Having made a successful takeover bid for Western United, Kia Ora found that it had paid $25.7m in cash and issued 67.9m $1 shares in return for Western United shares worth only $6.4m. Kia Ora successfully sued several former directors. The High Court of Australia’s decision in Pilmer v. Duke Group Ltd. (in liq.) (2001) 180 A.L.R. 249 concerns aspects of the liability of Kia Ora’s accountants, Nelson Wheeler, for providing a report stating that the price proposed for the Western United shares was fair and reasonable. The report was prepared incompetently and Nelson Wheeler were held liable by the Full Court of the Supreme Court of South Australia for breach of contract, negligence and breach of fiduciary duty. The High Court allowed an appeal by Nelson Wheeler.

THEThe Mortgage Corporation v. Shaire [2000] 1 F.L.R. 973, is the first case to apply section 15 of the Trusts of Land and Appointment of Trustees Act 1996. Neuberger J. in the Chancery Division confirmed, contrary to dicta in TSB plc v. Marshall [1998] 2 F.L.R. 769, that on an application for an order for sale of mortgaged property section 15 gives the court greater flexibility than it had under its predecessor, the Law of Property Act 1925, s. 30.

Though it is unusual for a point of law to be decided by distinguishing a case apparently regarded as virtually having the authority of holy writ, that occurred in T. Choithram International SA v. Pagarani [2001] 1 W.L.R. 1 (P.C.).

The role of English courts in reviewing the substance of administrative decisions (as opposed to the procedure by which such decisions are made) has traditionally been confined by the Wednesbury doctrine, which permits judicial intervention only if the decision is unreasonable or aberrant. The European Court of Human Rights, however, adopts a more intrusive approach to substantive review which is founded on the principle of proportionality. This article examines the likely implications of the Human Rights Act 1998 for substantive review in the English courts. Two specific issues, concerning the scope of the proportionality test in English administrative law, are considered. First, is the proportionality principle’s impact likely to be felt beyond the human rights context such that it may, in time, wholly displace the Wednesbury doctrine? Secondly, given that intending claimants under the Human Rights Act must satisfy a stricter test of standing than claimants for judicial review, must litigants who wish to question the legality of administrative action on human rights grounds but who are unable to satisfy the Act’s standing requirement rely on the orthodox principle of Wednesbury review, rather than on the more incisive proportionality test?

As Lord Nicholls observed, “Divorce creates many problems”. Not least of these is determining the basis on which property should be divided between divorcing spouses, a problem with which the House of Lords had to grapple for the first time in White v. White [2000] 3 W.L.R. 1571. The case required consideration of the principles which should guide exercise of the discretion under the Matrimonial Causes Act 1973 to make capital awards, in particular in so-called “big money” cases. But the decision invites discussion of issues extending beyond the concerns of the super-rich.

In a lecture to the Northern Chancery Bar Association, the author, a Chancery Silk, examines the approaches of equity and the common law to questions of causation and attempts to identify (1) where the rules of causation now stand, (2) some incongruities in those rules and (3) how those incongruities might be resolve. He discusses three problems: the question of causation and equitable remedies generally; the growing disparity between the rules of causation where positive advice or representation is given and those where there is a failure to advise or inform; and, thirdly, the measure of dependance upon culpability, in intentional torts on the one hand and in torts of strict liability on the other. He identifies various stages of causation and concludes that they are not all relevant in each of these cases.

In Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All E.R. 961 the Court of Appeal faced the impossible dilemma of having to decide whether to authorise a complex operation to separate Jodie and Mary, ischiopagus conjoined twins (joined at the pelvis). The condition of the babies was extremely rare, it being estimated that only about once in 100,000 births will monozygotic twins fail to separate completely. Even then, ischiopagus twins account for only about six per cent. of the total instances of conjoined twins. Another very rare peculiarity of the case was the certainty that the operation, if sanctioned, would quickly and inevitably bring about the death of the weaker twin, Mary. This was because the twins shared a common aorta. Mary’s own heart and lungs were severely deficient and incapable of oxygenating and pumping blood through her body. Her life was thus sustained only by the common artery and separation would necessarily involve clamping and severing this. It was equally clear that the effect of failing to attempt the separation would be the inevitable death of both twins within three to six months. The cause of death would be heart failure since Jodie’s heart would sooner or later fail. The parents, devout Roman Catholics, opposed the operation, believing that in God’s eyes the twins were equal and that one could not morally be sacrificed to save the other. The hospital took a different view. It believed that a successful operation could be performed which could give the stronger twin, Jodie, a reasonable prospect of a worthwhile life.

