Prosecuting bank directors: some historical observations

Whatever the constitutional proprieties involved in a UK Cabinet Minister getting publicly impatient about the lack of visible activity in the Crown Office with regard to possible prosecutions of ex-directors of the Royal Bank of Scotland (see here), it is of some interest to compare the situation today with that revealed in Robert Shiels' recently published article, "The criminal trial of the directors of the City of Glasgow Bank" 2013 Juridical Review 27-40. 

The City of Glasgow Bank closed on 5 October 1878 with losses of over £6 million, a record of "falsified accounts, securities entered at fictitious values, bad debts taken as good assets, and the gold which ought to have been held on statutory authority against note issue … deliberately squandered to the extent of over £300,000" (Shiels, p 28).  As Dr Shiels comments, "these sums were fabulous in their day" (ibid).

The directors of the Bank had all been arrested by 29 October, with only one granted bail, because the charges against them included aggravated theft (for which the death penalty was possible).  The trial was concluded and guilty verdicts were returned on 31 January 1879 on various charges of falsehood, fraud and wilful imposition; falsification of balance sheets to conceal and misrepresent the true state of the bank's affairs; and using and uttering false balance sheets with intent to defraud, whereby shareholders and members of the public were imposed upon and defrauded.  All the directors were found not guilty on charges of theft and embezzlement, however.

The guilty directors served prison sentences of between 8 and 18 months, which were regarded at the time as "ridiculously light", although most of them were also in jail for the three months between arrest and the conclusion of the trial.

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Adjusting to changing circumstances: only when frustrated

The UK Supreme Court pronounced on 23 January 2013 in the much discussed case of Lloyds TSB Foundation for Scotland v Lloyds Banking Group plc [2013] UKSC 3, reversing the First Division and reinstating Lord Glennie's decision in the Outer House, in favour of the Bank and against the Foundation. 

The unanimous (although Lords Hope and Clarke clearly had doubts before reading Lord Mance's leading judgment) decision is based on grounds different from Lord Glennie's, however: fundamentally an approach to the interpretation of the controverted contract based upon how the reasonable person would have understood the agreement at its creation in 1997 against the background of the factual matrix of the time, rather than the "deletion" of words which read awkwardly in the light of changed legal and factual circumstances.  Although in the light of this approach it was not necessary to discuss the extent of Scots law's recognition of a doctrine of "equitable adjustment" of contracts in the light of changed circumstances, Lord Hope does say that outside frustration of contract, there is no such doctrine in the law; it may be, however, that in frustration cases the law's response is not limited to applying unjustified enrichment rules.

The decision will no doubt be much discussed on other blogs, and I do not go into further detail here as a result.  I am grateful however to be allowed to reproduce the comments made to me by my Scottish Law Commission colleague Charles Garland, who happens to be working on trust law as well as being a member of my contract law team.  This is what Charles says:

"On a fairly quick read this strikes me as a rather disappointing decision (well, a disappointing series of decisions as there is little by way of continuous thread through the three court pronouncements).  The SC justices have taken a purely interpretative approach but some of them seem to have swithered rather heavily as to what the result should be.  What we’re left with is a difference of opinion over the fundamental question of how the reasonable person would have interpreted the covenant when it was signed.  The IH said (at [12] (with emphasis added):

The relevant reasonable person addressing what the parties meant on entering the 1997 Deed would not have known that in 2002 a European Regulation would come into force which would require negative goodwill to be brought into account as a positive figure in the drawing up of the respondent's consolidated income statement (or consolidated profit and loss account). He would, however, have known (as was accepted on behalf of the respondent) that it was possible that the accounting rules which had to be applied in drawing up such a statement or account might change.

And Lord Hope seems to have reached the opposite view (at [34]) (again with emphasis added):

[…] I have been persuaded by Lord Mance’s judgment that these words must be read in the light of what a reasonable person would have taken them to mean, having regard to what was known in 1997 when the idea of introducing negative goodwill into the profit and loss account was unthinkable. Read in that context, the words do not have the weight that the Dean’s argument would give to them. That would be to give them a meaning which no reasonable person would have dreamed of at that time. The words used are capable of meaning realised profit or loss before taxation, and of excluding elements which would not have been contemplated as having anything to do with the computation of profit or loss when the Deed was executed. On that reading I am left in no doubt that the argument for Lloyds Bank, which accords with the landscape at the time when the words were written, must prevail over that for the Foundation.

This hugely divergent pair of results [Charles continues] seems to me to cast some doubt on the utility of the “reasonable person” test in cases such as this.  It’s not an example of poor drafting or of parties not applying their minds properly to their agreement.  It’s much more a situation of unexpected circumstances arriving somewhat out of the blue.  Drafters surely cannot be expected to provide a scheme which will work even if the world is turned upside down and inside out.  That would be an unreasonable demand.  Some form of equitable adjustment, or some judicial discretion, would seem to be appropriate (though that idea was considered and rejected).  Just as a speculation: what if the Foundation had in fact been successful and had gained a lottery-scale windfall?  As a charity, it could have decided to seek assistance from the court by way of cy-près, rather like the situation in RS Macdonald Charitable Trust [2008] CSOH 116 (where Lord Drummond Young said, in setting out the basic facts: “The result is that the Trustees now control very substantial assets; it is averred that these are greatly in excess of what the Truster could have contemplated when he set up the Trust in 1978.”).  That way of dealing with the unexpected seems to me to make much more sense."

