Two recent decisions have considered the extent to which injunctions might indirectly impose restrictions upon third parties. The issue was most famously (and controversially) explored by the House of Lords in the Spycatcher case (Attorney General v. Times Newspapers Ltd. [1992] 1 A.C. 191), where it was held that a third party would be guilty of contempt if he deliberately did an act that undermined the purpose for which the injunction had been imposed in the first place; and this, notwithstanding that the injunction was not directly binding, could have a significantly inhibiting impact upon freedom of expression.

In Attorney General v. Punch Ltd. [2003] 2 W.L.R. 49, the Attorney General obtained an injunction against David Shayler, the former MI5 officer, and Associated Newspapers, restraining publication of information relating to the security services pending a breach of confidence action being brought against Shayler. A proviso permitted publication of material that had been consented to by the Attorney General.

The applicability to administrative decision-making of Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms (which requires that the determination of a person's “civil rights” should be by an “independent and impartial tribunal”) is somewhat vexed. First, it is often uncertain when an administrative decision determines “civil rights”. And, secondly, since non-compliance at first instance may be cured where the person aggrieved has access to a court of “full jurisdiction”, it is important but often uncertain to know what “full jurisdiction” is in the circumstances. The full tale is told in (2001) 60 C.L.J. 449 (Forsyth) and in Wade and Forsyth, Administrative Law, 8th edn. (2000) at pp. 441-444. Those unfamiliar with these technical issues should read a standard account before turning to Runa Begum v. Tower Hamlets London Borough Council (First Secretary of State Intervening) [2003] UKHL 5, [2003] 2 W.L.R. 388 (H.L.).

A Note on the legality of the mandatory life sentence in (2002) 61 C.L.J. 5 concluded that once the gap between the Government's rhetoric and the reality was recognised, the mandatory life sentence could no longer be justified. After a bit of kicking from the European Court of Human Rights (see Stafford v. UK (2002) 35 E.H.R.R. 32, (2002) 61 C.L.J. 508), the House of Lords has at last recognised that the Home Secretary's involvement in fixing the “tariff” can no longer be justified. Nearly six months after their Lordships issued a declaration that the existing legislative provisions were incompatible with the European Convention on Human Rights, it appears that the Home Office has still not decided what to do. We should expect late amendments to the already dense Criminal Justice Bill 2002, but at the time of writing (April 2003) the proposed amendments have not been published despite the fact that the Bill has reached its Report stage in the House of Commons.

Graham Greene's Brighton Rock is the tragic story of a murderer who marries an innocent girl, with the sole aim of preventing her giving evidence against him. Fact can be as strange as fiction—as the decision in R. (Crown Prosecution Service) v. Registrar General of Births, Deaths and Marriages [2002] EWCA Civ 1661, [2003] 2 W.L.R. 504 dramatically shows.

Mr. J was the prime suspect for a brutal double murder. Miss B, his long-term cohabitee, made statements to the police which gave them crucial information. While J was in prison awaiting the trial in which Miss B was billed as the star prosecution witness, B first tried to retract her statement—and when this failed to persuade the Crown Prosecution Service (CPS) to remove her from the witness-list, J and B announced that they were getting married.

Gregg v. Scott [2002] EWCA Civ 1471 involved a claimant with non-Hodgkin's lymphoma, which was misdiagnosed by the defendant, who negligently failed to refer the claimant to a specialist. The claimant's condition was correctly diagnosed a year later, by which time his chance of survival had been reduced to 25 per cent.; if he had been treated when he had first visited the defendant, his chance of survival would have been 42 per cent. The Court of Appeal, by a 2-1 majority, upheld the trial judge's holding that because the chance of survival at the time of the defendant's negligence was below 50 per cent., following Hotson v. East Berkshire Health Authority [1987] A.C. 750, the defendant could not be held causally responsible. On appeal, two lines of legal argument on loss of chance as actionable damage were advanced, one emphasising remoteness, and the other causation.

The impact of the Supreme Court of Canada's decisions in Bazley v. Curry [1999] 2 S.C.R. 534 and Jacobi v. Griffiths [1999] 2 S.C.R. 570 continues to be felt across the common law world.

In those cases, the Supreme Court ruled that an employee's tort would be held to have been committed in the course of her employment if there was a “sufficiently close connection” between the employee's tort and what she was employed to do to make it “fair and just” that the employer should be held vicariously liable for the employee's tort. The Supreme Court went on to rule that such a connection would exist if and only if the work the employee was employed to do created or increased a risk that the employee would commit the kind of tort that she committed.

