Monthly Archives: November, 2018

‘Civil legal aid as a constitutional imperative: A response to Lord Sumption’

“Having prefaced his tenure as a Supreme Court Justice with a controversial lecture that (as Sir Stephen Sedley put it) he used ‘to reprove the judiciary which he was about to join for failing to keep out of the political arena’, the end of Lord Sumption’s judicial career is now marked by an address that […]

Philip Sales, ‘The common law: context and method’

Introduction In this article I attempt to marry up some theoretical perspectives on the common law and a judicial point of view about how it operates. What does a common law judge do when deciding cases? How does he or she identify a legal rule or principle from a mass of materials – in particular […]

Agnew and Douglas, ‘Self-declarations of trust’

Introduction … The focus of this article is on the latter method of constitution, typically called a ‘self-declaration’ of trust. In such cases the settlor does not convey legal title to trust property to a third party, but ‘declares’ that they themselves hold it for the beneficiary. The leading case is Paul v Constance, where […]

Lim and Chan, ‘Problems with Wednesbury unreasonableness in contract law: lessons from public law’

Introduction … This article identifies three key problems with the current use of Wednesbury to control the exercise of discretion in contract law. First, there are misconceptions about the nature of Wednesbury review in contract law as evinced in two dubious distinctions. Secondly, the intensity with which courts should apply Wednesbury unreasonableness is unclear. Finally, […]

Tatiana Cutts, ‘Dummy asset tracing’

Introduction … I argue here that efforts to subsume bank payments within an homogenous law of tracing have been misguided: a bank transfer does not involve a rights-substitution of the kind envisaged by exchange product tracing. Rather, the process that we have called ‘tracing money’ through a bank transfer involves two steps: (i) converting bank […]

Robert Weir, ‘What is a personal injury anyway?’

Introduction … This article focuses on the trilogy of House of Lords/Supreme Court cases in which the HL/SC have grappled with the dividing line at common law between ‘no injury’ and ‘personal injury’: Cartledge v E Jopling & Sons Ltd (‘Cartledge‘); Rothwell v Chemical & Insulating Co Ltd (‘Rothwell‘); and Dryden v Johnson Matthey Plc. […]

Gunn and Wass, ‘Full restitution and the risk-free discount rate’

Introduction … There was also a request for clarification over the Bill’s re-definition of 100% compensation. Both have been ignored (not rebutted) as the Bill, largely in its original form, makes its way through the debates and committee stages of Parliament. This is important because the Bill relies upon the over-compensation of claimants on a […]

Andrew Bell, ‘“Double, double toil and trouble”: recent movements in vicarious liability’

Introduction … In the three decisions to be discussed here only one dissent was delivered on the vicarious liability issues and collectively those cases have produced just five opinions. For this reason, we are left with relatively little material with which to unpick (and attack) the developing lines of argument. The changes are nevertheless radical, […]

Klea Vyshka, ‘Changing balances of PIL theories in a Europeanized Private International Law’

Abstract This article offers a reading of the case law of the Court of Justice of the European Union (CJEU) from a private international law perspective (PIL). The developments that the CJEU thus gave start to in the field of company law, and especially in EU citizenship, invites for a reshaping of the balances between […]

‘Savagery, civilization, and property II: Civilization and its discontents’

“The second half of the eighteenth century saw the development, primarily in Scotland (though with significant French and other precedents), of what would come to be known as ‘stadial theory’ or ‘four-stages theory’. This group of theories built on an age-old interest in the origins of society and its institutions, sharpened by contact with New […]