IN Arcadia Petroleum Ltd. v Bosworth [2016] EWCA Civ 818, three companies in the Arcadia Petroleum Group sued their de facto CEO and CFO and others in England for siphoning off money for their own benefit. One of the companies was incorporated in England, the others in Singapore and Switzerland. The companies claimed for unlawful means conspiracy, breach of fiduciary duty, dishonest assistance and knowing receipt. Could these claims all be litigated in England under the Lugano Convention, which allocates jurisdiction to determine disputes among the members of EFTA (the provisions at issue are identical to those of the Brussels I Regulation (No 44/2001) applicable in the EU)? The conclusion depended on whether the claims related to a contract of employment, or were contractual or were tortious. Each characterisation led to a different court with jurisdiction. The Court of Appeal held that mostly they could be litigated in England; only those for breach of fiduciary duty arising during the period of the directors' employment could not.

In Marr v Collie (Bahamas) [2017] UKPC 17, a Board of the Privy Council comprising Lord Neuberger, Lady Hale, and Lords Kerr, Wilson, and Sumption has interpreted Stack v Dowden [2007] UKHL 17; [2007] 2 A.C. 432 in a way that many may find surprising. However, on close examination Marr is a clear and correct interpretation of Stack, dispelling misunderstandings by returning to its ratio.

THE recent and high-profile decisions of the Court of Justice (Case C-333/14, ECLI: EU:C:2015:845) and of the First Division of the Inner House of the Court of Session ([2016] CSIH 77) in The Scotch Whisky Association and Others v The Lord Advocate and The Advocate General for Scotland have shed further light both on the role of national courts in cases where Member States invoke the protection of public health to justify derogations from the TFEU provisions on the free movement of goods and on the application of the proportionality test. The model of free movement provided in the Treaty is not one that guarantees an entirely untrammelled freedom of trade across the EU or the automatic precedence of common-market objectives. While Article 34 TFEU provides for the removal of national obstacles of a non-fiscal nature, Article 36 TFEU allows Member States, in the absence of harmonisation, to argue a number of public-interest grounds to justify national measures that, in principle, contravene Article 34 TFEU. The protection of public health ranks very prominently in this list of interests. However, although it is for the Member States to decide the appropriate level of health protection that they wish to ensure (C-174/82, Sandoz [1983] E.C.R. 2445), the national action must be proportionate and national authorities must select the action that is the least restrictive of intra-Union trade (Case 40/82, Commission v UK [1984] E.C.R. 283). The outcome in The Scotch Whisky Association case has highlighted the difficulties involved in choosing among alternatives the least restrictive measure that would achieve the public-health objectives of the national legislation. Moreover, it has demonstrated clearly, in these difficult times for the EU, that EU law can be interpreted and applied to safeguard sensitive national policies.

OPPOSITE-SEX couples are prohibited from forming a civil partnership. Following the introduction of same-sex marriage, the Civil Partnership Act 2004 was not extended to opposite-sex couples, resulting in the unusual position that English law permits same-sex couples access to two relationship forms (marriage and civil partnership) yet limits opposite-sex couples to one (marriage). This discrimination was recently challenged in the courts by an opposite-sex couple, Rebecca Steinfeld and Charles Keidan, who wish to enter a civil partnership owing to their deeply-rooted ideological opposition to marriage. Rejecting marriage as a patriarchal institution and believing that a civil partnership would offer a more egalitarian public expression of their relationship, the couple argued that the current ban constitutes a breach of Article 14 read in conjunction with Article 8 of the European Convention on Human Rights.

CASE C-157/15 Achbita v G4S Secure Solutions NV ECLI:EU:C:2017:203 and Case C-188/15, Bougnaoui v Micropole SA ECLI:EU:C:2017:204 concerned Muslim women who wanted to wear a headscarf at work. In both cases the women were ultimately dismissed from their employment. In Achbita the employer, G4S, initially had an unwritten rule, which was converted into a written rule, prohibiting the wearing of visible signs of political, philosophical and religious beliefs. Ms Achbita refused to comply and was dismissed. In Bougnaoui it was not wholly clear whether the employer, Micropole, had a general rule requiring visually neutral clothing. Nevertheless Ms Bougnaoui was asked not to wear her headscarf while working at a customer's site and was dismissed for misconduct when she refused.