In Britvic Soft Drinks Ltd. v. Messer UK Ltd. [2002] EWCA Civ 548, [2002] 2 Lloyd's Rep. 368, affirming Tomlinson J. [2002] Lloyd's Rep. 20, carbon dioxide produced by Terra Nitrogen (UK) Ltd. was sold to Messer and resold to Britvic, who used it in the manufacture of sparkling drinks. The carbon dioxide was contaminated by benzene, but in such small quantities as to pose no danger to health. Even so, because of adverse publicity the drinks as a practical matter were unsaleable. Damages were awarded to Britvic against Messer under the Sale of Goods Act 1979, s. 14(3) as being unfit for the buyer's particular purpose. The case raises a couple of points of interest.

In Redwood Master Fund Ltd. v. TD Bank Europe Ltd. [2002] EWHC 2703(Ch), [2002] All E.R. (D) 141 (Chancery Division, Rimer J.) the court upheld a clause in a syndicated bank credit agreement empowering a majority to bind a dissentient minority even though the minority were placed in a worse position than the majority.

The effect in summary of the case law on creditor voting clauses—mainly in the context of bond issues—when combined with the case law on shareholder voting, voting on corporate schemes of arrangement and the like, is that the clauses are valid provided that (1) the decision was clearly within the terms of the power, (2) the majority were in good faith, i.e. not motivated solely by malice or vindictiveness, (3) there were no secret advantages to some creditors to procure their votes, e.g. bribes, and (4) most difficult of all, there was no unjust oppression of the minority so as to constitute a fraud on the minority, e.g. by a discriminatory decision denying the minority an advantage granted to the majority.

It is often stated that equity will not perfect an imperfect gift: failed donative intent will not be construed as a declaration of trust (Milroy v. Lord (1862) 4 De G.F. & J. 264). The justification, as recognised by Maitland ﹛Lectures on Equity, p. 74), arises from the fundamental difference between donors and trustees. The donor divests himself of all responsibility regarding the property he gives whilst the trustee often assumes onerous fiduciary duties over property. Thus to impose trusteeship upon a would-be donor is to impose an outcome that results in far greater responsibility than the donor anticipated. Re Rose [1952] Ch. 499 recognises an exception to this rule, namely that when a donor has done all that only he was able to do to effect a gift at law so that the donee is able to complete the legal transfer by himself, the donor will hold the property on trust for the donee and the gift, although imperfect at law, is effective in equity.

Section 151 of the Companies Act 1985 prohibits the giving by a company of financial assistance for the purpose of the acquisition of its shares or for the purpose of reducing any liability incurred for the purpose of the acquisition. This penal section is notoriously broad and uncertain in its application. Judges may therefore be tempted to accept constructions which narrow its application at the expense of straining the statutory words. The Court of Appeal's recent decision in Chaston v. SWP Group plc [2002] EWCA Civ 1999, [2003] B.C.C. 140 has reaffirmed the importance of adherence to the statutory wording.

A Dickensian law dating back to the dire days where women were driven, by poverty and stigmatization of single motherhood, to give birth in secret and abandon their newborn children outside nursing homes, allows women in France to give birth anonymously, which means that the child will never know the identity of its natural mother, nor—in practice—that of its father or any siblings, who in turn will never learn of the existence of the child. This legislative regime, originally introduced to encourage women to give birth to unwanted children in the safety of a hospital, is still invoked by roughly 600 women every year. Its compatibility with the European Convention of Human Rights was challenged unsuccessfully in a recent case before the European Court of Human Rights: Odièvre v. France, judgment of 13 February 2003 (Grand Chamber).

Tax lawyers have to apply the concepts contained in the tax legislation to facts created by taxpayers; this is not easy. In Barclays Mercantile Business Finance Ltd. v. Mawson (Inspector of Taxes) [2002] EWCA Civ 1853, [2003] S.T.C. 66, the Special Commissioners agreed with the Revenue; Park J. [2002] EWHC 1527 (Ch), [2002] S.T.C. 1068, agreed with the Special Commissioners but for rather deeper reasons. Now the Court of Appeal has accepted the taxpayer's characterisation, making some very critical remarks about both lower level decisions. Normally, that would be the end of the matter, but the members of the Court of Appeal went out of their way to say, as closely as judges can do, that the recent decision of the House of Lords in MacNiven v. Westmoreland Investments Ltd. [2001] 2 W.L.R. 377, the case which rewrote the still emerging rules about when composite transactions are treated as one single transaction for tax purposes, had left the courts with a test which is unworkable (e.g. para. [69]).

In Ennstone Building Products Ltd. v. Stranger Ltd. [2002] EWCA (Civ) 916, [2002] 1 W.L.R. 3059 the claimant, who had supplied sandstone for a building in Edinburgh, retained the defendant to investigate and report when the stone developed unsightly staining. The contract was concluded at the defendant's Scottish office and provided that research and testing were to be carried out in both England and Scotland, but predominantly in Scotland. Both parties were English companies.

