^1. Professor Johnston's lecture appears above at p. 80. Others tell us to look to modern civilian systems or to transnational law, as part of a modern ius commune movement: see Gordley (1995) 43 A.J.C.L. 555; Markesinis, (1993) 109 L.Q.R. 622. In the Scottish mixed system there is a reawakening of interest in modern German law: Scottish Law Commission Discussion Paper No. 99, Judicial Abolition of the Error of Law Rule and its Aftermath (1996) paras. 1.6, 4.51 ff; Clive, Draft Rules on Unjustified Enrichment and Commentary (Appendix to Scot. Law Com. No. 99) pp. 28, 39; Evans-Jones, in Evans-Jones, (ed.), The Civil Law Tradition in Scotland (1995) 218;Google ScholarMacQueen, & Sellar, , “Unjust Enrichment in Scots Law” in Schrage, (ed.), Unjust Enrichment, The Comparative Legal history of the Law of Restitution (1995) p. 289;Google Scholar Whitty, [1994] Jur. Rev. 127. The work of Zimmermann, e.g. (1995) 15 O.J.L.S. 403, has been particularly influential.

^2. 93/13/EEC (Council Directive of 5 April 1993) O.J. 21 April 1993 L95/29.

^3. 1994 S.I. No. 3159.

^4. On German law, which sets forth in great detail a blacklist of terms which are void and a grey list of terms which may be declared void in certain circumstances, see von Marschall, [1979] L.M.C.L.Q. 278. English and French legislation took completely different approaches: the English Unfair Contract Terms Act 1977 containing a short blacklist of terms which are outlawed and subjecting others to a test of “reasonableness”, the French Loi sur la protection et /'information des consommateurs des produils et des services. No. 78–23, 10 January 1978 adopting an administrative approach where a committee makes recommendations to the competent Minister, and this may lead to legislation to outlaw the terms of the contract in question.

^5. See 6th Report of the Select Committee on the European Communities, Unfair Contract Terms, H.L. Paper 28, January 1992, p. 96 (evidence of Profesor Treitel).

^6. Collins, (1994) 14 O.J.L.S. 229; Macdonald, [1994] J.B.L. 456; Smith, (1994) 45 C.L.P. (Annual Report) 5.

^7. See Clarke, (1996) 81 Svensk Jurist Tidning 145, 155. 157 ff.

^8. For judicial divergence see Invercargill C.C. v. Hamlin [1996] A.C. 624. Legislation whereby New Zealand would cut its links with the Judicial Committee of the Privy Council was proposed in 1996, but, as a result of the general election, it appears that it will not be enacted.

^9. Derbyshire C.C. v. Times Newspapers Lid. [1993] A.C. 534; affirming C.A. [1992] Q.B. 770, but on other grounds.

^10. 10 Weir, [1972] C.L.J. 238, 245–246.

^11. This provides that the right to freedom of expression may only be subject to such restrictions “as … are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

^12. A.G. v. Guardian Newspapers Ltd. (No. 2) [1990] I A.C. 109, 283–284.

^13. See also the adverse criticism of the Strasbourg court and its “academic” judges in the press and the reaction to the decsion that George Blake was entitled to the profits of his book, published without the authority required by the Official Secrets Act 1989. From the brief report available it appears that Scott V.-C. may have used the Convention in a much more robust way than the provisions of the Official Secrets Act 1989 which were simply said to have no civil consequences: A.G. v. Blake [1996] 3 W.L.R. 741.

^14. City of Chicago v. Tribune Co. 307 111. 595 (1923); New York Times v. Sullivan 376 US 254 (1964); Hector v. A.-G. of Antigua and Barbuda [1990] 2 A.C. 312. See also Die Spoorbond v. South African Railways 1946 A.D. 999.

^15. The Scottish Law Commission has, moreover, recommended that the Convention's provisions on the formation of contracts be adopted as the domestic law of Scotland: Scot. Law. Com. No. 144 (1993).

^16. Sir John Hobhouse (then a High Court judge, now a judge of the Court of Appeal), (1990) 106 L.Q.R. 530, 535.

^17. Sir Johan Steyn (then a judge of the Court of Appeal, now a Lord of Appeal in Ordinary) in Birks, (ed.). The Frontiers of Liability vol. 2, pp. 16–17.Google Scholar

^18. Arbitration Act 1996. England's hostility to the Unidroit Model Law (Scotland has adopted it) may have contributed to the fact that a number of the jurisdictions that have adopted it did so with modifications and it has not really taken off as an arbitral process in any of the leading European jurisdictions.

