In R. (McCann and others) v. Crown Court at Manchester and another, Clingham v. Kensington and Chelsea Royal London Borough Council [2002] UKHL 39, [2002] 3 W.L.R. 1313 the House of Lords, dismissing the defendants appeals, unanimously held that the application for an Anti-Social Behaviour Order (ASBO) under section 1 of the Crime and Disorder Act 1998 was civil and not criminal in nature. Therefore the rule against the admissibility of hearsay evidence in criminal proceedings (which can arguably also be inferred from the provision on examination of witnesses in Article 6(3)(d) of the European Convention on Human Rights) did not apply; however, the heightened civil standard of proof, indistinguishable from the criminal standard of proof, would nevertheless be required.

In R. v. North and East Devon HA ex p. Coughlan the Court of Appeal significantly clarified the doctrine of substantive legitimate expectations. The facts of the case are familiar. The applicant had been very severely disabled in a road traffic accident in 1971 and was subsequently placed in the care of a local area health authority. In 1993 she and seven other seriously disabled patients were moved by the health authority with their consent to a new facility at Mardon House after receiving an assurance that they could live there “for as long as they chose”. Following a public consultation in 1998, the health authority decided to close Mardon House and transfer the applicant to a local authority home.

There is an apparent paradox between Dicey's treatment of parliamentary sovereignty as the central premise of the British constitution and his advocacy of the referendum, a tool of popular sovereignty. Bogdanor wrote:

Cosgrove, who wrote an authoritative biography on Dicey, explained that Dicey turned to the referendum in his search for a device that would prevent Home Rule. Dicey's commitment to defeat Home Rule, he wrote, distorted his judgment.

Copyright law is in crisis. The law, as it currently stands, is considered by some to be technologically challenged, discriminatory, and overly complex; others wonder about its ability to address effectively the many challenges thrown up by the digital and internet revolutions. Both the US and the EU have responded to such concerns in the guise of the American Digital Millennium Copyright Act and the new European Copyright Directive respectively. This time of unprecedented technological development demands a necessary reappraisal of the copyright regime; we need to ask, what should copyright law do? Should its primary concern lie with the author (the copyright owner) or with society (the copyright user)? Traditional analyses suggest that at common law the author had a natural right to print and reprint his work, but that this common law right was impeached with the passing of the Statute of Anne of 1709 in the interests of the encouragement of learning and the dissemination of ideas. In short, the pre-existing common law rights of the author were impinged upon in the interests of society. This reading of the origins of the nature of copyright first took root with the seminal decision of Donaldson v. Becket (1774). It is this orthodox analysis that the author seeks to challenge.

I Do not imagine that there is anyone who has anything to do with personal injuries litigation who has not heard of Mrs. May Donoghue. Her encounter with a partially decomposed snail at the Wellmeadow Café: in Paisley is part of our folklore. The law of liability for negligence was revolutionised by the decision of the House of Lords in Donoghue v. Stevenson. Indeed, one might even say that the modern law of negligence was created by it. Articles which are too numerous to mention have been written about her case. Some years ago alumni of the University of British Columbia organised a pilgrimage to Paisley to celebrate the 60th anniversary of the event. It was sponsored by the Canadian Bar Association, the Law Society of Scotland and the Faculty of Advocates.

In Experience Hendrix LLC v. PPX Enterprises Inc., Edward Chalpin, the Court of Appeal gives further impetus to the radical recasting of the law of damages for breach of contract along restitutionary lines made possible by A.-G. v. Blake (Jonathan Cape Ltd. Third Party). Whilst Blake made it more difficult to argue that hypothetical release damages were compensatory rather than restitutionary in nature, it left a residue of serious uncertainty because it did not make it impossible to do so. Hendrix goes a long way towards eradicating this particular uncertainty by awarding hypothetical release damages on an unambiguously restitutionary basis and saying that an account of profits, though not justified in the circumstances of the case, might also have been awarded on this basis.

Recent decisions in the courts have encouraged discussion of the extent to which the common law does or should place a high or higher value on political expression. Some scholars argue for a more explicit recognition of the high value of political speech, and would seek, for example, to “constitutionalise” defamation laws. Others have adopted a more sceptical attitude to the desirability of importing American approaches to freedom of expression generally or to the privileging of political speech as a category.