In Germany v. European Parliament and Council (Case C-376/98, judgment of 5 October 2000) the European Court of Justice held that Directive 98/43/EC on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products ([1998] O.J. L 213/9), the legality of which had been challenged in various earlier cases (e.g., Cases T-172/98 and T-175/98 to T-177/98 Salamander AG et al. v. European Parliament and Council; Case C-74/99 The Queen and Secretary of State for Health ex parte Imperial Tobacco Ltd. and Others), was invalid.

The Contracts (Rights of Third Parties) Act 1999 allows third parties to sue for breach of contract even though they are not parties to the contract. The Act also allows third parties to take the benefit of other types of promise, notably the benefit of exclusion clauses. This article explains the common law background to this important legal development and the Law Commission’s preparation for this legislation (L.Com. No. 242). But the main discussion is devoted to the Act’s effects. In particular, the author examines in detail the test for ascribing to a third party a right under the 1999 Act and the rules determining when the third party’s rights cease to be revocable by the main contracting parties.

In NHS Trust v. Bland [1993] A.C. 789 the House of Lords held it lawful for a doctor to withdraw tube-delivered food and fluids from his patient in persistent vegetative state (pvs) even though this would cause death by dehydration. The most controversial aspect of the case was the further ruling by three of their Lordships that it was lawful even though the doctor’s purpose was not merely to withdraw what he regarded as a futile “medical treatment” but was precisely to kill the patient. As one of their Lordships, Lord Mustill, rightly recognised (even though he thought withdrawal ethically justifiable), this ruling left the law “morally and intellectually misshapen”, prohibiting intentional killing by an act but permitting intentional killing by omission.

One of the more drastic results of marital breakdown can occur where a mother decides to leave the country permanently and relocate with a child. Such cases can pose an acute dilemma where, as in Payne v. Payne [2001] 1 F.L.R. 1052, the father has enjoyed substantial contact with the child which is bound to be severely curtailed (if not entirely destroyed) by the mother’s relocation on the other side of the world. Here the mother, a New Zealander, had been ordered by a New Zealand court to return the child to England, following her “wrongful retention” there, under the Hague Convention which governs international child abduction. In the present proceedings she sought leave to return home to her original family with her four-year-old daughter. The father had substantial staying contact, which was sufficiently extensive that it might almost be termed “time-sharing”, and he countered with an application for a residence order. It was not in dispute that the child had an exceptionally good relationship with the father and with the paternal relatives in Newmarket. The mother, who by this time had grown to loathe her home in London, was adamant that she could only provide the child with a happy and secure upbringing if allowed to return to New Zealand. The father unsuccessfully opposed her application in the Cambridge County Court but appealed on the basis that the settled principle applied by the courts was in breach of the European Convention on Human Rights and in conflict with the Children Act 1989. The essence of the argument was that the Convention enshrined a right of contact between parent and child as an aspect of respect for family life under Article 8 and that the Children Act also required much greater significance to be attached to the preservation of such contact.

For many years the problem of delay has plagued English civil proceedings. The main instrument used to counter it has been the power to strike out claims on the basis of “want of prosecution” (Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229, C.A.; Birkett v. James [1978] A.C. 297, H.L.). But, notoriously, this doctrine long ago lost its snap. Now the Court of Appeal in Securum Finance Ltd. v. Ashton [2000] 3 W.L.R. 1400 has sharpened the doctrine’s bite, or at least lengthened its leash, by deciding that this power of dismissal extends to claims which are not yet statute barred.

