar’s exposition of the law, for the doctrinal scholar appears upon the face of things to render the law intelligible by relating its content to comprehensible values. Finally it generated a split between prescriptive and analytical jurisprudence that obscured important issues and sent generations of legal theorists on a largely time-wasting errand.