R. v. Manchester City Council, ex p. Stennett [2002] UKHL 34, [2002] 4 All E.R. 124 is the latest in a series of cases concerning the welfare of vulnerable members of our society and the scarce resources available to public authorities to meet those individuals’ needs. Earlier examples include the education of a child with special needs (R. v. Essex CC, ex p. Tandy [1998] 2 All E.R. 769), essential non-nursing care for the elderly or infirm (R. v. Gloucestershire CC, ex p. Barry [1997] A.C. 584), accommodation (R. v. Sefton BC, ex p. Help the Aged [1997] 4 All E.R. 532) and even access to potentially life-prolonging medical treatment (R. v. Cambridge AHA, ex p. B [1995] 1 W.L.R. 898). Ex p. Stennett concerns the welfare of another vulnerable group, those who have been compulsorily detained under the Mental Health Act 1983.

The prospective buyers of a waste treatment plant (“Reprotech”) wished to use the site to generate electricity from the waste produced. They asked the Chief Planning Officer of the local council whether this would be a material change of use, for which planning permission would be required, and were assured that it would not. After they bought the land, the council insisted that the Officer lacked authority to make such a determination and required a formal application for planning permission; this was met by local opposition. Must the buyers make such an application and suffer a reduction in the value of the land if the application is unsuccessful, or should the public bear the consequences of the unauthorised act of the Officer? This was one of the questions facing the House of Lords in R. v. East Sussex County Council, ex p. Reprotech (Pebsham) Ltd. [2002] UKHL 8, [2002] 4 All E.R. 58. Their Lordships denied that there had been a “determination” for the purposes of the Town and Country Planning Act 1990, s. 64, upon which Reprotech sought to rely, but the obiter discussion of the proper role of estoppel in public law is the focus of this note.

The dramatic terrorist attacks in the United States in September 2001 all too clearly illustrated the threat posed by international terrorism. Understandably, politicians are provoked into taking tough measures to protect their citizens from terrorist enemies. In times of danger the civil liberties implications of such measures can easily play second fiddle to security needs. Indeed, we need look no further in our jurisprudence than the discredited majority decision in Liversidge v. Anderson [1942] A.C. 206. Recently, Lord Woolf has warned that “the mistakes which have been made in the past, in relation to internment of aliens at the outbreak of war, should not be forgotten” (A v. Secretary of State for the Home Department [2002] EWCA Civ 1502 at para. [9]).

On 10 October 2002, the International Court of Justice adopted the judgment on Land and Maritime Boundaries between Cameroon and Nigeria (Cameroon v. Nigeria), in which it ruled on sovereignty over certain territories disputed between the litigating parties and also delimited the land and maritime boundaries between them. The differences dealt with in the case followed from the long-standing disagreements between Cameroon and Nigeria which—as is not uncommon—went back to the legal framework established by colonial powers.

Where a victim dies from the injection of a drug, is it possible to convict the person who supplied the drug of a homicide offence? The most obvious offence is constructive manslaughter, for which it is necessary to establish that the defendant committed an unlawful and dangerous act which caused death. This offence may have been committed where the supplier has injected the victim, as was recognised in Cato [1976] 1 W.L.R. 110. The unlawful act was there held to be the administration of a noxious thing, contrary to section 23 of the Offences Against the Person Act 1861, regardless of the victim’s consent to the administration; and it was this administration which caused the death. But what of the case where the victim injected himself? This was the scenario which was considered by the Court of Appeal in Dias [2001] EWCA Crim 2986, [2002] 2 Cr.App.R. 5.

