The number of extant reports of Slade's Case, by different hands, indicates the significance which the case possessed for contemporary lawyers. Its subsequent significance was assured by its inclusion in Coke's Reports, an honour which entitled it to all the attention which posterity is obliged to bestow on leading cases; but, for three centuries, the more that was written about it the more difficult it became to remember or to imagine what it had meant when it was decided. The case has been partially redeemed from its oblivion by recent studies, but it is becoming plain that it is still not understood, and perhaps will not be fully understood for some years to come. It is hoped that the publication of some of the leading arguments in the case, in the last issue of this Journal, will help to bring understanding within closer reach. Those arguments, however, presuppose a familiarity with the problems the case was intended to solve. Although part of the background may be learned from the published reports and Year Books, the story which they reveal is neither complete nor clear. The older cases are too sparse, too badly reported and cover too many years for any safe general conclusions to be drawn from them. They are relevant to the investigation in so far as they formed part of the Elizabethan lawyers' common education, providing a starting point for further discussion, and a recourse for those who sought authority for everything in their old books. But the burning questions in the minds of those who awaited the final pronouncement in Slade's Case were not Year Book questions, or ancient moot points, but new questions which had only come to the fore in the preceding ten or fifteen years.

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).

Martha Nussbaum's recent article “Equity and Mercy” eloquently advocates the continued relevance of a tradition of ethical and legal thought—the “equity tradition”—that has been neglected by legal philosophers in recent times. That neglect is partly due to the fact that contemporary legal philosophy (as in the debate between H.L.A. Hart and Ronald Dworkin) has concerned itself with the prior question of whether judges should or need to exercise discretion. The equity tradition presupposes an affirmative answer to that question where the rigorous application of a law yields a sufficiently grave injustice in the circumstances of a particular case or where such an injustice would arise because of a “gap” in the law. Yet it might have been thought prudent for those who assert the ineradicability and value of adjudicative discretion to have embraced and developed the idea of equity.

The Children and Families Act 2014 pursues the twin policies of increasing the number of children adopted out of compulsory state care and reducing the scope for court-ordered contact between such children and their birth families. Building upon previous work by Dr. Kirsty Hughes and me, this paper critically evaluates these reforms to post-adoption contact in view of the fact that adoption terminates the legal relationship of parent and child. Aspects of the analysis include the impact of the proposals on “open adoption” and child welfare in the light of the available empirical evidence, and their compatibility with both the European Convention on Human Rights and the UN Convention on the Rights of the Child.

Following on from earlier consideration of this issue by the same authors in the 1980s, this article examines the principles governing the negligence liability of public authorities as articulated in recent cases, and in particular the decisions of the House of Lords in X v. Bedfordshire, Stovin v. Wise and Barrett v. Enfield London Borough Council. It concludes that the various attempts to establish special principles to govern such liability have been misguided, and that the courts have proved too willing to reject claims on the basis of questionable policy considerations, to the extent that a blanket immunity might appear to have been established in some contexts. Ultimately, this approach has brought the United Kingdom into conflict with its obligations under the European Convention on Human Rights. It is argued that ordinary private law principles provide a wholly appropriate basis for reconciling the legitimate interests of public authorities with the need to accord justice to individual litigants.

Being an action on the case, it has long been supposed that negligence is consummated only upon the occurrence of damage. Physical damage ordinarily occurs where there is some change in the state or structure of a person’s body, or where there is some change in the state or structure of tangible property. The author argues that courts have, in recent wrongful conception and contamination cases, widened the orthodox notion of what constitutes physical damage. The courts have employed an ordinary bystander test in order to determine whether particular failures of care, arising in circumstances of high or unnecessary risk of physical harm, should be treated as if they give rise to physical damage. These are cases of a new form of actionable damage, that is, damage of a socially constructed kind.

If a German professor announces his intention of speaking on the inner relationship between English and Roman law, he must first state why he intends to do so. When I reviewed Roman law, and later on English law, from the German point of view, it struck me again and again that the two systems touch each other at many points. It is obvious that this relationship must be clearer to a person acquainted with German law (and therefore speaking as an outsider) than it is to an English student who understands his law by working within the system and appreciates it accordingly. This, then, is one justification. Since I have not been brought up in English law, I shall always remain a layman, despite all my efforts to penetrate its nature.

The decisions of the House of Lords in Caldwell and Stephen Lawrence can be read in widely differing ways. Taken at their face they are a slap-happy repudiation of the concept of recklessness that has been carefully developed in the last few years, going back to the notion that recklessness includes inadvertent negligence and working a profoundly regrettable change in the criminal law. If, on the other hand, each decision is interpreted in the light of its facts, with a sentence from one of the less conspicuous parts of Caldwell transferred to one that is thrust more prominently upon our attention, and if, as the result of this, the expressed ratio decidendi in each case is materially rewritten, they can be seen as imposing acceptable restrictions upon the requirement of a mental element in crime.

This article examines the principle of legality, a principle of statutory interpretation that requires clear statutory words to oust basic common-law norms. The principle is of growing importance in the Supreme Court's public law jurisprudence, yet it has garnered little scholarly attention. This article offers a comprehensive account of the principle, unpacking its core elements and identifying key controversies. The article reveals that lying beyond this apparently straightforward principle is a complex and elaborate jurisprudence, which raises fundamental issues of principle, policy and judicial legitimacy.