What this makes me wonder (as Professor rather than as Commissioner MacQueen) is whether if trust law can provide for change of circumstances in this way, why not the law of contract?  The starting point should be, of course, that contracting parties (as distinct from the parties to a trust) are free to change their contract by agreement; but suppose, as in the Lloyds case, they cannot agree?  Would it not be better than long and expensively contested litigation through three tiers of the court system to have some sort of contractual equivalent to the courts' cy-près jurisdiction in trusts?  This need not necessarily be the same as the PECL, DCFR and proposed CESL schemes to which reference was made in the Inner House (although of these the DCFR seems best to me because it does not impose any duty on parties to negotiate before resorting to the courts for a decision).  But something along those lines would bring us rather more into line with other jurisdictions in the European Union (if that remains any sort of material consideration after Mr Cameron's speech on the same day as the Supreme Court judgment).

Lord Hope's possible opening of the door to using approaches other than unjustified enrichment in response to the frustration of contract, at least to the extent of a tiny chink (see [43] -"Adaptability has a part to play in any civilised system of law") is to be welcomed (see MacQueen & Thomson, Contract Law in Scotland (3rd edn, 2012) paras 4.85, 4.88 with further references), but how it may be developed is left opaque.  Some more work for the comparative lawyers amongst us, perhaps?

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Lord Carloway to be Lord Justice Clerk

The BBC reports on 15 August 2012 that Lord Carloway has been appointed Lord Justice Clerk in succession to Lord Gill, who earlier this summer became Lord President and Lord Justice General.

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Lady Clark the new Chair of the Scottish Law Commission

Lady Clark of Calton has been appointed as the next Chair of the Scottish Law Commission – the first woman to chair the law reform body.

More details in the Scottish Government news release of 21 June 2012 here.

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Lord Gill appointed Lord President

The Lord Justice-Clerk, Lord Gill, will succeed Lord Hamilton as Lord President of the Court of Session and Lord Justice-General when the latter retires at the beginning of June, it was announced on 1 June 2012.

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Death of Megrahi

The BBC and other agencies report the death of Abdelbaset al-Megrahi in Tripoli on 20 May 2012 –

Comment and reaction here –


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Gloag’s golf: a past Master

Scots Law News has never thought that news need be new in the sense of being only about current or very recent events.  We are therefore delighted to publish this 1907 information as provided by our golf correspondent Professor David Carey Miller of Aberdeen.

"The exceptional contribution of Professor W M Gloag will be remembered again when the 13th edition of Gloag and Henderson is published. But how many know that Gloag was a keen and accomplished golfer? The late Alan Rodger’s finely crafted entry in the Oxford Dictionary of National Biography (A F Rodger, ‘Gloag, William Murray (1865-1934)’ ODNB, 2004, online edn 2007 [, accessed 21 Feb 2012] ) does not neglect the jurist’s golf.

The ODNB piece tells of a hole in one by Gloag in 1907. As Aberdeen Secretary of the Glasgow/Aberdeen University Senate Golf Match Society, this writer can add that the hole in one was achieved by Gloag in his first appearance for the Glasgow team two years after his appointment as Regius Professor of Law. The minute of the match, played at Glasgow Gailes on 23rd February 1907, records that “Prof Gloag in his match with Prof Thomson holed the             in one”. The blank left by my predecessor Aberdeen Secretary was not filled in and we will never know at which of the Gailes short holes Gloag holed out!

Gloag played in the Senate Match fourteen times – seven being away matches at Royal Aberdeen (Balgownie) – between 1907 and 1929. Given that over the years of the Great War the match was suspended, this represented pretty regular appearance. Alan Rodger, in his ODNB entry, noted that “Gloag had a deformity of the right arm”; this is indeed apparent in some of the team photographs which are part of the Senate Match archive. The disability seems not to have affected Gloag’s golf because his record against Aberdeen is very good. On the few occasions that he lost it was almost always by a small margin; one exception was his last match at Balgownie in 1929 when Aberdeen’s Professor Blackadder triumphed by 9 holes – 5 and 4 in modern scoring.

Finally, it may be noted that Gloag’s hole in one in the 11th Senate Match has not  been repeated but hope springs eternal with the 103rd encounter to be played at the Glasgow Golf Club in June 2012."



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A Christmas treat from Bute

Readers of Scots Law News with Christmas book tokens burning holes in their wallets could do no better than repair to a good bookshop or (if possible) Amazon and get themselves a copy of the autobiography of Sheriff Irvine Smith QC, Law, Life and Laughter: A Personal Verdict, published earlier this year.

