At common law, the primary remedy for a successful plaintiff in an action in tort is an award of damages. The plaintiff must be put in the position in which he was before the tort was committed so far as money can do this. In many actions the principle of restitutio in integrum is a sufficient guide to the quantum of damages. But, in other cases, for example, actions for damages for personal injuries or defamation, a highly subjective element is involved. Neither personal injury nor loss of reputation is easily convertible by the use of any yardstick into an exact monetary figure.

In some cases, the damages are said to be ‘at large’. This signifies that the award is not limited to the pecuniary loss that can be precisely proved. Where damages are ‘at large’, as they are, for example, in assault, false imprisonment or malicious prosecution, trespass and defamation, they may be conveniently divided into three separate elements. First, there is the compensation for the actual harm caused to the plaintiff by the defendant; in addition to any pecuniary loss specifically proved, the assessment will involve putting a monetary value on the physical hurt in assault, on curtailment of liberty in false imprisonment or malicious prosecution, on injury to reputation in defamation and on inconvenience and disturbance in trespass.

This paper examines, in the context of complicity as an example, how and why scholars theorise about the basis of the rules governing criminal responsibility and about the practice of the courts in imposing such responsibility and asks what sort of ‘impact’ of legal scholarship should be regarded as desirable or achievable or successful or should or can be sought. The methods and reasons of such scholars may include the habit and desire of providing explanations of the outcomes reached by the courts in particular difficult situations and may also involve developing justifications or critiques of them based on, or influenced by, theories of moral philosophy. This may also include a desire to influence future outcomes ‘in practice’ in related factual scenarios in a predictable and ‘just’ fashion consistently with the preferred theory. The paper examines whether the language in which (a contender for) a satisfactory explanation of a theory of derivative responsibility, expressed in terms inspired by George Fletcher, of complicity in wrongful even if excused conduct, can be (or has been) satisfactorily transposed into one expressed in language thought to be more amenable to the courts (such as ‘procuring an actus reus’). Case-law in this area is examined to see whether this sort of transposition does more harm than good and to what extent compromising or adapting an expression of principle in this manner may lead to unintended consequences. An alternative conclusion is also examined, which is that however carefully one formulates rules or statements of principle, unintended consequences will always or often follow and that this may not necessarily be a bad thing. Indeed, the ultimate conclusion may be that whilst having a beneficial influence on the substantive law may be a desirable impact which legal scholarship should aspire to or may be justified by, to adapt the words of John Gardner in a somewhat different context, having that impact should not be confused with trying to have that impact, since often it is the trying which is the problem (Offences and Defences (Oxford University Press, 2007) p 279).

It is clear that several members of the judiciary are unhappy about some of the moral implications of Caldwell recklessness. In particular, there is concern about the accused whose capacities, mental or physical, are appreciably more restricted than those of the ordinary person. Such person may not just fail to foresee risks obvious to rcasonable people, they may plausibly be seen as being incapable of so doing. Judicial anxiety about this first surfaced in Elliott v C. There, the Queen's Bench Divisional Court allowed a prosecution appeal against the acquittal of a 14 year old girl (who was in a remedial class at school) for the criminal destruction of a garden shed and its contents.

It may be of some comfort to English and Welsh lawyers to know that they are not alone in having to face up to the challenge of the reform of the traditional basis on which they have practiced. The implications of the impending single market are resulting in moves in other EC member states towards a more competition oriented framework for the provision of legal services. During December 1990 the French National Assembly passed a law introducing major reforms to the legal profession. The rationale behind the reforms is the modernisation of the French legal profession in an endeavour to make it more competitive in the single market, as was made clear by M. Arpaillange, the then Minister of Justice when he said that, ‘there is no longer any need to underline the obsolete character of the separation of the legal profession in the light of the approaching single market’.

There are various angles from which the role of intention in the creation of proprietary rights can be approached. First, since proprietary rights are rights which are legally enforceable, rights which are established by a particular transaction or arrangement cannot take effect as proprietary rights unless the parties intend to create legal relations. So, even in a case where Y is in exclusive occupation of land owned by X and pays X a periodic sum in return for use of the land there is no tenancy - and no contractual licence - if the parties do not intend to enter legal relations.

In a previous article in Legal Studies I suggested a general framework of rules for analysing problems of restitution which arise from ineffective transactions. It was explained that normally a claim should be available to a party who has performed his part, usually based on mistake or failure or consideration, or on ‘policy’ grounds. A benefit to the recipient of goods and services will usually be shown by the fact that in making the agreement he requested the performance Problems may arise, however, when the factor which renders the contract unenforceable also provides an argument against allowing a claim in restitution. One problem which arises frequently with goods and services is that the factor which vitiates the contract makes it difficult to show a benefit. For example, when the defendant mistakes the nature of the goods which he is purchasing, it may be impossible to say that he requested them for the purpose of showing they are of benefit to him.

The centenary of Maine’s death prompts the questions: why is he remembered and what is his significance for us today? In part the answer is simple. He wrote well, and his books such as Ancient Law are a pleasure to read. It is frankly a relief to turn to his works after reading the remarkable but laboured chapters of that other nineteenth century jurist, John Austin (1 790-1859).

But going beyond his style and assessing his intellectual merits and the modern uses of his ideas is a more complicated matter. If his jurisprudential ideas are compared with those of, say, Bentham and Austin it is clear that there is an initial contrast in the way their respective theories are categorised. When the latter two thinkers are considered it is useful to refer to Benthamite and Austinian forms of jurisprudence.

