In British Sugar plc v. James Robertson & Sons Ltd. [1996] RPC 281, Jacob J. asked whether the 1994 Trade Marks Act enables “big business to buy ordinary words of the English language at comparatively little cost”. His answer was a resounding “no”. In Philips Electronics NV v. Remington Consumer Products, 22 December 1997, he asks whether trade mark law, by conferring a perpetual monopoly, can interfere with the freedom to manufacture artefacts of a “desirable and good engineering design”. The educated reader might hazard that he would again answer in the negative. And so it transpires. The thrill of the chase is to see how Jacob J. interprets the Act to reach this conclusion.

Is it really worth having all this fuss and bother about the Human Rights Bill? Over the years the Convention has been interpreted to require United Kingdom courts to change their practices in various ways at the personal level, but what about protecting a person from an unjustified demand for tax? Suppose that the Inland Revenue demands tax from you which the courts later determine to be unlawful because the regulation under which the demand was made was not valid. You were not a party to that litigation but you are clearly within the ambit of the decision supplied by the courts. The Inland Revenue then persuades Parliament to deprive you of the benefit of the decision by retroactive legislation, although leaving the actual party to the litigation with the fruits of that enterprise. Is this the stuff on which the judges at Strasbourg will rush to protect the taxpayer from the State? The answer sadly is no — these judges are not going to risk embarrassing the contracting States by making rights bite where that would be expensive: National Provincial Building Society and others v. United Kingdom [1997] S.T.C. 1466. Of course these judges may fear that contracting States would reduce the powers of the court were they do so such a thing; such a fear would not be irrational since the German and UK Governments proposed that direct tax matters should be removed from the European Court of Justice in the sessions leading to the Treaty of Amsterdam. Perhaps a supra-national body is right to be cautious, but what should our own courts do? Once the Convention is incorporated into our domestic law, will our own judges feel a little more strongly about the matter and perhaps grant a declaration that the legislation is incompatible with the Convention? If they have a right to be incensed about the way in which Parliament protects the Revenue at the expense (literally) of the taxpayer, will they do something or will they just couch like lions under the throne of Parliamentary Sovereignty?

Names are used to identify and categorise, and hence the power to name is significant. In three recent cases the courts have been faced with disputes over the naming of children (two in the Court of Appeal: Dawson v. Wearmouth [1997] 2 F.L.R. 629; Re P (Parental Responsibility) [1997] 2 F.L.R. 722 and one in the Family Division: Re PC (Change of Surname) [1997] 2 F.L.R. 730). The law following these decisions seems, in outline, to be as follows.

A Bank that wishes to advance money to a customer who has an account in credit may wish to utilise that credit balance as security for the loan. Similarly, a bank might find it advantageous if a third party who is guaranteeing a loan has an account in credit at the bank so that, in the event of the principal debtor's failure, the bank is in a position to set-off any sums outstanding on the loan against its own obligations to repay the surety. Surety arrangements of this kind provided the background for two test cases examined in Re Bank of Credit and Commerce International SA (No. 8) [1997] 3 W.L.R. 909. The bank had given loans to companies secured by arrangements pursuant to which third parties with deposit accounts at the bank (the “depositors”), first, purported to grant charges over those accounts, and secondly, accepted that they were not entitled to repayment until the loans had been repaid in full.

Remanded in custody on charges of fraud and failure to answer to bail, Martin Lynch, 29 years old, was placed in a very bare cell at Kentish Town Police Station just before one o'clock on 23 March 1990. The doctor called by the police, who knew that he was a suicide risk and had consequently removed his belt, thought him quite sane. At 1.57 p.m. the police checked his well-being, but on the next visit only eight minutes later he was found irremediably unconscious: he had hanged himself by threading his shirt through the hatch in the door and the much smaller spy-hole above it. This was possible only because the glass lens was missing from the spy-hole and the flap of the hatch had been left open, contrary to standing orders.

Two recent decisions afford contrasting examples of the operation of section 10 of the Contempt of Court Act 1981, which grants a writer or publisher a limited privilege to withhold the source of published information. The privilege acknowledges the importance of maintaining the flow of information to the public about matters of legitimate public concern, a process which may depend on a journalist's ability to keep a promise of anonymity or non-attributability made to his source. The privilege is lost, however, where it is “established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime”. Since these exceptions are widely stated and reflect public interests of (potentially) equal importance with the flow of information to the press, the application of section 10 inevitably depends on the court's assessment of the comparative weight of the conflicting interests in the circumstances of the particular case.

