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Character, credibility and truthfulness Richard III in New Zealand Excluding fiduciary duties: the problem of investment banks Unanticipated fiduciary liability 1 6 15 21 Equitable third party liability Final guidelines on compensation for commercial agents When is a risk of injury foreseeable? Refining the duty of care in Singapore 26 31 37 42
ARTICLES Legislation that would “Preserve” the Common Law: the Case of the Declaration of Intention Explaining Resulting Trusts Causation and Risk in the Highest Courts of Canada, England and France Deception, Mistake and Vitiation of the Victim’s Consent REVIEWS AND NOTICES
Loughlin and Walker: The Paradox of Constitutionalism Goodwin-Gill and McAdam: The Refugee in International Law Gordley: Foundations of Private Law 160 163 166 Blair and Walker: Financial Markets and Exchanges Law Leverick: Killing in Self-Defence Smith: The Law of Assignment
46 72 103 132
Legislation that would “Preserve” the Common Law: the Case of the Declaration of Intention RODERICK MUNDAY Explaining Resulting Trusts WILLIAM SWADLING Causation and Risk in the Highest Courts of Canada, England and France PROFESSOR LARA KHOURY Deception, Mistake and Vitiation of the Victim’s Consent REBECCA WILLIAMS
Vol.124 pp.1–180 January 2008
170 172 175
ISSN 0023-933X Computerset by Laserwords Private Ltd, Chennai, India Printed and bound in Great Britain by MPG Books Ltd, Bodmin, Cornwall No natural forests were destroyed to make this product; only farmed timber was used and re-planted
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Volume 124 NOTES CHARACTER, CREDIBILITY AND TRUTHFULNESS THE law of evidence classically divides material into that which is admissible by virtue of its relevance to some issue in the case, and that admissible because of its relevance to the credibility of some witness or statement. Though doubts have sometimes been expressed about the utility or good sense of the distinction, both by judges (see, e.g. R. v Nagrecha  2 Cr. App. R. 401) and by academic lawyers (see, e.g. Zuckerman, Principles of Criminal Evidence (1989), at pp.95–97), it seems to be so ﬁrmly embedded in the law as to be immoveable. An abiding problem with the old law relating to cross-examination of the accused about his bad character, under the second part of what ﬁnally became s.1(3)(ii) of the Criminal Evidence Act 1898, was that such a broad view was taken of relevance to credibility that the required direction to the jury, to treat it as going only thereto, and not at all to the issue, might be thought to amount to “gibberish” (see Cross (1969) 6 Syd. L. Rev. 173 at 182). The jury would solemnly be told that the accused, charged with an offence of violence, was not to be treated as more likely to have committed the offence by reason of his string of convictions for similar offences, which offences, the judge would go on to say, went solely to the credibility of his claim that it had been the complainant who had attacked him. There were two possible solutions to this problem. One would be to get rid of the direction, perhaps even encouraging the jury to make use of the evidence, as going directly to the issue. However, since, in the premisses, the common law similar fact rules must have denied the prosecution the use of such evidence, on the issue, as part of its own case, the result would then be that evidence failing to get through the front door would enter freely through the back. The second solution would be to take a more coherent view of what items of bad character really do go to (in)credibility of the accused’s evidence. That would rule out offences other than those 1 January 2008
101(1)(g) of the Act. but might rule out even such offences where not involving any element of deception (see Munday  C. A very different view of the accused’s credibility has emerged in a separate strand of authority.  1 W.101(1)(g) relevance rather suggested that the very wide view of credibility taken under the 1898 Act was equally to be taken under the new Act.  1 W.103(1)(b) of the Act.R.2 Law Quarterly Review [Vol. rather than upon the gateway through which it was admitted.Q. cases directly concerned with s.L. v Hanson  EWCA Crim 824. where a co-accused whose defence has been undermined by the accused seeks to call evidence of the latter’s bad character. As long as (barely) legally relevant to an issue between prosecution and accused. L.R. 3472. In R.J. In R. the ﬁrst solution had been quickly embraced. The best example is R. which qualities were. where the Court of Appeal saw no reason to interfere with the judge’s decision to admit evidence of the accused’s convictions for drugs offences. The co-accused was entitled to adduce evidence that the accused was “unscrupulous and/or otherwise unreliable”. Though his Lordship expressly conﬁned his remarks to the accused/co-accused case. .” (emphasis in original) Highton itself was concerned with evidence that was admissible via s. (2008) 124 L. it was directly on the point at hand. v Highton  EWCA Crim 1985. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . because the accused had “made an attack on another person’s character”. which depends upon it getting through one of the gateways. v Nelson  EWCA Crim 3412.L. a distinction must be drawn between the admissibility of evidence of bad character. 1191. “capable of being shown by widely differing conduct. concerned with s.J.  1 W. The use to which it may be put depends upon the matters to which the evidence is relevant. one might adopt both solutions. 511). it was perfectly permissible for the jury to use it in that way. Furthermore.101(1)(d)) under its own steam.L. and the use to which it may be put once it is admitted. Therefore.101(1)(e). in R.L. put it as follows (at ): “. 62 and  Crim. v Lawson  EWCA Crim 2572. took a very wide view of that concept.. though the case itself was concerned with s. Under the new provisions of the Criminal Justice Act 2003 that deal with the accused’s bad character. in order to attack his credibility. it would have surprised nobody to read similar words in relation to s. Or. 3169 (at ).R. 124 of dishonesty.J. on charges of affray and assault. Hughes L.101(1)(g).R. It no longer mattered that the evidence in question would not have got through the issue gateway (s. it has been taken a great deal further in the very important case of R. Though the story begins with certain inﬂuential dicta of Rose L. Lord Woolf C.R. . ranging from large scale drug or people-trafﬁcking via housebreaking to criminal violence” (see ).J. v Campbell  EWCA Crim 1472.
R. his Lordship focused on the word “untruthful”. in the earlier case. Previous convictions.B.101(1)(g) than on s. about the admission of those convictions.” In several later cases. whether for offences of dishonesty or otherwise.101(1)(d). by the making of false representations. . in the present case.’s dicta in Hanson. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . each involving violence against a woman who had been. v Butterwasser  1 K.Q.101(1)(g). whilst the question whether the accused has a “propensity to be untruthful” is put in issue by s. in a way that is capable of having an effect no less on s. though relevant to the issue.103(1)(b) does not declare “open season” on the accused with convictions is one effect of Rose L. There. .R.103(1)(b). That evidence would seem to have opened him up to the possibility of cross-examination under s. which the jury must have disbelieved. as allowing it to adduce evidence of two convictions.J. on appeal. as part of its own case. for example. 4. the logic of his position was applied in rulings that convictions for violence or robbery. v Meyer  All E.103(1)(b) seems to envisage the prosecution calling evidence to attack the credibility of the accused. Later in the trial. at the time. s. Campbell was accused of falsely imprisoning a woman with whom he was having a sexual relationship. which was clearly based upon their issue relevance. the prosecution relied on s. in interview. or in evidence. At root. and before any evidence at all has been called by the defence. No complaint was made. R.101(1)(d). v Awaritefe  EWCA Crim 706. At trial. (D) 472 (Mar).101(1)(d). either there was a plea of not guilty and the defendant gave an account. since (2008) 124 L. on arrest.103(1)(a).JANUARY 2008] Notes 3 Section 103(1)(a) and (b) render certain matters per se in issue between the prosecution and the accused. Campbell takes things a long step further. could not be relevant to show untruthfulness or lack of credibility (see R. the question whether the accused has a propensity to commit offences of the kind with which he is charged is put in issue by s. his girlfriend. for purposes of s. nor had there been any violence. The facts of the case were straightforward enough. saying that he had never done anything to restrain her freedom of movement. It is not only in that subsection that the Act rejects the evidential logic embraced by R.. but it is there that it is rejected in the most stark of terms. Thus. R. v McDonald  EWCA Crim 1194). or the way in which the offence was committed shows a propensity for untruthfulness. That s. In general. Butterwasser stands for the proposition that we cannot conceive of evidence being adduced to attack a witness’s credibility unless and until there is some evidence from that witness for him or her to be (in)credible about. the accused himself had given evidence of the incorrectness of the complainant’s claims. truthfulness is an issue and. are likely to show a propensity to be untruthful only where (see ): “.