The dust jacket carries characteristic portraits of the author, standing outside the portico-ed exterior of (your correspondent thinks) the former Justiciary buildings in Glasgow, within which he began to make his name as an advocate in the late 1950s.  When your correspondent was an Edinburgh law student back in the mid-1970s, he made an outing to the Glasgow sheriff court (then in the County Buildings in Wilson Street) to see in action the by now formidable judge whose scintillating prose and wit had incomparably brightened up the study of criminal law and procedure, notably in the great case of Heron v Diack and Newlands 1973 SLT (Sh Ct) 27 (the coffins and the corpse that would not sink in the waters of the Firth of Clyde).  Our lecturer had also regaled his class with tales of Irvine Smith’s judicious put-downs of the bar and Glasgow’s criminal classes (one of which is retold here at pp 166-167), so it was clear that a train journey would likely be worth the slight drain on the student wallet.  The experience did not disappoint: in the chaotic conditions seething behind the classical facade of the court building, Sheriff Smith was indeed presiding over a cramped court-room in which the almost equally famous Len Murray was appearing on behalf of the accused.  The interaction of these two quick wits (and friends) was something both to hear and behold, if now impossible to recapture in detail or in words.  Even the accused seemed almost to enjoy the show.

Neither does the dip into this book disappoint.  The most vivid chapters are those about life on the bench in Glasgow sheriff court, where Irvine sat from 1963 to 1983, and the five capital murder trials in which he acted for the accused before beginning his time as a judge.  It is not all crime: there is a chapter on the (unreported) civil claim that arose from the Ibrox Disaster of 1971, and part of another on the controversial verbal injury case, Steele v The Scottish Daily Record and Sunday Mail Ltd, reported at 1970 SLT 53.  Scarcely less interesting, although for quite different reasons, are the chapters on Irvine’s early life as the late and only child of a working class family from Falkirk, but one with many aunts and a formidable maternal grandmother through whom the boy’s horizons were extended to both the Gorbals and rural Ayrshire.  There were to be further sharp contrasts when he went on, first to Glasgow University, and then to the Faculty of Advocates in Edinburgh. 

All of this is described in rich detail which is, however, never overdone or rendered in the “tall tales from the courts” fashion which mars too many lawyers’ autobiographical efforts.  What we get is reflective both on the self of the author and the times and places in which he has lived.  Along the way we gain insight into what shaped the inimitable Irvine: the sonorous and eloquent voice, the lover of Burns, food and wine, and what combined these qualities to make one of Scotland’s greatest after-dinner speakers.  There is plenty of observation about the characters he has met along the way: the fishing, sailing and cormorant-eating Free Church minister from St Kilda; Barney Noon, Glasgow conman, alcoholic and poet; and “Lui”, the Italian prisoner-of-war who became a labourer paid only in kind on a farm near Falkirk and never went back to Italy, are only three of the colourful figures to each of whom the book devotes a number of pages.

Another facet of Irvine’s contribution has been his engagement with the study of the history of Scots law.  He has been a prominent member of the Stair Society (ultimately its Vice-President and first honorary member) and a contributor to the Society’s publications, especially on criminal law and procedure.  A whole chapter is devoted to his engagement with the Society, from which we learn more about the work done for it by Hector McKechnie and Campbell Paton in the 1950s than about the modest author’s own significant efforts (for which see vols 20, 27 and 28).  We read as well about unpublished projects on Nicolson’s Practicks and the Justiciary records, as well as (too little) about his famous class on Scottish legal history at Glasgow University, taught at 5 pm on Mondays and Thursdays from 1957 to 1983.  One of your correspondent’s disappointments as the present Literary Director of the Society was his failure to persuade Irvine to publish in a Miscellany volume his 1998 Stair Society Lecture, “The Trial of Captain Thomas Green for Piracy in 1705”, with its analysis of a key event in the run-up to the 1707 Union.  On the other hand, a memory which even the day after the event was a little indistinct at the edges was Irvine’s impromptu speech at a well-oiled Stair Society lunch early in the 1980s, held in the slightly improbable venue of the then newly-opened restaurant in the crypt of St Giles Cathedral: John Knox would have approved of neither event nor speech.

A book full of joy and vigour ends perhaps slightly sadly with Irvine’s account of his life since leaving Glasgow sheriff court in 1983, with words and phrases such as “mistake”, “disillusionment” and “social and geographical isolation” peppering his prose despite his continuing activity as sheriff at Greenock and residence in the aptly named island of Bute in the Firth of Clyde, where he still lives.  It is good to see his wife Diana disagreeing with him at p 288, and certainly there is much globe-trotting activity in pursuit of his avocation as after-dinner speaker at Burns Night and St Andrew’s Day events.  One quotation from p 265 will perhaps give the flavour: “For me, the opportunity of being able to say I had sung solo ‘Oh gin I were a Baron’s heir’ and Stevenson’s words, ‘Sing me a song of a lad that is gone’, to the tune of ‘Over the sea to Skye’, on the main deck of a Chinese junk, on a Sunday evening going round the harbour of Singapore was too great to be resisted.”  It is good that the temptation to spend some time writing this surely classic memoir has also been too great to be resisted.  Read and enjoy.   