^19. Eisenberg, The Nature of the Common Law (1988) p. 1.

^20. Simpson, , in Simpson, (ed.), Oxford Essays in Jurisprudence, Second Series (1973), pp. 79–80.Google Scholar

^21. “The Search for Principle”, (1983) 59 Proc. Brit. Acad. 169, 179–182.

^22. Bentham, , A Comment on the Commentaries and A Fragment on Government (eds. Burns, & Hart, 1977), 118,Google Scholar 161; Pollock, , A First Book of Jurisprudence (3rd ed., 1911) 249;Google ScholarBennion, , Statutory Interpretation (2nd ed. 1992) p. 563.Google Scholar Cf. Maine, Ancient Law p. 11.

^23. “The Search for Principle” (1983) 59 Proc. Brit. Acad. 169, 186.

^24. Lord Wilberforce in La Sentenza in Europa: Metodo, Tecnica e Stile (CEDAM 1988), p. 380.

^25. Myers v. DPP. [1965] A.C. 1001, 1021; Beswick v. Beswick [1968] A.C. 58, 72, 85; President of India v. La Pintado Cie Navegacion S.A. (No. 2) [1985] A.C. 104, 111–112; National Westminster Bank pic v. Morgan [1985] A.C. 686, 708. But even then there were striking exceptions: Rookes v. Barnard [1968] A.C. 1129.

^26. R. v. R. (Rape: Marital exemption) [1992] 1 A.C. 599. For another example concerning criminal law and evidence, see R. v. Kearley [1992] 2 A.C. 228, 345 (willingness to develop the rules governing the admissibility of hearsay evidence).

^27. Airedale NHS Trust v. Bland [1993] A.C. 789.

^28. 28 Lipkin Gorman (afirm) v. Karpnale Ltd. [1991] A.C. 548.

^29. R. v. Secretary of State for Transport, ex p. Factortame Ltd. (No. 2) [1991] 1 A.C. 603; Re M. [1994] 1 A.C. 377. A citizen is also in principle entitled to an interim remedy preserving the status quo until the final determination of the matter.

^30. Woolwich Equitable Building Society v. IRC [1993] 1 A.C. 70 (Lord Goff, Lord Browne-Wilkinson and Lord Slynn; Lord Keith and Lord Jauncey dissenting). Until then, in the absence of an agreement to repay, there was only an entitlement to recover money paid where, broadly speaking, the payment had been made under a mistake of fact or as a result of coercion amounting to duress, or where a right of recovery had been explicitly created by statute.

^31. (1763) 19 St. Tr. 1153; Lofft 1 (power to award exemplary damages for oppressive, arbitrary or unconstitutional acts in the exercise of public power).

^32. (1765) 19 St. Tr. 1030 (no power to issue general warrants for the arrest and search of those publishing seditious papers).

^33. Lord Goff thought this would be the position in respect of ultra vires receipts of tax, “however compelling the principle of justice” favouring recovery: Woolwich Equitable Building Society v. IRC[1993]A.C. 70, 176.

^34. Re F. (Mental Patient: Sterilisation [1990] A.C. 1, 72 (Lord Goff of Chieveley).

^35. [1993] A.C. 789, 891.

^36. Ibid., p. 885.

^37. See my Use and Abuse of Unjust Enrichment, pp. 253–254.

^38. Tribe v. Tribe [1996] Ch. 107,133.

^39. A Common Law for the Age of the Statutes (Harvard 1982).Google Scholar

^40. “Common Law and Legislation” (1908) 21 Harv. L. Rev. 383.

^41. “Statutes and the Sources of Law”, in Harvard Legal Essays (1934).

^42. Precedent in English Law pp. 168–170. See pp. 175–177 of the 4th ed. (1991) ed. Harris.

^43. Common Law and Statutes” (1985) 48 M.L.R. 1.

^44. “Common Law in the Age of Statutes” in La Sentenza in Europa: Metodo, Tecnica e Stile (CEDAM 1988), p. 42.

^45. (1584) 3 Co. Rep. 13b. See Stone, (1936) 50 Harv. L.R. 4.

^46. Law Commission C.P. No. 122 (1992), para. 7.4, adopted by Lord Lowry in R. v. Brown [1994] 1 A.C. 212, 248.