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it constituted an attack on her character, yet the prosecution did not, it seems, seek to invoke that subsection. When the judge came to direct the jury, in accordance with the terms of the relevant Judicial Studies Board specimen direction, he told them that they might take account of the convictions, not only as showing his propensity to be violent towards women, but also as tending to suggest that his evidence might be untruthful. It was to this aspect of the case that objection was taken on appeal. The argument put to the Court of Appeal was that, the evidence having been admitted through s.101(1)(d), as being relevant to the issue, it was wrong, in principle, for the jury to be told that they might use it as relevant to credibility. The court gave short shrift to that argument, as falling foul of the holding in Highton (see above). So, just as evidence admissible through s.101(1)(g), as relevant to credibility, may be used for any relevance that it has to the issue, so evidence getting through s.101(1)(d), as relevant to the issue, may be used for any credibility relevance it has. However, that was, by no means, the end of the case. Lord Phillips of Worth Matravers C.J. pointed out that s.103(1)(b) merely tells us that the accused’s propensity to be untruthful is (generally) in issue between the parties. Yet, s.101(1)(d) requires relevance to an important matter in issue between them, neither of which requirements, he suggested, would, in the ordinary case, be met. In his words (see ): “The question of whether a Defendant has a propensity for being untruthful will not normally be capable of being described as an important matter in issue . . . A propensity for untruthfulness will not, of itself, go very far to establishing the commission of a criminal offence. To suggest that a propensity for untruthfulness makes it more likely that a Defendant has lied to the jury is not likely to help them. If they apply common sense they will conclude that a Defendant who has committed a criminal offence may well be prepared to lie about it, even if he has not shown a propensity for lying whereas a Defendant who has not committed the offence charged will be likely to tell the truth, even if he has shown a propensity for telling lies. In short, whether or not a Defendant is telling the truth to the jury is likely to depend simply on whether or not he committed the offence charged. The jury should focus on the latter question rather than on whether or not he has a propensity for telling lies.” So, it now seems that even previous convictions, such as those for perjury, that demonstrate a very speciﬁc propensity to lie at trial, fail to pass muster. Paying attention to such a past record serves only to divert the jury from the key question of guilt or innocence in the case at hand. One might conclude that the effect of his Lordship’s reasoning is to render
(2008) 124 L.Q.R., JANUARY SWEET & MAXWELL
s.103(1)(b) a dead letter. Indeed, in the very next paragraph, he seems clearly to admit as much (see ): “For these reasons, the only circumstance in which there is likely to be an important issue as to whether a Defendant has a propensity to tell lies is where telling lies is an element of the offence charged. Even then, the propensity to tell lies is only likely to be signiﬁcant if the lying is in the context of committing criminal offences, in which case the evidence is likely to be admissible under s. 103(1)(a).” Even though it followed that the trial judge had been wrong to direct the jury that they might take into account Campbell’s previous convictions as going to his (un)truthfulness, the court ruled that his present convictions were not, on the particular facts, unsafe. Lord Phillips C.J.’s conclusion may be considered surprising, in terms of statutory interpretation, even by those who think s.103(1)(b) the most unsatisfactory provision in the whole of this part of the 2003 Act. However, its potential for broader application may be accounted of even greater importance. If learning about the accused’s convictions for offences involving elements of deception is unhelpful to the jury when s.101(1)(d) has been employed, why should it be any more helpful when s.101(1)(g) has been invoked? As we have seen, Campbell was itself a case where the prosecution might have sought to rely upon s.101(1)(g), yet all that was involved was a clash of evidence between the complainant and the accused. Towards the end of the judgment, Lord Phillips C.J. offered a direction that he thought might have been more helpful to the jury than the one that they were actually given (see at ). They might properly have been told that the accused was saying that the complainant’s story was “all a pack of lies”, and that they could convict only if sure that she had been telling the truth. In deciding that question, they might be assisted by their knowledge of the accused’s tendency to use violence on his girlfriends. In other words, it was because his record demonstrated a particularised propensity to violence that the jury might ﬁnd the complainant’s story more credible than the accused’s. One gets to the credibility of the witnesses via evidence that is relevant to the issue, not the other way around. From that perspective, it would seem that it would have made no difference had Campbell indeed had convictions for perjury or for obtaining by deception. Such an interpretation of the proper use of s.101(1)(g) would not render it a dead letter. Contrast a case where the accused had mounted a direct attack on the (un)truthfulness of the complainant, via extraneous evidence. What if she had convictions for perjury or deception offences, and the defence sought leave, under s.100(1)(b), to ask her about them? Then, the accused would be backing up his claim that she was lying now, by reference to her demonstrated propensity to lie, so the evidential basis
(2008) 124 L.Q.R., JANUARY SWEET & MAXWELL
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for his application would be broadly equivalent to that embraced by s.103(1)(a). If leave were granted, on that basis, it would be strange indeed if the jury were to be denied knowledge of the accused’s own convictions for offences showing resort to untruthfulness. He would deliberately have set a distinct credibility issue in motion, so could hardly complain about the “tit for tat” nature of the response. Furthermore, the law would have ﬁrmly adopted the second solution to the problem adverted to at the beginning of this note, as well as the ﬁrst. PETER MIRFIELD.* RICHARD III
OF the ﬁve judges of the New Zealand Supreme Court who decided Wholesale Distributors Ltd v Gibbons Holdings Ltd  NZSC 37 four took the position that, when the meaning of a written contract is in dispute, the court can have regard to evidence of how the parties acted after the contract was made. The Supreme Court refused to follow the English rule that such evidence inadmissible: see James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd  A.C. 583 and F.L. Schuler AG v Wickman Machine Tool Sales Ltd  UKHL 2;  A.C. 235. The Supreme Court’s position contrasts with recent Australian cases which have followed the English rule: Commercial Capital v Durman  NSWSC 869 at ; Ku v Song  FCA 1189 at ; Council of the City of Sydney v Goldspar Australia Pty Ltd  FCA 472 at . The exclusionary rule is subject to a number of qualiﬁcations: evidence of post-contract conduct may be admitted (i) where the contract is oral, or partly written and partly oral: Carmichael v National Power Plc  UKHL 47;  1 W.L.R. 2042; Maggs v Marsh  EWCA Civ 1058;  B.L.R. 395 at –; Glendale Managed Services v Graham  EWCA Civ 773;  I.R.L.R. 465 at ; (ii) where there is a boundary dispute and the parcels clause in the conveyance, or the plan attached thereto, is unclear: Ali v Lane  EWCA Civ 1532;  1 P. & C.R. 26 at –; Haycocks v Neville  EWCA Civ 78 at ; (iii) where the issue is not one of interpretation, but whether a document or a particular clause in a document is a sham: see two important judgments of Arden L.J., Properties Ltd v Dunsford  EWCA Civ 528;  1 W.L.R. 1369 at  and Hitch v Stone (Inspector of Taxes)  EWCA Civ 63;  S.T.C. 214 at ; (iv) where the issue is whether a term was incorporated into a contract: Great North Eastern Railway Ltd v Avon Insurance Plc  EWCA Civ 780;
* Jesus College, Oxford. Admissibility; Character; Civil evidence; Credibility
(2008) 124 L.Q.R., JANUARY SWEET & MAXWELL
