The European Court of Human Rights' decisions T. v. The United Kingdom (16.12.1999 E.C.H.R. No. 24724/94) and V. v. The United Kingdom (16.12.1999 E.C.H.R. No. 24888/94) represent one of the final stages in the notorious Bulger murder proceedings. The Court considered a number of applications by the defendants regarding the legality of their trial and sentences. The Court issued separate judgments for each applicant but, as they differ only in the details, they are considered here together. There are two main decisions that are of particular significance.

Given the importance of the case, it is unsurprising that the House of Lords should reach so rapid a decision in R. v. Director of Public Prosecutions, ex p. Kebilene [1999] 3 W.L.R. 972 (on appeal from the Divisional Court, noted at (1999) 58 C.L.J. 468). It will remembered that the Divisional Court granted a declaration that the D.P.P.'s decision to continue his consent to prosecutions under the reverse onus provisions of the Prevention of Terrorism Act 1988 (P.T.A.) was unlawful. According to the lower court, these provisions were in irreconcilable conflict with Article 6(2) of the European Convention on Human Rights which provides that: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.

The need to redress the inequality of power between the citizen and the State, which lies at the heart of public law, is illustrated nowhere more clearly than in the facts of R. v. North and East Devon Health Authority, ex p. Coughlan [2000] 2 W.L.R. 622. As a result of her severe disability Pamela Coughlan was, for many years, looked after as a hospital in-patient. In 1993, however, she agreed to move to a purpose-built care facility on the strength of the respondent’s promise that it would be her “home for life”; yet, only five years later, the health authority decided to close the new home, citing financial reasons. That the applicant possessed a legitimate expectation which would be breached by closure of the home was not in doubt. The difficult question was how the expectation could be protected. Courts have long been willing to enforce procedural promises and to safeguard expectations of substantive benefits by requiring the adoption of a fair procedure (typically consultation) before the benefit is denied. Coughlan, however, makes it clear that courts may go further than this by substantively protecting substantive expectations.

When the news came forth from Downing Street last November that a fourth child was to be born to the premier and his wife, joy spread throughout the land. Gloom and despondency, by contrast, reigned in the McFarlane household when it transpired that Mrs. McFarlane was pregnant yet again, for in order to ensure that there would be no fifth child the couple had come to a decision: rather than rely on the physics of the condom or the chemistry of the pill the husband, like 9,000 other Scotsmen every year, was to resort to the surgery of vasectomy. So he did, and the health authority reported that the operation had been successful, but vital nature had counteracted medical art … and Catherine was born. She was in perfect health. Mrs. McFarlane claimed £10,000 for the pain of pregnancy and childbirth and both parents claimed £100,000 for the cost of keeping Catherine. They thereby joined the long line of those who, relying on the Court of Appeal's judgment in Emeh v. Kensington and Chelsea and Westminster A.H.A. [1985] Q.B. 1012, sought to throw on to the medical profession the cost of bringing up the child they had engendered and conceived, healthy though it was and in the event welcome—except for the expense.

Given that it was no more than a decision of the Divisional Court, and a pre-War decision at that, the case of Duncan v. Jones [1936] 1 K.B. 218 has exercised a remarkably enduring influence. The case appeared to give the police enormous operational discretion in dealing with actual and prospective breaches of the peace. When a constable reasonably apprehended a breach of the peace, he could take steps (arguably, only reasonable steps) to prevent it or its recurrence. This disarmingly simple formula made it very difficult to challenge, let alone control, the way in which the police exercised their powers.

