The Criminal Justice and Public Order Act 1994, which attracted so much controversy during its passage, continued to provoke dissent in the first case to reach the House of Lords on the interpretation of its public order provisions. The question in Director of Public Prosecutions v. Jones [1999] 2 W.L.R. 625 was the extent of the public's right to use the highway and, more specifically, whether a public assembly may constitute a lawful user.

Ian Howell, driving a Mazda, attempted to overtake David Backshall who was driving a Ford Mondeo. This led to an “appalling example of road rage” involving a fight between the two drivers and the smashing by Howell of the Mondeo's windscreen. Backshall drove away and in his attempt to escape engaged in some unorthodox driving manoeuvres. The two men were charged with affray and two counts of dangerous driving. Backshall was convicted of driving without due care and attention contrary to Road Traffic Act 1988, s. 3, and appealed to the Court of Appeal: R. v. Backshall [1999] 1 Cr. App. R. 35.

Dyslexia is a specific difficulty in learning how to use written notation, not attributable to generally low intellectual performance, emotional difficulties, or external factors. While its existence as a condition in its own right had been suspected for over a century, it is only much more recently that relatively definite tests for its existence have been developed. Even now, no one test can conclusively show its presence or absence. Local education authorities must provide for the special educational needs of children under their care, though it is settled law that the authorities cannot themselves be sued for breach of those duties (X (Minors) v. Bedfordshire C.C. [1995] 2 A.C. 633). However, X contains strong dicta that where the plaintiff can demonstrate negligence by particular members of staff, such as educational psychologists, then those members of staff will be personally liable, and the authority will be vicariously liable. Phelps v. Hillingdon L.B.C. [1999] 1 W.L.R. 500 raises the question whether this is actually so. The Court of Appeal, reversing Garland J., have now held that there is no such liability. The court heard that even if (contrary to their view) the plaintiff in the case could establish professional negligence by an educational psychologist through failure to diagnose her dyslexia, and that this negligence caused her appreciable harm, none the less she had no cause of action.

When a judge needs to construe a contract, to what extent can he or she have regard to factors which are external to the agreement rather than adopt a literal interpretation? This was the crucial question for the Court of Appeal to answer in Bromarin A.B. and others v. I.M.D. Investments Ltd. [1999] S.T.C. 301.

In the days (not so long ago) when there were typewriters in solicitors' offices, there was much speculation whether the sale by a solicitor of a typewriter which was no longer required would be caught by the provisions in section 14 of the Sale of Goods Act that impose conditions as to quality and fitness upon a “business” seller. There was no real room for doubt so far as the original Act of 1893 was concerned, where the relevant subsections referred to goods “of a description which it is in the course of the seller's business to supply” (s. 14(1)) and to “a seller who deals in goods of that description” (s. 14(2)). Plainly, our solicitor was not within either subsection. But when section 14 was revised (and subsection (1) confusingly renumbered so that it became subsection (3)), these formulae were discarded and replaced by the wording: “Where the seller sells goods in the course of a business”—which is plainly wider. This reform was introduced by the Supply of Goods (Implied Terms) Act 1973 and later consolidated into the Sale of Goods Act 1979 that is currently in force. Remarkably, the scope of the new provision has not been the subject of any judicial consideration for over two decades; but the Court of Appeal has now given a firm ruling in Stevenson v. Rogers [1999] 1 All E.R. 613, with the consequence that any redundant typewriters disposed of by solicitors in the future will be deemed sold “in the course of a business”.

The collection of cheques can be a risky business. The collecting bank is exposed to the risk of liability if the person who delivers the cheque for collection has no title, or a defective title, to the instrument. A prime example is where the cheque has been stolen. The “true owner” of the cheque (usually the person who owned the cheque at the time of the theft) may claim damages from the bank for conversion of the piece of paper on which the cheque is written, when it is deemed to have a value equal to the amount for which the cheque is drawn; alternatively, he may claim recovery of the proceeds of the cheque received by the bank in an action for money had and received. In either case the collecting bank's liability is strict.

Ropaigealach v. Barclays Bank plc (not yet reported) is another case that attempts to define precisely the relationship between a mortgagee's right to possession of mortgaged premises following default by the mortgagor and the court's ability to defeat or defer this right under its statutory powers. More than that, the Ropaigealach decision illuminates brightly the true extent of a mortgagee's possessory rights and may, if other mortgagees cannot resist the temptation to follow its lead, require the further intervention of Parliament to protect mortgagors of dwelling houses.

The obvious, and potentially most effective, remedy for breach of a repairing covenant in a lease is specific performance. All such decrees are of course discretionary. Although there are “well-established principles which govern the exercise of the discretion . . . these, like all equitable principles, are flexible and adaptable to achieve the ends of equity” (per Lord Hoffmann in Co-operative Insurance Society Ltd. v. Argyll Stores (Holdings) Ltd. [1998] A.C. 1, 9). However, since the decision of Lord Eldon L.C. in Hill v. Barclay (1810) 16 Ves. 402, specific performance of repairing covenants was considered generally unavailable on three grounds: the want of mutuality between landlord and tenant; the impossibility of defining adequately the works to be done; and the need for the constant supervision of the court to ensure that effective compliance is obtained. In its 1996 Report on Landlord and Tenant: Responsibility for State and Condition of Property (Law Com. No. 238), the Law Commission recommended legislation to give the court power to make orders for specific performance in any lease or tenancy. Now, the High Court appears to have made legislation unnecessary. In Rainbow Estates Ltd. v. Tokenhold Ltd. [1999] Ch. 64 (Lawrence Collins Q.C. sitting as a deputy) it has done Parliament's work for it.