The defendant reported, recommending that the sandstone be treated with oxalic acid, and this treatment was duly carried out. A few months later, however, the stone had again become disfigured. When independent consultants advised that oxalic acid was likely to have exacerbated the staining problem, the claimant sued the defendant for negligence and/or breach of contract.

The rule against bias has undergone a number of modifications during the last ten years. In particular, two elements of the test for apparent bias have been widely debated, namely the degree of bias and the perspective from which bias should be viewed. The cases before 1992 on each element of the test were difficult to reconcile, but in R. v. Gough, Lord Goff held that the test required a “real danger” of bias when viewed from the perspective of the court. However, attempts were made to amend the test after forceful criticism by the High Court of Australia, and the related observation of Sir Thomas Bingham M.R. that Gough abolished the principle that “justice must not only be done, but must also manifestly be seen to be done”.

Companies, being legal abstractions, can act only through human agents. A necessary consequence of a company's legal abstraction is the development of rules of attribution, such as those that govern the company's liability for the wrongful acts of its agents. Given that companies have been a significant feature of the economic, social, and legal landscape since the nineteenth century, it is not surprising that those rules are fairly well settled, if not always easy to apply.

Perhaps surprisingly, there is less agreement on the rules governing the attribution of liability to agents acting in the course of a company's business. In recent years, Commonwealth courts have seen repeated challenges to the boundaries of corporate agents’ liability, with claims against corporate agents being made in deceit, in negligent misstatement, for infringement of copyright, for negligent property damage, and even for breach of contract. The courts have yet to offer a coherent response.

Anti-Social behaviour sits at a strange juncture in the law. Maybe this is because of the many forms that it takes—noise nuisance, fouling public areas, aggressive and violent conduct. Some of this is simply non-neighbourly whereas some is quite clearly criminal. The legal responses to anti-social behaviour also take many forms, but the main focus—notwithstanding that anti-social behaviour affects the whole community—has been to see it as a problem to be tackled by local authorities wearing their “housing management” hat. Even the much trumpeted anti-social behaviour order (asbo), which looks in many respects like part of a criminal code, can be applied for by local authorities and other registered social landlords. This focus on the housing dimension may well have fed the notion that it is council tenants who cause anti-social behaviour, and council tenants alone who the local authority is responsible to, and for.

In the late-nineteenth century, Dicey defined with clarity the modern doctrine of parliamentary sovereignty, identifying both its positive aspect, that Parliament is legally empowered to make any law, and its negative aspect, that no court, institution or person is legally empowered to set Acts of Parliament aside. The historical genesis of this modern understanding of parliamentary sovereignty was, and continues to be, controversial. In his recent study of parliamentary sovereignty, Jeffrey Goldsworthy suggests that the sixteenth-century lawyer Christopher St. German, author of Doctor and Student as well as a series of publications relating to the Henrician Reformation, was likely “the first English writer to propound a comprehensive theory of parliamentary sovereignty”— a controversial claim given St. German's insistence that any “statute” made against the law of nature or reason is “voyd”.4 However, Goldsworthy appears to be supported by an impressive list of historians.

The widespread commercial planting of genetically modified crops has yet to be sanctioned in Europe, but cannot be far away. This is a prospect that arouses considerable public concern as to both the health and environmental implications of genetically modified organisms (“GMOs”). The application of biotechnology in the development of new agricultural products raises major concerns not only for environmental protection, however, but also for the potential role of liability regimes in the allocation and protection of property rights. In the European Union, a regulatory framework for field trials and the commercial exploitation of GM crops was introduced at a relatively early stage in the development of agricultural biotechnology. The Directives on the Deliberate Release into the Environment of Genetically Modified Organisms and on the Contained Use of genetically modified microorganisms1 require technocratic authorisation processes based on a scientific risk assessment of GM releases.

The corporate director is subject to duties of good faith and loyalty. As he stands in a fiduciary position vis-à-vis the company on whose board he sits, he is subject to strict obligations of self-denial. Indeed, ensuring adherence to an absolute rule in this regard is justified by the need to control, albeit in a necessarily imperfect and arguably ineffective manner, the exercise of discretion by the director who stands in an undoubted position of power with respect to the company. A director therefore is obliged to avoid a conflict of interests and is prohibited from profiting from his office. What then of the erstwhile director?

The long wait for a privacy law in England might appear finally to be over. The Lord Chancellor predicted that his Human Rights Bill, on enactment, would usher one in. Some two months after the resulting Act came into force the Court of Appeal seemed, with remarkably little fuss, duly to recognise an action for invasion of privacy in Douglas & Zeta-Jones v. Hello!2 Moreover, this was achieved by employing (it was said) only the existing action for breach of confidence, and so the court could avoid frightening the horses, by appearing not to be doing anything new (or noteworthy) at all. Further, the court deftly avoided the contested quicksands of the horizontal effect (or not) of the Human Rights Act 1998.