Judges communicate outside of the courtroom on a regular basis. They give speeches at universities and to societies; appear before select committees; write for a range of publications; and engage in both media and outreach activities. Existing literature has charted the value and perils of such extrajudicial communication. This paper contributes an explanation of what motivates judges towards such communication, and what shapes their discourse. The work draws on 13 semi-structured interviews with senior serving and recently retired judges, along with an extensive range of examples of judicial speech beyond the bench. It argues that extrajudicial communication is shaped by a shared conception amongst the judicial community of what is appropriate. This conception of propriety is principally motivated by a communal pursuit of sustaining public confidence in the judicial office. The conception also informs the limits of appropriate discourse and establishes the ramifications for breach.

The landmark Supreme Court judgment in Prest v Petrodel Resources Ltd provides a significant reassessment of the law relating to a court's ability to circumvent corporate personality. The Supreme Court considered that the application of ordinary legal principles (‘the concealment principle’) should ordinarily override a court's ability to apply an equitable veil-piercing doctrine (‘the evasion principle’). Whilst accepting the primacy of the concealment principle, this paper disputes the correctness of the Supreme Court's implied assertion that, in cases concerning ‘one-man type’ companies, the concealment principle should be advanced through application of agency-derived principles. Rather, this paper contends that the concealment principle should be progressed by adopting solutions derived from the law of constructive trusts and associated principles of equity. To an objective of providing a doctrinally sound framework for the development of the law in the post-Prest era, this paper further suggests that the constituent elements of the evasion principle could be consistent with the operation of a distinct species of constructive trust. Moreover, it is argued that, in future, this ‘evasion trust’ should, in complete abrogation of the equitable piercing doctrine, be developed so as to apply in all cases exhibiting intentional and fraudulent abuses of the incorporation process.

In dealing with rules of a procedural type lawyers often make a distinction which is referred to as that between ‘mandatory’, and ‘directory’ rules. (The terms ‘imperative’, ‘absolute’, ‘obligatory’, ‘compulsory’, and ‘peremptory’, have sometimes been used instead of ‘mandatory’.) The distinction has to do with the effect of breach of a rule on the process to which it relates. Very broadly, mandatory rules are those procedural rules the breach of which necessarily invalidates the process to which they relate, while directory rules are procedural rules the breach of which does not necessarily have this effect. This distinction has existed in the common law for about three hundred years, yet, so far as I can discover, no serious attempt has ever been made to explore its logical basis. That is surprising, for on its face the distinction is a puzzling one.

Why is food regulated separately from, and differently to, other consumer products? This paper attempts to examine the different regimes for the regulation of food and general product safety, and examines the economic, social and cultural reasons for the separation. Finally, the paper considers whether the separate nature of the regimes is necessary, or whether food should be regulated within a ‘product safety’ framework.

One of the most controversial aspects of the assessment of damages for breach of contract is the extent to which there can be recovery for ‘intangible’ losses such as disappointment and inconvenience. In Watts v Morrow, Bingham LJ assumed that public policy generally proscribed contractual liability for such losses, unless the object of the contract was to provide pleasure and/or peace of mind, or the breach caused foreseeable physical inconvenience to the victim. Unfortunately, Watts, and its associated case-law, offered scant guidance on the underlying rationale for either the general rule or its two exceptions. Consequently, more recent judicial pronouncements on this issue, particularly from the House of Lords, are to be welcomed insofar as they demonstrate a greater preparedness to eschew the use of arbitrary policy constraints in favour of focusing upon a claimant’s expected benefits as contained within the contract. In so doing, disappointment and inconvenience appear to be subject to the same rules of recovery. This paper will seek to justify and encourage this trend, arguing that a logical application of the principles contained within Hadley v Baxendale and Robinson v Harman dispenses with any need to use ‘policy’ as a means of limiting the recovery of damages for disappointment and inconvenience, more properly takes account of a claimant’s known preferences, and ensures that all forms of inconvenience and disappointment are subject to the same rules; in short, that damages properly reflect the full range of the claimant’s expectation deficit.

Court decisions concerning the life and death of patients become more and more frequent in the context of medical practice. One of the most controversial decisions in this area in recent years has been the decision of the Court of Appeal in Re A (Conjoined Twins: Medical Treatment), authorising the separation of conjoined twins. This paper will argue that the decision was flawed both on legal and moral grounds and that its potential implications for future cases are more far-reaching than the judgment itself suggests.

Members of the senior judiciary have expressed concern about the ‘over-judicialisation’ of welfare in the context of homelessness decision-making and adjudication. This paper examines how those fears have been manifested and makes a link with the concept of proportionate dispute resolution (PDR). It argues that the statutory scheme incorporates elements of PDR and judges should therefore refrain from introducing additional layers. The courts’ denial of the application of Article 6 of the European Convention on Human Rights to the homelessness context is disputed, and the paper makes the case for continuing rigorous judicial oversight of front-line decision-making, recommending that attention is focused on assessing procedural safeguards rather than disputing the ambit of Article 6.

In Torquay Hotel Co Ltd v Cousins Lord Denning MR asserted: ‘I have always understood that if one person deliberately interferes with the trade or business of another, and does so by unlawful means … then he is acting unlawfully, even though he does not procure or induce any actual breach of contract’. Although during the parliamentary debate over what became the Employment Act 1980, Lord Hailsham stated that no such tort existed, Lord Wedderburn replied that ‘a student of today must be affected by legal myopia if he did not understand the existence of this tort’. The purpose of this article is to examine the existence and scope of this tort – which I shall refer to as unlawful interference with trade – to place it in the context of the known economic torts, to discover its common law background and to outline its present and possible future role in commercial and industrial law.

I sit an ocean and a legal culture away. Asked to comment on reforms in England and Wales, my response is shaped by knowledge of the legal system of the United States, which shares aspirations similar with and has been much influenced by the judicial system of England and Wales, but is also very different from it.

Yet judicial systems on both sides of the Atlantic (and in many other places) have to face difficult challenges. How can governments create, select, and equip a sufficient number of individual judges to respond to the tens of thousands of complainants who come before them?

The decision of the House of Lords in Elitestone v Morris [1997] 2 All ER 513 added an extra element to the traditional classification of objects brought onto land. The traditional classification divides such objects into chattels and fixtures. In Elitestone, Lord Lloyd of Berwick suggested, borrowing words from Woodfall on Landlord and Tenant, that it might be better to apply a threefold classification: chattels, fixtures and items which are ‘part and parcel of the land itself’. This paper explores the origins of this threefold classification, and suggests that there may be little, if any, historical basis for the new third category; it may owe its origins to the confusion which has surrounded the various meanings of the word ‘fixture’. The paper also investigates how the decision in Elitestone has been applied by later courts, and suggests that it is unlikely that it has made the judges' task any easier.

Debates about the proper role and limits of judicial authority in the state are unusually heated, enduring and inconclusive. Talk about judicial review, the democratic deficit, the counter-majoritarian difficulty and the separation of powers matters, because what is at stake is the formal identification of the ultimate forum for political decision-making in a constitutional democracy.