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This article seeks to defend the law of unjust enrichment against the recent influential attacks of Robert Stevens (“The Unjust Enrichment Disaster” (2018) 134 LQR 574) and Lionel Smith (“Restitution: A New Start?” in Devonshire and Havelock, The Impact of Equity and Restitution in Commerce (2018), ch. 5). A central argument here put forward is that there is a law of unjust enrichment, embodying a cause of action in unjust enrichment, which unites what Stevens and Smith see as disparate categories. A linked but separate argument is that, within the central area of unjust enrichment, Stevens is incorrect to regard the defendant's acceptance of performance as being necessary to trigger restitution albeit that acceptance may be relevant in establishing that the defendant has been enriched. A further, and more specific, argument is that, with great respect, the overruling, as a matter of principle, of Sempra Metals Ltd. v IRC  UKHL 34,  1 A.C. 561, by the Supreme Court in Prudential Assurance Ltd. v HMRC  UKSC 39,  3 WLR 652, seems unfortunate and appears to have been influenced by Stevens's excessively narrow approach to the meaning of “at the expense of”.
In this article I address the question of whether the omissions principle – the principle that the common law does not impose liability for omissions – applies with the same force in negligence cases involving public authority defendants as in cases involving private defendants. My argument is that the answer depends upon the answer to a prior question: can a duty of care be based upon the public law powers and duties of a public authority? In making my argument, I refute the views both of those who insist that a claim in negligence against a public authority can be rejected purely because it relates to an omission not falling within one of the standard exceptions to the omissions principle and of those who insist that such a claim can succeed while at the same denying that a duty of care can be based on a public authority's public law powers and duties.
This paper explores the effect that conformity to the rule of law has on the ends which might legitimately be pursued within a legal system. The neat distinction between formal and substantive conceptions of the rule of law will be challenged: even apparently formal conceptions necessarily affect the content of law and necessarily entail the protection of certain fundamental rights. What remains of the formal/substantive dichotomy is, in fact, a distinction between conceptions of the rule of law which guarantee the substantive justice of each and every law and those which entail some commitment to basic requirements of justice while nevertheless leaving room for unjust laws. Ultimately, the only significant distinction between competing theories of the rule of law concerns the nature of the connection between legality and justice, not whether there is any such connection at all.
This article argues that it is important for the International Court of Justice to be given an opportunity, for instance through a request for an Advisory Opinion, to explain what exactly it meant when it suggested that the ordinarily applicable international law on immunities need not be an obstacle “before certain international criminal courts, where they have jurisdiction”. Two international criminal courts have built a structure of case law on this one obiter comment, which it seems unable to support.
The author makes two claims in this paper. First, there appears to be an increase in indications of inconsistency (“IoIs”) across the common law world. Second, this increase is a normatively concerning turn in judicial practice. IoIs are judicial statements which, either explicitly or by implication, indicate that primary legislation is incompatible with certain protected human rights or civil liberties. They are related to, but stop short of, the formal remedies known as declarations of inconsistency (“DoIs”).
Vicarious liability was, and it remains, curiously unsatisfactory. After a period of stability from the Middle Ages into the early modern period in the late seventeenth into the early eighteenth century, the existing law of vicarious liability began to be challenged. The mid-nineteenth century saw another reappraisal coinciding with the rise of notions of fault. The period that follows, from the late nineteenth century until after the Second World War period has not attracted much comment. One key debate in this period and earlier which provides a useful lens to examine the doctrine was whether vicarious liability should be properly characterised as a master's or servant's tort theory. The history of the doctrine during this period goes some way to explaining why the modern law remains incoherent.