The remedial aspects of judicial review illustrate in particularly vivid form the divergent nature of public and private law proceedings. The prerogative orders—mandamus, certiorari and prohibition—are available only via judicial review. Leave is required for judicial review but not for private law actions. By contrast with the private law writ procedure, judicial review must be brought promptly and within three months. In judicial review, a remedy can still be denied to the applicant who establishes a substantive case. As the Law Commission made clear in its Report Administrative Law: Judicial Review and Statutory Appeals, “[j]udicial review often involves values and policy interests, which must be balanced against and may transcend the individual interests, which are normally the subject of litigation between private citizens” (Law Com. No. 226, para. 2.1).

When suit was brought against the police in the name of the Yorkshire Ripper's final victim, alleging that they were negligent in failing to catch him sooner, every single one of the nine judges who heard the claim decided that it should be struck out (Hill v. Chief Constable [1989] A.C. 53). The House of Lords gave two reasons: first, that no duty was owed to the victim because the police were in no special relationship either with her or (unlike the case where Borstal boys wrecked a yacht while on the run from their dozy warders) with the criminal; secondly, that it was contrary to public policy for any such claims to be brought against the police in respect of their handling of criminal investigations.

When a defendant is charged with murder and wishes to rely on the defence of provocation, two conditions need to be satisfied. First, the provocation must have caused the defendant to lose his or her self-control suddenly and temporarily. This is the subjective condition. Secondly, the provocation must be such that the reasonable person might have reacted to it in the same way as the defendant. This is the objective condition. This condition is, however, qualified, since it is possible to imbue the reasonable person with relevant characteristics of the defendant, to see whether a reasonable person with such characteristics might have killed had he or she been provoked. Although this qualification of the objective test has been recognised for some time, it has become a matter of recent controversy as to when a particular characteristic of the defendant can be considered to be relevant and what the rationale of this qualification of the objective test actually is. Two distinct lines of authority can be identified. According to the first line, a characteristic can, generally, only be relevant if it affects the gravity of the provocation: Camplin [1978] A.C. 705 (H.L.). So, for example, if the provocation relates to the defendant's characteristic then it can be considered to be relevant, because the reasonable person would be more likely to have lost self-control if he or she had such a characteristic: Morhall [1996] A.C. 90 (H.L.), Luc Thiet Thuan [1997] A.C. 131 (P.C.). This line of authority does, however, recognise an exception to the general principle, namely that the reasonable person can be imbued with the defendant's age or gender, not because these characteristics affected the gravity of the provocation, but because they are characteristics which may affect the defendant's ability to exercise self-control: Camplin. But these are the only characteristics which can be taken into account for this reason. According to the second line of authority, however, any characteristic can be treated as relevant simply because it affects the defendant's ability to exercise self-control. This has been recognised in six recent decisions of the Court of Appeal, where the reasonable person was imbued with a wide variety of characteristics, such as battered woman syndrome (Thornton (No. 2) [1996] 1 W.L.R. 1174) and attention-seeking (Humphreys [1995] 4 All ER. 1008), simply because such characteristics affected the defendant's ability to exercise self-control.

An unscrupulous woman battened on to a somewhat simple-minded, wealthy man, and cajoled him into parting with large amounts of his recently acquired wealth. The gifts that he made to her were, it seems, perfectly valid ones. It is astonishing then to find that she was, according to the Court of Appeal in Hinks [1998] Crim.L.R. 904, properly convicted of theft. How did this apparently absurd result come about?

In The Wagon Mound (No. 1) [1961] A.C. 388, Viscount Simmonds expressed the hope that, by replacing directness (and its attendant “insoluble” problem, the search for breaks in the chain of causation) with reasonable foreseeability as the test for remoteness of damage in negligence, “the law will be simplified and . . . palpable injustice will be avoided”. Lawyers have long recognised that the first of these aspirations has failed dismally. Regrettably, the Court of Appeal decision in Jolley v. Sutton London Borough Council [1998] 1 W.L.R. 1546 provides a stark example of failure on both counts.

