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.

THE decision in Robb v National Crime Authority [2014] EWHC 4384 (Ch); [2015] Ch. 520 has an ironic aspect. Etherton C. upheld the claims of 71 buyers of off-the-plan properties to be developed in Turkish Northern Cyprus. Robb had defrauded them. They had paid sums to Robb, Robb's company, or Robb's agents. Robb later caused those sums to be transferred into his personal bank account with a London bank, intending to transfer the funds to a bank in Thailand. Since 71 of the investors had rescinded their investment contracts, the Chancellor held those investors entitled to trace their moneys into the London bank account. The irony is that the Chancellor's reasoning would itself unravel the modern doctrine of rescission for fraud.

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.

IS the right to vote in European Parliament elections a matter for EU law? Until recently, the answer to this query seemed to be a clear “no”. Indeed, while Article 223(1) of the TFEU does confer on the European Union the competence to lay down a uniform procedure for the election of Members of the European Parliament (“MEPs”), this competence has not been exercised so far. Consequently, Article 8 of the Act concerning the election of the MEPs by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom (OJ 1976 L 278 p. 1, henceforth “the 1976 Act”), provides that the “electoral procedure shall be governed in each Member State by its national provisions”. Apart from the general principles of “direct universal suffrage in a free and secret ballot” and of non-discrimination on the ground of nationality, enshrined respectively in Article 14(3) of the TEU, Article 1(3) of the 1976 Act, and Article 20(2)(b) of the TFEU, there is nothing in EU law that governs specifically the eligibility to vote in EP elections.

WHERE claimant C is responsible for discharging a liability of debtor D to creditor X, secured over D's assets, C is sometimes entitled to be subrogated to X's extinguished security interest. Typically, C is a lender, who loaned money to enable D, the borrower, to purchase property or refinance existing borrowing from X, in return for some agreed security. If that security proves defective, the courts commonly find that C is subrogated to X's security, which was paid off via the loan. Where C's loan funded a valid purchase transaction, that commonly entails subrogation to the “unpaid vendor's lien”, which the vendor held as security for payment of the purchase price. Why might C acquire these rights? Banque Financière de la Cité v Parc (Battersea) Ltd. [1999] 1 A.C. 221 suggested a bold new rationalisation: such subrogation is a “restitutionary remedy” which prevents or reverses “unjust enrichment”. The Supreme Court had its first opportunity to explore the implications of this insight in Menelaou v Bank of Cyprus Plc [2015] UKSC 66; [2016] A.C. 176.

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.

ACROSS Europe, the legal recognition of same-sex relationships has changed rapidly. Of the 47 Member States of the Council of Europe, 26 countries currently recognise same-sex relationships, whether through marriage or registered partnership. Italy, however, remains the only founding member of that organisation that does not provide any formal system for the legal recognition of same-sex relationships.

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.

MELITA Jackson died in 2004, leaving an estate worth £486,000. In 2002, she had made a will in which she left a £5,000 legacy to the BBC Benevolent Fund and divided the remainder of her estate between the Blue Cross, the Royal Society for the Protection of Birds, and the Royal Society for the Prevention of Cruelty to Animals (“the Charities”). Mrs. Jackson had also written a letter of wishes in which she explained her decision to exclude her only daughter, Heather, from her will. Heather had left home in 1978 at the age of 17, without her mother's knowledge or agreement, in order to live with Mr. Ilott, whom Heather later married. Mrs. Jackson clearly disapproved of her daughter's choice of lifestyle. Heather and her husband had five children (the last one living at home, being due to go to university in 2015) and lived in straitened financial circumstances. For example, Heather never went on holiday, found it difficult to afford clothes for the children and a range of food, and possessed many items that were old or second-hand. Despite attempts at reconciliation, mother and daughter were estranged for some 26 years, and Heather was fully aware before Mrs. Jackson's death that she was due to be excluded from the will.

IN Eclairs Group Ltd. v JKX Oil & Gas plc.; Glengary Overseas Ltd. v JKX Oil & Gas plc. [2015] UKSC 71, the Supreme Court had a rare opportunity to analyse the rules on directors' exercise of power for improper purposes, and to do so in a context which raised more subtleties than earlier authorities.

IN Vizcaya Partners Ltd. v Picard [2016] UKPC 5, the Privy Council considered an attempt to enforce a New York judgment in Gibraltar. The judgment debtor was not present in New York at the time the New York court assumed jurisdiction, which suggested that enforcement of the US judgment would be refused for want of jurisdiction. However, the argument of the judgment creditor was that an express choice of New York law in the contract, coupled with other factors, was sufficient to imply submission of the parties to the courts of New York (and, accordingly, vest the New York courts with jurisdiction for the purposes of enforcement of the New York judgment). The crux of the case was thus whether the terms of the contract could indicate submission to the jurisdiction of a foreign court, even if that submission was not crystallised in the form of an express contractual provision. The Privy Council held that, while, in principle, it might be possible to imply submission, on the facts, there was no such submission so that the judgment was unenforceable.

THE appeal in R. (on the application of SG) (previously JS) v Secretary of State for Work and Pensions (Child Poverty Action Group and another intervening) [2015] UKSC 16 concerned a challenge to the cap on welfare benefits, one of the measures introduced as part of the Government's austerity-driven economic and social policy. The “benefit cap” operates to limit the amount of welfare benefits that can be received by non-working households, to the equivalent net median earnings of a working household. The Welfare Reform Act 2012 contains provisions allowing the Secretary of State to make regulations providing for a “benefit cap” scheme. It is implemented through the Benefit Cap (Housing Benefit) Regulations 2012 and operates by a reduction in housing benefit once a specified maximum amount is reached. Benefits covered by the cap include housing benefit, child benefit, and child tax credit. Once the cap is reached, no account is taken of the number of children in the family. The lawfulness of the Act itself was not challenged. The appellants’ argument was that the implementation of the scheme was discriminatory and contrary to the Human Rights Act 1998.

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.

The protection of human rights through common law principles and values has a greater potential than has been recognised hitherto. First, the adoption at common law of the proportionality test of interferences with rights shows that, when human rights are at issue, the courts will apply an exigent test, allowing interferences only if, amongst other things, a less intrusive measure could not have been used. Secondly, the principle of legality, along with common law constitutionalism as developed recently by the Supreme Court, now means that there is a common law pendant to the rule in s. 3(1) of the Human Rights Act 1998. Thirdly, in cases where the protection offered by the Act is displaced by obligations under the Charter of the United Nations, there is no displacement of common law rights, which continue to operate. Fourthly, common law rights are more open to the influences of the customary international law of human rights than are Convention rights. These factors combine to mean that the future of common law rights is an auspicious one.

The difference of judicial opinion in the Supreme Court in Evans provokes reflection on fundamental constitutional principles, such as parliamentary sovereignty and the rule of law. A statute that on its face seems to permit a government minister to override a judicial decision of which he disapproves inevitably raises acute concern; the correct reading of the statute depends on the most persuasive integration of basic principles, placing the text within its wider constitutional context. The Justices deployed distinctions between law, fact, and public interest in rather different ways, reflecting their divergent interpretative approaches. The role of constitutional convention is also of particular interest – central to the legal issues arising, on one view, but largely irrelevant on another. At the root of these disagreements lie contrasting conceptions of law and adjudication.

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.

This article argues that mistakes in written contracts should be corrected under the equitable doctrine of rectification rather than the common law of interpretation. But rectification on the basis of a common mistake should only be granted where both parties are actually mistaken. Any other approach is inconsistent with the nature of the equitable jurisdiction, and blurs the boundary between common mistake and unilateral mistake rectification.

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.