Foskett v. McKeown [2000] 2 W.L.R. 1299 concerned the aftermath of a property development scheme in the Algarve marketed by one Mr. Murphy. 220 customers (“the purchasers”) entered into contracts which provided that after two years they would each be conveyed a specified plot of land or their money would be repaid with interest. Unless and until the purchasers’ money was used for the stated purposes it was to be held on trust. However, at the expiration of the specified period, it was discovered that the trust money had been misappropriated. While much of the trust money was untraceable, Murphy had applied around £20,000 of it to pay the fourth and fifth premiums of a life insurance policy that was settled in favour of his wife and children (“the beneficiaries”). In 1991, after his malfeasance was exposed, Murphy committed suicide. The insurance policy yielded a death benefit of £1,000,000. The question to be resolved was whether the use of the purchasers’ money to pay some of the premiums gave them any interest in the death benefit.

It is good to enter the new millennium knowing that some things never change: despite the reforming zeal of our enthusiastic legislators, property law continues to provide scope for profitable litigation. Indeed, a cynic, remembering the mythical hydra, might think that for every legislative clarification, at least two new problems emerge—but in keeping with a seasonal spirit of optimism, this note will not labour the additional difficulties created by the relevant statutory reform.

A Case which will be of interest to students of medical law, public law and human rights, North West Lancashire Health Authority v. A, D, & G [1999] Lloyd's Rep. Med. 399, concerned three transsexuals who wanted “sex-change” operations. The health authority's policy was to give low funding priority to procedures it considered of little or no clinical benefit; the authority would not fund “gender reassignment” except in cases of “overriding clinical need” or other exceptional circumstances, though it would fund psychotherapy.

Twinsectra Ltd. v. Yardley [1999] Lloyd’s Rep. Bank. 438, a unanimous decision of the Court of Appeal, illustrates the various liabilities of a fiduciary who obtains money by a fraudulent misrepresentation. Apart from liability at law for deceit, he may be liable in equity as a resulting trustee or the claimant may rescind the transaction for fraud. This note asks how real the differences are between these two equitable means of reversing the unjust enrichment of the fiduciary.

In Re C (A Child ) (HIV Test) [1999] 2 F.L.R. 1004, a local authority applied for a specific issue order to test a four-month-old baby girl for HIV. The mother of the child first tested positive for HIV in 1990, but adopted a highly sceptical stance towards generally accepted theories about HIV and AIDS, and refused conventional therapy for herself, preferring to rely on a healthy lifestyle as a prophylactic. The case arose when the baby's physician became aware not only that the mother was breast-feeding the child (despite the risk of transmission of HIV), but that the parents refused even to have their daughter tested for the virus in the belief that a healthy lifestyle was the optimal treatment even if she were HIV-positive.

Directors of BCCI (Overseas) Ltd. deliberately applied its funds in breach of their duties, and Chief Akindele received those funds. Later, the company, acting by its liquidator, sued Chief Akindele both for knowing receipt of the misapplied funds and for dishonestly assisting their misapplication. The High Court dismissed the claim for dishonest assistance: the company could not prove that Chief Akindele had been dishonest. There was no appeal against this ruling. So at the very beginning of his judgment in BCCI (Overseas) Ltd. v. Akindele [2000] 4 All E.R. 221, which was the only reasoned judgment given in the Court of Appeal, Nourse L.J. stated the key remaining question about the claim for knowing receipt: “What must be the recipient’s state of knowledge? Must he be dishonest?”

Mr. Bruton occupied a flat by virtue of a written agreement with the Quadrant Housing Trust. The agreement specifically categorised itself as a “weekly licence” although it did give exclusive possession to Bruton. For its part, the Trust held the flat as licensee from the freehold owner, Lambeth Council, in order to pursue its charitable housing aims of providing temporary and emergency accommodation. By virtue of section 32 of the Housing Act 1985, any grant of a lease by the Council to the Trust would have been ultra vires. Bruton accepted the “licence” from the Trust on this basis, but now alleged that he held the flat on a lease, giving security of tenure and triggering a repairing obligation for the Trust under section 11 of the Landlord and Tenant Act 1985 (implied repairing obligations for short term leases). The High Court had held that the agreement was a licence and this was confirmed by the Court of Appeal, with Millett L.J. noting that it was difficult to see how Bruton could have a lease when the Trust itself held no estate in the land out of which a lease could have been granted: [1998] Q.B. 834, 845. The House of Lords, unanimously, held that Bruton had a lease on a simple application of Street v. Mountford [1985] A.C. 809. The fact that the Trust held no estate in the land was neither here nor there: Bruton v. London & Quadrant Housing Trust [1999] 3 W.L.R. 150.