^47. Rodger, (1992) 108 L.Q.R. 570.

^48. Not considered a success by Lord Goff, “The Search for Principle” (1983) 59 Proc. Brit. Acad. 169, 174.

^49. “The Judicial Process in England”, in Essays in Jurisprudence from the Columbia Law Review (1963), pp. 71, 77.

^50. “Is it a Free Country?” in Uncommon Law (1935).

^51. Friedmann, , Legal Theory (5th ed.) p. 454.Google Scholar

^52. (1908) 21 Harv. L. Rev. 383.

^53. This subject is now, with the exception of the rules governing property, largely statutory, an example of codification English style. But note that some do not welcome legislation even where the existing law is manifestly defective: see, in the context of the Private International Law (Miscellaneous Provisions) Act 1995 Part III on the choice of law rules in tort: Second Reading Debate 6 December 1994, H.L. Deb. col. 840 Lord Wilberforce (“the subject of conflict of laws is essentially one which ought to be left to the judges.”); Proceedings of and Evidence to the Special Public Bill Committee on the Bill (H.L. 36 1994/95 1 March 1995), by A. Briggs and P.B. Carter.

^54. The Unfair Contract Terms Act 1977, the Civil Liability (Contribution) Act 1978, and the Limitation Act 1980 deal with both contract and tort. On contract in general see the Law Reform (Frustrated Contracts) Act 1943, the Misrepresentation Act 1967, the Minors' Contracts Act 1987, Law of Property (Miscellaneous Provisions) Act 1989. On tort in general see the Law Reform (Miscellaneous Provisions) Acts of 1934 & 1971, the Law Reform (Married Women and Joint Tortfeasors) Act 1935, the Law Reform (Contributory Negligence) Act 1945, Defamation Act 1950, Occupiers' Liability Acts 1958 and 1984, the Animals Act 1971, the Defective Premises Act 1972, Congenital Disabilities (Civil Liability) Act 1976, Fatal Accidents Act 1976, Torts (Interference with Goods) Act 1977, the Latent Damage Act 1986, the Consumer Protection Act 1987.

^55. Civil Evidence Act 1995, s. 10, implementing part of Law Com. No. 224 (1994).

^56. Sale of Goods (Amendment) Act 1995.

^57. The Damages Act 1996 implements the recommendations of the Law Commission in its Report on Structured Settlements and Interim and Provisional Damages (Law Com. No 224 (1994)). Other recommendations in that Report have been implemented by section 142 of the Finance Act 1995 and section 10 of the Civil Evidence Act 1995 (note 55 above).

^58. Friedmann, , Legal Theory (5th ed.) p. 452.Google Scholar

^59. Pepper v. Han [1993] A.C. 593, 617, 633–634.

^60. Such as the statutes listed at n. 54 above. Unreformed defective rules include (a) the rule that, unless sanctioned by a contractual provision, interest is not due on a debt that is paid late but before legal proceedings to recover it are instituted (n. 68 below), although legislation seems unlikely because of its perceived impact on small businesses, and (b) the privity of contract rule that precludes the parties to a contract from conferring an enforceable right under the contract on a non-party. See Law Com. No. 242 (1996) “Contracts for the Benefit of Third Parties”.

^61. See the well known example of a statute empowering the court to make financial provision out of an estate for the family and dependants of the deceased, which did not empower the court to make such provision for a person who was convicted of the manslaughter of her spouse: the statute “must be taken to have been passed against the background of the well-established principle of public policy” that a person may not profit from his own wrong: Re Royse [1985] Ch. 22, 27. Bennion, , Statutory Interpretation, 2nd ed., (1972) pp. 533,Google Scholar 795. See also Re K. [1986] Ch. 180.

^62. Mixnams Properties Ltd. v. Chertsey UDC [1965] A.C. 735. Bennion, , Statutory Interpretation, 2nd ed. (1992) pp. 585–586.Google Scholar

^63. See e.g. Nancolias v. Insurance Officer [1985] 1 All E.R. 833, 835; Atiyah, (1985) 48 M.L.R. 1, 3.

^64. For recent cases, see Re Saul D. Harrison Ltd [1995] 1 B.C.L.C. 14 (C.A.); R – H Electric Ltd. v. Haden Bill Electric Ltd. [1995] 2 B.C.L.C. 250; Re Little Olympian Each Ways Ltd. [1995] 1 B.C.L.C. 636; Re BSB Holdings Ltd. (No. 2) [1996] 1 B.C.L.C. 155.