The attribution of the tortious actions of a director to the company will operate to render the company liable. Does that attribution also operate to exclude the normal presumption that the director is liable for his own acts? Commonwealth courts have accorded primacy to the rules of company law and answered this question in the affirmative (Trevor Ivory Ltd. v. Anderson [1992] 2 N.Z.L.R. 517; Sealand of the Pacific v. Robert C. McHaffie Ltd. (1974) 51 D.L.R. (3d) 702). In England, the decision of the House of Lords in Williams v. Natural Life Health Foods Ltd. [1998] 1 W.L.R. 830 seemed to suggest that the answer would be no. In Standard Chartered Bank v. Pakistan National Shipping Corpn. (Nos. 2 and 4) [2002] UKHL 43, [2002] 3 W.L.R.1547 their Lordships have made this explicit: directors remain liable for their own wrongs.

The supermodel Naomi Campbell told journalists that she shunned illegal drugs. Unfortunately, those statements were untrue. A newspaper discovered that she attended Narcotics Anonymous. It published a sympathetic story saying that she was fighting addiction. But when she threatened legal action, the newspaper responded with articles ridiculing her.

Suppose that an employee has some personal idiosyncrasy that puts him at risk while performing work that can be safely performed by virtually all his colleagues? If the employer simply has no alternative work reasonably available, what is he to do if the employee, with full understanding of the situation, nevertheless prefers to run those risks rather than have no job at all? Coxall v. Goodyear Great Britain Ltd. [2002] EWCA Civ 1010 suggests that the employer may be under a common law duty to dismiss the employee for his own good so as to protect his health.

In 1987, Mr. Primavera, a restaurant owner, was approached by the defendant, who offered him a loan for the development of a second restaurant, linked to an Executive Retirement Plan (ERP) for Mr. Primavera himself. The ERP promised a tax-free lump sum payment of £500,000 after seven years. However, the defendant neglected to tell Mr. Primavera that in order to qualify for the lump sum, he would have to draw a salary of not less than £334,000 per annum for at least three of the seven years. Unaware of this, Mr. Primavera paid himself a smaller salary. When he came to claim his lump sum in 1995, he found that the maximum that he could draw tax-free was £125,875. A claim form was issued against the defendant in respect of, amongst other things, £101,000 representing the tax payable on the rest of the lump sum. In the meantime, Mr. Primavera chose to continue with the ERP, paid himself a larger salary and, in 2000, qualified for the full £500,000 tax-free.

The case of Carlton Communications plc and Granada Media plc v. The Football League [2002] EWHC 1650 should serve as a cautionary tale for contract scholars seeking to promote a socio-legal approach to the development of contract law at the expense of the classical model. For such scholars, the development of an alternative to the classical law is thought necessary given “the devastating empirical finding of non-use” of contract law in sociological studies of contracting behaviour (D. Campbell, “Reflexivity and Welfarism in the Modern Law of Contract” (2000) 20 O.J.L.S. 477, 480). In parts of his recent work Regulating Contracts (Oxford, 1999) Hugh Collins argues that the legal rules frequently undermine the parties’ agreement because, at least in the commercial context, “considerations of the long term business relation, the customs of the trade, and the success of the deal” (ibid. p. 271) are more important than the contractual planning documents in regulating the relationship. Quite simply, contracting parties do not start from the rules and doctrines of contract law in constructing their agreement—they start from the deal. While cases like Williams v. Roffey [1991] 1 Q.B. 1 demonstrate some judicial appreciation of this fact, Baird Textile Holdings v. Marks and Spencer plc [2001] EWCA Civ 274, [2000] 1 All E.R. (Comm) 737 reminds us that agreements (in that case lasting some thirty years) may still falter for want of a (legal) contract. Carlton Communications is another reminder of what the socio-legal vision is up against.