In Flannery v. Halifax Estate Agencies Ltd. [2000] 1 W.L.R. 377, the purchasers of a flat in Manchester sued a valuer, on whose report they had relied, for negligence. At the trial there was a conflict of expert evidence. The judge preferred the evidence of the defendant's experts and dismissed the claim. It was accepted that the judge's conclusion was one that was open to him on the evidence. The Court of Appeal set aside the judgment and ordered a new trial.

The important recent decision of Neuberger J. in Oceanic Village Ltd. v. United Attractions Ltd. [2000] Ch. 234 considers the enforceability of a restrictive covenant, contained in a lease, which relates to other adjacent land of the landlord. All relevant title was registered, and the case raised the problem addressed in relation to unregistered land by Dartstone Ltd. v. Cleveland Petroleum Co. Ltd. [1969] 1 W.L.R. 1807 where Pennycuick J. held that, as such covenants were not registrable under the land charges legislation, all depended on an application of the doctrine of notice. Shirayama, the Japanese freeholders and registered proprietors of the old County Hall, granted a lease in February 1997 of premises in the building to the claimants, Oceanic, for a term of 20 years. Oceanic covenanted not to use the premises otherwise than as a high quality gift shop without the landlord’s written consent. By clause 4.6 of the Oceanic lease, the landlord covenanted “not to permit any other gift shop to be operated in the Building provided that the restriction shall not apply to any hotel in the Building”. In July 1998, Shirayama granted a lease of another unit in the building to the defendants, United, for a term of 15 years. Under the United lease, the use of their unit was to be restricted to a Football Hall of Fame and ancillary commercial uses. There was no specific restriction of gift shop use.

Bank of America v. Arnell [1999] Lloyd's L.R. Bank. 399, an application for summary judgment heard before Aikens J., illustrates some of the obstacles that a bank must surmount to recover money paid out on a forged cheque purportedly drawn on its customer's account. First, it must show a sufficient interest in the money to entitle it to sue. Secondly, if the payee of the cheque has passed the proceeds to another person, the bank must trace the money to prove that the defendant received it. Thirdly, the bank will typically have to prove the recipient's fault in receiving the money.

Ken Holt was a wealthy farmer in Lincolnshire. In 1952 he befriended Geoffrey Gillett and then persuaded the young man to work on the farm instead of continuing at school. For nearly 40 years, Gillett was Holt’s right arm, a relationship that did not falter when Gillett married. Over these years, when Gillett managed the farm and eventually entered into partnership with Holt, Holt repeatedly promised that Gillett would be the principal beneficiary of his will. These were no idle boasts, but were repeated often, in public, and were given effect in several versions of Holt’s will. In 1992, Holt formed a friendship with Mr Wood (a trainee solicitor), the result of which was the eventual breakdown of his relations with the Gillett family and their exclusion from his will. In Gillett v. Holt [2000] 3 W.L.R 815 Geoffrey Gillett asserted that Holt was estopped from changing his will so as to deny Gillett his expected legacy. As we might think, a simple case of proprietary estoppel based on assurance, reliance and detriment. However, Carnwath J. at first instance thought otherwise and rejected estoppel because first, Gillett could not establish that Holt had made an irrevocable promise not to change his will (and everyone knows that wills may be changed), and secondly, Gillett had suffered no detriment.

When a chargee (a term which we can take for present purposes to include a mortgagee) appoints a receiver or takes other steps to enforce his security, the general rule is that self-interest prevails, so that neither he nor his receiver is required by the law to have any great concern for the interests of the chargor or any other person interested in the equity of redemption (such as the holder of a junior-ranking security) or a guarantor of the chargor's obligations. This is well illustrated by Shamji v. Johnson Matthey Bankers Ltd. [1991] B.C.L.C. 36, C.A. (a chargee is under no duty towards the chargor in deciding whether to appoint a receiver), and Gomba Holdings U.K. Ltd. v. Homan [1986] 1 W.L.R. 1301 (a receiver's duty of confidentiality vis-à-vis the chargee prevails over his duty to give information to the chargor).

