This article challenges the commonly expressed view that shareholders wishing to bring a derivative action on behalf of the company must have “clean hands” ie that there must be nothing in the shareholders behaviourwhich renders it unjust to allow the derivative action to proceed. While minority shareholders’ misbehaviour might well have consequences for themselves, such as requiring the repayment of dividends known to have been paid unlawfully, those actions ought, in the normal course of events, to be irrelevant for the purpose of deciding whether to allow a derivative action to proceed. This article suggests some circumstances in which a minority shareholder’s situation or actions may affect the decision to allow a derivative action brought by that particular shareholder to proceed, but these do not spring from the clean hands doctrine, but rather from the particular factual circumstances of the case or from an entirely proper desire on the court’s part to use the derivative action only where it is necessary to achieve justice for the company

The essay questions the sense and purpose of current debate over the coherence of the ultra vires doctrine. It argues that the dispute is mainly semantic, serving to conceal rather than illuminate genuine questions about the nature and legitimacy of judicial review. If the doctrine’s opponents are right to emphasise the common law basis of the relevant standards of legality, abstractly conceived, the ultra vires school is equally right to insist that, in a statutory context, legislative intention is critical to the application of such standards. To connect the present debate with significant issues of substance, it would have to be recast as one between those favouring a “normativist” grounding of judicial review in the rule of law, on the one hand, and their “functionalist” or “pluralist” opponents, generally hostile to judicial review, on the other. The futility of the present debate is revealed by the simultaneous adherence of both sides to an integrated “rule of law” perspective. A useful analysis of the foundations of judicial review, capable of illuminating issues of substance, must explore the true meaning of the interrelated concepts of parliamentary sovereignty and the rule of law. No attack on the “empty formalism” of the ultra vires doctrine can carry conviction while at the same time affirming the doctrine of absolute parliamentary sovereignty, a doctrine equally malleable in the hands of judicial interpreters of statute, guided by common law precepts.

The disclosure of confidential records such as those of doctors, counsellors, and therapists may be sought by the defence as a means of undermining the credibility of complainants in rape and sexual assault trials. It is not clear that the procedure under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965, under which disclosure of the records of third parties may be sought, offers sufficient protection for the interests of complainants. This article discusses the weaknesses of section 2 and the implications of public interest immunity as well as Article 8 of the ECHR in this context. It also explores the different approaches taken in Canada, New South Wales and certain American jurisdictions to meet this problem. It concludes by making some suggestions for the amendment of the 1965 Act.

This article considers the approach taken to devices that are designed to avoid tenancy legislation, exploring the doctrines of sham, pretence, contracting out and the “artificial device doctrine” developed in tax cases. It is argued that the legal response takes two stages. The first judicial task is to determine which legal route is being followed, an enquiry which is designed to identify what the genuine relationship is between the parties and incorporating the doctrines of sham, pretence and labelling. Having determined the true nature of the legal relationship, the task of the court is then to apply the legislation to that relationship, which will include a consideration of whether any “contracting out” by the tenant is lawful. Having reviewed the legal response to devices, the article discusses the decision of the Court of Appeal in Bankway Properties v Pensfold-Dunsford.

The decision of the House of Lords in Vandervell v. IRC [1967] 2 AC 291 is difficult to explain but highly convenient in everyday commerce. This article uses the doctrine of overreaching to explain and justify their Lordships’ approach to the formalities for dealing with trust property at the direction of beneficiaries. It seeks to explore the limits of that justification, and thereby suggest answers to practical questions left unresolved by the decision. These questions remain highly relevant, particularly in the age of widespread electronic communication without formality.

Being an action on the case, it has long been supposed that negligence is consummated only upon the occurrence of damage. Physical damage ordinarily occurs where there is some change in the state or structure of a person’s body, or where there is some change in the state or structure of tangible property. The author argues that courts have, in recent wrongful conception and contamination cases, widened the orthodox notion of what constitutes physical damage. The courts have employed an ordinary bystander test in order to determine whether particular failures of care, arising in circumstances of high or unnecessary risk of physical harm, should be treated as if they give rise to physical damage. These are cases of a new form of actionable damage, that is, damage of a socially constructed kind.