Defamation law protects reputation while affording a significant measure of protection to freedom of expression. Valuable expressive activity is protected by, inter alia, a number of defences, including qualified privilege. In order successfully to invoke this defence, defendants who honestly believe their—factually false—statements to be true must meet two requirements. First, they must establish “an interest or a duty, legal, social, or moral”, to communicate the relevant material to another (or others). Secondly, the recipient of the material must be shown to have “a corresponding interest or duty to receive it”. (See Adam v. Ward [1917] A.C. 309, p. 334, per Lord Atkinson.) The requirements of the qualified privilege defence have recently been glossed by the Court of Appeal in Reynolds v. Times Newspapers and Others [1998] 3 W.L.R. 862 (which is on appeal to the House of Lords). While the Court can be regarded as having extended the defence's scope, the position it has staked out is not, in all respects, clear. As a result the qualified privilege defence may fail to meet the requirements of the right to freedom of expression enunciated in Article 10 of the European Convention on Human Rights (E.C.H.R.). (When the Human Rights Act 1998 comes into force, the E.C.H.R. will be an element of domestic law.)

It is often to the advantage of a defendant sued on an instrument that appears to be a bill of exchange to argue that it is not. The instrument will then generally not be negotiable and summary judgment will not be available under R.S.C. Order 14. Contractual defences will be able to be raised and counterclaims made. In short, instead of summary proceedings which the defendant would be denied leave to defend, the plaintiff will have to face the delay and expense of a full trial. Hong Kong & Shanghai Banking Corp. Ltd. v. G D Trade Co. Ltd. [1998] C.L.C. 238 (C.A.) is an example of this. The defendant alleged that the instruments in question were not payable “at a fixed and determinable future time” as required by section 3(1) of the Bills of Exchange Act 1882 and so not bills.

In Kleinwort Benson v. Lincoln City Council [1998] 3 W.L.R. 1095 the House of Lords heard consolidated appeals arising out of the failure of interest rate swap transactions entered into between various banks and local authorities. Having paid out considerable sums under the swap arrangements, the banks were disconcerted to find them declared ultra vires and void (Hazell v. Hammersmith and Fulham L.B.C. [1992] 2 A.C. 1). The Lords have now held that sums paid by the banks may be recovered back, by action in restitution for mistake. In so holding, they have abrogated the rule that a mistake of law is not actionable, and denied (at least on these facts) any defence that the parties acted on the basis of “settled law”.

When is a promise to benefit someone on one's death an enforceable promise? This was the question for the High Court in Gillett v. Holt and Another [1998] 3 All E.R. 917. As Carnwath J. recognised, the difficulty lies in reconciling proprietary estoppel with the principle that “[s]ubject to specific exceptions (such as for dependants), the right to decide, and change one's mind as to, the devolution of one's estate is a basic and well understood feature of English law”.

The decisions of the House of Lords in Barclays Bank plc v. O'Brien [1994] 1 A.C. 180 and CIBC Mortgages plc v. Pitt [1994] 1 A.C. 200 sought to balance the legitimate commercial interests of banks and other lenders against the rights of spouses (usually, and hereafter for purposes of exposition, wives) or cohabitees in residential property, where the wife had been induced to accede to the transaction by the borrower's undue influence, duress or misrepresentation. This balance, necessary, in Lord Browne-Wilkinson's words, so that “a law designed to protect the vulnerable does not render the matrimonial home unacceptable as security to financial institutions”, was largely to be achieved by application of the doctrine of notice. A wife could therefore successfully resist attempts to recover possession where the bank had actual, constructive or imputed notice of her equity to set its charge aside. Constructive (and imputed) notice begs two questions: when will a bank be put upon enquiry, and what level of enquiry will be reasonable? O'Brien indicated that a bank should warn the wife, in a personal interview, of the amount of potential liability she was undertaking, of the risks involved, and of the desirability of obtaining her own independent legal advice. Experience since O'Brien has shown a reluctance by banks to conduct personal interviews, which would, they feel, carry greater risks. The practice adopted has been to refuse to complete the loan transaction until the wife has in fact obtained independent legal advice, proof thereof being made by the production of a certificate to that effect to the lender. The eight conjoined appeals in Royal Bank of Scotland v. Etridge (No. 2) [1998] 4 All E.R. 705 consider, at great length, the meaning and significance of “independent legal advice” in this context, and its consequential impact on the enforceability of security by a bank. Rather like O'Brien, Etridge seeks to provide clear guidelines and to facilitate a workable banking practice so that the likelihood of litigation against banks is substantially reduced. Where O'Brien failed, Etridge may well succeed. At its most basic level, it is good news for banks, and very bad news for solicitors.

