WELLS was struggling to sell some flats. He mentioned this to a neighbour, who put Wells in touch with Devani. Wells and Devani spoke over the telephone. The trial judge found that Devani told Wells that he was an estate agent, and his usual commission was 2% + VAT. Wells agreed to this, but the parties did not expressly agree upon what was to trigger the commission. Devani subsequently introduced a purchaser to Wells who bought the flats. Was there a binding contract between Wells and Devani? Lewison and McCombe L.JJ. answered “No” (Wells v Devani [2016] EWCA Civ 1106, [2017] Q.B. 959). The trial judge and Arden L.J., dissenting in the Court of Appeal, answered “Yes”. The Supreme Court has granted permission to appeal. It is to be hoped that the Justices will clarify the important issues of contract law raised by these simple facts and allow the appeal.

THE recent judgment of the Court of Justice in Intel v Commission (Case C-413/14 P, EU:C:2017:632) deserves a cautious welcome for signalling a move to a more economics-based approach to the assessment of loyalty rebates under Article 102 TFEU, and for modulating the rigid legal presumptions that have characterised nearly four decades of case law. Yet it also represents a missed opportunity to provide a comprehensive analytical framework for one of the more unsatisfactory areas of EU competition law.

ON 16 May 2017, the Court of Justice of the European Union (CJEU) delivered its Opinion 2/15 concerning the competence of the EU to conclude the Free Trade Agreement with Singapore (EUSFTA) (ECLI:EU:C:2017:376). The Opinion was requested by the Commission which argued, with the support of the European Parliament (EP), that the EU had exclusive competence to conclude the EUSFTA. The Council and 25 of the Member States countered that the EUSFTA should be concluded as a mixed agreement – that is, by the EU and each of its members – because some of its provisions fell under the shared competence of the organisation or the competence of the Member States alone.

IN Thorne v Kennedy [2017] HCA 49, the High Court of Australia was presented with an opportunity to consider the operation and intersection of undue influence, unconscionable conduct and duress in the context of marital agreements. Despite hopes that the Court would seize the chance to resolve an important open question in respect of duress, the decision was instead marked by an unhelpful caution, offering little guidance on the law's future development.

Legal judgment, I argue, entails moral judgment; legal obligations, correctly identified, are genuine moral obligations. Dworkin's legal theory is instructive, but problematic: his account of integrity fails to provide a convincing reconciliation of practice and principle. We can, however, defend a superior account in which the moral ideals that we invoke to justify legal practice – affirming its legitimacy under certain conditions – retain their force throughout our judgments about its specific demands in particular cases. Common law reasoning exemplifies that approach, reflecting the interdependence of practice and principle. It is an internal, interpretative inquiry, drawing on the moral resources of our own tradition, treated as an influential guide to the requirements of justice. The law is constituted, accordingly, neither by its socially authoritative sources, whatever their merits, nor by the moral effects of our legal practice. It is rather the scheme of justice we construct in our continuing efforts to bring our practice closer to the ideals that inspire and redeem it.

A troubling veil of mystery still shrouds the central institution of the British Constitution – the Crown. In this paper, I examine the modern utility of five historical doctrines: the doctrine of the “King's two bodies”; the doctrine that the Crown is a “corporation sole”; the doctrine that the King can “do no wrong”; the doctrine that (high) public offices are “emanations” of the Crown; and the doctrine that the Crown is “one and indivisible”. Using some insights from social ontology, the history of office in the Western legal tradition, and the sociology of role and status, I argue that the first four of these doctrines can be refashioned into a conception of the Crown as an office. An office is an enduring institutional entity to which individuals bear a relationship from time to time, but which is separate from any individual incumbent and is to be considered in legal analysis as a separate acting subject. Using the logic of office, official personality and official action, I distinguish between the Queen, the Crown, Her Majesty's Government and the Commonwealth and argue that together they provide a serviceable model of the modern British Constitution. The final doctrine, however, must be abandoned – the Crown is plural and divisible and this must be taken into account when using the Crown to reason about the UK's relationship to other constitutional orders.

IF no substitute is negotiated for the Brussels Recast Regulation (1215/2012) on “Brexit”, the provisions in the Civil Procedure Rules 1998 (CPR) for permission to serve claims out of the jurisdiction may assume a greater significance in future cross-border litigation. So the timing of the Supreme Court's decision in Four Seasons Holding Inc. v Brownlie [2017] UKSC 80, [2018] 1 W.L.R. 192 is apposite.