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Lord Reed appointed to UK Supreme Court

A press release from 10 Downing Street on 20 December 2012 confirmed that Lord Reed has been appointed as a Justice of the UK Supreme Court to take the place of the late Lord Rodger of Earlsferry as one of the Scots law judges.  At the same time Lord Justice Carnwath of the English Court of Appeal was also appointed to the Court, to succeed Lord Brown when he retires in April 2012.

The UK Supreme Court's own press release reads as follows:

The appointment of Lord Reed and Lord Justice Carnwath CVO as new Justices of the Supreme Court has today been welcomed by Lord Phillips, President of the Court.

Lord Phillips said:

“The independent selection commission were faced with a very strong field of candidates who applied following open advertisement of the vacancies.  Lord Reed brings depth of experience in Scots law and practice, as well as insights into the work of the European Court of Human Rights.  Lord Justice Carnwath’s range of experience as a senior judge is complemented by his Chairmanship of the Law Commission, his work reforming the tribunals system and his service as the first Senior President of Tribunals.  As I near the end of my time as President of this court, it is encouraging to be welcoming colleagues of such high calibre and I am only sorry I will not have longer to work alongside them.”

The two appointments follow the death of Lord Rodger in June 2011 and the forthcoming retirement of Lord Brown in April 2012.

The appointments were made by Her Majesty The Queen at the advice of the Prime Minister and Lord Chancellor, following the recommendation of an independent selection commission. The commission consulted across each of the Supreme Court’s three UK jurisdictions before making their recommendations.

Lord Reed said:

“I am honoured by my appointment as a member of a court which has a world-wide reputation and influence, and whose decisions affect all parts of the United Kingdom. I am conscious of the responsibility which that entails.”

Lord Justice Carnwath said:

“It is a great honour to be selected for the Supreme Court. I see it also as recognition of the central importance in the justice system of the tribunals judiciary, whom I have been privileged to lead as Senior President for the last seven years.”

The 10 Downing Street announcement includes biographies of the two appointees.

Meantime in The Times newspaper of the same date the redoubtable Lord McCluskey fires off a few rounds in the direction of the Supreme Court, the cause of his ire being what he sees as the Court's supine attitude to the rulings of the European Court of Human Rights in Scots law matters, contrasting with the more robust defence of English law when it is in the dock at Strasbourg.  Lord Reed may consider himself duly warned. 

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Tony Weir

Scots Law News has learned with sadness of the death on 13 December 2011 of the distinguished legal academic Tony Weir of Trinity College, Cambridge.  Tony was a Scot, born in 1936 and brought up and schooled in Edinburgh.  He made a major contribution to English law (especially the law of tort) and to comparative law.

Tony Weir had been a Fellow of Trinity since 1962.  At the time of his death he was an Emeritus Reader in Law.  He was probably best-known to law students through his Casebook on Tort, first published in 1967 and subsequently in nine further editions, the last appearing in 2004.  This was rather more than a collection of extracts from leading decisions and became famous for its mordantly witty comments on the situations with which the law had to deal and on the ways in which the judges saw fit to carry out their task and justify their decisions.  As one of your correspondent’s colleagues remarked in recent days, Tony Weir showed that the study of tort law could be fun; but he had serious points to make as well.  One of the epics which your correspondent will long remember is an Edinburgh debate in the David Hume Institute about the “compensation culture”, where, under the urbane chairmanship of Lord Mackay of Clashfern, Tony went head-to-head with Frank Maguire of Thompsons.  Wit and scepticism on one side collided in verbal violence with passion and belief on the other, and the chair only just about kept the peace; yet dinner afterwards was a marvellous occasion where each combatant accepted the other’s virtues while maintaining his own position, despite provocations from mischievous others present.  The death of the two protagonists within months of each other is irony indeed.

Tony was the acknowledged master of the case note in academic journals (above all, the Cambridge Law Journal): terse offerings of sharp legal insight along with the ever-present dry humour which in combination none could rival.  An example can be found at (2002) 6 Edinburgh Law Review 244, but many others are cited in Nick McBride’s provisional bibliography below.  By all accounts coming out of Cambridge in recent days, he was a wonderful teacher and a devoted supervisor of his students, for whom his pastoral care was also profound.  The one occasion on which your correspondent heard a Weir lecture was both deeply instructive and extremely entertaining.  It inaugurated a series on environmental law in Edinburgh and was an assessment of the then recent House of Lords decision, Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264.  The lecturer’s assault on the idea that liability for water pollution should be strict left an audience of largely green persuasion first unbelieving at what they were hearing, then deeply shocked, and finally, and rather guiltily, highly amused even if still un-persuaded.  But at least a brilliant performance had made them think again about their assumptions.  Sadly the lecture was never published, so far as your correspondent is aware; but something of its flavour can be picked up from two case notes in the Cambridge Law Journal at the time of the Cambridge Water case [see (1993) vol 52, 17; (1994) vol 53, 216].