the defendant and also the plaintiff which.JANUARY 2008] Notes 7  2 Lloyd’s Rep..R.Q. or to found an estoppel by convention.. described the article as “seminal”. 577. also took the opportunity to reassert his position in Yoshimoto v Canterbury Golf International Ltd  NZCA 50. may have intended to counteract the effective rejection of that position by the New Zealand Court of Appeal in Potter v Potter  N. and (ii) an agreement to enter into a new sub-lease for a term commencing on November 2.  2 N. as sub-lessor.R. or whether a contract was formed: Tomko v Palasty  NSWCA 258 at . the plaintiff granted the sub-lease to GUS Properties Ltd (the “sub-lessee”). or an argument that the parties made a new contract. enlarged or waived. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . but the plaintiff had a right of renewal for a term to end on October 31.Z.Q. The issue in Wholesale Distributors v Gibbons was the meaning of a covenant in an assignment of a sub-lease of a warehouse and land. Thomas J. Thomas J. the covenant being made by the assignee in favour of Gibbons Holdings Ltd (the “plaintiff”). 2002. 2002 (one day before the end of the initial term of the head lease). who delivered the leading judgment.R. or (vi) to support an argument that a contract’s terms have been varied.R. dated April 3. as well as that which generally excludes evidence of their pre-contract negotiations where the issue is one of interpretation (as opposed to a claim for rectiﬁcation). Thomas J. 649 at .Z. 2002 and ending on October 31. and the sub-lease would have taken effect as an assignment of the head lease. In 1991. were the sublessee. The parties would have liked the sub-lease to be for a term ending in October 2010. So the sub-lease was structured as follows: there was (i) an actual grant of a term to end on October 30. If therefore the sub-lease had been granted until October 2010.L. 1997. although without express reference to the rule excluding evidence of pre-contractual negotiations. “My Kingdom for a Horse: the Meaning of Words” (2005) 121 L. In 1997 Wholesale Distributors Ltd (the “defendant”) agreed to purchase the business and assets of the sub-lessee. gave (2008) 124 L. Lord Nicholls of Birkenhead argued that English law should abandon the rule which excludes evidence of the parties’ postcontract conduct. but when the sub-lease was granted. 145.  1 N.L. Lord Nicholls’ article was cited by two members of the Supreme Court in Wholesale Distributors v Gibbons. 2010. 2023.Z. the sub-lease was assigned by the sub-lessee to the defendant. The initial term of the head lease expired on October 31. 523 that evidence of pre-contractual negotiations should be admissible. that would have been longer than the then existing term of the head lease. The parties to the deed of assignment.R. As part of that transaction. 1. In his article. (v) where rectiﬁcation is claimed. The Court of Appeal’s judgment was upheld by the Privy Council  UKPC 41. The head lease had been granted to the plaintiff in 1982.L. the head lease had not been renewed.
had given (2008) 124 L.L. Blanchard J. Infogate went into receivership. The court was able to arrive at this conclusion by classic methods of interpretation of the kind employed by Lord Wilberforce in Prenn v Simmonds  1 W. In 2000. Elias C. the defendant assigned its interest in the sub-lease to a company called Infogate. and the term of that lease had ended on October 31. 2002. and a few months later it was in liquidation. The latter article. The clause in issue was as follows: “The Assignee [i. went further. Thomas J. But Thomas J. 124 its consent to the assignment..e. 2002 until October 31. 2010. the defendant] covenants with the Landlord [i. the sub-lease. i.e. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . Against the printed heading “Expiry Date of Lease” contained in the First Schedule were inserted the words “31 October 2002 with a New Lease being granted for a term expiring 31 October 2010”. agreed with the general proposition that evidence of post-contract conduct is admissible.e. said. was the only member of the court who considered it necessary or relevant to have regard to those documents.” The deed of assignment identiﬁed “the Lease” as “the Deed of Lease dated 10 July 1991”. Thomas J. The plaintiff sought to enforce the defendant’s covenant in the assignment. the lease was deﬁned as “the Deed of Lease dated 10 July 1991”. The Supreme Court construed “during the remainder of the term of the lease” as referring to the expiry date of the new lease provided for by the 1991 sub-lease. On October 18.8 Law Quarterly Review [Vol. Its covenant was expressed to be “during the remainder of the term of the lease”. Those covenants. to pay the rent provided for in the lease and to perform all the covenants in the lease. 2002. This defence failed. and Tipping and Anderson JJ.Q. He stated that his interpretation of the covenant in the 1997 deed of assignment was conﬁrmed by the terms of the assignment to Inofogate which the defendant had executed in 2000 and also by the terms of a sub-lease of part of the premises which the defendant had granted in 1999. the plaintiff] that from the Date of Assignment and during the remainder of the term of the lease the Assignee will pay the rent provided for in the Lease and keep and perform all the covenants in the Lease. The defendant’s reply was simple. 1381. included the covenant to enter into a new sub-lease for a term from November 2. The deed of assignment was based on a standard precedent of the Auckland District Law Society evidently intended for the assignment of a head lease rather than a sub-lease.J. drew support from the writings of Professor David McLauchlan and also from Lord Nicholls’ “My Kingdom for a Horse” article.R. just a fortnight before the renewal of the sub-lease was due to take effect. quoted above. reserved his position.R. In this part of his judgment. Although Thomas J. the plaintiff said.
in response to Lord Nicholls’ article. Contracts in the United States allow consideration to be given to speciﬁed subsequent conduct of both parties. after all.202(4) of the Restatement. of directly challenging the notion that the court’s function is to determine the parties’ presumed intent. 354. Lord Nicholls stopped short. Thomas J. both these provisions are of very narrow application. Second.R.” In the present case.” Having quoted Lord Reid’s statement in James Miller v Whitworth Street Estates that admitting post-contract evidence “might have the result that a contract meant one thing the day it was signed. commented: “The subsequent course of English law was shackled by this rare case of even Homer nodding.P. by a nanometre.. and only “a course of conduct accepted or acquiesced in without objection” is relevant to interpretation. there was no room for the doctrine of presumed intent.” Tipping J. The contract has to involve “repeated occasions for performance by either party”. “the proper task of the court” Thomas J. must be the ultimate determinant. with the qualiﬁcation that he did not consider the conduct of one party admissible: “the parties’ shared conduct will be helpful in identifying what they themselves intended the words to mean.C. an English court would probably ﬁnd that there had been a variation by conduct or a waiver. In the course of his judgment. Lord Nicholls evidently considers that there is a rear window (prior negotiations) and a front window (post-contract conduct) and that the courts should look through both of them. Lord Hoffmann has said that there is “no window into the mind” of the parties: Kirin-Amgen Inc v Hoechst Marion Roussel Ltd  UKHL 46. was evidently inﬂuenced by the fact that Art.2-208 of the Uniform Commercial Code and para. But his view that pre-contractual negotiations and post-contract conduct should be taken into account makes little sense unless the court is trying to ascertain the parties’ actual intentions.. “and the habit of thought or attitude of mind which goes with it. referred to the present writer’s note ((2006) 122 L. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .  R. Tipping J. That. According to Thomas J.. but by reason of subsequent events meant something different a month or a year later”.Q. thought that note was arguing that a contract should (2008) 124 L. said. Thomas J. “is to construe the contract objectively with the aim of discerning the actual intention of the parties. When the courts approach a fork in the road. That may be an understatement.” A similar position was taken by Tipping J.Q. However. However. 9 at .R. the courts must take that road which leads to the parties’ actual intention. In such circumstances.JANUARY 2008] Notes 9 “an exponential boost” to the case for the admission of the evidence of the actual intention of the parties. Outside cases of that kind. it is not the business of a court to ascertain the “presumed intent” of the parties unless the effective issue is which party should bear a loss caused by an event which the parties never thought about.. and one road leads to a presumed intent based on the meaning of words and the other road leads to the meaning actually intended.