Gain-Based remedies are now often characterised as either “restitution” or “disgorgement”. Restitution is the giving back of wealth received by a defendant from a claimant, which must be given back or restored because it amounts to an unjust enrichment at the claimant’s expense. Disgorgement is the giving up to a claimant of a gain made by a defendant, as a consequence of a wrongdoing committed against the claimant, but received from a third party. This dichotomy presents a difficult problem: what happens if a defendant, who is liable only in unjust enrichment and not in wrongdoing, makes a gain causally related to the unjust enrichment but by receipt from a third party? An answer to this question has important consequences for the coherence of an independent claim in unjust enrichment.

“Justiciability determines whether there is a potential availability of judicial review of the exercise of the prerogative of mercy. “Justiciability is the name given to the constitutional concept which recognises the capabilities of the courts are limited. The societal concern is that the courts only perform functions that are appropriate to their place in the constitution and the way they are structured and expected to operate. Is it appropriate that the executive government's decision-making in respect of mercy be subject to judicial review? Different courts have made different assessments of this appropriateness. In a series of decisions in different common law jurisdictions over the last seventeen years the law has moved from the non-availability of judicial review, to recognising the potential for review, then back to denying the potential, and finally in the Privy Council in Lewis v. Attorney-General of Jamaica to accepting again its potential availability.

Much has changed since 1925, even in land law. The emergence of principles of proprietary estoppel has been one of the most striking developments. For some litigants, these principles have been a source of new opportunities; for many judges and academics, they have been a source of new problems. It is therefore no surprise that, by means of what is now section 116 of the Land Registration Act 2002, the Law Commission attempted to deal with one of these problems, albeit only in disputes relating to registered land.

In a judgment awaited with great apprehension, the House of Lords on 29 November 2001 refused Diane Pretty’s application to compel the Director of Public Prosecutions to give her and her husband prior assurance that her husband would not be prosecuted under section 2(1) of the Suicide Act 1961, were he to help her to commit suicide some time in the not too distant future, when she would clearly have communicated her wish to quit this world, but would, on account of her physical condition, be unable to accomplish her objective without the assistance of another person. The European Court of Human Rights subsequently confirmed that the exceptionless prohibition of assisted suicide, even in so far as it indirectly prevented a person in Mrs. Pretty’s physical predicament from committing suicide at all, was compatible with the United Kingdom’s obligations towards Mrs. Pretty under the European Convention on Human Rights. At the same time, there are important discrepancies between the analysis of the human rights issues in the House of Lords and the reasoning of the European Court of Human Rights. Had their Lordships realised that the scope of protection afforded to personal autonomy under the Convention includes the making of autonomous choices even in matters of life and death, and that the particularly burdensome effects of the domestic law on persons like Mrs. Pretty stood in need of separate and particular justification under Article 14, the outcome of the case might have been a different one.

An Introduction to the Law of Restitution was a landmark in private law. More clearly than any preceding work, it unpacked the ambiguity inherent in the notion of “the claimant's expense by delineating two forms of “unjust enrichment. (1) The autonomous action in unjust enrichment involves a subtractive expense. The defendant acquires a benefit from the claimant in circumstances that the law regards as reversible. The response is always restitution. The defendant must give the enrichment, or its value, back to the claimant. (2) Unjust enrichment by wrongdoing, in contrast, is concerned with a normative or wrongful expense. The defendant acquires a benefit, usually from a third party, as a result of breaching an obligation owed to the claimant (e.g. trespass to land). Although the standard response to a civil wrong is compensation for the claimant's loss, a court exceptionally may compel the defendant to give up, or disgorge, his ill-gotten gain.

There is at present something of a schism between restitution scholars. There are those who maintain that restitution may arise as a response, inter alia, to rights in rem and there are those who maintain that it may not. At one level, this is a debate about the internal boundaries of the law of restitution, principally about whether restitution arises exclusively as a response to the principle of unjust enrichment, or whether it may also arise as a response to a number of other causes of action. More fundamentally, however, the schism rests on a difference of view as to whether it is logically and conceptually possible to say that a right in rem is an event that gives rise to or generates other rights, such as to have the asset restored, to have restitution made, or to be compensated for loss suffered, or whether a right in rem can only ever arise as itself a response to other events.