Adverse possession and registered land are unlikely bedfellows—the one originating in the common law idea that a freehold estate results from possession and the other premised upon registration validating title. Indeed, when registration of title was introduced into England and Wales in the nineteenth century, acquisition of title to registered land by adverse possession was prohibited—see section 21 of the Land Transfer Act 1875. However, a more pragmatic approach then ensued, and the Land Registration Act 1925, s. 75, expansively provided that the Limitation Acts should apply to registered land in the same manner and to the same extent as those Acts applied to unregistered land. But technically, of course, this was impossible, and the section detailed a special trust mechanism for registered land alone. Section 75 thus clearly illustrates the inherent difficulties in trying to retain the substantive law of unregistered land within a registered context. Tensions are inevitable, because of the very different conceptual bases of the two systems. In Central London Commercial Estates Ltd. v. Kato Kagaku Ltd., The Times, 27 July 1998, Sedley J. was directly faced with such tension, as he strove to determine the effect of section 75.

The standing of natural and legal persons to bring annulment proceedings is one of the most difficult and controversial issues in EC law. Article 173(4) EC states that non-addressees of a Community decision can only challenge it if they are directly and individually concerned by it. In Plaumann v. Commission (Case 25/62 [1963] E.C.R. 95) the Court explained that a decision is of individual concern to non-addressees if it “affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the person addressed”. But what degree of factual or legal differentiation must an applicant show to be individually concerned? The standard test is that the applicants need to belong to a “closed category”, namely one the membership of which had become fixed and ascertainable when the measure in question was adopted. The mere capacity of an applicant as a trader, importer or exporter does not suffice to render him individually concerned (Case 38/64 Getreide-Import Gesellschaft v. Commission [1965] E.C.R. 203; Case 191/89 Co-Frutta v. Commission [1989] E.C.R 793).

In Case C-188/95 Fantask A/S and Others v. Industriministeriet (Erhvervsministeriet) [1997] E.C.R. I-6783 the European Court of Justice provided further guidance on the interpretation of Council Directive 69/335 EEC of 17 July 1969 concerning indirect taxes on the raising of capital (O.J. English Special Edition 1969 (II), p. 412), as most recently amended by Council Directive 85/303/EEC of 10 June 1985 (O.J. 1985 L 156, p. 23), and elaborated its case law concerning Member State remedies and procedural rules. More particularly, it was held that a national rule which would have allowed Danish authorities to escape the duty to refund charges levied in breach of the Directive on the ground of “excusable error” rendered Community law impossible in practice or excessively difficult to enforce (Case 199/82 Amministrazione delle Finanze dello Stato v. San Giorgio [1983] E.C.R. 3595), while a five-year time limit for bringing proceedings under Danish law was upheld as a reasonable limitation period (cf. Case C-208/90 Emmott v. Minister for Social Welfare and the Attorney General [1991] E.C.R. I-4269).

In conjoined appeals in Wilson v. St. Helens Borough Council [1998] 3 W.L.R. 1070, the House of Lords considered two important questions concerning the Transfer of Undertakings (Protection of Employment) Regulations 1981, S.I. 1981/1794, which enact the Acquired Rights Directive (77/187/EEC): first, whether a purported dismissal of an employee, the reason or principal reason for which is the transfer of an undertaking, is effective or is a nullity, and secondly, the extent to which employees are free, expressly or by conduct, to accept variations by the transferee in their terms of employment.