THE judgment of the General Court in Case T-472/13, Lundbeck v Commission EU:T:2016:449 is the first decision of the CJEU on the application of EU competition law to reverse patent settlements. It confirms that Article 101 TFEU applies to agreements that restrict potential competition, and discusses the circumstances in which reverse patent settlements will amount to a restriction by object. However, the judgment provides little by way of practical guidance for those involved in negotiating patent settlements and leaves many questions unanswered.

In recent judgments, the Court of Justice of the European Union (CJEU) has been developing its interpretation of the notion of “communication to the public”. This forms one of the exclusive rights of copyright holders that have been harmonised by the InfoSoc Directive (Directive 2001/29/EC (OJ 2001 L 167 p.1)). As was established in 2006 (Case C-306/05, Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles, ECLI:EU:C:2006:764, at [31]), despite the lack of an explicit definition in that directive, the notion of a “communication to the public” must be given “an autonomous and uniform interpretation” throughout the EU. This finding initially resulted in the creation of a considerable amount of uncertainty for national courts. The gradual accumulation of information through subsequent CJEU judgments has begun to bring some clarity, while also raising new questions.

IS the mass collection of communications metadata legally equivalent to surveillance of the content of those communications? If so, does EU fundamental rights law have any bearing on its application? If it does, what is the appropriate relationship between the Court of Justice of the European Union and Member States’ courts in balancing in the competing interests at stake? These questions came before a Grand Chamber of the CJEU in Joined Cases C-203/15 and C-698/15, Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v Tom Watson and Others ECLI:EU:C:2016:970 (Watson).

DOES the posting of a hyperlink to somebody else's work that has been uploaded onto the Internet infringe their copyright? Although dissenters did exist, most copyright lawyers long assumed that the answer to that question was an obvious “no”. In 2014, this nonchalant approach was rejected by the CJEU in Svensson (Case C-466/12, EU:C:2014:76) in favour of a more complex analysis. More recently, the CJEU's approach to hyperlinks has been further developed in GS Media (Case C-160/15, EU:C:2016:644).

The case now known as Ilott v The Blue Cross [2017] UKSC 17 was the first time that the Inheritance (Provision for Family and Dependants) Act 1975 was considered at the highest judicial level. The Court of Appeal ([2015] EWCA Civ 797, noted in [2016] C.L.J. 31) had significantly enhanced the award given to an estranged and “disinherited” but needy daughter (Heather Ilott) at the expense of the charities (the Blue Cross, Royal Society for the Protection of Birds and Royal Society for the Prevention of Cruelty to Animals) who were the principal beneficiaries under the will of her mother, Melita Jackson, leaving her with £143,000 out of the £486,000 estate primarily to purchase the council house in which she and her family were living. The Supreme Court unanimously allowed the charities’ appeal, restoring Judge Million's original £50,000 order. Giving the lead judgment, Lord Hughes reasserted the centrality of testamentary freedom in English law, emphasised the importance of the Act's limitation to “reasonable financial provision” for maintenance for non-spouse/civil partner applicants (s. 1(2)(b)), and held that a need for maintenance was a necessary but not sufficient condition for a successful claim. He approved previous case law in holding that maintenance could not “extend to any or everything which it would be desirable for the claimant to have” (at [14]), but was not limited to “subsistence” either (at [15]). He also confirmed that the focus of the correct test under the 1975 Act is not on the behaviour of the testatrix, but opined the reasonableness of her decision may still be a significant consideration, as may the extent of any “moral claim” even if that is not a “sine qua non” (at [20]).

When the law is confusing, when the efforts of HM Revenue & Customs (“HMRC”) seem ineffective and when an impecunious state needs higher tax yields, what better time could there be for the Supreme Court to invoke the populist battle cry “tax avoidance” and to head for the “right” decision? Perhaps, it is respectfully suggested, when the (reasoning) means can justify the (judgmental) ends.

TAXPAYER confidentiality has a long history of protection in the UK. It is a fundamental part of the tax system. It has been considered invaluable by the executive for the efficient collection of taxation, protected by Parliament since the Income Tax Act 1799 and recognised by the courts as a “vital element in the working of the system” (Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd. [1982] A.C. 617, 633, per Lord Wilberforce).

