R (Evans) v Attorney General [2015] UKSC 21; [2015] 2 W.L.R. 813 is a case of real constitutional interest and importance. The division of opinion within the Supreme Court reflects divergent conceptions of fundamental principle. While all the Justices affirmed the principles of parliamentary sovereignty and the rule of law, they understood them differently, resulting in disagreement about their correct reconciliation on the facts of the case. The majority of Justices achieved a real integration of these basic principles in a manner that the dissentients’ superficially more straightforward approach did not.

IN criminal trials, just as a bad character may count against an accused, so a good character may operate in an accused's favour. It was settled by the Court of Appeal in Vye [1993] 1 W.L.R. 471 and by the House of Lords in Aziz [1996] A.C. 41 that any accused who possesses a good character becomes thereby entitled to a mandatory direction (known as a “Vye direction”) in the summing-up. The trial judge is required to instruct jurors that the accused's good character is potentially of dual significance when they come to assess both (1) the credibility of an accused who has testified or who has made admissible, exculpatory pre-trial statements and (2) the likelihood of the accused's having committed the offence(s) charged. But matters do not stop there.

IN OPO v Rhodes [2015] UKSC 32, the Supreme Court clarified the elements of the tort of intentional infliction of harm. Created in Wilkinson v Downton [1897] 2 Q.B. 57, the tort has long attracted the attention of academic commentators, but has rarely been argued successfully in English courts. In Wilkinson, the jury awarded the plaintiff damages for the physical suffering she endured as a result of severe shock that was caused when the defendant, playing a practical joke, falsely informed her that her husband had been injured in an accident. Wright J. held that the tort required an act be done “wilfully”, that is “calculated to cause physical harm”, and which does in fact cause “physical harm” (at 58–59). The Wilkinson formulation was subsequently endorsed by the Court of Appeal in Javier v Sweeney [1919] 2 K.B. 316 and again, 70 years later, in Khorasandjian v Bush [1993] Q.B. 727. In the latter case, the Court of Appeal emphasised that the wrongful conduct must cause “physical injury” – as distinct from “mere emotional distress” – and it must also be “calculated to cause” the same (at 735–36). Later, in Wong v Parkside Health NHS Trust [2001] EWCA Civ 172; [2003] 3 All E.R. 932, Hale L.J. appeared to qualify the mental element of the tort, observing that Wilkinson does not require actual subjective intent to cause physical harm; rather, according to her Ladyship, “calculated” means deliberately doing an act that is “likely”, all things considered, to result in the degree of physical harm that was in fact suffered (at [10]–[11]). Subsequently, Lord Hoffmann, writing the principal judgment for the House of Lords in Wainwright v Home Office [2003] UKHL 53; [2004] 2 A.C. 406, revisited both elements of the tort. He affirmed that, traditionally, it requires proof of actual harm, such as psychiatric illness, as distinct from mere distress (at [45]); and, consistently with Lady Hale's judgment in Wong, he interpreted Wilkinson as providing that the intent to cause such harm can be “imputed” to the defendant if it is an obvious consequence of a deliberate act, even though such harm may not have been subjectively appreciated or intended (at [37], [40]). Additionally, His Lordship contemplated expanding the tort to capture mere distress short of physical harm, but cautioned that, if the law was to expand to such cases (which he left to future courts to decide), “imputed intention will not do” (at [45]). Rather, mere distress should in His Lordship's view only be recoverable (if at all) where the defendant had a “genuine intention to cause distress” (at [46]).

FAIRCHILD v Glenhaven Funeral Services Ltd. [2002] UKHL 22; [2003] 1 A.C. 32 was a hard case that made bad law. Now, for the fourth time, an appeal has gone to the highest tribunal, to unravel Fairchild's resulting complications. International Energy Group Ltd. v Zurich Insurance plc. [2015] UKSC 33; [2015] 2 W.L.R. 1471 (“Zurich”) represents “yet another demanding chapter in [that] difficult series of decisions”: at [189], per Lord Neuberger and Lord Reed. Zurich's resolution took seven judges, in four reasoned judgments, 211 paragraphs, or 80 pages of the law reports – some 46,000 words.

THE Riot (Damages) Act 1886 rarely looms large in the legal imagination. It is brief and apparently straightforward. Section 2(1) of the Act obliges police authorities to compensate owners whose property has been damaged by “persons riotously and tumultuously assembled together” in their area. There is, notably, no requirement to show that the police were at fault. Two appellate cases on the Act arose from disturbances at the Yarl's Wood detention centre in 2002 (see D.J. Feldman [2010] C.L.J. 433). The London (and nationwide) riots of 2011 have occasioned further consideration.