Schemes for compensating injury which operate alongside each other call for important policy decisions to be made concerning their inter-relationship. Are they to take account of one another and, if so, to what extent? These issues can arise in a variety of contexts. Within particular regimes they are the concern, for example, of the overlapping benefit regulations in social security law and the rules relating to contribution in insurance law. However, the focus of this article is upon personal injury litigation. It examines the policy reasons which have been used to justify the different results reached by the law when faced with the problem of ‘collateral benefits’ received by an accident victim also seeking damages. Typically, these benefits are received from the state, or an employer, or an insurer.

Many words do not have a single meaning. There is rarely a problem where two different words of the same spelling have a different meaning as the context usually will clarify which of the alternative words is intended. The difficulty arises where the same word has more than one meaning and the different meanings are not unrelated to each other. The word wilful is such a word and much would have been gained if it had been struck out of the Parliamentary draftsman's dictionary many years ago. Very popular in Victorian legislation, its use in modern drafting is less common, but it still haunts the statute book providing problems of interpretation and illustrating the underlying conceptual weakness of much of English law.

The landscape of legal duties imposed on financial investment intermediaries is characterised by the imposition of regulatory duties as well as duties arising under general law, in the realms of fiduciary duties and duties of care and skill. This article examines the relationship between public regulation and general private law in providing legal principles governing the conduct of financial investment intermediaries. This article also inquires into whether, in light of the Financial Services Authority's (FSA) desire to move into higher level ‘principles-based’ regulation of financial investment intermediaries, there may be a set of unifying principles that could govern financial investment intermediaries' relationships with their clients.

The enforceability of the convenants in a lease after an assignment, whether by the landlord or the tenant or both, is a matter of considerable practical importance. In the case of long leases, assignments of the leasehold estate and of the reversion are a common occurrence; both will often change hands many times before the end of the term, creating a welter of potential parties to any action on the covenants. In addition, there may be sureties who have undertaken to guarantee performance of the tenant's covenants. The basic principles governing the parties' rights and liabilities in this field under the present law are well known, centring upon privity of contract, privity of estate and upon statutory rules found in ss 141 and 142 of the Law of Property Act 1925. The area is one of vital commercial significance to landlords, and which potentially affects the residential security and amenity enjoyed by tenants (in the case, for example, of landlords' covenants to renew or to repair). It is also a field in which many of the issues and concepts have been the subject of judicial and academic consideration for more than a century, yet a surprising number of uncertainties remain. The law consists of a complex set of rules, which together form something resembling an intellectual jigsaw puzzle, and one from which several pieces are still missing. The aim of the first part of this article is to highlight some of these gaps.

So much of what, so far, has constituted the grammar of mainstream historical discourse on English law can be broadly characterised as being primarily concerned with either formal legal institutions or their socio-political context. While such histories are generally useful, they fail to see what other-histories – what radically different stories – could be told instead. Such a web of other-histories, it is here suggested, require both time and imagination. By temporarily leaving mainstream historical accounts and entering into the time of legal history the centrality of so many institutional and socio-political histories of English law may have to be reconsidered. In particular, what would become clear is that one type of legal history needs urgently to be told – a history of the ‘blotted-out’. Neither included in mainstream legal history, nor excluded from it – neither visible nor memorable – the history of the blotted-out is the history of what can be found, so commonly and ordinarily, in everyday life. Mainstream legal history is either unaware of, or uninterested in, the blotted-out. Yet, it is precisely a history of the blotted-out which, importantly, would guard, in history, the possibility of law's most original imagination.

The recent spate of cases successfully relying on CPR 19.6 has failed to clarify the content of the ‘same interest’ required by the rule. Interpretation of ‘same interest’ must give effect to the overriding objective set out in CPR 1.1(1), which provides that cases must be dealt with ‘justly’ and ‘fairly’. In line with the aspirations of the new Civil Procedure Rules, the overriding objective emphasises improving access to justice and reducing the costs of litigation. A number of recent decisions permitting reliance on CPR 19.6 make particular reference to the rule's potential to achieve these goals. However, reducing costs is only one goal of civil procedure and it is argued that whether a procedure, or its use in particular circumstances, is just or fair depends on balancing those purposes and principles of civil procedural law which it supports against those which it inhibits. This article demonstrates how balanced reference to the principles of procedure supports a test for ‘same interest’ based on finding ‘a common question of law or fact’.

This paper, which is the revised text of the first Stephen Livingstone Memorial Lecture delivered in February 2006, surveys the human rights jurisprudence of the House of Lords over the past 10 years. It considers not just how the Law Lords have responded to the Human Rights Act 1998 but also how they have developed the law on equality, asylum and immigration. In assessing whether human rights are ‘safe’ in the hands of the Law Lords, it looks, first, at how willing the Law Lords have been to engage with human rights arguments, concluding that they have relished such discourse. The piece then examines how rigorously the Lords have protected rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The conclusion reached is that the Law Lords have been doing a good job on that front. What is preventing them from adopting an even more rights-based approach to their work in general is the UK’s stubborn adherence to the ‘dualist’ theory of international law. The author agrees with Lord Steyn that the time has come to reconsider that position.

A Turk is fined and recommended for deportation by a magistrate for breach of the Aliens Order 1953. The magistrate recommends that he not be detained in custody pending the Home Office’ decision on the recommendation for deportation. The Turk appeals to the Crown Court against the recommendation for his deportation. The judge rules that he has no jurisidiction to hear the appeal and dismisses it. On seeing the erstwhile appellant about to leave the court premises the judge cries ‘stop him’, on which the appellant Turk is arrested by the police and detained in custody. The Divisional Court of the Queens Bench issues an order of habeas corpus for the release of the Turk on the ground that the judge in the Crown Court had been functus officio before be began to consider whether the Turk should be detained or not. The Turk consequently brings an action against the Crown Court judge and the police, claiming damages for assault and false imprisonment. It is decided that the judge is immune from liability because he had acted in his capacity as a judge.