^65. Bennion, op. cit., pp. 616 ff.

^66. Williams & Glyns Bank v. Boland [1981] A.C. 487, 502 (Lord Wilberforce).

^67. Statutory Interpretation, 2nd ed. (1992) p. 618.Google Scholar

^68. Examples of this include the unavailability of interest on an unpaid debt in the absence of a contractual stipulation (President of India v. La Pintada Co. Nav. [1985] A.C. 104, 111, 112, 129–31; Westdeutsche Landesbank Girozentrale v. Islington L.B.C. [1996] A.C. 669, but note that whereas in the former case this was a unanimous view, in the latter it was taken by a bare majority. See s. 35A of the Supreme Court Act 1981, inserted by the Administration of Justice Act 1982, s.l 5 and Law Commission No. 88, (1978), Report on Interes), the statutory restrictions on certain forms of discrimination which appear to have choaked off common law development based on the principle of restraint of trade (Nagle v. Fielden [1966] 2 Q.B. 633) and the common callings (see Beatsonin Beatson, & Friedmann, (eds.) Good Faith and Fault in Contract Law (1995)Google Scholar pp. 279 ff.), the liability of builders and local authorities for economic loss suffered from defective construction (Murphy v. Brentwood D.C. [1991] 1 A.C. 398, 457, 472, 480–482, 491–492, 498. Sed quaere whether their Lordships took account of all the relevant legislation: see Beatson, [1991] J.B.L. 87–88).

^69. Atiyah prefers to term the process as identifying gaps to analogical application of statutes: 48 M.L.R. 1, 14, 18–19, inter alia, for constitutional reasons and because the courts continue to interpret the statute in their normal way.

^70. Smith v. Hughes (1871) L.R. 6 Q.B. 597. See Nicholas in Harris & Tallon, Contract Law Today (1989), p. 169 (“There is not in general, on grounds of good faith or on any other ground, a duty on a contracting party to disclose facts known to him but not to the other party, even if he is aware that a knowledge of those facts would deter the other from entering the contract.”); Atiyah, , An Introduction to the Law of Contract, 5th ed., (1995), p. 247Google Scholar (“Each party is entitled to make use of what information he has in order to obtain the best bargain he can get; neither party is under any obligation to assist the other party”). On this see also Beatson, in Beatson, – Friedmann, (eds.) Good Faith and Fault in Contract Law (1995) pp. 275–276.Google Scholar

^71. Carter v. Boehm (1766) 3 Burr. 1905; Pan Atlantic Insurance Co. Ltd. v. Pine Top Insurance Co. Ltd. [1995] 1 AC. 501.

^72. Ibid.; Banque Keyser Ullman SA v. Skandia (UK) Insurance Co. Ltd. [1991] 2 A.C. 249, 268, 281. 73

^73. Note also that a seller of land is unable to enforce the contract if his title is possessory only and not absolute or if it is subject to restrictive covenants which have not been disclosed, but as the purchaser's remedies do not depend on the seller's knowledge or having the means of knowledge, it is difficult to regard this as a duty of disclosure. Cf. the seller's inability to compel the purchaser to take a title which the seller knows is bad but which has not been disclosed unless the defect is patent: For general discussion see Harpum, (1992) 108 L.Q.R. 280, 284.

^74. Syhron v. Rochem [1984] Ch. 112 regarding serious breaches of contract by other employees, but cf. Bell v. Lever Bros. [1932] A.C. 161 in which it was held that there was no duty of disclosure regarding one's own serious breaches of contract.

^75. Fabre-Magnan, , in Beatson, and Friedmann, , (eds.), Good Faith and Fault in Contract Law, pp. 117–118.Google Scholar

^76. Laidlaw v. Organ 15 US (2 Wheat) 178 (1817), extensively discussed in the literature: Kronman, (1978) 7 J.L.S. 1, 20; Rudden, Rev. trim. dr. civ. (1985), 91; Atiyah, , An Introduction to the Law of Contract., 5th ed., p. 248;Google ScholarFabre-Magnan, , in Beatson, and Friedmann, (eds.). Good Faith and Fault in Contract Law, p. 114.Google Scholar

^77. Banque Financiere de la Cite SA v. Westgate Insurance Co. Ltd. [1991] 2 A.C. 249, (n. 72 above), where a narrower range of policy issues relevant to the imposition of a duty of disclosure were addressed in the leading speech by Lord Templeman who concluded that “A professional should wear a halo but need not wear a hairshirt”.