In the world of academic legal research, however, Tony Weir’s international and considerable fame was as a comparative lawyer.  There were perhaps not quite so many articles as case notes, but a number of the former remain well-known decades after their first publication, as for example the classic four-parter in the Tulane Law Review, “Delict and Torts: A Study in Parallel”, co-authored with Pierre Catala and published between 1962 and 1965.  Sir Basil Markesinis, no mean comparatist himself, describes this mighty paper as “one of the most stimulating pieces on foreign law and comparative methodology ever to be written.”  Perhaps, however, Tony’s greatest contribution to comparative law, at least so far as the Anglophone world is concerned, is his translation of Zweigert and Kötz’s Einführung in die Rechtsvergleichung (Introduction to Comparative Law), which has had a remarkable impact from the time of its first appearance in 1977.  Zweigert and Kötz themselves paid Tony this handsome compliment: “Indeed, one American professor of law who is fluent as a native in both German and English went so far as to say that the translation was better than the original, rare though that is, and acceptable, he was kind enough to add, though the original in this case was.”   In a possibly unconsciously Scottish reference, another comparative law great, John Fleming, described Weir’s work on Zweigert and Kötz as making him the Boswell of the German comparatists.  Your correspondent uses the book to this day, even if the use cannot always be readily footnoted.  And Zweigert and Kötz is not the only such essential translation: the conversion of Franz Wieacker’s legal history classic, Privatrechtsgeschichte der Neuzeit, into A History of Private Law in Europe (OUP, 1995) is another boon to those whose lack of German would otherwise disable them altogether from true trans-national scholarship in European legal history.  There were other such unselfish contributions, from the French as well as the German language; it is difficult to think of anyone else who did more to link different linguistic scholarly traditions in Europe.

Yet Tony Weir remained a Euro-sceptic who rejected any idea that the rise of the European Union entailed the development of a European private law.  Perhaps the most interesting instance of this from an Edinburgh perspective was "Divergent Legal Systems in a Single Member State" [1998] Zeitschrift für Europaisches Privatrecht 564-585, an Anglo-Scottish comparison the purpose of which was set out in an early passage: "At a time when there are proposals to unify the private law of the different multilingual components of the European Union … it may be useful to consider how very different, after nearly three centuries of political unification in an unquestionably single market, the laws of Scotland and England continue to be."  Not all Scots would have accepted this as a lesson, at least for Scotland; but no-one could have denied the learning and insight with which it was delivered.   A prophecy was fulfilled: “The tercentenary of the Treaty of Union falls on May 1, 2007, though I don’t expect it to be noticed in England or celebrated North of the Border.”  And there is perhaps a personal note as well: “I speak as a Scot long resident in England, treading a narrow path between the pride of the convert and the guilt of the traitor.”  This reader suspects that in his approach to law Tony Weir, like Lord Mansfield, was anything but a traitor to the Scottish tradition.  It is significant how much of his scholarly output from the beginning appeared in the pages of one or other of the Tulane law journals, engine-houses of the mixed legal tradition; and latterly he made more than one contribution to the Edinburgh Law Review.

One winter’s evening on Edinburgh’s Castle Esplanade, your correspondent pointed out to Tony across the Grassmarket valley the floodlit Renaissance palace in which he (your correspondent) had had the good fortune to receive his schooling, and wondered (innocently, of course) why Mr Weir’s first alma mater was invisible in the darkness over Merchiston to the south-west.  Had we looked to the north and Comely Bank that evening, of course, we might have picked out the other Edinburgh school where Tony was Head Boy, leader of the orchestra and jazz band, and, so we are informed, non-playing captain of the Fourth or Fifth XV.  From the same family source, we learn that “with the exception of Tulane and Trinity, the only other institution which captured his interest as a young man was the Cameronians.  He so much enjoyed National Service with them, here and in Germany, serving as a subaltern that his mother had to disabuse him quite firmly of a plan he had to stay in the Army.  Aside from what with retrospect seems improbable success as a distance runner, the Army also gave him his only opportunity ever to practise the law.  Defending a misbehaved Jock was not quite the sort of controversy with which he would be associated in later life but I believe he secured an acquittal.”

Tony Weir’s most beautiful article, in your correspondent’s opinion, is “Friendships in the Law” published in the 1992 volume of Vernon Palmer’s Tulane European and Civil Law Forum.  In it Tony discusses five friendships, or “relationships to which – to use a lawyer’s expression – lawyers were parties”.  They include some of the great names of the law – Domat, Holmes, Savigny – but most gained their fame outside, or beyond, their profession – Montaigne, La Boétie, Boswell, Jakob Grimm – while some of the other lawyers mentioned had friends – Pascal, Dr Johnson, Harold Laski – whose links with law came through their friendships and intellectual interests rather than from professional or academic commitment.  Yet all the relationships he considered “were good and rich”.  Your correspondent had only intermittent contact with Tony Weir, and that over a relatively short period of some fifteen to twenty years – but “good and rich” was how it seemed throughout.  The tragic sudden-ness of Tony’s death underlines the personal sorrow that he, along with many others, now feels so intensely. 

