The work of defence lawyers in civil litigation has been neglected by law and society studies. Research on personal injury cases, in particular, has usually focused on the alleged failure of legal systems to compensate plaintiffs as fully and as quickly as they believe proper. The defence lawyer is conventionally portrayed as a pettifogger in the classic sense, one who seeks points of detail on which to argue, delay and confuse issues until the plaintiff reduces their demands, dies, loses heart or otherwise goes away. Recent work has been widely taken as proposing that the most effective plaintiff response is to harry defendants in an aggressive and uncompromising fashion–so-called ‘hard bargaining’. This paper combines data from two studies of personal injury litigation carried out in the late 1980s and the mid 1990s to question this conclusion. Although the procedural environment has changed in England since the implementation of the Civil Justice Reforms in April 1999, it is argued that the general points on methodology and on the starting assumptions of socio-legal research remain valid.

The Director General of Fair Trading has recently won the first case seeking an injunction to restrain the continued use of unfair terms in consumer contracts. This represents only the tip of the iceberg in terms of the activity of the Unfair Contract Terms Unit established to enforce the Unfair Terms in Consumer Contracts Regulations. The sparsity of reported judicial decisions does not mean that the Regulations have been ineffective; far from it, numerous contracts across a variety of economic sectors have been amended following complaints made under the Regulations. It may still be early days in the battle against unfair contract terms but, as will be shown, the Regulations are proving to be a highly effective weapon in the consumer's armoury.

In 1994, feminist activists made headlines at the United Nations Cairo Conference on Population and Development for their highly organised and influential lobbying. The final agreement negotiated at Cairo reflected this involvement by specifically referring to women's reproductive rights, and by recognising the complex relationship between population policy, environmental security and economic growth. International population policy, defined broadly as the array of international projects and actors involved in efforts to curb population growth, is an increasingly important arena for the contestation of social values and the meaning of global community. In this paper, I offer a re-reading of the 1994 Cairo agreement, and population policy more generally, in the context of colonial discourses around race and gender, which articulate with constructions of the population ‘problem’. Focusing on the language of environment and economic growth, I examine how racialised conceptions of ‘dangerous’ fertility are reinforced rather than challenged by the Cairo agreement. Through this analysis, I attempt to first, make explicit the international inequality that structures international law and policy, and secondly, outline some of the challenges facing feminist engagement with international law.

The provisional proposals of the Law Commission for reform of the law relating to illegal transactions are examined in relation to proposals for reform of the same area of the law in other Commonwealth jurisdictions. The working in practice of the New Zealand Illegal Contracts Act 1970 is considered, and judicial development of the law in Canada and Australia is contrasted with the reluctance of the judiciary in England to embark upon systematic reform. The conclusion is reached that there is a proven need for a move away from rigidity and literalism towards a legitimated judicial discretion enabling the great variety of factors in illegality cases to be weighed. Furthermore, the artificial and arbitrary notion of ‘reliance’ upon illegality should be abrogated. Only statutory reform of the law along the lines provisionally proposed by the Law Commission is capable of bringing about these changes in England.

The law of goods remains in a relatively undeveloped state, retaining both a vocabulary and doctrines which derive from the late Year Book period. That vocabulary is expressed in terms of general and special property in goods. The ‘property’ in goods was always regarded as indivisible because there could be no estate in goods. That doctrine survives in the modern rule that ownership of goods is indivisible. The difficulty of reconciling the old language with modern usage is conventionally overcome by assuming that the old terms simply correspond with ownership and possession. It will be argued in this paper that no such correspondence exists because general and special property always represent an aspect of ownership. In order to demonstrate this assertion it is necessary to depart from orthodox doctrine and insist that ownership is severable. This will be illustrated by the way in which proprietary interests behave upon the creation of a pledge and a hiring of goods.

In both the United Kingdom and the United States, there have been a substantial number of copyright disputes concerning the creation of biographical works. Prominent recent examples have involved J D Salinger and Sir Stephen Spender. In many such disputes, the claimant's motive for bringing infringement proceedings is not financial but ‘personal’— for example, to protect privacy or reputation. In this article, it is argued that, when copyright is employed for such motives, inconsistent results can arise. In particular, in such cases, it is demonstrated that the possession of a copyright interest is capable of providing a number of apparently inequitable advantages to claimants whose privacy or reputation is threatened.

The purpose of this article is to examine the nature and potential impact of s 3 of the Human Rights Act 1998. The article draws upon the experience of courts in other Commonwealth jurisdictions which operate a similar provisions. The author analyses the nature of the interpretative technique, reading down, that s 3 requires and illustrates its potential by reference to a number of situations involving statutory imperfections such as ambiguity and overbreadth. The author also outlines the impact that s 3 may have on the exercise of statutory discretion. The author further argues that reading down should not be confused with more intrusive remedies, such as reading in, which are not available under the Human Rights Act.