This article considers various legal aspects arising from the problem of “nuisance neighbours” and in particular the recent cases of Hussain v. Lancaster C.C. and Lippiatt v. South Gloucs. C. The central argument is that the restrictive approach to the liability of landlords for nuisances of their tenants (Smith v. Scott) is incompatible with Sedleigh-Denfield v. O’Callaghan. There is also consideration of the special position of local authority landlords (given recent developments in the tort of negligence, including Osman v. U.K.), the scope of the tort of private nuisance, and a survey of statutory remedies which might be used in addition to those in tort.

This article is the Sir David Williams Lecture delivered by Justice Sandra Day O’Connor, a Justice of the U.S. Supreme Court, in Cambridge in May 2001. In it the author considers the operation of the twin processes of devolution and federalism in the United Kingdom and contrasts it with their operation in the United States, where the different premises have produced different historical trajectories and different contemporary challenges. Yet federalism and devolution in the two countries also reflect many of the same values and thus present many of the same opportunities.

Developments in the law since The Liesbosch was decided in 1933 have made it increasingly difficult in principle to justify special treatment of the plaintiff’s impecuniosity in the context of any of the four aspects of damages considered in this article. Almost certainly, had The Liesbosch not been a decision of the House of Lords, it would before now have been overruled. To state the obvious, litigation by the impecunious is not frequently taken to the very highest level. Even when it is, the Court may still not feel prompted or required to undertake a fundamental reconsideration. Alcoa was such a case and an opportunity was missed.

The article considers the dangers of too readily imposing liability for environmental damage on banks lending to environmentally sensitive industries. There is evidence from the United States that businesses in environmentally sensitive industries have found it more difficult to raise money from banks and that insurance companies have limited environmental cover. The author expresses the hope that the English courts will not go down the “capacity to influence” route that has been so recently rejected in the United States. Lenders not exercising operational control should not be liable. He then considers the safe lending practices by which the risk of environmental liability can be considerably reduced. These safe lending practices attempt to tread the line between the lender being fully aware of all risks in respect of the lending and avoiding conduct which might be characterised as participation in or control of the borrower’s business.

This article examines the doctrine of separation of powers, and attempts to defend the validity of a diversity of different conceptions of the doctrine. It also links separation of powers to efficiency, arguing that at the core of every manifestation of the doctrine is the efficient allocation of function to form. The structure of the courts and legislature are examined, and it is argued that that a link can be drawn between these institutions and the legislative and judicial task. The relationship between political theory and constitutional theory is also discussed.

In principle, the law relating to the termination of bare (or gratuitous) licences should be relatively simple. Bare licences do not enjoy statutory protection and a bare licence cannot impose contractual obligations on the licensor. There are, however, four elements which complicate the law. First, through the operation of the doctrine of proprietary estoppel, the licensor may be estopped from revoking a bare licence. Second, a licence which has been acted upon is not revocable. Third, on revocation of a bare licence, the licensee must be given a reasonable “period of grace” or “packing-up period”. Fourth, it is sometimes said that a bare licence may be revoked only “on reasonable notice.” These four elements overlap (in part) and, in the case law and academic literature, there is some degree of confusion. The difficulties which exist can be resolved by more rigorous analysis.

This article discusses the case of Brock and Wyner (2001) (the “Wintercomfort Case”) and considers its implications for private citizens who traditionally have not incurred criminal liability merely for failing to prevent a third party from committing an offence unless they have some specific legal responsibility for the victim or for the business or motor-vehicle in connection with which it is committed. The wide and vague interpretation placed on section 8 of the Misuse of Drugs Act 1971, which applies to everyone who occupies or manages premises, is contrasted sharply with the House of Lords’ views of its predecessor (section 8 of the Dangerous Drugs Act 1965) in Sweet v. Parsley. The author draws attention to the clearer and more circumscribed section 19 of the Terrorism Act 2000 and argues for an equally specific provision to be substituted for a Section 8 of the 1971 Act.