^78. Wales v. Wadham [1977] 1 W.L.R. 199 (Tudor Evans J.).

^79. Jenkins v. Livesey [1985] A.C. 424, 439 which, however, overruled Wales v. Wadham on the ground that the property settlement had been embodied in a consent order and that parties seeking such an order were under a statutory obligation to make a full and frank disclosure to the court which made the order.

^80. Atiyah, p. 252. The decision, but not the reasoning, may, however, be justified on the merits since the husband had not made a full disclosure of his assets.

^81. E.g. ss. 85(2), 95(4)(a) and 96.

^82. S. 11 (disclosure of information explaining hallmarks).

^83. S. 15 and see S.I. 1983 No. 1486, r. 14.

^84. S.I. 1992 No. 3288, rr. 7–8. Note that other provisions of this regulation have been used analogically: Wong Mee Wan v. Kwan Kin Travel Services [1996] 1 W.L.R. 38.

^85. In particular they are given a right to civil damages for contravention of regulatory rules: F.S.A. 1986, s. 62A. Private investor is defined by S.I. 1991 No. 489.

^86. F.S.A. 1986, Schedule 8 paras. 3, 5–8.

^87. Cf. the different approach in Banque Financiere de la Cite SA v. Weslgate Insurance Co. Ltd. [1991] 2 A.C. 249, 273–274, where a narrower range of policy issues relevant to the imposition of a duty of disclosure were addressed in the leading speech by Lord Templeman.

^88. This duty was said to be a necessary part of the court's statutory discretion to adjust property on the dissolution of a marriage: See generally Cretney, & Masson, , Principles of Family Law (5th ed.), Ch. 19 and p. 424.Google Scholar

^89. In Harris, & Tallon, (eds.), Contract Law Today (1989) p. 178.Google Scholar Cf. the different approach of a French lawyer, Ghestin, in Harris & Tallon, op cit. pp. 153–155.

^90. (1908) 21 Harv. L.R. 383, 385–386.

^91. Eisenberg, The Nature of the Common Law (1985 Cooley lectures) p. vii.

^92. Malone v. MPC [1979] I All ER 256, 266, 270.

^93. Law Reform (Contributory Negligence) Act 1945.

^94. Unfair Contract Terms Act 1977, ss. 2(1) (prohibition of clauses excluding liability for negligent death or personal injury), 3 (requirement of reasonableness for exemption clauses in standard form and consumer contracts), 5 & 6 (prohibitions and restrictions on exclusion of statutory implied terms in sales of goods).

^95. Spurting v. Bradshaw [1956] 1 W.L.R. 461, 466.

^96. Ailsa Craig Fishing Co. Ltd. v. Mahern Fishing Co Ltd. [1983] 1 W.L.R. 964, 966.

^97. Photo Production Ltd. v. Securicor Transport Ltd. [1980] A.C. 827, 843 per Lord Wilberforce.

^98. [1925] Ch. 407.

^99. Daniels v. Anderson (1995) 16 A.C.S.R. 607, 657 (New South Wales Court of Appeal), per Clarke and Shelter JJ.A.

^100. Norman v. Theodore Goddard [1991] B.C.L.C. 1028; Re D'Jan of London Ltd. [1994] 1 B.C.L.C. 561. See also Bishopsgate Investment Management Ltd. (in liquidation) v. Maxwell (No. 2) [1994] 1 All E.R. 261, on the influence of the Company Directors Disqualification Act 1986.

^101. [1995] 2 A.C. 633, 739.

^102. (I960) 23 M.L.R. 233.

^103. See e.g. Buckley, (1984) 100 L.Q.R. 204.

^104. Atiyah is, with respect, not very convincing at this point. Although he accepts ((1985) 48 M.L.R. 1, 13) that the notion that civil liability for breach of statutory duty is one of statutory construction is a fiction, he states that the creative act of the court can be explained by saying that it is a general rule of the common law that breaches of duty will, if they satisfy various conditions, give rise to civil liability and that all the court is doing is using the statute to fill in the blanks in the common law rule. But cf. Lord Browne-Wilkinson in X. v. Bedfordshire C.C. [1995] 2 A.C. 633.

^105. [1989] Q.B. 433. If this was done, he believed that the cases would be seen to be concerned not only with pure contractual analysis but also with whether it would be fair or reasonable to hold a party bound by a condition that was particularly unusual or stringent.