Bibliography compiled by Nick McBride  

An Introduction to Tort Law (Clarendon Law Series), 1st ed (2002), 2nd ed (2006)
A Casebook on Tort (Sweet & Maxwell), 1st ed (1967), 2nd ed (1970), 3rd ed (1974), 4th ed (1979), 5th ed (1983), 6th ed (1988), 7th ed (1992), 8th ed (1996), 9th ed (2000), 10th ed (2004)
Economic Torts (Clarendon Press, 1997)

'Tort and Insurance on the Highway', in M Andenas et al (eds), Liber Amicorum Guido Alpa: Private Law Beyond the National Systems (BIICL 2007)

‘Tort’ in Barnard, O’Sullivan and Virgo (eds), What About Law? (Hart Publishing, 2007)

‘Two great legislators’ (2006) 21 Tulane European and Civil Law Forum 35
‘Recent developments in causation in the English law of torts’ in Fauvarque-Cosson, Picard and Voinneson (eds), De Tous Horizons: Mélanges Blanc-Jouvan (Société de législation comparée, 2005)
‘Personality rights and the media: national report for England’ in Beater and Habermeier (eds), Verletzungen von Persönlichkeit durch die Media (Tubingen, 2005)
‘Difficulties in transposing Directives’ [2004] Zeitschrift fur Europaisches Privatrecht 595
‘All or nothing?’ (2003-4) 78 Tulane Law Review 511
‘European Directives protective of the individual consumer’ [2002] Economia e diretto del terziario 443
‘Human rights and damages’ (2001) 40 Washburn Law Journal 413
‘English tort law seen from abroad’ in Rider (ed), Law at the Centre: The Institute of Advanced Legal Studies at Fifty (Kluwer, 1999)
‘The law of tort: are legal systems converging?’ in Report of the 1995 Colloquium of the International Association of Legal Science (Buenos Aires, 1999)
‘The staggering march of negligence’ in Cane and Stapleton (eds), The Law of Obligations: Essays in Honour of John Fleming (OUP, 1998)
‘Non-performance of a contractual obligation and its consequences in English law’ in Vacca (ed), Il contratto inadempiuto (Giappichelli Editore, 1998)
‘Divergent legal systems in a single Member State’ [1998] Zeitschrift fur Europaisches Privatrecht 564
‘Recovery in tort for economic loss’ (1997) 94 British Insurance Law Association Journal 14
 ‘Taking for granted – the ramifications of nemo dat’ (1996) 49 Current Legal Problems 325
‘International tendencies in the law of liability’ [1996] Aktuelle Juristiche Praxis 444
‘Die Sprachen des europaischen Rechts. Eine skeptische Betrachtung’ [1995] Zeitschrift fur Europaisches Privatrecht 368
‘Aspects du procès anglais’ in (1995) 39 Archives de philosophie de droit 191
‘Legal services in England’ in Franelle (ed), La Responsabilité des Prestataires de Services (Société de législation comparée, 1994)
‘Errare humanum est’ in Birks (ed), The Frontiers of Liability, Volume 2 (OUP, 1994)
‘Democratic values in the English law of tort’ (1992) 1 Calcutta Law Times 1
‘La notion de dommage en responsabilité civile’ in Legrand (ed), Common Law d’un Siecle L’autre (Editions Yvon Blais, 1992)
‘Contracts in Rome and England’ (1992) 66 Tulane Law Review 1615
‘Friendships in the law’ (1992) 6-7 Tulane Civil Law Forum 61
‘Droits des contrats’ and ‘Responsabilité délictuelle’ in Jolowicz (ed), Droit Anglais, 2nd ed (Précis Dalloz, 1992)
‘Passing of ownership under contract of sale’ in Vendita e Transferimento della Proprieta nella Prospettivo Storico-Comparatisca (Proceedings of a Congress Pisa-Viareggio-Lucca, 1991)
‘Loss of a chance – compensable in tort? The common law’ in Guillod (ed), Développements récents du droit de la responsabilité civile (Centre d’études juridiques européennes Genève, 1991)

‘Governmental liability’ [1989] Public Law 40
‘Products liability and exemption clauses’ in In Memoriam Jean Limpens (Kluwer, 1987)
‘A strike against the law?’ (1986) 46 Maryland Law Review 133
‘Shields and swords’ (1983) 7 Trent Law Journal 1
‘Product liability – some comparative remarks’ in Posch & Schilcher (eds), Rechtsentwicklung in der Produkthaftung (Osterreichische Akademie fur Fuhrungskrafte, 1981)
‘La justice contractuelle’ [1981] Revue Internationale de Droit Contemporain 7
‘French and German judges – creativity in tort’ [1979] Tulane Lawyer 13
‘Compensation for personal injury and death: recent proposals for reform’ in Cambridge-Tilburg Law Lectures, First Series (Kluwer, 1978)
‘Complex liabilities’ in Tunc (ed), International Encyclopedia of Comparative Law, Vol XI – Tort Law, Chapter 12 (1976)
‘The common law systems’ in David (ed), International Encyclopedia of Comparative Law, Vol II – The Legal Systems of the World: Their Comparison and Unification, Chapter 2.III (1974)
‘Abstraction in the law of torts – economic loss’ [1974] City of London Law Review 15
(with Pierre Catala) ‘Delict and torts: a study in parallel’ (1962-3) 37 Tulane Law Review 573 (Part I); (1963-4) 38 Tulane Law Review 221 (Part II); (1963-4) 38 Tulane Law Review 663 (Part III); (1964-5) 39 Tulane Law Review 701 (Part IV)
‘Classification, concurrence and prescription of obligations’ (1962) 36 Tulane Law Review 556
‘Compensability of unforeseeable damage resulting directly from negligent acts’ (1962) Tulane Law Review 556