Within a few years. what Lord Browne-Wilkinson had intended as a sensible adjustment to an exclusionary rule dating back to the mid-18th century was generating a minor industry: elaborate courses were (and are still) organised on “How to do Pepper v Hart research”.’s interpretation of a debenture in Siebe Gorman & Co Ltd v Barclays Bank Ltd  2 Lloyd’s Rep. The concern about Lord Nicholls’ article was that it would lead to a similar situation: it would become unsafe.C.  1 W.J. if there was a worry that a transaction might be caught by a particular section of the companies or tax legislation. Thomas J.R.  2 A. 59. in the cases which Lord Nicholls cited.10 Law Quarterly Review [Vol.J. 142 which the present writer had made in an article some two years before the ICS case. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . This was usually done. It was notable that. if there was an important issue about the meaning of a section. 629 at 635 and 639–641. That has never been the writer’s view. as summarised by Lord Walker..L. 594 until the retreat in the face of Lord Steyn’s attack: (2002) 21 O. to advise on the meaning of a contract without checking what had been written and said during the negotiations.L. and that Lord Nicholls’ article “merely served to provoke his [the present writer’s] attack on that basic principle”.’s construction was “based too much on linguistic considerations.C. it was thought that a solicitor’s duty of care was such that. 680 at .R.S. observed that the “primary attack” of the present writer’s 2006 note was directed at the ﬁrst of the ﬁve principles enunciated by Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society  UKHL 28. There were serious concerns about Lord Nicholls’ article.  A. to some extent prompted by the experience in the years following Pepper v Hart  UKHL 3. ICS 1 asserts: “Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available (2008) 124 L. or even negligent. Little reliance was placed on Lord Browne-Wilkinson’s statement that Hansard should not be used unless the section was ambiguous or obscure.Q.S. Lord Walker of Gestingthorpe expressed agreement with the criticism of Slade J. he was bound to go through the Hansards reporting the debates on the clause to see if there was anything relevant. the pre-contractual negotiations had been much simpler than is now common. for example.L. That criticism. In National Westminster Bank Plc v Spectrum Plus Ltd  UKHL 41. During that period. 896 at 912. in isolation from the matrix of facts in which the security was created”. since those conditions were treated by the courts in a relatively relaxed manner: Vogenauer (2005) O. 124 be construed without regard to its factual background. This is not entirely correct. was that Slade J.
The ICS 3 exclusion has been repeated by Lord Bingham of Cornhill in Alexiou v Campbell  UKPC 11 at . without which no secondary meaning was even capable of being guessed at. Briggs J. noted that Lord Hoffmann did not spell out the policy reasons for ICS 3. a third party’s appreciation of the apparently unambiguous meaning of a word. KMPG LLP v Network Rail Infrastructure Ltd  EWCA Civ 363. for example. 1336 at – and Chartbrook Ltd v Persimmon Homes Ltd  EWHC 409 (Ch). In Chartbrook Ltd v Persimmon Homes Ltd Briggs J. such that the reporting and auditing of its ﬁnancial health may be dependent upon a proper understanding of its terms. Briggs J. said this: “Most modern commercial contracts are to a greater or lesser extent assignable.” (2008) 124 L. even in the absence of assignment.  1 All E.R. dealing with or having transferred to them rights or obligations under the contract could make any safe assumptions about its meaning without themselves carrying out an inquiry as to those negotiations. Furthermore.Q. Furthermore.JANUARY 2008] Notes 11 to the parties in the situation in which they were at the time of the contract. nor had the researches of counsel identiﬁed any authoritative identiﬁcation of those reasons. Briggs J. considered that the adverse effect on third party rights was “compelling”. its negotiation. L. transmitted to third parties who took no part in the negotiation of the contract.” But ICS 3.R. to be routinely admissible as an aid to contractual construction. to the extent ‘helpful’. If the parties’ negotiations were. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . the rights and obligations created by a commercial contract may form an important part of the assets and liabilities of one or more of its parties. phrase or term could be subverted by reference to the original parties’ negotiations. again by persons with no participation in. or knowledge of. .R. . . Of those reasons. therefore resorted to the summary of the reasons for the exclusionary rule which Lord Nicholls gave in his article. following Prenn v Simmonds.. although with the qualiﬁcation that the boundaries of the exclusion are in some respects unclear (as to which see. so as to put themselves in the same state of knowledge as the parties to the contract. note also Berkeley Community Villages Ltd v Pullen  EWHC 1330 (Ch) at –. then no such third parties reading. (Comm) 1083 at –).  Bus. since ambiguity is no longer (after ICS ) a prerequisite for recourse to the admissible background. and often is. before rejecting them. and who may therefore be assumed to be wholly ignorant of what took place. such that the beneﬁt or burden of the obligations therein contained can be. excludes evidence of precontractual negotiations from the admissible background.
For example. as against B. 124 Briggs J.25(6) of the Judicature Act 1873) was intended only to give an assignee the right to sue in his own name. it does not invade the legal rights of bona ﬁde purchasers without notice”. Section 136 (and its predecessor.12 Law Quarterly Review [Vol. s.Q. an equity to have the contract rectiﬁed to state the sum payable as £15. and it seems that the landlord could not claim rectiﬁcation as against a person who had purchased the leasehold interest. at paras 17–04 and 17–18.R. for example.000. (In the New Zealand Supreme Court. this seems correct only where the third party has acquired a proprietary interest in the subject-matter of the contract. Given that an assignee has the risk of the contract being rectiﬁed adversely to him on the basis of pre-contractual negotiations of which he was unaware. 1089. It is also arguable that the law should be changed to protect a bona ﬁde assignee for value against rectiﬁcation (except where the contract assigned is an adhesion contract with a consumer). Tipping J. it would be another matter if the law were such that pre-contractual negotiations normally had to be taken into account when interpreting a contract. However. provided that the right to set off arose before the debtor received notice of the assignment. then had to explain why evidence of negotiations is admissible if rectiﬁcation is claimed. Set-Off. pointed out (at ) the difﬁculty of adopting different evidential rules for rectiﬁcation and interpretation. If A had. in which A promises B to pay him £20.) Briggs J. With great respect.’s judgment makes it appear that the problem is to ﬁnd a justiﬁcation for the exclusionary rule. The immediate reaction is to imagine two individuals sitting on opposite (2008) 124 L. A can assert that equity as against C. Much of the problem is caused by the repeated use of the expression “the parties”. exclusion for negotiations then becomes necessary. It makes no difference that the assignment is a legal assignment complying with s.. take a simple case of a contract.R. what can be the objection to his being exposed to an adverse interpretation of the contract based on those same negotiations? There seem to be two answers. and seemingly anomalous. creating no proprietary interest. B assigns his rights to C. a tenant cannot claim rectiﬁcation of the tenancy agreement as against a bona ﬁde purchaser of the reversion: Smith v Jones  1 W. He would acquire rights of action in courts of law similar to the rights of suit which he already possessed in the courts of equity.136 and that the assignee had no notice of the debtor’s equitable set-off: Derham. The main reason is the importance which assignments of choses in action now have in the ﬁnancial markets. 3rd edn (2003).’s explanation was that rectiﬁcation is an equitable remedy and “as an equity. s. Briggs J. So. Cases of rectiﬁcation are quite rare. an assignee of a debt takes subject to any equitable set-off which the debtor could have asserted against the assignor.L. But the real problem is that ICS 1 casts the admissible background so wide that a speciﬁc. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .000.136(1) of the Law of Property Act 1925 states that an assignee takes subject to equities.