There is nothing wrong with the Court of Appeal decision in R. v. Aujla [1998] 2 Cr.App.R. 16. Almost everything is wrong, however, with the law that the court was called on to interpret, and the decision is interesting because it shows this up.

English law sets out from the proposition that, lest it prejudice the tribunal, the prosecution in a criminal case may not adduce evidence that an accused has committed any wrongdoing other than the offence(s) actually charged. Although other misconduct evidence is still supposed only to be admitted if strongly relevant to the issues being tried, over the years the courts have steadily relaxed this self-denying ordinance. Most recently, in D.P.P. v. P [1992] 2 A.C. 447 Lord Mackay L.C. abandoned the view espoused by members of the House of Lords in D.P.P. v. Boardman [1975] A.C. 421 that other misconduct evidence may only be adduced if it displays a “striking similarity” to the misconduct charged. He declared that in determining its admissibility a judge had only to consider whether the probative force of the other misconduct was “sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime” (p. 460).

This article examines the doctrine of privileged wills, under section 11 of the Wills Act 1837, which permits soldiers in “actual military service” and sailors “at sea” to make testamentary dispositions of their property in any convenient form, rather than in the strict form dictated for civilian wills by section 9 of the same Act. The question raised is whether the continued existence of this privilege can really be justified in a modern society where service and marine personnel are generally as well educated and as well advised as civilian testators. To answer this, the article considers the principal benefits and detriments of the formal requirements imposed by section 9, and tries to identify any way in which the balance of these benefits and detriments might differ for privileged testators. The conclusion reached is that there is no principled justification which can be made out for retaining section 11 in its present form. Instead, the only options which are theoretically supportable are either to extend the scope of the present doctrine considerably (thought by many commentators to be indesirable) or to abolish it.

This article takes a fresh look at the test for inducement of the insurer where there can be said to have been non-disclosure of a material fact by the insured. Specifically, the article questions the assumption that the test for inducement of the actual insurer operates in precisely the same way as it does under the general law of contract in misrepresentation. The speeches of the majority of the House of Lords in Pan Atlantic v. Pine Top (1995) appear to make no distinction between the operation of these concepts. Yet two recent Court of Appeal decisions (Downs v. Chappell; Bristol and West Building Society v. Mothew – both reported in 1997) would seem to suggest that there is a distinction to be made. The conclusion reached in this article is that evidence of actual inducement of the insurer in the sense of evidence that he would have refused to take the risk or would have taken it only on other terms is necessary when the case is put on the basis of “pure” non-disclosure. Where, in contrast, the case is properly framed in misrepresentation the insurer need only show that he acted in reliance or was induced to act by the representations actually made.

Does the loss of computer data constitute damage to property for the purposes of an action in negligence, or is it pure economic loss? On the test in Hunter v. Canary Wharf Ltd. [1997] A.C. 655, if the loss of data is concomitant with a change in the configuration in the particles of the computer hardware by means of which the data are stored, the Courts are likely to find that damage to property has taken place. This is likely to have significant implications in the context of problems caused by the “millennium bug”. However, whatever may be the correct analysis of the nature of the loss, de minimis principles and considerations of fairness, justice and reasonableness may militate against the imposition of liability in tort, at least where the loss of data is negligently, rather than deliberately, caused.

To see what international law can offer in an apparently chaotic and fast changing world is far from easy. But it is only by examining and trying to understand the evolving international system that some answers may be found, because international law and international relations are in a symbiotic relationship.

The characterising features of the contemporary international system are globalisation on the one hand and a unipolar power structure on the other. The former is having a significant impact on international law as by its very nature actors are engaged in transactions across State boundaries in alliances that are not bounded by nationality. Modern technology facilitates these alliances of interest and gives an unprecedented voice to non-State actors, whether in human rights, in environmental matters or in international markets.

The concentration of military power in the United States had led to various incremental changes in authorisations of force by the United Nations, whether for peacekeeping or for enforcement actions. The evolving relationship between the United Nations and NATO has negative as well as positive factors and needs careful monitoring.