In Edwards v Chesterfield Royal Hospital N.H.S. Foundation Trust the majority of a seven-justice Supreme Court held that a common law claim for breach of express contractual disciplinary procedures was pre-empted by the statutory right to claim for unfair dismissal. Further, they held that one express term (the notice clause) should be prioritised over another (the contractual disciplinary procedure). In this article we argue that the application of the idea of statutory “trumping” of the common law misunderstands the complex evolution of the common law in this field and its interplay with statute. We also argue that the traditional pre-eminence given to notice clauses over all other express terms needs to be reconsidered.

This paper reproduces part of a lecture which I delivered in July to the students attending the special course for foreign lawyers in the University of Cambridge. Its theme was a consideration of Montesquieu's theory of the separation of powers in the British Constitution illustrated by the position of the Lord Chancellor. Being addressed to foreign students, it was largely elementary in character. But some of those who heard it thought that parts of it had a more permanent value. This is an attempt to adapt it so as to render it more suitable for The Cambridge Law Journal.

HILLEL STEINER'S book An Essay on Rights1 proposes and develops an intriguing suggestion: that we should approach the discussion of justice at “the elementary particle level”. “The elementary particles of justice” Steiner tells us “are rights”:

Rights are the items which are created and parcelled out by justice principles. We learn something about justice by examining the formal or characteristic features of rights. These features constrain the possible content of justice principles in much the same sense as architectural precepts must be informed by the properties of the construction materials they orchestrate.2

Governmental liability used to be on the retreat, especially but not only in the field of negligence liability. In Bourgoin S.A. v. Ministry of Agriculture, Fisheries and Food the majority of the Court of Appeal flatly stated that not every infringement of Community law was a tort. Moreover, in the recent decision in Murphy v. Brentwood District Council the House of Lords, departing from Anns v. Merton London Borough Council, dramatically curtailed any hope—or fear, it depends on the point of view—of development of governmental liability in the field of economic loss.

Insurers are increasingly using big data analytics and artificial intelligence in rating risks and customising insurance products particularly in the context of consumer insurance. The primary aim of this article is to elaborate the extent to which the legal rules in force could ensure that consumers are not treated unfairly as a result of the use of such disruptive technologies. Relevant insurance law principles and doctrines are also considered as part of this analysis. The article concludes that despite the protection provided to consumers by data and consumer protection legislation, unregulated and unlimited use of data analytics and algorithms in the risk assessment process could create significant difficulties for consumers. It is argued that further regulation, especially making regular audits essential for insurers employing such technologies in risk assessment process, is required. The article also finds that the use of artificial intelligence in customising insurance products does not present similar degree of difficulties for consumers.

The purpose of this article is to consider uncertainty in European Community law. It will be argued that, for reasons inherent in the nature of the Community, EC legislation is generally less clear and more difficult to interpret than British legislation. Five reasons are put forward as to why this might be so. While always undesirable, uncertainty is perhaps to some extent tolerable where Community legislation gives rights to the individual against public authorities: an uncertain right may, after all, be better than no right at all. It is, however, intolerable where obligations are imposed on the individual. One situation in which this arises is where directives are adopted in the field of private law, a rapidly increasing area of Community legislation. These measures will form the main focus of this study, though our attention will not be confined to them. Before considering these matters, we must, however, set the stage by making some preliminary distinctions.

In Experience Hendrix LLC v. PPX Enterprises Inc., Edward Chalpin, the Court of Appeal gives further impetus to the radical recasting of the law of damages for breach of contract along restitutionary lines made possible by A.-G. v. Blake (Jonathan Cape Ltd. Third Party). Whilst Blake made it more difficult to argue that hypothetical release damages were compensatory rather than restitutionary in nature, it left a residue of serious uncertainty because it did not make it impossible to do so. Hendrix goes a long way towards eradicating this particular uncertainty by awarding hypothetical release damages on an unambiguously restitutionary basis and saying that an account of profits, though not justified in the circumstances of the case, might also have been awarded on this basis.

The question of whether a shareholder may bring a personal action to recover diminution in value of his shares as a result of a wrong committed by the defendant against the company appears to be settled by the House of Lords in Johnson v. Gore Wood & Co. (to be referred to as the Johnson case). The facts may be stated briefly. Gore Wood, a firm of solicitors, had acted for Johnson's company, in which he owned almost entirely all the shares. The solicitors were alleged to have acted negligently when they failed to exercise an option to purchase a piece of land for Johnson's company. The solicitors then settled a suit brought by the company. After the settlement, Johnson sued the solicitors, arguing that they also owed a duty to him personally. As some of the losses claimed by Johnson were also losses which the company suffered and which had been settled, the solicitors applied to strike out those claims on the ground that they were “reflective losses”. The House of Lords struck out those claims which were reflective losses, namely, claims for diminution in value of his shares and reduction in dividend stream, but allowed other claims to go to trial. The concern of this article is with a shareholder's personal claim for diminution in value of shares.