‘Making it more likely vs making it happen’ (2002) 61 Cambridge Law Journal 519
‘The unwanted child’ (2002) 6 Edinburgh Law Review 244
‘The maddening effect of consecutive torts’ (2001) 60 Cambridge Law Journal 237
‘The unwanted child’ (2000) 59 Cambridge Law Journal 238
‘Down hill – all the way?’ (1999) 58 Cambridge Law Journal 4
‘Suicide in custody’ (1998) 57 Cambridge Law Journal 241
‘Clamping’ (1996) 55 Cambridge Law Journal 423
‘Swag for the injured burglar’ (1996) 55 Cambridge Law Journal 182
‘A damnosa hereditas?’ (1995) 111 Law Quarterly Review 357
‘Rylands v Fletcher reconsidered’ (1994) 53 Cambridge Law Journal 216
‘The case of the careless referee’ (1993) 52 Cambridge Law Journal 376
‘The polluter must pay – regardless’ (1993) 52 Cambridge Law Journal 17
‘Physician – kill thyself!’ (1991) 50 Cambridge Law Journal 397
‘Fixing the foundations’ (1991) 50 Cambridge Law Journal 24
‘Statutory auditor not liable to purchaser of shares’ (1990) 49 Cambridge Law Journal 212
‘Rebuilding defective building law’ (1989) 48 Cambridge Law Journal 12
‘P pays X for the physical damage due to D’s negligence’ [1989] Lloyd’s Maritime and Commercial Law Quarterly 1
‘Liability for knowingly facilitating mass breaches of copyright’ (1988) 47 Cambridge Law Journal 348
‘The answer to Anns?’ (1985) 44 Cambridge Law Journal 26
‘The developer and the clerk’ (1982) 2 Oxford Journal of Legal Studies 440
‘Wrongful life – nipped in the bud’ (1982) 41 Cambridge Law Journal 225
‘The wages of the dead’ (1981) 40 Cambridge Law Journal 20
‘The Pearson Commission Report’ (1978) 37 Cambridge Law Journal 222
‘Suit by first contractor for damage to second contractor’s goods’ (1977) 36 Cambridge Law Journal 24
‘Contract – the buyer’s right to reject defective goods’ (1976) 35 Cambridge Law Journal 33
‘Doing good by mistake – restitution and remedies’ (1973) 32 Cambridge Law Journal 23
‘Local authority vs critical ratepayer – a suit in defamation’ (1972) 30 Cambridge Law Journal 238
‘Nec tamen consumebatur… – frustration and limitation clauses’ (1970) 28 Cambridge Law Journal 189
‘Police power to seize suspicious goods’ (1968) 26 Cambridge Law Journal 193
‘Title to sue in negligence for property damage’ (1968) 26 Cambridge Law Journal 18
‘Discrimination in private law’ (1966) 24 Cambridge Law Journal 165
‘Tort, contract and bailment’ (1965) 23 Cambridge Law Journal 186
‘Chaos or cosmos? Rookes, Stratford and the economic torts’ (1964) 22 Cambridge Law Journal 225
‘Negligence – duty of care – foreseeability’ (1964) 22 Cambridge Law Journal 23
‘Liability for syntax’ (1963) 21 Cambridge Law Journal 216