such as a joint venture agreement or an agreement by which a company sells off one its subsidiaries. such as investment bankers and accountants. These will be supplemented by teams from the law ﬁrms. it is speaking to all concerned. to revert to the example of a joint venture agreement: to whom is the contract speaking? The answer given by Lord Hoffmann is that a written contract is addressed to the parties: The Starsin  UKHL 12. a ﬁnance expert. Each party is likely to have its own team of executives—a commercial person.JANUARY 2008] Notes 13 sides of a table. The relevant party may have been taken over. a tax specialist and so on. . He continued as follows: “Then I ask..R. But it is addressed. In the House of Lords Lord Macnaghten disagreed. .Q. and perhaps other specialists. Now.  1 A. to the Special Commissioners. to use the words of the Act. in construing Acts of Parliament. .C.’ . no doubt. they may have moved to different companies or retired.L. 531. When the contract has to be interpreted. specially to that body under whose ‘cognizance and supervision’. to whom is the Act speaking? In one sense. The general principle was that. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .R. for example. . and ‘at the head ofﬁce for stamps and taxes in England. . This may be true of a contract between two individuals.” On these broad grounds Lord Macnaghten came to the conclusion that the expression “trust for charitable purposes” in the Income Tax Acts was to be construed according to its “technical meaning according to English law”. the House of Lords was faced with the problem of how the expression “trust for charitable purposes” as used in the Income Tax Acts was to be interpreted. in the case of a commercial (2008) 124 L. 1839. words must be taken in their legal sense. The solution devised by the Court of Session was that the term had to be given its popular and ordinary meaning.  1 F. 715 at . How are the authorities at Somerset House to determine what constitutes a charitable purpose? . . Here “the parties” are also the individuals who will be interested in the meaning of the contract at any future date. where a couple who are separating enter into an agreement for dividing up their jointly-owned property: compare Shaw v Hutton-Shaw  EWCA Civ 1235. But. some of these individuals may no longer be on the scene. and the people who now want to understand what the contract means may be new management put in by the acquirer. an inhouse lawyer. I think. The question is determined for them by the law of the country in which they sit to exercise their jurisdiction. All these applications for allowances and exemptions are to be made . and the legal meaning of “charity” in Scotland was different from that in England. The Acts applied on both sides of the border. these particular allowances and exemptions are placed. In Pemsel’s case  A.C. But take even a reasonably straightforward commercial agreement.
or deciding what to do if there is a breach?”. including their legal advisers. when interpreting a commercial contract. but one of the most signiﬁcant points is the mismatch between the simplicity of the ﬁve ICS principles and the complexity of modern commercial and ﬁnancial transactions. and empty. said that the defendant had advanced an interpretation at variance with its actual intention and was seeking to resile from the bargain. sense in which it is said that the Income Tax Acts are addressed to all taxpayers. without sensible restrictions. The entire paper merits careful reading. the admissible background should include only those matters likely to be readily available to the people who will have to interpret the contract in the future. an address delivered in March 2007. then used the word “fraudulent” to describe the case put forward by the defendant. It is difﬁcult to see how these remarks could have been justiﬁed. 989 at 997.R. “Who will actually have the job of ensuring that the contract is carried out. one asks.R. The defendant company’s directors would have been in breach of duty (2008) 124 L. Thomas J..” One further aspect of Wholesale Distributors v Gibbons calls for comment. and said that it was “clearly arguable” that the defendant had not acted in good faith. It is not a scheme that can be applied to a substantial range of commercial contractual relationships. It is to these people who come on to the scene at a later stage (not by reason of assignment. And the courts are beginning to realise that. what was said in the pre-contractual negotiations should normally be outside the limit.14 Law Quarterly Review [Vol. these may well be people who played no part in the making of the contract and who therefore have only a small part of the background knowledge possessed by those who did. Those who negotiated and drafted the contract would have realised that people who would come on to the scene later on would have only part of the background knowledge that had been possessed by those involved in the preparation of the contract. There is. that the court has to “place itself in thought in the same factual matrix as that in which the parties were”. “a basic defect in Lord Hoffmann’s ﬁve point schema. ICS 1 can increase the costs of litigation and allow scope for delaying tactics: ICI Chemicals & Polymers Ltd v TTE Training Ltd  EWCA Civ 725 at –. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . using Lord Macnaghten’s approach.Q. The Chief Justice of New South Wales has recently given a noteworthy review of contemporary contractual in interpretation: “From Text to Context”. but through normal changes in the management of a company) and to their legal advisers that the contract is speaking. It follows that. If.L. Thomas J. If the background is restricted in the way suggested. the Chief Justice says. to say that the contract is addressed to “the parties” is true only in the same formal. At the end of his judgment. This is merely to prefer a common sense to a literal reading of Lord Wilberforce’s famous statement in Reardon Smith Line Ltd v Yngvar Hansen-Tangen (The Diana Prosperity)  1 W. 124 agreement between two companies.
L.’s judgment in ASIC v Citigroup raises new questions as to what counts as the minimum of consent necessary to exclude ﬁduciary obligations in the context of commercial and ﬁnancial services.. per Lord Wilberforce).JANUARY 2008] Notes 15 had they caused the defendant to pay rent for the additional eight years if there was no legal liability. 41 at 96–116. They were entitled to obtain a ruling from the court. Exclusion. it was initially accepted by one judge. 1126 at 1130–1132. and New Zealand Netherlands Society “Oranje” Incorporated v Kuys  1 W. the higher the premium that Toll would be able to offer Patrick shareholders when it was ready to launch its bid. the lower the market price. New Zealand (2008) 124 L. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . another large national transport company. Investment banks present this problem with special force. It was suggested to Toll by a Citigroup executive that the ﬁnancing and trading services Citigroup were likely to be able to provide would increase in scale if the bank’s advisory team was more thoroughly engaged in planning the takeover.R. Citigroup stipulated in its contract of engagement as * Tel Aviv.* EXCLUDING FIDUCIARY DUTIES: THE PROBLEM OF INVESTMENT BANKS THE decision of the Federal Court of Australia in Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd  FCA 963 (ASIC v Citigroup) applies the well-understood doctrine that consenting commercial parties may readily exclude or limit in scope and intensity the operation of ﬁduciary duties (following Hospital Products Ltd v United States Surgical Corp (1984) 156 C.L.R. Citigroup was informally tying the full availability of its ﬁnancial capital to the hiring out of its human capital. Contracts. as the facts of the case reveal. The meaning of the clause was not obvious. In June 2005 Toll agreed to retain Citigroup’s advisory services in addition to its ﬁnancial and market services. per Mason J. Late in 2004 the Australian transport conglomerate.Q. where clients may not fully appreciate the possibility that their advisers and ﬁnanciers will take actions conﬂicting with client interests. In the Court of Appeal. Jacobson J. Citigroup was initially asked by Toll to provide ﬁnance for the operation and to help Toll discreetly build up its holdings of Patrick shares. in other words. ALAN BERG.R. the defendant’s interpretation had been accepted by one judge. Toll Holdings Ltd (Toll) was planning a hostile takeover of Patrick Corporation Ltd (Patrick). although he eventually changed his opinion. in the Supreme Court. This required careful planning and secrecy in order to ensure that the Patrick share price did not rise in anticipation of a takeover.. Admissibility.
16 Law Quarterly Review [Vol. Exercising his judgment that quick acquisition of Patrick shares could yield proﬁts when the predicted takeover was announced. In their witness statements the Toll ofﬁcers revealed that they had not given much thought to the terms or likely effect of the retainer. pushing up the price and so reducing the possible share premium that Toll could offer when it launched its bid. it was trading in the securities market on its own account in order to build up its own capital base.Q. The Toll executives accepted Citigroup’s terms without reservations. The contract further spelt out that Toll “should be aware that Citigroup . Executives on the private side of Citigroup became nervous that their public-side trader was joining and reinforcing the market move into Patrick shares. Citigroup. As Citigroup advisers were helping Toll plan its takeover bid. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . 124 adviser to Toll that it was to be retained solely “as an independent contractor. the Citigroup trader acquired over one million shares in Patrick worth some $6 million. but simply wished to secure Citigroup’s services as they prepared their assault on Patrick. and not in any other capacity including as a ﬁduciary”. a Citigroup transport analyst was asked whether a Toll bid for Patrick was likely. The contract did promise due protection of conﬁdential information. . He refused to comment. the private-side executives of Citigroup decided instead to deal with the problem by crossing the information wall and quietly asking the public trader to desist from trading in Patrick. and feared that their own bank’s public trading activity could make the planned Toll takeover difﬁcult or impossible by reducing the premium that could be offered to entrenched Patrick shareholders. may be providing . the existence and mode of operation of the proprietary trading was never explained to Toll. . Citigroup did not. The Patrick share price rose further as other investors observed the velocity of trading and began chasing the same stock. This refusal was interpreted by share market participants as a robust indication that the analyst’s employer. and also the ensuing cascade of bids for Patrick shares. The ensuing price shifts attracted the attention of the Australian Stock Exchange. give notice that aside from serving rival clients. however.” His response was immediately to return to his desk and sell one-quarter of the million shares he had (2008) 124 L. Citigroup’s “public side” proprietary trading department worked behind information barriers preventing the ﬂow of conﬁdential or price-sensitive information from the “private side” advisory departments of the bank. . However.. . was helping set up just such a takeover. and investors immediately moved to buy Patrick shares. ﬁnancial or other services to other parties with conﬂicting interests”. The trader was taken aside for a cigarette break and simply told without explanation: “Don’t buy any more.R. Citigroup’s conﬂict of interest problem deepened when a trader on the public side of Citigroup noted the information inadvertently released by the Citigroup analyst. After debating whether to offer full disclosure to Toll.
