Recent years have witnessed considerable controversy over the principles that determine when a court has jurisdiction to hear claims against foreign publishers who circulate defamatory material in several jurisdictions, including England. This is the situation that arose in the recent decision of the House of Lords in Berezovsky v. Michaels [2000] 1 W.L.R. 1004. In 1996 Forbes Magazine, a company incorporated in the United States, published an article about certain activities in Russia of two prominent businessmen, Mr. Berezovsky and Mr. Glouchkov, who were resident in Russia. The magazine containing the article was primarily circulated in the United States, but did have an English circulation accounting for approximately 0.2% of its global circulation. In 1997 Mr. Berezovsky and Mr. Glouchkov issued proceedings in England alleging that the article contained defamatory material. The claimants, however, limited their claims to the damage done to their reputations in England as a result of the magazine’s English publication. The issue before the House of Lords was whether the claimants should be given permission to serve their claim form on the publisher out of the jurisdiction, pursuant to R.S.C. Order 11, rule 1(l)(f), now C.P.R Part 6.20(8). At first instance Popplewell J. had refused such permission, but had subsequently been overturned by the Court of Appeal ([1999] E.M.L.R. 278: judgment of the court delivered by Hirst L.J.). The House of Lords by a majority (Lords Hoffmann and Hope dissenting) dismissed the appeal and held that permission should be given for the trial of the action to proceed in England.

The philosophical concept of acting intentionally does not entail a perceptible time gap between intention and action. We may say of a person who acts on the spur of the moment that their action was intended or intentional; but in such circumstances, intention and action may seem to merge in a way that makes it difficult to disentangle the mental and physical elements of the person's conduct. The author argues that in this context the tools and techniques used by philosophers of mind and action may not provide us with the best understanding of the social practices of blaming found in the criminal law.

The author considers the proposal of the Law Commission that the Rule against Perpetuities should be amended rather than abolished and emphasises the need for a balance between the freedom of the current generation and the freedom of future generations to control property. The article draws attention to the experience of Canada and the United States and suggests that experience undermines the Rule's economic rationale and that the Law Commission should consider recommending the Rule's abolition.

The decision itself in Tanfern Ltd. v. Cameron-MacDonald [2000] 1 W.L.R. 1311 (C.A.) hardly merits attention (held: the court lacked jurisdiction to hear the instant appeal). But Brooke L.J.’s judgment, endorsed by his colleagues, contains an analysis of the new system of civil appeals which took effect on 2 May 2000. He rightly describes these as “the most significant changes in the arrangements for appeals in civil proceedings in this country for over 125 years”.

The line between legitimate tax mitigation and illegitimate tax evasion may be a fine one but if it is crossed the consequences can be serious, since tax evasion can constitute the common law offence of cheating the public revenue. The nature of this offence was considered by the Court of Appeal in R. v. Dimsey; R. v. Allen [1999] S.T.C. 846.

The law concerning antisuit injunctions continues to develop, albeit in a conceptually unsatisfying, piecemeal fashion. English courts are increasingly concerned about the problem of extraterritoriality—witness Lord Goff's strictures about comity in Airbus Industrie GIE v. Patel [1998] 1 W.L.R. 686 (H.L.). But their cautious language conceals a readiness to grant relief in novel situations. A recent example is Turner v. Grovit [1999] 3 All E.R. 616, where, in the course of proceedings for constructive dismissal brought by Mr. Turner before an English employment tribunal, his employers sued him in Spain for repudiating his contract of employment. The Court of Appeal unhesitatingly restrained the Spanish proceedings. They were an abuse of process, intended solely to vex Mr. Grovit in the pursuit of his claim before the employment tribunal.

The author finds the English judicial style and technique more informative than the German and argues that German jurists, be they academic or practitioners, would derive some benefit by studying how the English judges craft their judgments. However, English judges would stand to benefit by looking at German substantive law and its techniques of keeping litigation under control.

In the criminal justice system’s scheme of unpleasant things, what official part is played by “naming and shaming” the offender?

An accused is charged with rape. He will claim that the complainant consented. The Crown can prove that on four previous occasions that selfsame accused has been tried on other counts of rape, but on all but one of them has been acquitted. The trial judge rules that, had the accused been convicted of all four earlier rapes, such evidence would have been admissible at the fifth trial under the similar fact evidence principles enunciated by the House of Lords in D.P.P. v. P [1991] 2 A.C. 447. The single earlier conviction, however, standing alone, does not qualify as admissible similar fact evidence. These, in essence, were the facts confronting the House of Lords in R. v. Z [2000] 3 W.L.R. 117, the general question for the House being: despite three of Z’s previous trials having resulted in acquittals, was the Crown entitled to lead evidence of all four earlier incidents, including testimony from the three complainants whose allegations had failed to persuade juries in the past?

The doctrine of legal professional privilege comprises two categories. The first, “legal advice” privilege, protects communications between client and lawyer for the purpose of eliciting or giving legal advice. The second category, known as “litigation” privilege, concerns communications between a lawyer and a non-party, or a client and a non-party, if made predominantly in respect of litigation, criminal or civil, whether pending or contemplated, and whether in England or elsewhere. An example of this second category is a confidential “sounding” by a client or lawyer of a potential witness.