In Great Peace Shipping Ltd. v. Tsavliris Salvage (International) Ltd. [2002] 3 W.L.R. 1617 the Court of Appeal considered the circumstances in which a contract, entered into as a result of a mistaken assumption shared by the parties, would be invalidated. In that case, the defendant, a salvage operator, agreed to provide its services to the owners of The Cape Providence, which had suffered severe structural damage. Unfortunately, the only tug that the defendant could find to perform these services was six days away from the vessel. This gave rise to concerns over crew safety if the vessel sank whilst awaiting the tug. The defendant’s brokers, therefore, sought to hire a vessel which was sufficiently close to be able to evacuate the crew if necessary. The brokers were informed by a well-respected information agency that The Great Peace, a vessel owned by the claimant, was “in close proximity” to the stricken vessel, approximately 35 miles away. As a result, the defendant’s brokers negotiated with the claimant for the hire of The Great Peace for a period of five days, both parties assuming that the information as to The Great Peace’s location was correct. On discovering that the vessels were in fact some 410 miles apart, the defendant hired an alternative vessel and sought to cancel the contract with the claimant. Proceedings were commenced to recover the full amount of the hire, or alternatively damages for breach of contract. The defendant resisted the claim on the ground that the contract was either void at common law or voidable in equity, as both parties had laboured under a fundamental mistake at the time of contracting. Both arguments were rejected by Toulson J., at first instance, and by Lord Phillips of Worth Matravers M.R. delivering the judgment of the Court of Appeal.

The topic of exemplary damages has often been shrouded in controversy. Indeed, in some jurisdictions (such as England), the very award of such damages is confined to an extremely narrow compass (though cf. the recent House of Lords decision in Kuddus v. Chief Constable of Leicestershire Constabulary [2001] UKHL 29, [2002] 2 A.C. 122). Although the jurisdiction to award such damages is broader in other Commonwealth jurisdictions, difficult issues remain, two of which were recently explored by the highest appellate courts in New Zealand and Canada, respectively.

The New Shorter Oxford Dictionary defines heresy as an opinion or doctrine contrary to the accepted doctrine of any subject. In Pye v. Graham [2002] 3 W.L.R. 221 the House of Lords robustly confirmed the orthodoxy relating to adverse possession and discounted discordant voices as heretical. There is probably general relief that no fireworks have disturbed the established law in its twilight years, but for this writer there is some regret over a wasted opportunity. Yet again in an adverse possession case, a result has been reached that caused some of the judges misgivings about the fairness of the outcome, but there was no serious attempt to try to address this by subjecting the whole area to a fresh scrutiny and considering whether there was any merit in heretical views.

In a winding-up, the property of the insolvent company must be liquidated and the proceeds distributed pari passu amongst its unsecured creditors. This being mandatory, a company cannot by contract arrange to do things differently, and a provision purporting to do so will be void (British Eagle International Airlines v. Compagnie Nationale Air France [1975] 1 W.L.R. 758). The scope of this common law rule of public policy is, however, notoriously uncertain. Neuberger J.’s judgment in Money Markets International Stockbrokers Ltd. v. London Stock Exchange Ltd. [2002] 1 W.L.R. 1150, based on a thorough and erudite review of the authorities, suggests some helpful clarifications.

It is a pillar of equity that “a person in a fiduciary position must not make a profit out of his trust which is part of the wider rule that a trustee must not place himself in a position where his duty and his interest may conflict” (per Lord Upjohn in Phipps v. Boardman [1967] 2 A.C. 46, 123). The House of Lords in Regal (Hastings) v. Gulliver [1942] 1 All E.R. 378 demonstrated the unrelenting nature, and some have argued inequitable severity (see, e.g., Jones, (1968) 84 L.Q.R. 472), of the director-fiduciary’s obligations to his company. Such “absolutism” (Lowry & Edmunds, [2000] J.B.L. 122) is necessary because human infirmity makes it difficult to resist temptation, and it is only thus that the level of conduct for fiduciaries can be “kept at a level higher than that trodden by the crowd” (per Cardozo C.J. in Meinhard v. Salmon (1928) 249 N.Y. 456, 464). The principle that a director is free to act as a director of or otherwise engage in a competing business, established at the turn of the 19th century by Chitty J. in London & Mashonaland Exploration Co. Ltd. v. New Mashonaland Co. Ltd. [1891] W.N. 165 and assumed correct by Lord Blanesburgh in Bell v. Lever Bros. Ltd. [1932] A.C. 161, 195, is therefore clearly an aberration and somewhat difficult to defend. A reconsideration of the rule would be timely. In this light, the decision of the Court of Appeal in Plus Group Ltd. and others v. Pyke [2002] EWCA Civ 370 is something of a missed opportunity as both Brooke L.J. and Jonathan Parker L.J. thought it unnecessary to attempt a resolution. Sedley L.J., although perspicuous about his discomfort with it, nevertheless admitted that Mashonaland “is the law that binds us”. His Lordship did however observe that “if one bears in mind the high standard of probity which equity demands of fiduciaries, and the reliance which shareholders and creditors are entitled to place upon it, the Mashonaland principle is a very limited one”.

