This paper defends a version of the doctrine that the mens rea of a criminal attempt should consist in intention as to the central or consequential aspects of the actus reus of the complete offence, even when such intention is not required for that complete offence, but need only involve recklessness as to the circumstantial aspects of the complete offence if such recklessness suffices for the complete offence. Attempted rape should require an intention to have sexual intercourse, but only recklessness as to the fact that the woman does not consent. Attempted criminal damage should require an intention to destroy or damage (though the complete offence requires no such intention), but only recklessness as to the fact that what is destroyed or damaged is“property belonging to another”.

According to the English law of restitution, a payment under a mistake of fact can usually be recovered from the recipient, at least if the mistake is a liability mistake or “fundamental”. In three-party situations the situation therefore seems to be straight-forward: independently of the relationship of each of the three parties to each other, the plaintiff is the payer and the defendant is the recipient. However, a closer look into the case law and literature reveals that there are problems.

The article focuses on the “legitimate interest in performance” requirement which is now at the heart of the new test on penalty clauses but which has been left undefined by the Supreme Court in Cavendish Square Holding BV v Talal El Makdessi and ParkingEye Ltd v Beavis [2016]. It seeks to bring clarity to what is meant by “legitimate interest in performance” by examining other areas of the law of remedies for breach of contract where concepts of legitimate interest have featured in the court’s reasoning. It also makes suggestions as to what considerations are or might be relevant in determining whether a contracting party has a legitimate interest in performance, in particular a legitimate interest that goes beyond compensation.

This article is about the implication of terms into contracts based upon the presumed intention of the parties. It is particularly concerned with the decision of the Judicial Committee of the Privy Council in Attorney General of Belize v. Belize Telecom Limited,1 a number of recent Court of Appeal decisions thereafter, and whether there has been any change in the law. Before getting to Belize, it is necessary to consider, as briefly as possible, what went before.

This article explores the variation of the standard of care in negligence to favour defendants, an issue of considerable practical significance which has not previously been the subject of systematic analysis. By shining a spotlight on this issue I hope to show that varying the standard of care in this way is a useful technique, which is and could be used in a number of types of case to achieve an appropriate balance between liability and non-liability. I also hope to show that if this technique is employed there are some ways of varying the standard of care which are preferable to others. The structure of the analysis is centred around three core questions. First, to what extent has English negligence law already varied the standard of care to favour defendants? Secondly, if the standard of care is to be varied, how should this be done? And thirdly, when and why might the use of a modified standard of care be desirable?

The beginning of the sixteenth century saw a grave constitutional conflict, ending in a revolution—a conflict and revolution in which lawyers became principal actors. “In the hands of Coke the Common Law forged the axe which beheaded Charles I.” Dr. Cowell, Master of Trinity Hall from 1598 to 1611, played a leading part in that conflict—though on the losing side.

The object of this article is to consider, or to speculate about, the roles and purposes of the institution of civil litigation in the 21st Century.

To re-open problems of the past and to rake up arguments long since laid to rest may seem a singularly pointless exercise for a family lawyer of the late twentieth century. Yet the controversy which raged in the 1840s over the requirements for common law marriage was never satisfactorily resolved; and even today the question could still arise and an authoritative answer be required.

There is at present something of a schism between restitution scholars. There are those who maintain that restitution may arise as a response, inter alia, to rights in rem and there are those who maintain that it may not. At one level, this is a debate about the internal boundaries of the law of restitution, principally about whether restitution arises exclusively as a response to the principle of unjust enrichment, or whether it may also arise as a response to a number of other causes of action. More fundamentally, however, the schism rests on a difference of view as to whether it is logically and conceptually possible to say that a right in rem is an event that gives rise to or generates other rights, such as to have the asset restored, to have restitution made, or to be compensated for loss suffered, or whether a right in rem can only ever arise as itself a response to other events.

English administrative law treats almost all errors of law as reviewable. Concerns that this deprives administrators of their autonomy have led to calls for a distinction to be drawn between jurisdictional and non-jurisdictional errors of law. This was commonplace for much of administrative law's history. Such calls have fallen on deaf ears as courts and commentators express caution towards retreating to an approach which, it is said, led to a “wilderness of single instances”. This article examines the older law to see whether that was really the case, concentrating on the important decision of the Court of Queen's Bench in R. v Bolton (1841).