A standard land law problem is that land, or an interest in it, is claimed by two persons, usually as a result of a mistake or fraud of a third party, not worth suing. Both of the claimants are innocent parties. Common law solutions tend to an all-or-nothing approach – one person wins and the other loses. Land registration possesses the significant advantage that compensation (indemnity) may be paid to the losing party. For this to be possible, either a loss must be caused by rectification of the register or there must be a loss which requires rectification to be remedied. So, if the wrong person is registered as proprietor, whoever loses the land (which is likely to turn on the rules for rectification of the register) will be compensated. There has been little litigation on indemnity, but it was established by Re Chowood's Registered Land [1933] Ch. 574 that a purchaser bound by an overriding interest is not entitled to indemnity. Rectification of the purchaser's title recognises existing legal rights to the land and itself causes no loss to the purchaser.

THIS subject has been considered in Novoship (UK) Ltd. v Mikhayluk [2015] 2 W.L.R. 526; [2014] Q.B. 499. The first plaintiff (“Novoship”) and the 14 other plaintiff companies (“the Novoship Group”) were indirect subsidiaries of the JSC Novorossiyak Shipping Co., incorporated in Russia. The first defendant, Mr. Mikhayluk, was an officer of Novoship and in charge of negotiating the charter of vessels owned by members of the Novoship Group. In litigation in the Commercial Court, he was held to have been in breach of his fiduciary duty to members of the Novoship Group by his corrupt conduct between 2002 and 2004 in dealings with various charterers. These included the sixth defendant, Mr. Nikitin, and the eighth defendant, Henriot Finance Ltd. (“Henriot”), a Virgin Islands company owned and controlled by him. There were connections with a number of jurisdictions but the litigation was conducted on the footing that the governing law was that of the English forum.

THE Supreme Court's decision in Jetivia SA v Bilta (UK) Ltd. (in liquidation) [2015] UKSC 23; [2015] 2 W.L.R. 1168 contains some important developments for the rules of corporate attribution and the defence of illegality.

THE status of anti-suit injunctions in Europe has long given rise to controversy. The decision of the Court of Justice of the European Union in Case C-536/13, Gazprom OAO [2015] All E.R. (EC) 711 sheds a new light on the relationship between anti-suit injunctions and the European jurisdiction regime embodied in the Brussels Regulation (Regulation No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters). In this much anticipated judgment, the Court of Justice confirmed that, by virtue of the arbitration exclusion in Article 1(2)(d) of the Brussels Regulation, Member State courts are not precluded from enforcing anti-suit injunctions issued by arbitration tribunals and aimed at restraining the proceedings before Member State courts. Although the decision was given before the Recast Brussels Regulation came into force (Regulation No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, effective from 10 January 2015), it can be assumed that the same conclusion would have been reached under the new law.

AFTER McCann and Others v the United Kingdom (Application no. 18984/91) (1995) ECHR 31, in which the European Court of Human Rights first read into Article 2 the procedural obligation of effective investigation, Mustafa Tunç and Fecire Tunç (Application no. 24014/05), 14 April 2015, is perhaps one the most interesting decisions on the nature of the obligation to conduct an effective investigation in the Court's recent history. The Court, through its case law, has clarified that, when individuals have been killed by the state or a private party, the Contracting Parties have to undertake an investigation under Article 2, which has to be independent, adequate, prompt, and publicly scrutinised. It has been unclear, however, whether the element of independence had to meet criteria similar to those under Article 6, which guarantees a fair trial, or whether a lower standard was sufficient for an investigation to be considered effective in the context of Article 2. The Strasbourg court went back and forth on the issue (even adopting an absolutist approach in Al-Skeini and Others v the United Kingdom (Application no. 55721/07) (2011) ECHR 1093) and it was not until Mustafa Tunç that the issue of independence under Article 2 was addressed head-on.

THE tort of passing off is embedded in the world of commerce. Its roots are in an age when customers patronised local speciality shops. Today it operates in a world of e-commerce operating across national boundaries. To succeed in passing off, the claimant must show it has goodwill, that there has been a misrepresentation, and as a result that the claimant has suffered damage or, in a quia timet action, that there is the likelihood of damage. Necessary to establishing goodwill is not only that the claimant's goods and services have a reputation in the relevant jurisdiction, but also that the claimant has customers there. The question raised in Starbucks (HK) Ltd. v British Sky Broadcasting Group Plc. [2015] UKSC 31; [2015] 1 W.L.R. 2628 was whether this principle is still relevant in what Lord Neuberger described as “the age of global electronic communication” (at [1]). The Supreme Court held that it was.