JANUARY 2008] Notes 17 accumulated. and the Patrick share price continued to rise. The trader’s sudden sell-off of the Citigroup holding in Patrick was taken by the market as yet a further sign that Citigroup was preparing a bid on Toll’s behalf. In evidence the Toll ofﬁcers conceded that they might have preferred that their advisers’ trading colleagues in Citigroup had not engaged in buying and selling shares in the company that Toll was preparing to bid for. ASIC’s key argument was that where a commercial party hires the advisory and ﬁnancial services of a large investment bank. The Australian Stock Exchange referred the case to the Australian Securities and Investments Commission (ASIC). Toll’s bid eventually succeeded.1042–1043 of the Australian Corporations Act 2001. Analogy was drawn to a solicitor drafting a retainer for a client. ﬁduciary obligations inhere in the relationship of the negotiating parties independently of the retainer and therefore full (2008) 124 L.912A(1)(aa) and ss. In the witness box the trader revealed that he thought his private-side colleagues were in effect warning him to divest his holding of Patrick shares as the price might fall. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . misleading and deceptive conduct.. Only then can the client meaningfully consent to such conduct. who were already concerned that the investment banks’ wide extent of business would inevitably lead them into conﬂicts of interest and insider dealing harming conﬁdence in the capital markets.R. proprietary trading in competition with the client). the national regulator. the incipient relationship between a client and an advising bank is a relationship of reliance and dependence with ﬁduciary qualities. According to ASIC. They had not further considered that Citigroup public-side traders behind the information wall might engage in independent activity competing directly with Toll’s interests.8 billion rather than the predicted $4 billion. This demands full disclosure by the bank of the types of conﬂicted conduct and proﬁt-taking it is likely to pursue under the negotiated ﬁnal relationship (for example. but was brought as a regulatory action. and insider dealing pursuant to s. costing $5. Toll adjusted its takeover strategy in response to market inﬂation of the Patrick share price by measuring its premium against a date preceding the wave of speculation. the client cannot then give a valid consent to the exclusion of ﬁduciary duties from the contractual relationship unless that client is apprised of precisely which ﬁduciary protections are being surrendered and which types of conduct by the bank are thereby being licensed. and so creates what would normally be a ﬁduciary relationship. ASIC argued that Citigroup had breached ﬁduciary obligations owed to its client. Toll was aware that Citigroup had a proprietary trading operation. and had simply assumed that information walls would prevent use of conﬁdential information in the course of that trading. and that this raised concomitant breaches of statutory duties restraining conﬂict of interest. An essential prelude to understanding the case is that it was not litigated by any party wronged or harmed by any purported breach by the defendant bank.Q.
R. Informed consent or subjective awareness was not therefore a legal requirement.R. in competition with the client’s interest (at –). and ﬁduciary principles therefore did not inform the negotiation of the mandate. and he likewise found that ﬁduciary duty had to be present in order to ground any ﬁnding of “misleading and deceptive conduct”.A.). rejected ASIC’s key submission regarding the necessity of disclosure and informed consent. “The Fiduciary Principle” in Youdan (ed. Even if informed consent was required.. Jacobson J.L. Having found that ﬁduciary obligations had been eliminated by the contract of engagement.W. then Toll’s knowledge of Citigroup’s structure as an investment bank could yield an implied informed consent as to the likelihood that the bank might end up trading in Patrick shares. ﬁnding that the bank’s information walls between its trading and advisory departments. Jacobson J. and since this mandate expressly excluded ﬁduciary duty. so as to protect their client’s interest.S. whose duties are presumed from the presence of a well-recognised type of relationship. as the trader had too narrow a discretion and lacked a managerial role (at –). and other ﬁduciaries whose duties arise from a position of protection and advancement of the other party. a ﬁduciary relationship never came into existence. following Finn. following Maguire v Makaronis (1997) 188 C. Finally he cleared the bank of breach of insider dealing rules through abuse of private information in its proprietary trading. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . Fiduciaries and Trusts (2008) 124 L. 428). had been adequate.R. In the present case it was the mandate itself which constituted the relationship between Toll and Citigroup. 408 at 435–436. Clark Boyce v Mouat  1 A. could therefore clear the bank of breach of the statutory conﬂict rules. in a commercial relationship between ﬁnancial adviser and client there is no proto-ﬁduciary obligation at the time of the execution of the contractual mandate. in Law Society of New South Wales v Foreman (1994) 34 N.18 Law Quarterly Review [Vol. and that the ofﬁcers of the company had handled information ﬂows within the ﬁrm and across the information wall in good faith. whilst not perfect. ASIC had (somewhat surprisingly) conceded in the course of argument that the speciﬁc statutory duty to avoid conﬂicts of interest would only be engaged if a ﬁduciary relationship was present according to general law principles (at ).C. The proprietary trader could not himself be described as an “ofﬁcer of the company” to whom knowledge possessed by the company on the private side could be ascribed. Jacobson J. The ﬁnding of informed consent was ultimately a question of fact (at . Equity. 124 disclosure and informed consent is necessary in forming the agreement (following Mahoney J.’s decision ultimately turned on the distinction he accepted between per se ﬁduciaries. normal contractual notions of objective formation applied.Q.L. 449 at 466). a position which gives foundation to a “ﬁduciary expectation” based on the facts of a speciﬁc relationship (at –.
205). conﬁdence.C. Jacobson J.L. To understand the full implications of this ruling. and so on (Daly v The Sydney Stock Exchange Ltd (1986) 160 C. 71. If the client when forming a relationship with a ﬁnancial adviser consents to exclusion of ﬁduciary duties from the outset. Mason J. one must locate the reasons why in the contrasting category of per se ﬁduciary relationships a more speciﬁc consent must be given. 226). To take two disparate examples: a medical patient in a ﬁduciary relationship with a doctor who relies upon the doctor’s judgment will not readily be found to have consented to the doctor engaging in self-interested conduct (Norberg v Wynrib  2 S. and the consent in such a case can be effective without the client necessarily having to understand the speciﬁc types of proﬁt-taking and conﬂicts of interest that may result from this exclusion. that is a weighty element in the matrix of fact tending to prevent any ﬁduciary obligation arising. better-informed consent.R. the fact that large commercial clients who hire investment banks tend to be well-advised.Q. sophisticated market players allows a more ready ﬁnding of an implied consent to re-deﬁnition of duties (at . at pp. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .R.C.’s judgment indicated that clients seeking ﬁnancial services fall into the second class: ﬁduciary duties will tend to arise in this context only where there is evidence of reliance. 377). Hodgkinson v Simms  3 S. 371.L.L.JANUARY 2008] Notes 19 (1989). likewise a solicitor cannot win a client’s consent to act for a rival client where that double retainer would involve a real risk of conﬂict of interest. The explanation for requiring heightened consent is that in such per se relationships the ﬁduciary duties initially arise through a public policy of protection independent of the parties’ agreement. 1).R.’s ruling is that commercial actors must look to their own resources in taking the decision to consent to a lifting of normal ﬁduciary duties. at 96). citing Farah Constructions Pty Ltd v Say-Dee Pty Ltd  HCA 22 at ).R. Hilton v Barker Booth & Eastwood  1 W. per Gibbs C. there is no proto-ﬁduciary duty requiring a more detailed. cf Breen v Williams (1996) 186 C. The inference of implied consent will be stronger in a case where a commercial practice involving conﬂict of interest is intrinsic to the structure of the market (Kelly v Cooper  A..Q.R.C. unless the solicitor explains precisely how the normal duties of disclosure and loyalty will be diminished in the context of their relationship (Beach Petroleum NL v Abbott Tout Russell Kennedy  NSWCA 408. 567. noted (2006) 122 L. The policy question then arises as to why investment banks and other ﬁnancial advisers who wield power over their clients and who are prone (2008) 124 L.J.46–47. at 68.R. The professional calling of the doctor or the lawyer and their power over their clients automatically mandates ﬁduciary loyalty as soon as an undertaking of care is given. cf. no such inference applied to ﬁnancial advisers since proprietary trading is not an essential or notorious part of their work (at –). However. dependence. and Hospital Products. The immediate policy implication of Jacobson J.R.