In judicial review of administrative action, the pivotal distinction between decisions about “jurisdiction” (for the reviewing court) and “the merits of the case” (for the administrative decision maker) is a source of much confusion. This article argues that jurisdiction should be understood as the scope of legitimate authority, the best theory of which is Joseph Raz's service conception of authority. As well as explaining how to determine jurisdiction, this article explains that a legitimate authority's intra-vires decision “pre-empts” the reviewing court's judgment on the merits, and that the concept of jurisdiction precludes any standard of reasonableness for reviewing a legitimate authority.

The conflict between common law and equity on the question of when time should be regarded as being “of the essence” for the performance of a contract has often been debated, as has the impact of its resolution by the Judicature reforms in favour of equity's more relaxed approach. Even so, it is tolerably clear that the two approaches have been substantially assimilated within general principles of discharge for breach. If, as a matter of construction, a time stipulation is a condition, then time is of the essence. Alternatively, time may have become of the essence by an effective notice to perform served by a promisee. If the contract has been validly discharged on either basis, specific performance will not be ordered in favour of the promisor.1

In R. (Miller) v Secretary of State for Exiting the European Union, the Supreme Court of the UK (1) held that the UK Government had no prerogative power to initiate the formal process whereby the UK will withdraw from the EU and (2) declined to recognise any requirement that the devolved legislatures’ consent be obtained in respect of legislation authorising the Government to commence the withdrawal process. This article critically examines Miller, arguing that the majority's analysis veers between unwarranted muscularity in relation to the prerogative issue and unnecessary conservatism as regards the devolution issue. The article goes on to argue that while the majority judgment's restrictive approach to the prerogative may be viewed as a progressive victory for constitutional principle, such an evaluation can be sustained only if a set of relatively traditional constitutional premises are adopted to begin with. The article also contends that the general approach adopted by the majority is problematic, given its willingness to invoke arguments of constitutional principle without adequately engaging with questions about what the pertinent principles are, and argues that such an intellectually lackadaisical mode of constitutional adjudication is to be deprecated.

This article is concerned with s. 61 of the Trustee Act 1925. It will analyse the origins, design and modern day operation of the jurisdiction to relieve a trustee from personal liability following a breach of trust. It will revisit the threshold conditions of honesty, reasonableness and fairness and, in the context of mortgage fraud, contend that this exculpatory jurisdiction ought not extend to the bare commercial trust that exists between the mortgagee and its solicitor. Defects, uncertainties and shortcomings associated with s. 61 will also be addressed.

According to the standard theory of administrative unlawfulness an act that is public law unlawful is, for that reason, invalid and of no effect in law. In this article I suggest that the theory ought to be rejected. I begin by outlining the standard theory as well as noting its endorsement by the Supreme Court in the case of Ahmed (no. 2). Having in the main part of the paper criticised the theory, I move to lay out an alternative: that unlawfulness signals not the invalidity of an administrative act but a duty on the part of the court to invalidate it. Noting that the alternative rests upon what appears to be a paradox – that unlawful administrative action may nonetheless have legal effect – I try to show why it is more apparent than real. Finally, I return to the decision in Ahmed (no. 2).

This article seeks to demonstrate three things. First, the orthodox conceptualisation of the tort of public nuisance is flawed, since: (1) it is in violation of basic private law principles related to privity and the actionability of crimes and (2) if taken seriously would mandate that the tort be abolished (as torts protect private not public rights). Second, the rights at the heart of the tort are the privately actionable rights to pass and repass on public highways and to fish in public waters, and that it is plausible that a sophisticated legal system would recognise such rights. Third, a tort reconceptualised in this way can make sense of: (1) the special damage rule that is generally thought arbitrary and (2) the general intuition that the recovery of damages for pure personal injuries is best left to other torts.

This article seeks to explain and explore the concept of bodily integrity. The concept is often elided with autonomy in the case law and the academic literature. It argues that bodily integrity is non-reducible to the principle of autonomy. Bodily integrity relates to the integration of the self and the rest of the objective world. A breach of it, therefore, is significantly different to inteference in decisions about your body. This explains why interference with bodily integrity requires justification beyond what will suffice for an interference with autonomy. It also explores how this understanding of bodily integrity assists in understanding disability, gender and separated bodily material.