The significant evolution in family law in the last four decades has seen the breaking down of traditional barriers: illegitimacy has been swept away, and children conceived through assisted reproduction are now recognised as the legal children of their parents, even absent a genetic link. Transgender heirs are also fully recognised in their new gender. Yet fundamental exceptions remain in the case of succession to titles, honours, dignities and coats of arms, discriminating against children born out of marriage, or non-genetic children, or transgender children. The decision of the Privy Council in Pringle of Stichill emphasised this divergence, and raised the question of whether law reform is needed. In this article, we explore the rules which govern succession to titles and dignities and the two-tier system which has arisen. By pointing out the inconsistencies and lack of rationale therefor, we make the case for law reform to bring titles and dignities into line with the current understanding of family and succession.

This article argues that the idea of conscience can play a useful, albeit limited and highly general, explanatory role in private law, if we have regard to two distinctive contexts in which it is used. First, it tells us something about how equitable obligations arise and reminds us that they directly enforce moral duties. Second, it conveys the message that the courts are reluctant to impose primary liabilities which restrict the exercise of legal rights absent a past or prospective breach of moral duty by the defendant. Without further explanation, the indiscriminate invocation of conscience in both contexts can lead to confusion and uncertainty, but if the distinction between obligation and liability is observed, the explanatory force of conscience in relation to each becomes clearer, and it plays a valuable role in bolstering the authority of private law.

This article aims to clarify what is meant by “a source of law” argument. A source of law argument justifies an action by showing that it has as its legal basis the best interpretation of a rule, principle or value identified in a material source of law. Such an argument is authority-based in that it appeals for its correctness to a collective decision to adopt a particular rule. The identification comes from an analysis of the practices within a specific legal community. The concept of “a rule of recognition” is not helpful since it glosses over the contestability of what is a source of law and its revisability over time. In a second part, the article illustrates the dynamics of change by reference to the status of EEC/EU law in a number of national laws and the 1966 Practice Statement on precedent in the House of Lords.

The doctrine of benefit and burden – an indirect method for enforcing the burden of positive freehold covenants – developed as an exception the strict Austerberry rule that the burden of positive covenants cannot bind successors directly at law. Three recent Court of Appeal cases (Davies v Jones; Wilkinson v Kerdene and Elwood v Goodman) confirm the continued existence and application of the doctrine but also reveal its deficiencies and limitations. This article explores the contemporary application of the doctrine, identifies its theoretical, historical and elemental frailty and, drawing on recent reform proposals of the Law Commission, highlights the case for reform. In so doing, this article argues that a vital theoretical issue has been overlooked in the reform debate: the numerus clausus principle.

This paper will argue that, in the light of recent case law in the UK and Australia, a new approach is needed when dealing with claims for vicarious liability and non-delegable duties in the law of tort. It will submit that lessons can be learnt from a comparative study of these jurisdictions, notably by reflecting on the courts’ treatment of claims of institutional liability for child sexual abuse. In parallel to decisions of their highest courts, public enquiries in Australia and England and Wales, established to report on historic child sexual abuse and how to engage in best practice, are now reporting their findings which include proposals for victim reparation: see Royal Commission into Institutional Responses to Child Sexual Abuse (Australia, 2017) including its Redress and Civil Litigation Report (2015); Independent Inquiry into Child Sexual Abuse (Interim report, England and Wales, 2018). The Australian reports suggest reforms not only to state practice, but also to private law. This article will critically examine the operation of vicarious liability and non-delegable duties in England and Wales and Australia and proposals for statutory intervention. It will submit that a more cautious incremental approach is needed to control the ever-expanding doctrine of vicarious liability in UK law and to develop more fully its more restrictive Australian counterpart.

The role of the UK Supreme Court (UKSC) as conventionally understood is to give effect to, and not to challenge, the will of Parliament. At the same time, the UK's constitution forces the UKSC to develop a constitutional jurisprudence to resolve clashes of higher-order principles, for instance between parliamentary sovereignty and the rule of law. This development puts the legitimacy of unelected and unaccountable judges invalidating legislation under the spotlight. Instead of arguing for US-style strike-down powers, I argue that cautious and corrective judicial intervention is constitutionally mandated and democratically legitimate.

Eighteenth-century courts needed to rely on presumptions in favour of marriage for a number of reasons, some practical and some legal, but the misleading reporting of one leading nineteenth-century case, followed by institutional changes and a stronger focus on precedent, led to the original evidential assumptions being obscured. A further blurring of the different strands of the presumption occurred in the twenty-first century, leading to confusion in recent cases. Understanding how the much-misunderstood presumptions have developed reveals why they were needed, when they became decoupled from their evidential underpinnings, and how, when and why they should operate today.