thus facilitating economic activity. per Bryson J. 222 at 237–238. underwriting and issuing.R. Commercial clients may count the advantages brought by working with a large and skilled investment bank to be so great that the risks of material conﬂict of interest are deemed to be acceptable. The bank’s own capital can also be crucial in some operations.20 Law Quarterly Review [Vol. acquisitions and reorganisations. Clients will therefore have an incentive to accept without inquiry the bank’s stipulation that their relationship will not be governed by ﬁduciary law.W. but those beneﬁts are shadowed by an ever-present danger of conﬂict of interest on the part of the bank. In today’s complex global markets. A modern investment bank will also maintain a stock of proprietary capital allowing it to fund client projects directly. The beneﬁts of all-embracing services in the one-stop investment bank may be considerable. Jacobson J. 118 at 123. including analysis of asset prices. ASIC v Citigroup provides an object lesson in how such walls can be permeable. following D & J Constructions Pty Ltd v Head (1987) 9 N. Prince Jefri Bolkiah v KPMG  2 A. per Lord Millett. but ultimately he decided that it was the province of the legislature to require that advisers make fuller disclosures of their conﬂicting activities to potential clients being asked to waive ﬁduciary protections (at ).L.. Politics and Law (2007)). which can result in actions measurably harmful to clients’ interests.R. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . the operation will more readily attract ﬁnance where lenders see a major bank taking the lead by injecting its own capital into the project (see further. ASIC v Citigroup provides a catalogue of such dangers. strategic advice including management of mergers.. The protections (2008) 124 L. per Bergin J. 124 to act in conﬂict with their clients’ interests are not also candidates for stronger public policy control through a stronger presumption of initial ﬁduciary status. again. the bank generates valuable information about business opportunities. for example through sophisticated asset-pricing and risk-engineering for a wide extent of businesses.Q.C.S. Jacobson J. Investment Banking: Institutions. emphasised that information barriers can limit but not eliminate conﬂicts of interest. Morrison and Wilhelm. and ultimately to cover the bank’s own liabilities.). and the bank then disseminates such information to relevant lenders and borrowers. securitisation. Asia Paciﬁc Telecommunications Ltd v Optus Networks Pty Ltd  NSWSC 350 at –. for example in a large-scale takeover. The multiple technical capacities of the large investment bank can be of great beneﬁt to clients. investment banks strive to offer “full spectrum” ﬁnancial services to corporate and commercial clients. adverted to policy arguments along these lines. and direct ﬁnancing. and that such barriers are only legally valid if clients consent to deal with a ﬁduciary on that basis (at – and –. The solution of erecting “information walls” (“Chinese walls” in popular but now-dating terminology) between the different parts of a bank is now mandated by legislation backed by regulatory enforcement.
Oxford. It may be that Citigroup here achieved a mildly pyrrhic victory. Fiduciary Obligations (1977). and the attention to both evidence and doctrine in Jacobson J. Where the risk of information leakage is thought to be too great. The case therefore stands as an important precedent. The decision to employ the services of a large investment bank rather than the boutiques. Investment banks. derive some satisfaction from the course of the litigation. On the 30th anniversary of the publication of that work. The hands-off approach recommended by the decision in ASIC v Citigroup does not strengthen the arm of regulators in their work as gatekeepers protecting the integrity of the ﬁnancial system.’s judgment recommends the decision as a perceptive.Q. and opens the door to more heavy-handed legislative controls. Financial services. Share dealing offences. Any well-advised client of an investment bank such as Citigroup will now be warned that whatever the type of legal protection on offer.* UNANTICIPATED FIDUCIARY LIABILITY ONE of the great achievements of Paul Finn J. resort may be had to boutique ﬁrms offering specialist services such as mergers and acquisitions advice alone.’s decision at ﬁrst instance exonerating Citigroup will not be appealed by ASIC. Takeovers (2008) 124 L. was a careful delineation of the different obligations owed by ﬁduciaries. Fiduciary duty. In the late 1990s.. in a case where the client has putative knowledge of how the large banks operate. authority.R. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . It was ﬁnanced by a cunning * St Hugh’s College. there are serious risks involved in employing the services of full-spectrum investment banks in sensitive ﬁnancial business. The deeper question for courts. the decision of the Supreme Court of Canada in Strother v 3464920 Canada Inc  SCC 24 is an unfortunate reminder of the dangers of a lack of precision in identiﬁcation of ﬁduciary obligations and attribution of ﬁduciary liability.JANUARY 2008] Notes 21 offered by the bank’s duties of conﬁdence and the maintenance of internal information walls are deemed to be sufﬁcient. regulators and legislators is whether the risks of conﬂict and market abuse created by private actors such as investment banks within the ﬁnancial system are too large to leave solutions to private ordering. JOSHUA GETZLER. and that ASIC can. Australia.’s ground-breaking work. In taking a loose approach to the construction and attribution of the obligations of ﬁduciaries the majority judgment of the Supreme Court of Canada has dramatically expanded liability in circumstances which ﬁduciaries will be unlikely to anticipate. can therefore be seen as an implied acceptance that damaging conﬂicts of interest may eventuate. Monarch Entertainment Corp was involved in the production of American ﬁlms in Canada. Jacobson J. Conﬂict of interest. if troubling. after all.
Strother and Darc entered into an agreement in early 1998 to develop a revised tax scheme through a company called Sentinel. effective at the end of March 1999. Strother doubted that the scheme could work and did not mention his involvement with Sentinel to Davis & Co for six months. Strother had made proﬁts of $32 million and Davis & Co had received legal fees from Sentinel and related enterprises of $9 million. Strother was therefore free to be consulted by Darc in January 1998 and Davis & Co was free to act for Sentinel (at ). The trial judge found that the continuing retainer did not require Davis & Co to keep Monarch apprised of relevant developments. When Strother did mention his involvement to the managing partner of Davis & Co. It immediately severed all ties with Davis & Co and sued both Strother and Davis & Co. Monarch sought disgorgement of all the proﬁts made by Strother and Davis & Co for breach of ﬁduciary duty and for breach of conﬁdence. Monarch only discovered the news of the tax ruling by word of mouth. it would not have re-entered the market for ﬁlm production services. holding that Strother was in breach of his ﬁduciary duty of loyalty by creating a conﬂict between his (2008) 124 L. Strother resigned from Davis.22 Law Quarterly Review [Vol.Q. In relation to the ﬁduciary duty claim. The controlling mind behind the scheme was a rain-maker at the law ﬁrm Davis & Co called Robert Strother. because even if it had been advised in 1998 of the new scheme. In late 1997 a former employee of Monarch called Paul Darc approached Strother and suggested a revised tax scheme. and went to work full time for Sentinel as a 50 per cent shareholder. Both Davis & Co and Strother were retained by a written agreement with Monarch which prohibited them from acting for any other clients in relation to tax schemes of this type. The retainer expired at the end of 1997 and was not renewed because everyone thought that amendments to Canadian taxation law had defeated the tax beneﬁts of the scheme.. Therefore. there could not be a breach of loyalty by Strother or Davis & Co. The Court of Appeal for British Columbia allowed the appeal. he omitted to mention his ﬁnancial interest and was forbidden from taking any ﬁnancial interest. the central issue at trial concerned the scope of the agreement between Monarch and Davis & Co after its written retainer agreement ended in 1997. instead of seeking compensation for loss. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . In October 1998 a favourable tax ruling was obtained by Sentinel. Strother had discussed one related possibility with a lawyer at a different ﬁrm in November 1997 but nothing had come of it. Monarch was unable to show that it had suffered any loss. Since there was no undertaking to act for Monarch in these matters. with Strother to receive slightly more than half of the proﬁts from any success. Davis & Co continued to act for Monarch on general ﬁlm production services transactions and unrelated general corporate work.R. 124 investment scheme which involved investment from Canadian taxpayers who obtained substantial tax beneﬁts.