The applicants in R. v. Secretary of State for the Home Department, ex p. Simms [1999] 3 W.L.R. 328 were convicted murderers whose applications for leave to appeal had been refused but who continued to protest their innocence. To this end they gave interviews to investigative journalists, hoping that this would ultimately result in their cases being referred back to the Court of Appeal. However, paragraph 37 of the Prison Rules 1964 provides that professional visits by journalists to prisoners should not generally be allowed and that any journalist wishing to visit a prisoner qua relative or friend must undertake not to publish anything disclosed during the visit. Paragraph 37A stipulates that if, exceptionally, a journalist is permitted to make a professional visit, he must undertake to abide by any conditions prescribed by the prison governor. In the instant case the prison authorities, pursuant to a Home Office policy directing prison governors to impose a blanket ban on all visits by journalists in their professional capacity, refused to permit further visits unless paragraph 37 undertakings were forthcoming. Their Lordships accepted the applicants' argument that this constituted unlawful interference with their entitlement to free expression.

In five years on the statute book, the Unfair Terms in Consumer Contracts Regulations 1994, S.I. 1994/3159, generated great interest and very little case law. Their first consideration by an appellate court came in Director General of Fair Trading v. First National Bank plc [2000] 1 All E.R. (Comm.) 371. And while these proceedings were on their way to the Court of Appeal, the Regulations were repealed and replaced by the Unfair Terms in Consumer Contracts Regulations 1999, S.I. 1999/2083. Both developments are of considerable interest.

The M/V “Saiga” (No. 2) (Saint Vincent and the Grenadines v. Guinea) (1999) 38 I.L.M. 1323 was, on the facts if not on the docket, the continuation and conclusion of The M/V “Saiga” 110 I.L.R. 736, the first case to be heard by the International Tribunal for the Law of the Sea (ITLOS) established under the 1982 Convention on the Law of the Sea. The cases arose out of an incident in which the Saiga—a Cypriot-owned, Scottish-managed and Swiss-chartered tanker flying the flag of Saint Vincent and the Grenadines—was detected refuelling fishing vessels at sea (“bunkering”) in the Exclusive Economic Zone, and in violation of the customs laws, of Guinea. Guinean patrol craft forcibly arrested the Saiga, injuring a Ukrainian crewman and a Senegalese painter, and escorted the ship to port, where its Ukrainian master was convicted of customs offences. As well as a suspended sentence of six months’ imprisonment, the court imposed a substantial fine, seizing the vessel and confiscating its cargo by way of guarantee.

In the course of rejecting a domestic challenge to the Ministry of Defence's policy of discharging all personnel found to be of homosexual orientation, members of the Divisional Court and the Court of Appeal hinted strongly that the rule was likely to be condemned in Strasbourg (R. v. Ministry of Defence, ex p. Smith [1996] Q.B. 517, noted at (1996) 55 C.L.J. 179). This prediction was proved correct when the same applicants took their cases to the European Court of Human Rights (E.C.H.R.) in Lustig-Prean and Beckett v. U.K. (Applications 31417/96 and 32377/96) and Smith and Grady v. U.K. (Applications 33985/96 and 33986/96), 27 September 1999, The Times, 11 October 1999.

The facts of Kent v. Giffiths [2000] W.L.R. 1158 were that the claimant had suffered an asthma attack and was attended by a doctor at her home. At 4.25 p.m. the doctor called an ambulance, gave the patient’s name, address, age and condition, and requested that she be transferred immediately to casualty where she was expected. Ambulance control replied “Okay doctor”. At 4.35 p.m. the claimant’s husband was assured, on making a second call, that the ambulance was on its way. He was told to hang on for another seven or eight minutes. A similar response was given to a third call made sixteen minutes later. The ambulance finally arrived forty minutes after the initial call was made. The claimant suffered respiratory arrest resulting in brain damage and a miscarriage. At trial Turner J. held that the London Ambulance Service (LAS) was liable for breach of a duty of care. He found not only that there was no reasonable explanation for the delay, but also that the ambulance crew had falsified their records ([1999] Lloyds Rep. Med. 424). Had the ambulance arrived when it should, there was a high probability that the respiratory arrest would have been averted.