The recent decision of the Court of Appeal in Smith v. Henniker-Major & Co. [2002] EWCA Civ 762, [2002] 3 W.L.R. 1848 demonstrates the mess that the United Kingdom has made of its implementation of the First Directive of the European Union on harmonisation of company law and the interpretation of the legislation.

Freedom of establishment has been a promise not only to individuals, but also to companies, ever since the foundation of the EEC, and the relevant articles in the EEC Treaty have long been declared to have direct effect (Reyners v. Belgium [1974] E.C.R. 631). Yet until recently companies faced extra hurdles. A majority of the Member States applied the so-called “theory of the real seat” (for references see H. Xanthaki, “Centros: is this really the end for the theory of the siège réel?” (2001) 22 Company Lawyer 2). In essence, the theory is a rule of private international law that a company will be treated according to the law of its central place of management (the “real seat”), notwithstanding that it may have been incorporated in a different jurisdiction. In such a case, the company will not fulfil the formal requirements of registration in the jurisdiction of its real seat and will normally lack the quality of a legal person there. The aim of the theory is to preserve national company law as a policy instrument in areas such as corporate governance, by disallowing pseudo-foreign companies, i.e. companies set up to do business mainly or exclusively in one jurisdiction, but evading local regulation there by incorporating abroad. But the theory can strike beyond this goal, as the facts of Case C-208/00 Überseering BV v. Nordic Construction Company Baumanagement GmbH demonstrate.

In November, M. Canivet, the First President of the French Cour de cassation, gave a public lecture in Cambridge on la responsabilité du juge, where he described the recourse that modern French law provides for citizens who find themselves ill-served by the legal system. He told us that in France, defendants remanded in custody pending trial now receive automatic compensation if at trial they are acquitted, and that citizens can bring civil claims against the State where they are hurt by the malfunctioning of justice.

Great honour as it is, it is nonetheless daunting to deliver the Sir David Williams Lecture in the presence of Sir David himself, and on a subject close to his own interests. The ideal David Williams Lecture would obviously be a lecture given by David Williams. But as that is not to be—at any rate not this evening—my lecture, by definition then not the ideal lecture, will I hope be received as at least a personal tribute to an inspiring constitutional lawyer.

This article will consider recent case-law developments concerning the standing conditions that natural and legal persons must satisfy in order to bring annulment proceedings against acts of EC institutions. These conditions, set out in Article 230(4) EC, have been so narrowly interpreted by the European Court of Justice for over forty years that private parties have rarely been able to surmount this formidable admissibility barrier when challenging Community acts. In March 2002, Advocate General Jacobs delivered a compelling Opinion in Unión de Pequeños Agricultores (UPA) v. Council, where he suggested a new interpretation of the test of individual concern, which stands at the core of the locus standi requirements in Article 230(4) EC. Only a few weeks later the Court of First Instance dramatically departed from previous case law and re-defined that same test in Jégo Quéré v. Commission, although it did so in narrower terms than those proposed by Advocate General Jacobs. However, any hopes that the time was ripe for a re-examination of the case law on individual concern, were dashed by the European Court in its judgment in UPA v. Council. The Court did not follow either the suggestions of Advocate General Jacobs or of the Court of First Instance, stating instead that it was for the Member States acting in the European Council and not for the Court, to reform the conditions of admissibility set out in Article 230(4) EC.