ON 16 December 2015, the International Court of Justice (ICJ) delivered its judgment in the joined cases of Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), ICJ Reports 2015. These are the latest in a line of cases raising key principles of international environmental law before the ICJ, following Pulp Mills (2010), Aerial Herbicide Spraying and Whaling in the Antarctic (2014).

UNITED Policyholder Group v Attorney General for Trinidad and Tobago [2016] UKPC 17 provided the Privy Council with its second opportunity in recent years to consider the doctrine of legitimate expectations (the first being Paponette v Attorney General of Trinidad and Tobago [2010] UKPC 32; [2012] 1 A.C. 1). The appellants were a group of individuals who held policies in a company known as the Colonial Life Insurance Company (CLICO). On learning in 2009 that CLICO was in serious financial difficulty, the then Government of Trinidad and Tobago had publicly issued a number of assurances to the effect that it would undertake a vast restructuring programme in order to ensure that CLICO's contractual liabilities to such policyholders were fulfilled. Following its election in 2010, the new Government changed direction; it found that CLICO's financial difficulties were much graver than had been originally anticipated and, accordingly, determined that the Government would take a different course with the consequence that CLICO's liabilities would be fulfilled to a less generous degree than originally represented.

THE image of King Canute trying to hold back the tide is a popular one used to critique attempts by national courts to restrain the publication of private information in the face of a global and online media. The truth, or at least the allegation, will out. The issue is certainly not a new one. The futility of an injunction in England and Wales, given extensive publication out of the jurisdiction, played a key role in the Spycatcher litigation in the late 1980s. Such futility is a feature of confidentiality or secrecy: the tide of information cannot be held back in an information age. In PJS v News Group Newspapers [2016] UKSC 26, the Supreme Court, endorsing an approach developed by the High Court in several earlier authorities, distinguished between protecting confidentiality and preventing intrusion as twin rationales for the tort of misuse of private information. The intrusion of a pending media storm in the jurisdiction, repeating allegations already widely available, was a further misuse of private information and could usefully be restrained in England and Wales. Even where confidentiality had already been lost, privacy injunctions could continue to play a useful role as a defence against the significant additional intrusion, at least where it could be practicably restrained, and the pending media storm that would accompany a lifting of the injunction represented one such case.

MWB Business Exchange Centres Ltd. v Rock Advertising Ltd. [2016] EWCA Civ 553 deals with a number of important issues concerning variation of contracts. Rock occupied as licensee premises managed by MWB. In August 2011, Rock decided to expand its business, and entered into a written agreement with MWB for larger premises for 12 months beginning 1 November 2011. The licence fee was agreed to be £3,500 per month for the first three months, and then £4,433.34 from 1 February 2012. Unfortunately, Rock's business was not as successful as hoped and, by late February 2012, it had incurred arrears of over £12,000. MWB gave notice purporting to terminate the agreement, but the parties then orally agreed to reschedule the licence fee payments due from February to October 2012: Rock would pay less than the originally agreed amount for the first few months, but after that would pay more, with the result that the arrears would be cleared by the end of the year. Pursuant to this agreement, Rock paid £3,500 to MWB, which was the first instalment due in accordance with the revised payment schedule. However, MWB subsequently changed its mind and sued for the arrears. MWB presented two arguments why Rock could not rely upon the oral variation. First, MWB pointed to an anti-oral variation clause in the written contract. Second, MWB relied upon Foakes v Beer (1884) 9 App. Cas. 605 for the proposition that the variation was not supported by consideration. Both arguments failed before a unanimous Court of Appeal (Arden, Kitchin and McCombe L.JJ.).

MORTGAGE Express v Lambert [2016] EWCA Civ 555 concerned a sale and leaseback. In desperate circumstances, the naïve and vulnerable A (Ms Lambert) entered into a sale and leaseback arrangement in respect of her flat. She was paid a small proportion of the value of the flat, which was then registered in the joint names of B (the buyers). B mortgaged it without disclosing to C (the mortgagee) the leaseback arrangement to A. The mortgage was registered, but no lease was. Ultimately, B defaulted on the mortgage and C sought to sell the property. The litigation concerned whether A had a right that could bind C. The Court of Appeal held that A did not and allowed the sale to proceed.