StoczniaGdanska SA v. Latvian Shipping Co. [1998] 1 W. L. R. 574 concerned six contracts to “design, build, complete and deliver” six ships. The buyers were to pay 20 per cent. of the price after receiving notice that the keel had been laid. The contract gave the seller the right to terminate if payments were not made and to retain any instalments paid and, if it terminated, to sell the vessel whether completed or not. Keels were laid for vessels 1 and 2 but the buyers failed to pay and the seller terminated. It then renumbered the keels, gave notice for payment under the third and fourth contracts, terminated those contracts when payment was not forthcoming, and renumbered the keels again and gave notice for payment under the fifth and sixth contracts. It then exercised its right of sale, appropriating the keels to a contract with a third party. As well as damages, the seller claimed the 20 per cent. instalments under all six contracts.

Bolitho v. City and Hackney Health Authority [1997] 3 W.L.R. 1151 is a landmark authority on medical negligence, chiefly in respect of the standard of care.

In Attorney-General's Reference (No. 3 of 1994) [1997] 3 W.L.R. 421, the House of Lords was faced with the question whether an assault on a pregnant woman, where the violence was directed at the woman or her unborn child, may result in liability for homicide should the assault cause the death of the child after live birth.

In Hunter v. British Coal Corporation [1998] 2 All E.R. 97 an employee, Mr. Hunter, hit a high pressure water hydrant with the vehicle he was driving at the time, fracturing the hydrant and thereby threatening to flood the mine. One of his fellow employees, Mr. Carter, attempted to help him shut off the valve. They did not succeed and Mr. Hunter went to fetch further assistance. When he was 30 yards away the hydrant exploded, killing Mr. Carter. Mr. Hunter initially assumed that Mr. Carter was unharmed, but when he was informed of the death 15 minutes later he blamed himself and suffered a shock which triggered a two-year depressive illness. The trial judge found as a fact that the accident (and the death) had been caused by the fault of the defendant employer, which had failed to observe the relevant regulations about the siting of the hydrant, and had not been caused or contributed to by Mr. Hunter in any way. Could Mr. Hunter recover damages from his employer for the shock which he suffered on hearing about a death which he did not witness but for which he felt himself to be responsible? The trial judge held not and the majority of the Court of Appeal agreed, but their reasoning demonstrates some of the confusion surrounding this topic. It was accepted by all members of the Court of Appeal that if Mr. Hunter was classified as a secondary victim he would fail in his claim for nervous shock since he lacked, amongst other things, the necessary physical proximity required by the House of Lords in Alcock: he had witnessed neither the accident itself nor its aftermath. The only way in which he could recover was if he could bring himself within some other category, either (i) because he could be regarded as a primary victim or (ii) purely on the basis of the contractual duty of care which the defendant owed him as his employer.

Until recently, it was not certain whether or not the malicious procurement of the issue and execution of a search warrant was an actionable tort. Indeed, the only reported successful claim for damages in English law in such an action was the ancient case of Elsee v. Smith (1822) 2 Chit. 304. However, judicial confirmation of the existence of the tort has finally been given in a landmark Privy Council case, Brian Gibbs and others v. John Mitchell Rea (The Times, 4 February 1998).

In their judgment in Alfred McAlpine Construction Ltd. v. Panatown Ltd. (The Times, 11 February 1998), the Court of Appeal has added yet another to the list of explanations for the rule in Dunlop v. Lambert (1839) 6 Cl. & F. 600; 7 E.R. 824. There, the House of Lords held that, where goods had been lost at sea, a consignor could recover substantial damages even though the goods, by the time of the loss, had become the property of the consignee. Since then, it has generally been accepted that the same result follows even though the consignee has neither title, risk, nor an immediate right to possession of the goods. It has also generally been assumed that the consignor holds the damages for the benefit of the true owner.

In all good spy stories, the double agent is ultimately thwarted by a powerful new weapon. The Court of Appeal is evidently familiar with the genre, for in Attorney-General v. Blake [1998] 1 All E.R. 833 it fashioned and deployed one new legal device against the Russian spy George Blake and plotted the re-commissioning of another, generally regarded as defunct.

The law has long had to grapple with the person who owns a business but entrusts the running of it to a front man (or “front company”) while he himself remains hidden in the background. The problem is that the ostensible owner may be not worth suing, or that a customer's right of action may lie against him alone so as to prevent it being set-off against a claim by the true owner. Sometimes the law of agency may be available to remedy this situation by attaching liability to the actual business owner: but not always. This article suggests the possibility of using the doctrine of estoppel as a more general means of achieving the same object.

Ronald Dworkin wishes to read the UNITED States' constitution in terms of political principles, treating it as a source of law deriving from these. But the terms of the constitution, where they are not institutional, are mostly prohibitions and as such do not prescribe rights. Indeed the constitution on the whole does not prescribe rights, but instead refers to or enumerates rights which it does not prescribe. There are exceptions in the fifth and sixth Amendments, but as these explicitly prescribe rights this implies that the other constitutional terms are not prescriptive in this way. The view presented in this article, however, does not endorse the original intention thesis.