The Court of Appeal in Awwad v. Geraghty & Co. (a firm) [2000] 1 All E.R. 608 has confirmed that conditional fee agreements are invalid at common law. The court rejected the contrary decision in Thai Trading Co. (a firm) v. Taylor [1998] Q.B. 781, C.A. (noted [1998] C.L.J. 469).

For the purposes of creating consensual security interests, are a debt and its proceeds a single indivisible asset or can they be separated? Is a security on book debts and proceeds a single indivisible charge or two charges? If it is a single indivisible charge, can it be a convertible charge, that is a charge which is fixed so long as it attaches to unrealised debts but floating in respect of proceeds of the debts? Recent decisions of the English courts have shrouded these questions in confusion. The appeal from the New Zealand Court of Appeal’s decision in Re Brumark Investments Ltd. [2000] 1 B.C.L.C. 353 gives the Privy Council an opportunity to provide much-needed clarification.

The White Queen, probably parodying Tertullian, boasted to Alice that she could sometimes believe as many as six impossible things before breakfast. Students of the law of evidence must occasionally perform similar feats.

Character merchandising is big business and any case concerning its legal protection is bound to arouse considerable interest. This is certainly true of the recent Court of Appeal decision in Elvis Presley Trade Marks [1999] R.P.C. 567, where the character concerned was “the King” himself. Earlier, in the “Ninja Turtles” passing-off case, Mirage Studios v. Counterfeat Clothing Co. Ltd. [1991] F.S.R. 145, the High Court had apparently endorsed the view that the public's awareness of merchandising practices means that it will assume that products carrying the likeness or name of a celebrity (real or fictional) will come from one “genuine” source. This decision, together with the provisions of the 1994 Trade Marks Act which swept away previous anti-trafficking provisions and liberalised the licensing regime, seemed, to many, to herald a new dawn for the protection of character merchandising, However, the Elvis Presley decision suggests that character merchandising in the UK will remain relatively unprotected compared to other jurisdictions.

How far should we as a society concerned to protect children be prepared to run the risk of trampling on the rights of potentially innocent parents? Once the technicality is stripped away, this was essentially the issue which the House of Lords confronted in Lancashire County Council v. B [2000] 2 W.L.R. 590. The courts may only make a care or supervision order where the local authority can satisfy the “threshold conditions” in the Children Act 1989, s.31(2).

A Particular problem for English criminal procedure is the defendant on a murder charge who is (to put it crudely) so mad that he believes that he is sane—and instead of running the obvious defences of insanity or diminished responsibility, runs some other defence that seems plausible to him but no one else. In Weekes [1999] 2 Cr.App.R. 520 the Court of Appeal departed from its earlier case law on the subject and pointed the law in what this commentator feels to be a sounder direction.

The apparently straightforward definition of redundancy contained in section 139 of the Employment Rights Act 1996 has generated a disproportionate and confused body of case law. In essence, redundancy pay is payable in three situations: the business disappears (s. 139(1)(a)(i)); the workplace disappears (s. 139(1)(a)(ii)); the job disappears (s. 139(1)(b)). As far as the disappearing workplace is concerned, recent cases have shown the courts taking a more pragmatic approach. The old contractual test laid down in UK Atomic Energy Authority v. Claydon [1974] I.C.R. 128 (where, by my contract, can I be required to work?) has been replaced by the geographic approach (where, in practice, do I work?): Bass Leisure Ltd v. Thomas [1994] I.R.L.R. 104 (E.A.T.) and High Table v. Horst [1997] I.R.L.R. 513 (C.A.). A similar pragmatism can be detected in the House of Lords' ruling in Murray v. Foyle Meats Ltd. [1999] I.R.L.R. 562 concerning the third aspect of the definition of redundancy, the disappearing job (s. 139(1)(b)).

In FitzPatrick v. Sterling Housing Association Ltd. [1999] 2 F.L.R. 1027 the House of Lords by a bare majority (Lords Hutton and Hobhouse dissenting) allowed in part the appeal of Martin FitzPatrick from the majority decision of the Court of Appeal (noted at (1998) 57 C.L.J. 42) to the effect that he was neither the spouse nor a member of the family of his deceased homosexual partner, John Thompson, for the purposes of the Rent Act 1977.