THE era of civil litigation to recover the proceeds of fraud continues and, with it, the elaboration of principles of judge-made law as to when defrauded persons may recover. These principles reflect a truth of human nature. Apart from the silly, reckless and brazen, those who commit fraud wish their takings to be undetectable. A crucial development in the history of English law, therefore, was to accept that, for some purposes, persons may make juridical claims not only to an asset originally taken from them, but also to other assets representing the original: Maitland, “Trust and Corporation”, in Selected Essays (Cambridge, 1936), 171–72. The concept of assets “representing” the original assets is at the heart of the equitable and common law doctrines of tracing and civil recovery for fraud.

IN business, it is desirable to have certain law that makes good commercial sense, and helpful to know what fundamental concepts like “a contract of sale of goods” actually mean. The Supreme Court in PST Energy 7 Shipping LLC and another v OW Bunker Malta Ltd. and another (“The Res Cogitans”) [2016] UKSC 22 grappled with precisely this question.

IN Lungowe v Vedanta Resources Plc [2016] EWHC 975 (TCC), the High Court allowed a claim to be heard in England against parent company incorporated in England and its foreign subsidiary in relation to the overseas subsidiary's operations. The judge considered whether the claim against the English-domiciled defendant could be stayed on the basis of forum non conveniens, and whether jurisdiction could be established over its foreign subsidiary as a necessary and proper party to the case. The overall analysis of the judgment suggests that (1) the claims against the parent company in relation to the overseas operations of the foreign subsidiary can be heard in the English courts and (2) the existence of an arguable claim against the English-domiciled parent company also establishes jurisdiction of the English courts over the subsidiary even if the factual basis of the case occurs almost exclusively in the foreign state.

ARTICLE 8 of the Brussels IIa Regulation sets out the general rule regarding jurisdiction in intra-EU parental responsibility cases, namely that jurisdiction lies with the courts of the Member State of the habitual residence of the child. However, exceptionally, the court that has been seised of a case pursuant to Article 8 may not be the best placed to hear the case. To cater for such situations, the Regulation contains an innovative rule according to which a court that is seised of a case, and has jurisdiction on the substance, can transfer the case to a court of another Member State, if the latter is “better placed” to hear the case, and if the transfer is in the best interests of the child. Additionally, the transfer is subject to the condition that there is a “particular connection” between the child and the other Member State (e.g. the child is a national of that Member State). The “transfer of jurisdiction” rule, which is embodied in Article 15 of the Regulation, is at the heart of the Supreme Court decision in Re N (Children) (Adoption: Jurisdiction) (AIRE Centre and others intervening) [2016] UKSC 15; [2016] 2 W.L.R. 1103.

THE decision in the conjoined appeals in UBS v HMRC and DB v HMRC [2016] UKSC 13 invites us to revisit a note published by John Tiley in 2005 concerning the decisions in Barclays Mercantile Business Finance v Mawson [2004] UKHL 51 and Scottish Provident v IRC [2004] UKHL 52 and subtitled “less chaos but more uncertainty” ([2005] B.T.R. 273). This is a richly textured piece that repays close reading; the central observation is that the cases reflected the settlement of long-running debates on the nature and scope of the Ramsay doctrine, which allows the courts to hold ineffective certain attempts at tax avoidance. As is well known, the years following Ramsay v IRC [1982] A.C. 300 itself were characterised by a tension between the need to clarify the circumstances in which the doctrine would apply and an understanding that too much clarity might allow taxpayers to circumvent the doctrine altogether.