This article considers how third parties may be held personally liable for harm inflicted by, and upon, the intoxicated. It charts the development of ‘alcohol liability’ in Canada and Australia and then goes on to demonstrate how this novel category of liability for the acts of others is beginning to work its way into the English law of tort.

In the Preface to his recent book, Samples of Lawmaking, Lord Devlin rather sadly doubted “whether judges will now of their own motion contribute much more to the development of the law. Statute,” he said, “is a more powerful and flexible instrument for the alteration of the law than any that a judge can wield.” Since those words were written Lord Devlin has himself contributed to some substantial judicial reforms of the law, notably in Rookes v. Barnard and Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., but it does, of course, remain true that it is very much easier for the legislature than for any court, however strong, to bring changes to the law. It is also true, generally at least, that when we speak of law reform we mean reform by statute and we try to formulate in a draft Bill the rules of law that we should like to see. To my mind, however, it is unfortunate that we so often try to find a formulation which provides in some detail for the particular situations we have in mind and which is designed to give the court the minimum opportunity for what is sometimes called creative interpretation. With a few exceptions—the Contributory Negligence Act and the Occupiers’ Liability Act are examples—we do not legislate in such a way as to give the judges a new principle expressed in general terms and leave it to them to work out the application of that principle in the cases that arise.

There are two themes that recur in previous Sir David Williams lectures. First, that it is a considerable honour to be invited to give the lecture. Secondly, that it is a daunting task to do so in the presence of Sir David, particularly in a field in which he has expertise. Since that covers most of the law there is no escape from this dilemma. Let me then acknowledge the privilege of having been asked to give this year's lecture, and confess that it is with some trepidation that I do so. The subject, terrorism and human rights, is not exactly uncharted territory. When I looked into the internet for some guidance on what might be relevant to terrorism and human rights, the response to my Google search informed me that in .03 seconds 32,900,000 references had been found. This seemed to indicate that it was unlikely that I would be able to say anything that has not already been said. But there are some subjects that are of such importance that there is value in reminding ourselves of the issues that are at stake, and if necessary for that purpose, repeating what others have said. And it is with that in mind that I approach my chosen topic.

Documents or arrangements which have been falsely created will not be permitted to “prevent [a court] from getting at the real truth of the matter”: “if it [is] a mere cloak or screen for another transaction one [can] see through it”. Such documents or transactions are generally referred to as “shams”. The courts' ability to “see through” the false façade of a sham has been widely discussed in the context of documents or arrangements which purport to create licences, rather than leases, in an attempt to avoid statutory protections granted to residential lease-holders, and of transactions or arrangements which purport to avoid the payment of tax. However, there has been much less discussion of the way in which the concept of sham intersects with the law of trusts. The leading practitioner texts on trusts contain only short discussions, and the point has been discussed briefly in the practitioner literature. This article seeks to offer a broader, conceptual understanding of the way in which the sham doctrine applies to trusts.

IN the 2001 census, nine per cent of the population of England and Wales were not classified as white. Racial tensions undeniably exist and it is probable that amongst the individuals randomly selected from the electoral roll to serve as jurors there will be some with race-related prejudices. By this we mean the inclination to prejudge others using pejorative stereotypes based on perceptions of “race, colour, descent or national or ethnic origin”.

COX v Ministry of Justice [2016] UKSC 10; [2016] 2 W.L.R. 806, and Mohamud v Wm Morrison Supermarkets plc. [2016] UKSC 11; [2016] 2 W.L.R. 821 expand the reach of vicarious liability. In Various Claimants v Institute of the Brothers of the Christian Schools [2012] UKSC 56; [2013] 2 A.C. 1 (“CCWS”), Lord Phillips had declared vicarious liability “is on the move”. Lord Reed stated in Cox “it has not yet come to a stop”.

Students interested in the concepts of cause and consideration must, surely, have been struck by two things. The first is the extraordinary tenacity which has enabled these concepts to survive the attacks of eloquent critics who have doubted their utility. The second is their equally remarkable ability to accommodate the most divergent comparative theories. For the study of the two notions has led some to argue that they are, in reality, the same; others to insist that they are totally different; while yet another school of thought could be taken to doubt whether there is “any point in comparing cause and consideration, even to contrast the two.”

The study of the legal systems of many countries—notably of the systems of West Germany, and Switzerland—reveals that there can be built a theory of contract which ignores the concepts of cause (as the French understand it) or consideration (as the Common lawyers have come to apply it over the years).