Insurance brokers are liable to their clients in both contract and tort for any failure to carry out their mandate with reasonable care and skill. In most cases it makes no difference to the outcome whether a claim against a broker is based in contract or in tort. In the event of a dispute between broker and client on whether the broker has fulfilled his mandate, in the past the first question was to establish what the broker had agreed to do and then whether the broker had breached that duty. Until recently, it could be assumed that, if breach of duty by the agent was established, the kinds of loss recoverable by the client against the agent were those which were not too remote, i.e., those which were not only caused in fact (according to the “but for” test) but also caused “in law”: loss would be too remote unless it was of a kind reasonably foreseeable (tort) or reasonably contemplated (contract) by the agent, as a consequence of breach of duty.

Question: “D, who is mentally ill, believes that he is Jesus Christ. He breaks down P's front door and belabours him with a snooker cue, in the deluded belief that P is about to crucify him. Having been subdued by five police officers, D is eventually tried on indictment for aggravated burglary and affray. What is his criminal liability?”

Louise Rose, born with serious physical and mental disabilities as a result of medical negligence at delivery, obtained £250,000 by way of settlement of her claim against the defendant health authority. This sum, administered by the Court of Protection, was used to enable her mother, Mrs. Bouette, to purchase a house in which they could both live. Its price was met as to three-quarters by the damages fund and as to one-quarter by her mother, and beneficial interests were declared in the property to represent their respective contributions. Mrs. Bouette received regular payments from the Court of Protection to cover Louise's living expenses and to purchase equipment for Louise, as well as social security benefits from the State in respect of her care for Louise. On Louise's death, at the age of fourteen, the rules of intestacy dictated that her estate, comprising her 75% share in the house and the residual fund, was to be divided in equal shares between her parents. Although Louise's father had separated from her mother when Louise was eight months old, he had an equal entitlement to the daughter's property, and realisation of his share would inevitably involve sale of the house. Mrs. Bouette accordingly brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975, arguing that she was dependent on her daughter immediately before her death, and that she had not obtained reasonable financial provision as a result of the operation of the intestacy rules. The father applied to strike out the mother's claim, and the question of her dependency was tried as a preliminary issue: Bouette v. Rose, sub nom. Re B (deceased) [2000] 1 All E.R. 665.

The claimant was employed for 39 years as a marine fitter, working for various employers. For 24 of those years he was exposed to asbestos, and eventually he developed asbestosis, presumably as a result of that exposure. He sued the defendants, one of the firms that had employed him; about 12 years of his exposure, half the total, were suffered through the defendants’ negligence and breach of statutory duty. General damages were assessed at £32,000. The issue was whether or to what extent those damages should be reduced, to reflect the fact that other firms (now either insolvent or untraceable) shared the responsibility for the claimant’s exposure to risk.

One of the most difficult current problems for tort lawyers is the extent to which the normal rules of tort, developed over decades of litigation between private individuals, should apply in undiluted form to local and other public authorities. Most individuals have never seen a child drowning in a puddle or about to walk off a cliff, and would not hesitate to help them if they did, but public authorities, empowered by Parliament, are faced every day with the delicate and expensive task of protecting others from harm. It has become all too apparent, as the courts (domestic and European) grapple with the thorny question of when a common law duty of care should exist in the context of the careless exercise of, or failure to exercise, statutory powers, that the ordinary rules of negligence liability need considerable refinement to operate sensibly in such a political field. Moreover those difficulties and differences do not disappear merely because a tort other than negligence is involved, and this has been amply illustrated in three recent cases, each involving actions against local authorities in the tort of nuisance.

