The British constitution is famously unentrenched: constitutional laws are not intrinsically more difficult to override than ordinary laws. However, in the largely overlooked 2012 case of H v Lord Advocate, the Supreme Court said that the Scotland Act 1998 cannot be impliedly repealed due to its “fundamental constitutional” status. Unless judicial thinking changes, courts in the future may treat constitutional statutes, like the Scotland Act, as capable only of express repeal, making such statutes “quasi-entrenched”. In this article, we argue that, as a judicial innovation, the quasi-entrenchment of constitutional statutes lacks a sound legal basis. Parliament can make its intention to repeal a constitutional statute clear without making it express, and judges cannot, on their own initiative, ignore Parliament's clear decision to repeal even a constitutional statute.

Rejecting the competing positions of Swadling and Chambers, this article argues that the law of presumed resulting trusts reflects a very old rule that, upon a voluntary transfer, the fate of the beneficial interest in the property depends on the intention of the transferor. The case law shows that the presumption is of an intention to create a trust for the transferor or provider of the purchase money. It makes no difference if, reflecting the historically important concept of “retention”, this is phrased in negative terms as a presumption that the intention of the transferor was not to pass the beneficial interest to the transferee.

It is five years since Lord Hoffmann delivered the advice of the Privy Council in Attorney-General of Belize v Belize Telecom Ltd. In that landmark decision, Lord Hoffmann assimilated contractual interpretation and implication with the result that when implying a term in fact the court must ask a single question: “is that what the instrument, read as a whole against the relevant background, would reasonably be understood to mean?” It might have been thought that five years was enough time for the English courts to come to terms with this approach. Belize is regularly cited in the courts, but the judges appear to struggle with its application. There remains uncertainty as to the roles (if any) to be afforded to the traditional “business efficacy” and “officious bystander” tests, and the requirement of “necessity”. This article seeks to re-evaluate Belize five years on. It concludes that Belize provides a doctrinally coherent and workable basis for identifying and giving effect to the intention of the parties through the implication of terms. However, the article questions whether it remains necessary, or even helpful, to continue to make reference to tests based on “business efficacy” or the “officious bystander”, as the tests distract from the central idea advanced by Lord Hoffmann and have led to uncertainty in its application.

Having set express termination clauses (ETCs) in their legal context, this article's first aim is briefly to explain three significant points concerning their operation which have now been clarified. Other important questions remain unresolved, and the second aim is to explore four of them: the judicial “reading down” of ETCs; whether termination need be immediate; the recoverability of expectation damages; and the avoidance of an unintended repudiation. Respects in which the English law of contract on each of them would benefit from development or change are identified, and it is argued that the Canadian approach to the award of expectation damages following termination pursuant to an ETC is preferable to the established Anglo-Australian position.

Defamation law has historically occupied a position of overwhelming dominance in the vindication of the traditional right to reputation. Nevertheless, liberalisation of this legal framework including through the Defamation Act 2013 has led to a concern that, when analysed from a fundamental rights perspective, “gaps” in the protection provided for natural persons may have emerged. In this new context, there has been a renewed focus on whether data protection may fill the potential lacunae. Data protection law contains a number of important limitations and exceptions and its jurisprudence has been both limited and sometimes confused. Nevertheless, this article argues that its broad purpose and complex structure ensure it will play a significantly augmented role in the future, especially in actions against website operators facilitating the dissemination of information posted by a third party, the publication of opinion, or where either injunctive relief or the correction of inaccurate information is sought (in particular in cases of continuing online disclosure).

Third Party Funding is governed by a unique and unparalleled legal framework in English law. That framework consists of: the recent 2014 Code of Conduct for Litigation Funders, its supervision by the Association of Litigation Funders, and sporadic judicial oversight of Litigation Funding Agreements – and with some unenacted legislation in the background for good measure. The purpose of this article is to analyse and critique this unique regulatory regime in several key respects. These include: the capital adequacy required of Funders; the key anti-champerty factors either judicially stipulated or contained within the 2014 Code; the efficacy and fairness of the so-called “Arkin cap”; the grounds upon which a Funder may legitimately withdraw funding; and the impact of recent contingency fee reforms. Overall, Third Party Funding represents an evolving and controversial landscape, both legally and politically.

Although English privacy law has developed significantly over the past two decades, it continues to focus almost exclusively on the disclosure of private or confidential information. This article argues that if privacy is to be comprehensively protected, then the importance of physical privacy – which is breached when a person is looked at, listened to or recorded against his or her wishes – must also be recognised. After discussing what physical privacy is and why existing protections for it are inadequate, the author contends that a physical privacy action can, and should, be developed from within English common law.

For more than two and half centuries, the case of Emmanuel College v Evans (1626) has been understood as a leading case for the origin of the principal doctrine of mortgage law: the equity of redemption. A closer inspection shows that it has nothing to do with the equity of redemption. This article examines Emmanuel College to see what it was actually about and where this leaves the history of mortgages in equity. In so doing, the article demonstrates the status of Emmanuel College as a leading case to be invalid, and exposes a serious flaw in the methodology of much historiography on mortgages and of early-modern equity more generally. The article also shows how a leading case can obtain its position when it does not stand for its purported proposition. And it provides a nearly unique window into the nature of the Chancery court record and development of equity thanks to a serendipitous documentary survival.

This article evaluates the established judicial proposition that an agreement to negotiate in good faith is antithetical to the principles of the common law. English courts are reluctant to enforce such agreements on the ground that they constitute unenforceable “agreements to agree”. Recently, courts have started to recognise an exception in cases where parties agree to negotiate over a term mandated by an existing agreement, such as to review a price clause or resolve a dispute by undertaking negotiations in good faith. The primary arguments against enforcing an independent agreement to negotiate in good faith are threefold. First, parties engaged in good faith negotiations are assumed to lack a serious legal intention to contract. Second, such an agreement is substantively uncertain in nature and does not promise to produce a contract. Third, the failure of parties to conclude their negotiations does not lead to an easily identifiable loss. In light of these considerations, this article considers the viability of enforcing an agreement to negotiate in good faith in the absence of a pre-existing contract. It argues that the legal obstacles to recognising agreements to negotiate have been overstated. Given the commercial value of enforcing such agreements, it proposes that agreements to negotiate in good faith should be recognised and given legal content by common law courts.

The Children and Families Act 2014 pursues the twin policies of increasing the number of children adopted out of compulsory state care and reducing the scope for court-ordered contact between such children and their birth families. Building upon previous work by Dr. Kirsty Hughes and me, this paper critically evaluates these reforms to post-adoption contact in view of the fact that adoption terminates the legal relationship of parent and child. Aspects of the analysis include the impact of the proposals on “open adoption” and child welfare in the light of the available empirical evidence, and their compatibility with both the European Convention on Human Rights and the UN Convention on the Rights of the Child.

In recent years two views have developed as to the efficacy of prohibitions on the assignment of contractual rights. One view, “the property view”, dictates that such prohibitions characterise contractual rights as choses in action and robs them of their transferable nature. Another view, “the contract view”, dictates that such prohibitions operate only at the level of contract and cannot prevent the equitable assignment of the benefit of a contract. Both views have judicial and academic support. The view that is ultimately adopted will have important implications for contract drafting and the law of assignment. This paper explains both views and puts forward an argument for adopting the property view.