Where criminal offences such as attempt and conspiracy require a defendant (D) to intend future conduct, D's intention will always be conditional. D's intention may be explicitly conditional (e.g. D intends to rob the shop, but only if unable to pay her rent), or implicitly conditional (e.g. D intends to rob the shop, but if asked, would not do so if she found it surrounded by police). Rather than interpreting and defining conditional intention as synonymous with all future conduct intention, however, courts and commentators have too often approached it as unique, separate and problematic. This has led to problems of inconsistency in application, and simple incoherence. This article sets out and defends a model of conditional intention as future conduct intention, and as the key to understanding and applying ulterior mens rea.

The 2013 horsemeat scandal shone a bright light on some of the darkest corners of supply-chain governance across the EU, revealing a blind spot in current EU food law. “Beef” frozen-food products were found to contain up to 100% horse. The British and Irish are squeamish about eating horse. Even for those countries where horsemeat is seen as a delicacy, the horse getting into the frozen “beef” was often of poor quality and possibly contaminated with “bute”, a veterinary drug not permitted in food for human consumption. The ability of the EU's regulatory regime to prevent fraud on such a scale was shown to be inadequate. EU food law, with its (over) emphasis on food safety, failed to prevent the occurrence of fraud and may even have played an (unintentional) role in facilitating or enhancing it. Domestic law offered little better protection, thus showing the difficulties associated with the implementation of a multi-level and multi-agency regulatory regime. Beyond the regulatory system, the EU's core Treaty commitment to the free movement of goods may also have laid the ground for complex and opaque supply chains into which unscrupulous traders and middlemen could slip unnoticed.

This article considers prescription as a customary standard of legal validity which enables judges to identify certain customs as law even though the status of those customs as law cannot be ascribed to a law-making authority. Although claims as to customs having prescribed are often bound up with claims as to the quality (as opposed to the validity) of custom as law, prescribed custom is properly conceived to be a feature of the rule of recognition – a criterion by which a court can identify, and declare, a custom as already existing law as distinct from both custom without the force of law and custom turned into positive law.

“No oral modification” (NOM) clauses should be enforced in English law. Parties should be permitted to impose formality requirements upon themselves. Entire agreement clauses are (rightly) enforced and this provides a compelling parallel. The reasoning of two Court of Appeal decisions holding NOM clauses unenforceable is critically analysed. The extent to which NOM clauses should be defeasible by estoppel and unfair terms legislation is considered.

This article considers the principle in the tort of private nuisance that the level of protection to which one is entitled from certain kinds of interference is sensitive to one's locality. It argues that the principle can be partly justified by the different costs of avoiding an interference which different localities create. However, it shows that, if the principle is to be justified in its entirety, a further justification is necessary. The article considers further justifications based on social rules, autonomy, cost minimisation, the idea of a system of equal right and an analogy to the rules on hypersensitive claimants. It largely rejects these explanations and concludes that, to the extent the locality principle requires individuals to bear substantial burdens that they would not have to bear were collective interests set aside, without compensation, it is difficult to justify.

The article focuses on whether, when considering whether to award cost of cure damages, the courts take account of what the injured promisee to a breach of contract does, or intends to do, with his damages award, and whether or not they should take account of it. This issue has given rise to divergent approaches and some confusion in the cases. The article seeks to shed new light on the issue and considers possible ways of resolving the confusion.

Toby Milsom was the most original English legal historian of the twentieth century. This paper gives a preliminary assessment of the importance of his work. charting the ways in which it has changed our thinking about the subject.

Unjust enrichment is not calculated to strip defendants of gain at all costs, but rather to restore to the claimant the value or rights he has unjustly lost. It can therefore only justify restitution to the extent of the claimant's ultimate expense, or the defendant's ultimate enrichment, whichever is lesser. Although that “double ceiling” has not found favour (at least in England), this article defends it against perceived inconsistencies with principle and precedent, and proposes it as a solution to three unresolved doctrinal problems in the law of unjust enrichment: claims for improvements to property, subjective overvaluation and incidental benefits.

Over the last decades, rationing of medical treatment in the National Health Service (NHS) has moved from implicit to being increasingly explicit about what is being denied and about the procedures and reasons for such decisions. This article argues that the courts have had an important role in this process. By applying a heightened scrutiny of rationing decisions, courts have forced health authorities to make better-informed decisions and to take procedural justice more seriously to comply with, respond to and avoid judicial review. The analysis in this article reveals that litigation has contributed to incremental, but significant and enduring, changes in a social policy. It also offers insights to the paradoxes of judicial accountability in health care policies.

Administrative officials are permitted to have policies as to the exercise of their discretionary powers, but those policies must be flexible, not rigid. The “flexibility rule”, as I call it here, is nearly a century old. Over time, it has become part of the furniture of judicial review: often used, rarely examined. That neglect has led to confusion, on display in recent cases. In this article I try to put the flexibility rule back on a sound footing. I argue, first, that the flexibility rule requires authorities to treat policies merely as rules of thumb. Second, the primary justification for the flexibility rule is neither legislative intent (as courts have said), nor the avoidance of error (as commentators tend to assume); it is the value of participation. Third, and as a result, the flexibility rule ought to apply to policies governing the use of prerogative and other non-statutory powers, as well as to policies governing the use of statutory powers.

This article argues that claims to recover trust property from third parties arise in response to a trustee's duty to preserve identifiable property, and that unjust enrichment is incompatible with such claims. First, unjust enrichment can only assist with the recovery of abstract wealth and so it does not assist in the recovery of specific property. Second, it is difficult to identify a convincing justification for introducing unjust enrichment. Third, it will work to the detriment of innocent recipients. The article goes on to show how Re Diplock supports this analysis, by demonstrating that no duty of preservation had been breached and that a proprietary claim should not have been available in that case. The simple conclusion is that claims to recover specific property and claims for unjust enrichment should be seen as mutually exclusive.