^106. See Law Com. No. 154 (1986) “The Parol Evidence Rule” and e.g. Haryanto (Yani) v. E.D. – F. Man (Sugar) Ltd. [1986] 2 Lloyd's Rep. 44, 46.

^107. As was done in Wong Mee Wan v. Kwan Kin Travel Services [1996] 1 W.L.R. 38 where account was taken of the Package Travel, Package Holiday and Package Tours Regulations 1992 S.I. No. 3288, although they did not apply to the contract under consideration.

^108. Apart from the two above, note the impact of statute and regulation on the content of fiduciary duties (Swain v. Law Society [1983] 1 A.C. 598), duties of confidence (Dunford & Elliot Ltd. v. Johnson & Firth Brown Ltd. [1977] 1 Lloyd's Rep. 505) and liability in tort (Stafford v. Conti Commodity Services Ltd. [1981] 1 All E.R. 691—liability where regulatory rule breached—Lloyd Cheyham & Co. Ltd. v. Littlejohn & Co. [1987] B.C.L.C. 303, 313—no liability where there was compliance with a regulatory rule).

^119. precedent in English Law, 4th ed., pp. 174–177.Google Scholar

^110. (1985) 48 M.L.R. 1,8.

^111. He suggested ((1985) 48 M.L.R. 1, 28) as possible candidates for analogical development, the Race and Sex Discrimination legislation, and the Forfeiture Act 1982 (on which, however, see Re K. [1986] Ch. 180 and Cretney, (1990) 10 O.J.L.S. 289).

^112. See e.g. Frankfurter, “Some Reflections on the Reading of Statutes”, in Essays in Jurisprudence from the Columbia Law Review (1963), p. 55 (legislative aim is not drawn like nitrogen out of the air, it is evinced in the language of the statute as read in the light of other external manifestations of purpose), p. 57 (enactments are organisms which exist in their environment).

^113. It is interesting to note that one of the justifications for “equitable” extension was the legislative brevity: “it was”, said Coke, “the wisdom of ancient parliaments to comprehend much matter in few words”. Although modern statutes are anything but succinct, legislation implementing European Community Directives, particularly by “copy-out”, is.

^114. This is true both of statute and common law. Thus, Lord Diplock, who took the view that English Law did not recognise a general principle of unjust enrichment and that the basis of liabilities to make restitution was “empirical”, consequently rejected the use of analogy: Orakpo v. Manson Developments Ltd. [1978] A.C. 95, 104.

^115. See the criticisms in the Report of the Hansard Commission on the Legislative Process (1993).

^116. Bankowski and MacCormick in MacCormick & Summers, Interpreting Statutes (1991) Ch. 10.

^117. Statutory Interpretation, 2nd ed. (1992), p. 369.Google Scholar

^118. Ibid.., p. 564.

^119. Chief Justice Stone, (1936) 50 Harv. L.R. 4, 12.

^120. E.g. L.C.C. v. Bidscope (1910) 80 L.J.K.B. 141, 144 (Lord Alverstone); Lord Evershed, “The Judicial Process in England”, in Essays in Jurisprudence from the Columbia Law Review (1963), p. 97. See also Laski, Note to the Report of the Committee on Ministers' Powers, Cmd. 4060 (1935) p. 135.

^121. Inland Revenue, The Path to Tax Simplification. Such interest is not new; see the discussion in Cretney, (1985) 48 M.L.R. 493, 499.

^122. See Law Com. No. 227 Restitution: Mistakes of Law and Ultra Vires Public Authority Receipts and Payments (1994) para. 5.2 ff.; Scot. Law Com. D.P. 99 (1996) para. 3.11 ff.

^123. The difference was dramatically illustrated in the Paramount Airways case, Powdrill v. Watson; Re Leyland DAF Ltd. [1995] 2 A.C. 394.

^124. The House of Lords assumed the freedom in an appropriate case to depart from an earlier House of Lords decision in 1966: Practice Direction [1966] 1 W.L.R. 1234

^125. Henderson v. Folkestone Waterworks Co. (1885) 1 T.L.R. 329; Julian v. Mayor of Auckland [1927] N.Z.L.R. 453; Derrick v. Williams [1939] 2 All E.R. 559, 565.

^126. Birks, [1992] P.L. 580, 587; Scot. Law Com. D.P. No. 99 (1996), paras. 3.13–3.15.