Book reviews
Carty, An Analysis of the Economic Torts (2002) 118 Law Quarterly Review 164
Ahrens et al (eds), Festschrift fur Erwin Deutsch (2001) 60 Cambridge Law Journal 214
Stein, Roman Law in European History (2000) 20 Legal Studies 142
Bell, Boyron and Whittaker, Principles of French Law (1999) 115 Law Quarterly Review 143
Rose (ed), Failure of Contracts [1999] Lloyd’s Maritime and Commercial Law Quarterly 16
Hoeflich, Roman and Civil Law and the Development of Anglo-American Jurisprudence in the Nineteenth Century (1999) 3 Edinburgh Law Review 398
Spier (ed), The Limits of Liability: Keeping the Floodgates Shut, and The Limits of Expanding Liability: Eight Fundamental Cases in a Comparative Perspective; and Koziol (ed), Unification of Tort Law: Wrongfulness (1999) 58 Cambridge Law Journal 643
Cane, Anatomy of Tort Law; and Atiyah, The Damages Lottery (1998) 57 Cambridge Law Journal 204
Odams, Comparative Studies in Construction Law: The Sweet Lectures (1997) 46 International & Comparative Law Quarterly 735
Youngs, Sourcebook on German Law (1995) 54 Cambridge Law Journal 451
Nolte, Beleidigungsschutz in der Freiheitlichen Demokratie (1994) 43 International & Comparative Law Quarterly 482
Von Hippel, Rechtspolitik (1994) 43 International & Comparative Law Quarterly 480
Whitman, The Legacy of Roman Law in the German Romantic Era (1993) 82 Journal of Roman Studies 268
Mullany and Handford, Tort Liability for Psychiatric Damage: The Law of “Nervous Shock” (1993) 52 Cambridge Law Journal 520
Oldham (ed), The Mansfied Manuscripts (1993) 52 Cambridge Law Journal 319
Oda, Japanese Law [1993] New Law Journal 1103
Palmer, Bailment, 2nd ed [1993] Lloyd’s Maritime and Commercial Law Quarterly 275
Weinrib (ed), Tort Law; and Alexander (ed), Contract Law (1992) 51 Cambridge Law Journal 388
Stapleton and Cane (eds), Essays for Patrick Atiyah (1992) 51 Cambridge Law Journal 375
Frey and Morris (eds), Liability and Responsibility (1991) 50 Cambridge Law Journal 553
Cane, Tort Law and Economic Interests (1991) 50 Cambridge Law Journal 551
Zimmermann, The Law of Obligations (1991) 50 Cambridge Law Journal 165
Finn (ed), Essays on Torts (1990) 49 Cambridge Law Journal 356
Frier, A Casebook on the Roman Law of Delict (1990) 49 Cambridge Law Journal 157
Harris and Tallon (eds), Contract Law Today [1990] Lloyd’s Maritime and Commercial Law Quarterly 556
Fleming, The Law of Torts, 7th ed (1989) 48 Cambridge Law Journal 152
Birks (ed), New Perspectives in the Roman Law of Property: Essays for Barry Nicholas (1989) 48 Cambridge Law Journal 510
Treitel, Remedies for Breach of Contract (1989) 48 Cambridge Law Journal 152
Furmston (ed), The Law of Tort [1987] Lloyd’s Maritime and Commercial Law Quarterly 236
Malone, Essays on Torts (1987) 8 Journal of Legal History 383
Schmiedlin, Frustration of Contract (1988) 37 International and Comparative Law Quarterly 452
Faculty of Law of the University of Heidelburg, Richterliche Rechtsfortbildung (1988) 37 International and Comparative Law Quarterly 227
Huffmann, Goverment Liability and Disaster Mitigation (1988) 37 International and Comparative Law Quarterly 221
Collins, The Law of Contract (1986) 45 Cambridge Law Journal 503
Hart and Honoré, Causation in the Law, 2nd ed (1985) 44 Cambridge Law Journal 477
Stein and Lewis (eds), Studies in Justinian’s Institutes in Memory of JAC Thomas (1984) 43 Cambridge Law Journal 392
Honoré, The Quest for Security; and Von Hippel, Der Schutz des Schwaecheren (1984) 43 Cambridge Law Journal 377
Feuerstein and Parry (eds), Multum Non Multa: Festchrift fur Kurt Lipstein (1984) 43 Cambridge Law Journal 177
Cheifetz, Apportionment of Fault in Tort Law (1982) 14 Ottawa Law Review 234
Atiyah, The Rise and Fall of Freedom of Contract [1982] Revue Internationale de Droit Contemporain 265
Stair, The Institutions of the Law of Scotland (1982) 41 Cambridge Law Journal 183
Deutch, Unfair Contracts (1978) 37 Cambridge Law Journal 344
Waddams, Products Liability (1976) 35 Cambridge Law Journal 178
Carter-Ruck, Libel and Slander; and Rubinstein (ed), Wicked, Wicked Libels (1973) 32 Cambridge Law Journal 150
Schlesinger (ed), Formation of Contracts (1969) 27 Cambridge Law Journal 122
Aspects du Droit de L’Energie Atomique (1965-66) 41 British Yearbook of International Law 482
Salmond, Torts, 14th ed (1966) 24 Cambridge Law Journal 141
Coote, Exception Clauses (1965) 23 Cambridge Law Journal 301
Walker, The Scottish Legal System (1964) 22 Cambridge Law Journal 305
Smith, Short Commentary on the Law of Scotland (1963) 24 Louisiana Law Review 149

Bucher, England and the Continent: Distinguishing the Pecularities of English Common Law of Contract (Dike Books, 2009)
Halpérin, The French Civil Code (UCL, 2006)
Zweigert and Kötz, An Introduction to Comparative Law, 3rd ed (OUP, 1998)
Koetz and Flessner, European Contract Law, Vol I (Clarendon Press, 1998)
Wieacker and Zimmermann, A History of Private Law in Europe, with Particular Reference to Germany (Clarendon Press, 1996)
Grossfeld, The Strengths and Weaknesses of Comparative Law (OUP, 1990)
Serick, Lipstein, and Riesenfeld, Securities in Movables in German Law: An Outline (Kluwer, 1990)
Horn, Kötz and Leser, German Private and Commercial Law (OUP, 1981)
Justinian, Digest, Chs XIV, XV (U Penn Press, 1986)

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