When can English defendants be sued in England for the infringement of a foreign copyright? They were once immune, for two distinct reasons. English law formerly governed liability even for foreign torts, the effect of the rule in Phillips v. Eyre (1870) L.R. 6 Q.B. 1. Such claims were therefore pointless because English copyright protection extends only to English infringements; English law, although in principle applicable, could not be applied. Less convincingly, foreign intellectual property rights, like rights in foreign land, were generally regarded as non-justiciable under the rule in British South Africa Co. v. Cia. de Moçambique [1893] A.C. 602.

In the recent case of Cadbury Schweppes Inc. v. FBI Foods Inc. (1999) 167 D.L.R. (4th) 577, the Supreme Court of Canada considered the case of an action for breach of confidence involving “Clamato” juice (a mixture of clam broth and tomato juice). For the uninitiated, Clamato juice is mixed with vodka, oregano and Worcestershire sauce to become a “Bloody Caesar”, a drink popular with Canadians but apparently few others.

The ruling of the European Court of Human Rights in A v. United Kingdom (Human Rights: Punishment of Child) [1998] 2 F.L.R. 959 that to beat repeatedly a nine-year-old boy with a garden cane, leaving linear bruises on his thighs and buttocks which remained for up to one week, amounted to “torture or inhuman or degrading treatment or punishment” contrary to Article 3 of the Convention will occasion little suprise. What will have come as unwelcome news to some is the unanimous decision of the Court that the Government of the United Kingdom could itself be held liable for failing to take measures which could have prevented these beatings by the child's stepfather.

This article attempts to explain the meaning of the term “constructive trustee” and to understand why allegations of personal liability on the part of third parties to trusts are pleaded in the language of constructive trusteeship. The author concludes that the language of constructive trusteeship is dictated by the structure and historical context of the trust. Although this terminology could usefully be abandoned, an understanding of its origins suggests that as a matter of linguistic logic there is no room for third party liability which is somehow different from liability “as a constructive trustee.”

Christopher Staughton, a former Lord Justice of Appeal, writes of the four principal rules for the interpretation of written contracts. First, there is the exclusion of negotiations and subjective evidence of intention. Secondly he considers what material can qualify as background evidence, or as some would say matrix. Thirdly, there is the rule that a meaning which is less obvious =N but still consistent with the words used =N may be preferred. Fourthly, he deals with the very limited extent to which evidence of market practice is admissible.

The article contrasts recent observations of Lord Hoffmann in two cases in the House of Lords with other authority, both ancient and modern.

In the 1730s English criminal procedure abandoned its centuries-old rule forbidding the defendant in cases of felony to be assisted by counsel. The judges began to allow counsel to examine and cross-examine witnesses on the defendant's behalf, presaging the beginnings of the distinctive Anglo-American adversary system of criminal trial. This article points to two innovations in pretrial practice in the early decades of the eighteenth century that motivated the judges' decision: (1) the increasing influence of solicitors in investigating and preparing witnesses for institutional and private prosecutors; and (2) the growing danger of false witness in prosecutions inspired by a series of reward statutes enacted from 1692 onward. These developments – one-sided lawyerisation and the incentive for false prosecution – unbalanced the old lawyer-free criminal trial and led the judges to allow the assistance of counsel to offset the new advantages of the prosecution.

A system of registration of title to land was first introduced int England by the Land Transfer Act 1862. Many commentators have since charted its development and have described the struggle between those espousing title registration and those advocating a reformed system of unregistered conveyancing. There has, however, been little discussion of an alternative which was strongly advocated in the nineteenth century; a general register of deeds, rather than title. The article explains the difference between the two systems and describes the various proposals for the establishment of a deeds register. It then analyses the relative strengths and weaknesses of the two systems of registration and suggests that the eventual ascendancy of title registration was due less to any inherent superiority than to external factors.

The preliminary ruling by the European Court of Justice in the Seymour-Smith and Perez case about the scope and meaning of indirect discrimination has done little to clarify this perplexing concept. The ruling does not tell the thousands of short-service employees whose claims were stayed pending the litigation whether the qualifying period of two years’ continuous service for the right not to be unfairly dismissed is contrary to Community law. Nor does it provide clear standards by which disparate impact is to be tested, nor the relevant time for assessing the legality of an allegedly discriminatory measure, nor the conditions for establishing objective justification. More generally, these proceedings under Article 177 (now Article 234) of the EC Treaty reveal a failure by the Court to perform its function of facilitating the national court in interpreting and applying Community equality law in a way which would be consistent and uniform throughout the Union.

Consumers frequently do not know of their rights and are unwilling to litigate. The powers of the Director General of Fiar Trading under the Unfair Terms in Consumer Contracts Regulations 1994 will often provide more effective protection for the consumer than common law rules. The powers are pre-emptive and enable unfair terms to be removed from standard form contracts, so that consumers simply cease to encounter such terms. Some protection may be provided for consumers by common law rules which allow a finding that clauses are not incorporated or that they do not have the legal effect which they may appear to the consumer to have. However, without knowledge or a willingness to litigate, consumers may be misled by such clauses and terms as to the legal rights generated aand they will not then be able to enjoy their rights to the full. This article examines the extent to which the powers of the Director General can be used to protect consumers from such misleading clauses and terms. It considers the interaction of the Regulations and the common law, the scope of the Regulations, and the application of the Regulation's test of fairness.