Holbeck Hall Hotel stood on the cliffs at Scarborough with views over a lawn and rose garden to the North Sea. The undercliff below the hotel was owned by Scarborough Borough Council. Over the years, natural erosion of the coastline led to relatively minor landslips in the area. The Council engaged engineers to investigate them and remedial works were carried out in 1989, but in 1993 there was a massive landslip. The lawn and rose garden fell into the sea, and the ground under the seaward wing of the hotel collapsed so badly that the whole building had to be demolished. Its owner claimed damages from the Council, and Judge John Hicks Q.C., applying Leakey v. National Trust [1980] Q.B. 485, held the Council liable for breach of a “measured duty of care”. The Court of Appeal agreed that an occupier could be under such a duty to prevent danger to a neighbour’s land from lack of support due to natural causes, but held the Council not liable because it owed no duty in relation to latent defects which could only have been discovered by extensive geological investigation: Holbeck Hall Hotel Ltd. v. Scarborough Borough Council [2000] 2 W.L.R. 1396.

When a court seeks the meaning of a written contract, it meets a barrier on the outskirts of the document, a barrier imposed by the parol evidence rule. Traditionally, if a court wants to go beyond the barrier for a wider perspective of what the document might mean, it requires a permit on one or more of three grounds. The first is “technicality”: that, although the words appear clear, they have a technical meaning that is not apparent without seeking extrinsic evidence. The second is “ambiguity”: that the words are not clear and the ambiguity must be resolved from a wider perspective. The third is “absurdity”: that a literal reading is not just unreasonable but unworkable or absurd and that that reading must be avoided by taking once again a wider perspective. The perspective is one which takes in the purpose and background (also called the matrix) of the document.

A Landlord's service of a notice to quit by prior arrangement with the tenant is no longer tantamount to a surrender, according to the House of Lords in Barrett v. Morgan [2000] 2 W.L.R. 284. Lord Millett's sensible judgment draws a clear distinction between the termination of a periodic tenancy by a notice to quit and the termination of a tenancy by surrender. It emphasises that the two processes are quite different, in origin and effect. The innocent reader may wonder why the House of Lords was called upon to affirm such an apparently unexceptional principle, but in the curious looking-glass world of leases, nothing can be taken for granted.

In Gencor v. Commission (Case T-102/96, judgment of 25 March 1999, not yet reported) the Court of First Instance of the European Communities favoured a bold construction of the jurisdiction of the Commission and of the concept of joint dominance in merger cases. The judgment is also likely to have implications beyond the context of mergers for the use of Article 82 EC to control oligopolies. The case concerned the proposed merger of the platinum and rhodium operations of Gencor, a South African company, and of Lonrho, a company incorporated under English law. In particular, Gencor and Lonrho sought to acquire joint control of Implats, the South African company that brought together Gencor's activities in the platinum and rhodium sector, and through Implats, of the two South African companies that brought together Lonrho's activities in the same sector. The arrangements were notified to the South African competition authorities and to the EC Commission. The South African authorities did not oppose the merger. The Commission, however, issued a decision (Commission Decision 97/26/EC (O.J. 1997 L 11/30)) pursuant to the EC Merger Regulation (Council Regulation 4064/89 (O.J. [1989] L 395/1)) declaring that the proposed concentration was incompatible with the Common Market because it would lead to the creation of a collective dominant position between the entity arising from the concentration and Amplats, the leading world-wide supplier of platinum metal. Gencor challenged the decision of the Commission before the Court of First Instance.

It is a well-established principle that banking practice will be taken into account by the courts. The principle makes good sense when examining the rights and duties which arise between the banks themselves, for they are the very architects of such practice. It is open to closer scrutiny when banking practice is relied on to mould the relationship between a bank and its customer who has no control over, and may be totally unaware of, the relevant practice. To say, as Willes J. did in Hare v. Henty (1861) 10 C.B.N.S. 65, 77, that “[a] man who employs a banker is bound by the usage of bankers” is potentially misleading. This half-truth was recently exposed by the Court of Appeal in Turner v. Royal Bank of Scotland plc [1999] 2 All E.R. (Comm) 664, where it was held that a bank could not rely on banking practice to imply its customer's consent to the use by the bank of confidential information in order to give other banks references about his creditworthiness.