There is a third way of reading the constitution. This is in terms of the most prominent though most neglected part of the text, the preamble. This approach provides a reading which is inconsistent with the original intention thesis in that the categories of the preamble are so general that they cannot be confined to purely eighteenth century meanings. The third way is also inconsistent with Dworkin's, because the constitution provides no prescriptive principles except in its preamble, and those do not correspond to the range of prescriptions Dworkin has in mind. The third way suggests we need to read the Articles and Amendments of the constitution in terms of the preamble, and to address specific issues in these terms. This reading embraces inter alia a far wider range of political concerns than Dworkin has addressed and implies a modification of the type of liberalism he has developed.

The primary focus in current analyses of English unjust enrichment law is upon restitutionary rights, not remedies. There are a number of explanations for this; some pragmatic, some historical, some linguistic, some theoretical. The author argues that none of these, when closely examined, justifies a failure to develop a separate remedial agenda for the subject, such as exists in other private law subjects like contract and tort. Indeed, there are powerful arguments in favour of this approach. The existing conceptual apparatus of unjust enrichment law (based on causes of action and defences) is ill-equipped to cope with quantification, valuation and choice of remedy issues. At a theoretical level, the traditional distinction drawn between primary and secondary rights (remedies) is as valid in unjust enrichment law as it is in contract and tort. A separate remedial focus contributes significantly to our understanding of restitutionary rights and has significant organisational advantages. Furthermore, the concerns expressed about the Canadian “remedial” constructive trust concept are misplaced in so far as they imply that remedial approaches are necessarily uncertain. The development of appropriate remedial concepts ought, if conducted in a disciplined way, to increase the coherence and predictability of outcomes, not detract from the achievement of these aims.

The writer considers the scope and application of the present statutory provision, and discusses possible alternative approaches. She begins by examining the meaning of the word “rights”, and examines the difficulties and inconsistencies in the way the word has been interpreted by the courts. She then considers possible statutory amendment, from abolition, or restriction, to, more controversially, an extension to encompass all rights related to the land, whether personal or proprietary, other than those requiring personal skill or confidence. She suggests that such a widening of the scope of the provision would be conducive to certainty, fairness and comprehensiveness. The second part of the article examines the concept of occupation, and traces the judicial approaches to this requirement. Possible statutory amendment is then considered. The article concludes that the scope of the section should be widened, but that the qualifying occupation should be apparent as well as actual.

The importance of the principle of equality to the legal order of the European Union has been underlined by four important but contradictory cases: P v. S; Grant v. South West Trains; Kalanke and Marschall. These cases demonstrate various attempts by the Court to come to terms with what is meant by equality and to decide what protection should be provided by Community law. These, and earlier cases, offer various perspectives on the principle of equality. First, equality can be seen as a rallying cry, a political slogan but little else. Second, equality is a societal goal, a general aspirational principle of citizenship which may serve to inform specific legislative provisions, in particular non-discrimination, but otherwise has no legal force. Third, equality is a general principle of law which is designed to limit the activities of the Community legislature. Fourth, and perhaps most radically, equality is a free-standing, fundamental right enforceable against the Member States, like the equal protection of laws found in the Fourteenth Amendment of the US Constitution, and even against "private" employers. While it is possible to see elements of the first three perspectives in the Court's jurisprudence, the Court has not embraced the fourth. The article examines these developments and considers how the principles of equality and non-discrimination might be developed in the future.

Central banks have enormous sums of money in various forms of investments. When claims are made either against the banks themselves, or against other governmental bodies, issues arise as to whether these assets can be attached, and made available to satisfy judgments. The article explains how central banks are treated in English law. It explains the special provision made in respect of their assets under the State Immunity Act 1978. There is wide immunity from attachment, though questions can arise as to the ownership of such assets. The UK legislation is, in some respects, wider than its counterpart, the US Foreign Sovereign Immunities Act 1976. Recent case law is described in which the English courts have recognised that the public responsibilities of central banks have to be taken account of when determining the extent of their liability to attachment.

This article attempts an economic analysis of the policy formulated in Manchester Trust v Furness that constructive notice should not be made the basis of liability arising out of commercial transactions. It concentrates on instances of equitable liability for ”knowing receipt“ where the defendant is required to give restitution of funds which it received in breach of fiduciary duty. The article investigates the social costs of imposing a duty of inquiry on a person receiving misappropriated money in a commercial transaction. It concludes that there are strong economic reasons why a commercial recipient of money should not owe the same rigorous duties of inquiry commonly imposed in conveyancing transactions. However, once the standard of inquiry is adjusted to take into the exigencies of commercial dealings, there are no compelling economic reasons why constructive notice should be rejected as a possible basis of liability in knowing receipt.