This article examines the impact on the patent system of rewards for innovation across the eighteenth and early nineteenth centuries. During this period, Parliament would regularly grant rewards to inventors, with many of these rewards being set out in legislation. This legislation provided Parliament with the opportunity to promote a model of state support for inventors: a model that made public disclosure of the invention a precondition for assistance. This had important implications for patent law, in particular, in helping to develop the role of the patent specification and the doctrine of sufficiency of disclosure. In this way, the reward system helped establish the framework under which the state would provide support for inventors. Simultaneously, however, the reward system created a space in which inventors would have to do more than meet the minimum requirement of public disclosure. Rewards allowed the state to distinguish between different classes of inventor and to make special provision for particularly worthy individuals. In this way, the reward system recognised the contribution of the “heroic inventor”, whilst leaving the core of the patent system undisturbed.

This article considers the enforceability of arbitration clauses which are included in trust documentation. It focuses on two main questions. The first is whether internal trust disputes are capable of being settled by arbitration. The article offers arguments in favour of the arbitrability of such disputes. It then addresses the question of whether parties to an internal trust dispute can be forced to arbitrate, rather than litigate, where the trust documentation contains an arbitration clause. It is argued that there are real difficulties in the argument that such clauses can be enforced as arbitration agreements, under the ordinary arbitration statutes, but that the court could potentially enforce such a clause under its inherent jurisdiction to control its proceedings.

This paper argues that the problems commonly associated with the joint enterprise doctrine might be alleviated by supplementing the cognitive mens rea standard of foresight with a volitional element that looks to how the defendant related to the foreseen risk. A re-examination of the case law suggests that a mens rea conception of foresight plus endorsement might be within interpretative reach. The paper considers possible objections to such a development but ultimately rejects them. It concludes that it is not necessary to wait for Parliament to put in place reforms: joint enterprise is a creature of the common law, and the common law is able to tame it unaided.

Computerisation facilitates instantaneous and direct links between all of us in our work and social lives. At the same time, and counter-intuitively so, securities are increasingly held indirectly through chains of custodians that operate between issuers and investors. This disconnects investors from issuers and can significantly reduce the value of assets. The regulatory framework does not prevent this effect. UK-regulated holders of client securities should be required to hold these directly in the name of the investor. At an international level, it is worth asking whether the technology underlying bitcoin and other cryptocurrencies can be used to create an un-intermediated securities ledger connecting investors and issuers directly.

This article is concerned with the availability of “proprietary restitution” in cases of mistaken payments. It is argued that the mistake of the claimant is an insufficient justification for proprietary restitution, but a close analysis of the case law demonstrates that the presence of additional factors can justify the availability of proprietary restitution in specific circumstances. The basis of proprietary restitution is to be found in the breach of a duty which arises separately from the claim for unjust enrichment. The significant contribution of this article is the analysis that knowledge merely creates a duty to maintain the fund until restitution is made, and that knowledge cannot establish the breach of this duty. Importantly, breach of this duty is established by a second condition which is demonstrated by the wilful misconduct of the recipient. It is this conduct which justifies the imposition of the constructive trust. By adopting this analysis, the proprietary claim in the context of mistaken transfers can be classified as forming part of the law of wrongs, rather than the law of unjust enrichment.

This article explores Philip Pettit's recent attempts to extend his republican theory of justice and legitimacy to the international sphere in accordance with his ideal of “globalised sovereignty”, with a specific focus on his treatment of international law and institutions. It uses the practice of international law and institutions, with examples largely drawn from international economic law, to test the assumptions built into Pettit's theory. It then considers whether and how some of those assumptions might need to be revised in light of the legal, institutional, and practical constraints of the international domain.

This article explains the rule that leases have a certain term from the outset by placing the lease within the wider context of the system of estates in land. There are no perpetual estates in land. However, some uncertain terms risk creating genuinely perpetual estates, conflicting with the nemo dat principle. All leases for uncertain terms cause considerable difficulties if a superior estate comes to an end. The article shows that the common law addressed this difficulty, not entirely consistently, before 1925, but there are still real difficulties in the operation of escheat were uncertain terms to be permitted.