In disputes over the use and possession of the human body and its parts, there has been a marked reliance on property law concepts. Judges frequently resort to the language of “ownership”, “gifts”, “donations”, “trusts” and so on, in order to resolve disputes over the use of human biomaterials. When this happens, however, we observe certain recurring mistakes. Judges and academics writing in this area have sometimes misunderstood the basic rules governing the creation and operation of property rights. We do not seek to take a stance on the normative matters at stake. Our aim is to provide an accurate account of how property law could operate when applied in the context of human tissue use. We hope to redress some misconceptions, but our bigger goal is to provide a new methodology of how to work through the various questions that must be considered when determining how to regulate human tissue, by explaining how property principles would work at each stage. In this way, we seek to enable those who wish to debate whether property principles should be applied to human tissue the means to have accurate debates.

The best interests rule – the central fiduciary duty of company directors in a number of common law jurisdictions – encapsulates loyalty between director and company. Its multifaceted nature means that it is employed to impose a number of requirements, as demonstrated in the multi-jurisdictional analysis in this article. Contemporary commentary and cases (such as Moulin Global Eyecare Holdings Ltd. v Mei (2014) 17 HKCFAR 466, recently analysed in this Journal) have, however, doubted the fiduciary classification of the rule. This article defends the rule's fiduciary classification. After examining key facets of the rule, it demonstrates that, although flexible, the rule cannot be stretched to protect stakeholder interests independently of corporate benefit.

It is often said that English law does not impose “remedial” constructive trusts because it is manifestly inappropriate and fundamentally unjustified to impose trusts through the exercise of judicial discretion and with retrospective effect. This paper observes the definitional deficiencies in this understanding, and reanalyses constructive trusts in terms of the rights which they give effect to. This understanding reveals that English law sets its face against the exercise of discretion in relation only to some “remedial” constructive trusts and not others, and that the perceived difficulties with remedial constructive trusts are often exaggerated. It ends by noting some crucial implications of the re-analysis for the future development of the law.

In Jogee and Ruddock, the Supreme Court/Privy Council decided that the law on secondary liability took a “wrong turn” in 1984 in the Privy Council's decision in Chan Wing-Siu. Chan Wing-Siu's contemplation/foresight-based fault element for secondary liability was alleged by the Supreme Court/Privy Council to have bucked a legal trend towards requiring that the secondary party intended to encourage or assist every one of the principal's offences. This article presents an alternative history of secondary liability that explains a wider selection of cases from 1553–1984 than were considered in Jogee and Ruddock. On this alternative account, Chan Wing-Siu was simply a more explicit and intellectually honest decision than its predecessors. If this alternative view of history is accepted, the Supreme Court/Privy Council's claim to be merely “correcting” (rather than substantively reforming) the law of secondary liability should be rejected. Doing so would make more critical a question that was side-stepped in Jogee and Ruddock, namely whether this reform should have been undertaken by the judiciary, rather than the legislature.

The European Court of Human Rights (ECtHR) and the Council of Europe have recently recognised “living together” as a legitimate dimension of the rights of others that could justify limitations on various European Convention on Human Rights (ECHR) rights, including the rights to freedom of religion and respect for private life. This article argues that the important, yet still unexplored in human rights law, idea of “living together” stems from the republican ideal of fraternity and supplements the distinctive links between democratic principles and rigorous human rights protection. Even so, its justifiability as a limitation ground depends on which conception of the idea is compatible with core values and functions served by human rights under the Convention. This article distinguishes between two main interpretations of “living together”, grounded on responsibility and conformity. It is argued that, in cases touching on our expressive conduct in public, including cases on the wearing of full-face veils, a conformity conception of “living together” sits uneasily both with firmly established case law of the ECtHR and with certain key functions of rights, such as the exclusion of moralistic majoritarian preferences as grounds for coercive prohibitions.

This article critiques the model for implementation of good faith suggested by Leggatt J’s obiter comments in Yam Seng Pte Ltd v International Trade Corp Ltd. He considered that a general term of good faith may be implied as a matter of construction or as a factual implication under traditional implied terms rules; and that further terms might be implied as specific manifestations of the general term. These further terms would reflect “shared values and norms of behaviour”, including the “core value of honesty”. The article contends that the reasoning to support the general implication contradicts the proposition — accepted by Leggatt J — that good faith has not been recognised “as a duty implied by law”; and that, for several reasons, the analysis used to support implication on the basis of shared norms is flawed.