This article examines the ability of the claimant to recover damages for mental distress in the English law of torts. This is an area of law which has received little attention and indeed, the general impression is frequently that such damages are not recoverable. This article seeks to establish that this is far from the case and that damages are frequently awarded for mental distress even if they are not always openly recognised. Most lawyers are familiar with the award of damages for ‘suffering’ within the action for personal injury, but damages for distress are awarded generally, particularly as aggravated damages, as recognised by the Law Commission in 1997. It will be argued that much will be gained by appreciating the true nature of these damages and the policy factors which determine when the claimant will be granted such an award. Whilst there is no evidence to support a right to claim such damages in their own right, there is sufficient authority for a separate head of damages us part of the claimant's general compensatory claim. It is therefore submitted that open recognition of this head will be to the benefit of individual claimants and the system as a whole in clarifying this area of damages.

This article considers the justification for various doctrines pursuant to which rights in or over land may be acquired or lost informally. Three relevant factors are identified: the fault of the owner of the land or interest; potential unfairness to the other party; and policy reasons. Individual doctrines are examined to ascertain which factors are relevant to each. It is then argued that only policy reasons or a combination of fault and unfairness can adequately justify depriving someone of their rights in land and that some policy reasons relied on by the courts are no longer sufficient justification in the light of the Land Registration Act 1925. Consequently, it is argued that some of the doctrines discussed require reconsideration, if not abolition.

This article seeks to show why, historically, the lease/tenancy were viewed as being peripheral to the scheme of land law, not perceived as part of ‘real property It suggests that the continued classification today of leases/tenancies as personalty reflects an uncritical perpetuation of this perception, a failure to reappraise their legal status and function in the context of today law and social relations concerned with land. More generally, it touches on a possible need to reappraise many of the underlying, historically derived schemata and structures of today's property law. Finally, as the offer of a small step in the reappraisal of the place of lease/tenancies, it argues that today, in law, they can and should properly be classified (together with freeholds) as part of real property.

This article examines and questions the nature of police immunity from claims for negligence in the investigation and suppression of crime, as stated by the House of Lords in Hill v Chief Constable of West Yorkshire. This issue has been discussed before the European Court of Human Rights in Osman v United Kingdom, where the court held that a blanket application of the immunity was contrary to art 6 of the European Convention on Human Rights. This article will argue that this decision does not overturn the basic public policy principles for the immunity stated in Hill and that further examination of this area of law is required. It is submitted that if the law is considered in terms of proximity rather than in terms of public policy immunity, a clearer understanding of the principles underlying this area of law can be reached together with the desirable goal of removing the term ‘immunity’ from this area of law.

The desirability of having a general duty to give reasons for court decisions has been much debated in Commonwealth jurisdictions. In England, a series of recent cases has consistently upheld the duty, albeit with qualifications. The existence of this general duty is defensible in principle. However, exactly what is required to comply with the duty is not clear. The explanation the judge is expected to give may be analysed in terms of its structure, contents and standard. These aspects are dependent on many factors, such as the rationale underlying the duty, the limitations faced by the judicial system, the nature of the decision- making process, and the significance of the decision. While one can identify the major considerations that operate at a general level, the scope and extent of the duty to explain a particular decision are dependent on the circumstances of the case. This variability makes it difficult to be certain as to when a breach of the duty has occurred. The duty must meet the purposes for which it is imposed and at the same time must not be too unrealistic in its demands.

It has often been assumed that the notion of altruism indicative in the ordinary use of the term ‘charity’ penetrates the rationale for equity's enforcement of charitable trusts for the relief of the poor. This article questions whether in the area of poor relief equity acts out of a humanitarian regard for those whose relief is the purpose of the trust, or whether there is a more pragmatic rationale for action. Examination through case law of equity's reasoning is placed against a backdrop of socio-historical development, and of present day political concerns with resource allocation and professional accountability. This article concludes that whilst the potential for humanitarian relief in charitable trusts for the poor is clear, the operation of equity's jurisdiction in this area has a more prosaic disposition, placing poverty within the practical context of broader economic, social, commercial and industrial political policies.

This article addresses the potential advantages and disadvantages of codifying the grounds of judicial review of administrative action. The four principal legal values associated with codification are described: certainty; clarity; democratic legitimacy; and rationality. The extent to which codification might further these values is considered in the light of two comparative models: the United States Administrative Procedure Act 1946 and the Australian Administrative Decisions (Judicial Review) Act 1977 (Cth). It is concluded that codification offers no solution to the practical and theoretical problems of judicial review. Codification places the content of the principles of judicial review in the hands of politicians. Australian legislation limiting the grounds of review available in migration cases shows the danger to the separation of powers inherent in codification. If it is thought desirable to foster the further development of the principles of judicial review, this can best be achieved by leaving the task to the judiciary.