English law provides inadequate protection for vulnerable testators, a growing class. Those thinking of challenging suspicious wills are deterred by the cost and poor prospects of success. Traditionally, probate lawyers have been reluctant, when challenging wills, to allege misconduct and the leading case of White v. Nye has caused general confusion by attempting to disguise a plea of fraud as though it were a plea of lack of knowledge and approval.

For centuries, English criminal procedure regarded the “surprise witness” as a legitimate weapon, for the prosecution as well as the defence. In a case in 1823 Park J. complained that the defendant had seen the depositions in advance of trial. “The prosecutor or his solicitor might have access to them, but not the party accused. For what would be the consequence if the latter had access to them? Why, that he would know everything which was to be produced in evidence against him—an advantage which it was never intended should be extended towards him …” (J.F. Stephen, History of the Criminal Law of England (1883), vol. I, p. 228).

This article seeks to uphold the Interest Theory of legal rights by arguing that such a theory can withstand objections and handle difficulties that are often posed against it. Building on the author’s previous defences of the Interest Theory, the present article also seeks to expose some serious shortcomings in competing theories. Among the topics covered are the role of legal powers of enforcing or waiving legal rights; the possibility of rights to be mistreated; and the status of inoperative rights. In each case, so the article argues, the complexities of the issues involved can best be handled by a theory which maintains that the essential function of legal rights is the protection of various aspects of people’s well-being.

Previous work on the wrongful trading provisions of the Insolvency Act 1986 (s. 214) has been content with description, or with statutory construction. This paper employs the tools of agency theory and the creditors' bargain heuristic to analyse the need for these provisions, their structure, role, and effect. It examines why those interested in the company's undertaking would demand and accept a s. 214-type duty. The analysis reveals that the duty would not be equally relevant for all types of companies, and that the influence of the market for managerial labour ensures most s. 214 actions are likely to be brought against directors of closely-held companies, and against shadow directors. The analysis, by pointing out that security plays a role similar to s. 214 itself, also justifies a recent Court of Appeal decision which precludes secured creditors from any recoveries under that section. Finally, the incentives created by the provisions for the managers of both healthy and distressed companies are examined. It is suggested that these incentives are generally socially efficient.

Practice directions are made by the courts under a jurisdiction usually called “inherent”. Directions do not have statutory authority but are sometimes used to introduce important procedural innovations. Now, the Civil Procedure Act 1997 envisages that a rule of court, instead of providing for something, may refer to directions, actual or to be made: directions covered by this do have statutory authority.

Practice directions “supplementing” many of the Parts of the Civil Procedure Rules 1998 were issued alongside the rules. Not all of these fall within the Act of 1997, but the “inherent” jurisdiction, which has not been displaced, can justify them. In the result, there are now two kinds of practice direction: some have the authority of statute and others do not. This article examines a confusing situation and makes some suggestions.

Rescission (the process by which a voidable contract or other disposition is avoided) is frequently described as a remedy which can be effected both by judicial decree and by the act of the innocent party. This article seeks to explore the latter notion, that it is possible to rescind a contract or disposition by self-help means. It explains that the law is in some disarray, caused primarily by confusion between the dual historical development of rescission at law and in equity. Rescission was traditionally regarded as the act of the innocent party only for vitiating factors (such as fraud) actionable at common law, not those actionable in equity, but this separation was not maintained following the Judicature Acts. Moreover, there are practical and conceptual difficulties with the notion of rescission as a self-help remedy, both in the idea that rescission can be effected by the election of the innocent party without judicial intervention and that, even where judicial rescission is obtained, the court order is back-dated to the earlier date of the innocent party’s election. The principal difficulty arises when an executed or partly executed transaction is rescinded, for then there are restitutionary implications and implications for the security of third party title. The conclusion is that the notion of rescission as a self-help remedy serves only to confuse in the modern law of obligations and should be abandoned.

The article addresses the public policy issues associated with former client confidentiality and law firm mergers and, in the light of these, it examines the claim, endorsed by City firms and others, that market-based solutions, such as Chinese walls, promote the interests of the profession without imperiling the interests of justice. The House of Lords' ruling in Prince Jefri Bolkiah V. KPMG and Laddie J's interpretation of it in Young V. Robson Rhodes are analysed with the aim of assessing the impact of both decisions on the above claim and their consequences for the legal profession generally.

A lightly revised version of the Inaugural Lecture given by Profesor J.H. Baker as Downing Professor of the Laws of England on 14 October 1998.

This article examines how courts determine whether proximity exists as between parties to a dispute in the “borderland” between two categories of negligence, viz. that concerning acts which cause physical harm and that concerning misstatements which cause pure economic losses. It is argued that these case categories cannot be delineated as neatly as the courts have assumed and that the kind of proximity typical of each is likely to be founded upon, at minimum, the presence of a close causal connection between ‘action’ and damage. In light of these findings, the article also considers the place of the notion of ‘directness’ in the tort of negligence.