One of the enduring features in Irish legal discourse in the postcolonial period is the manner in which the individual body has become a receptacle of contested meaning. In Ireland, with its birth out of a violent trauma based on a philosophy of blood sacrifice, the heroic patriot who dies in the service of his imagined nation is invested with particular symbolic capital and casts a traumatic shadow over discourses on death in Irish society. The nation is always already in the shadow of death, of the deathly apparition of the new nation, made hauntingly manifest in the photos of the dead body of the nationalist hunger striker Terence MacSwiney, as his corpse lay in state in 1920. This body being dead also signals the hope that, in the sacrifice of the individual for the national cause, liberation will one day come. This theme of the primacy of community over individual prefigured the manner in which in postcolonial Irish society the individual body of the citizen was relegated to a secondary position. The attempt to deny or repress death may be analogised with the similar attempt on the part of political elites to create a notion of political identity which is rigid and attempts to keep all those others associated with death and degeneration outside the body politic.

In Bland the House of Lords held it lawful to withdraw tube-feeding from a patient in a ‘persistent vegetative state’ (pvs), even with intent to kill him. The British Medical Association (BMA) recently published guidance on the withholding and withdrawal of ‘medical treatment’, so defined as to include food and water delivered by tube. The guidance endorses the withholding/withdrawal of tube-delivered food and water not only from patients in pvs but also from other non-terminally ill patients, such as those with severe dementia or serious stroke. The underlying justification appears (as in Bland) to be that such lives lack worth. This article offers three major criticisms of the guidance. First, its argument that tube-feeding is medical treatment rather than basic care is weak. Secondly, its reasons for not treating or tube-feeding undermine the BMA's longstanding opposition to active euthanasia and active assisted suicide. Thirdly, it relies heavily on legal precedent at the expense of ethical reasoning.

Drawing on the findings of a year-long empirical study of 15 charities in the county of Merseyside, this article examines some of the implications for charities of entering into the ‘contract culture’. Although not the focus of the empirical study as a whole, the particular aim of this article is to consider the effect of the contract culture on the typically small charity. After a brief consideration of the legal status of charities funding documents within the contract culture, a number of problems faced by small charities that are embraced by the contract culture, together with their legal consequences, are examined. A number of survival tactics for small charities are then discussed. In the light of the publication of the government Compact on relations between itself and the voluntary and community sector, a plea is made for more equal partnerships to be forged between charities and their funders within the contract culture.

In November 1997 the Environmental Audit Committee of the House of Commons (EAC) was established. The Committee is modelled in some ways on the Public Accounts Committee of the House of Commons (PAC) but, unlike the PAC, the EAC is not supported by an independent auditor. This article argues that, despite the limitations of audit made in accountancy literature, audit can be a useful mechanism by which to hold government to account for the impact of its policies and operations on the environment. However, as a model of accountability, the current system of environmental audit is inadequate. In making this argument, the article draws on two existing audit models. First, because the government has chosen to model the EAC on the PAC, the mechanisms in place for securing financial and value for money accountability in UK central government will be considered. Second, the article looks to the arrangements in Canada, where a more developed system of environmental audit exists.

Occasionally, a case comes to court in which a disappointed relative or other carer seeks the enforcement of a promise made by a testator to leave them all or part of their estate if the relative or other carer looks after them or provides some other service. This article compares and contrasts the courts’ response, in England and in New Zealand, to the enforcement of these testamentary promises. In England the courts have struggled to provide redress with the tools available from the common law and equity. Despite an array of possible remedies from contract to estoppel and restitutionary remedies, few claimants have proved successful. The sanctity of testamentary freedom and formalities has prevailed over the injustice caused to the disappointed carer. Yet in New Zealand testamentary promises are commonly enforced under the Law Reform (Testamentary Promises) Act 1949, a statute passed specifically to loosen the grip of testamentary freedom in the, face of such promises. Under the influence of this statutory impetus, the New Zealand courts have shown a liberal and flexible approach to the interpretation of this statute that is both interesting and enlightening. They have recognised that in the personal context of the testamentary promise traditional notions of contractual promises and consideration or detrimental reliance need to be rethought. Perhaps it is time for us also to rethink our approach to the treatment of those who provide unpaid care or other services when they have been led to expect some sort of testamentary recompense.

This article seeks to examine the question of what the essential nature and definition of a mistake is. It examines whether it can be properly distinguished from ignorance. The article then seeks to examine the requirement of provability, first in the context of mistakes of fact and then in that of mistakes of law. A Dworkinian approach is taken, arguing that it is possible to be mistaken as to the law. The article then shows why an opinion or misprediction cannot be seen as a mistake, before turning to the topical issue of the manner of the recent removal of the mistake of law bar. Using Dworkin's analysis it will be suggested that where a case is overruled it can be said to have been u mistake to rely on it. The article also argues that Birks’ analysis of the question is flawed, in that he fails to see the real distinction between a mistake and a misprediction.