R.C. the performance of undertakings to two principals which involve competing outcomes is disloyal (Hilton v Barker Booth and Eastwood  UKHL 8. Understanding the duty of loyalty as a manner of performance of an undertaking explains several things. such as a law ﬁrm. it must be understood as concerned only with the manner of performance of the ﬁduciary’s undertaking. it explains why a ﬁduciary. not merely a contractual one. has no less an obligation to take care in his work (Hedley Byrne & Co Ltd v Heller & Partners Ltd  A. First. The Court of Appeal ordered that Strother disgorge all proﬁts he had made.JANUARY 2008] Notes 23 clients Monarch and Sentinel.C. although the duty of loyalty is engrafted on to the ﬁduciary’s undertaking. it explains why the duty of loyalty does not survive the termination of the undertaking or retainer (Prince Jefri Bolkiah v KPMG (a ﬁrm)  2 A. 205). is not disloyal. Strictly. can act for clients with competing interests. Fish. a ﬁduciary’s conduct. ). however objectionable. More importantly. there can be no breach of any duty of loyalty in their performance. To put the proposition positively. 567) unless the principal gives either express or implied consent (Kelly v Cooper  A. a ﬁduciary’s duty of loyalty is engrafted on to any undertaking by a ﬁduciary. Before Strother or Davis & Co could be disloyal to Monarch. Charron and Rothstein JJ.Q. They found that Strother also had a conﬂict between his duty to Monarch and his personal interest in maximising the proﬁt of Sentinel and making sure that Monarch was kept in the dark about the new scheme. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . Secondly. The starting point for both the majority and minority judgments in the Supreme Court of Canada was the observation that a lawyer’s ﬁduciary duty of loyalty is engrafted on to the contract of retainer (at . Deschamps. Manufacturing Co B. For example. a law ﬁrm could act for Manufacturing Co A in the purchase of land for a factory at the same time as it acts for a competitor. 222 at 234–235). 265) and no less an obligation to do so with loyalty to the client.C.R. in matters relating to day to day business. however. they needed to have undertaken to Monarch that (2008) 124 L. The duty requires that the undertaking of the ﬁduciary must be performed whilst avoiding any interests or duties which conﬂict with those of the principal and avoiding any personal proﬁt to the ﬁduciary without consent. although excluding Davis & Co from liability for the legal fees.  1 W. A majority of the Supreme Court of Canada (Binnie J. The lawyer that acts pro bono..L. As long as the undertakings to the clients do not involve competing outcomes. Once the retainer is gone there is no obligation upon which to engraft the duty of loyalty. Davis & Co was held vicariously liable for those proﬁts and directly liable for all the fees it received from Sentinel after January 1998.. concurring) upheld the orders for disgorgement against Strother and Davis & Co. If there is no obligation to perform. This simple point should have provided a simple answer to the issue before the Supreme Court. without consideration.
JANUARY SWEET & MAXWELL AND CONTRIBUTORS . not used car salesmen or pawnbrokers” (at ). The written retainer for such work with Monarch had expired in 1997. A minority of the court (McLachlin C.. Hence. In any event. There was a limited market for investors for these tax schemes. the majority should have reached the conclusion that Davis & Co had breached its ﬁduciary duty. is the case of a law ﬁrm which acts for two competitors for a single broadcast licence (at . strict duties of loyalty. Binnie J. Yet.2 at para. relied upon oral conversations that Strother had with representatives from Monarch that “alternative” tax-assisted business opportunities might. in the future. the undertakings to Monarch and Sentinel involved competing outcomes. be explored (at ). This broad approach was justiﬁed by reference to the nature of lawyers as “professional advisors. Davis & Co was free to accept Sentinel as a client and undertake to Sentinel to work on a new tax scheme for ﬁlm production. Unlike the example above of Manufacturing Co A and Manufacturing Co B. Binnie J. Vol. for the majority. In contrast.R. one could point to a public interest in the services of lawyers being available to the public generally. The continuing work which was being done for Monarch was general “clean-up” and “corporate” services. The implication was that professionals are required to perform obligations beyond those which they have strictly been asked to do. it could equally be argued that legal retainers should not be construed broadly because the ﬁduciary nature of lawyers means that every retainer has engrafted upon it additional. even if public policy were relevant to issues of construction..121 (2008) 124 L. The process of construction is concerned with ascertaining objective meaning. see also Restatement (Third) of the Law Governing Lawyers. If retainers were construed in an overly broad manner this would crowd out the market for legal services. particularly in highly specialised areas such as tax scheme concerning production syndication for US ﬁlms made in Canada. 124 they would act for it in relation to the ﬁlm production tax schemes in 1998. Alternatively. concurring) held that Davis & Co plainly had not given any such undertaking to Monarch. held that the 1998 retainer by Monarch extended to considering and advising upon “tax-assisted business opportunities” (at ) so that Davis & Co and Strother were in breach of contract in failing to advise Monarch “that there may yet be life in a modiﬁed form of syndicating ﬁlm production services for tax beneﬁts” and failing to advise Monarch to consult another law ﬁrm (at ).24 Law Quarterly Review [Vol. considerations of public policy should not intrude.J. to have one rule of construction for contracts with professionals such as lawyers and another rule for contracts with other people cannot be justiﬁed. Strother was only to provide advice if Monarch speciﬁcally engaged him to consider it (at ). An analogous example of breach of ﬁduciary duty recognised by Binnie J. Having adopted this broad approach to construction of the undertaking. LeBel and Abella JJ.Q. Bastarache.
JANUARY SWEET & MAXWELL AND CONTRIBUTORS . Although Davis & Co was exonerated from breach of ﬁduciary duty. if an unauthorised proﬁt is made by its employee. It was held vicariously liable under the Partnership Act 1996 (R. concluded that Davis & Co was free to accept Sentinel as a client because Sentinel created a “business opportunity which Monarch could have sought to exploit” (at ).C.B. The asserted rationale for such liability was the purpose of teaching “faithless ﬁduciaries that conﬂicts do not pay” (at ) but the partners were neither “faithless” nor in receipt of any of the “payment” that they were required to disgorge. Prentice and J. the majority held that Davis & Co was free to accept Strother and Sentinel as clients. 558.. partner or another for whom the ﬁduciary is vicariously responsible. Ultraframe (UK) Ltd v Fielding  EWHC 1638 (Ch).C. (2008) 124 L. beyond the strict promise itself.R.L. Secondly. The bizarre consequence of the decision was therefore that although accepting that Strother breached his duty of loyalty. It was in the interest of Sentinel that Monarch discovered the new scheme as late as possible. The overall effect of the Supreme Court’s decision is two signiﬁcant expansions of ﬁduciary liability. 704). its victory was pyrrhic. For several reasons. a ﬁduciary lawyer’s undertakings will be construed very broadly. it is surprising to think that the common law would ever have concluded that other partners were liable to account for unauthorised proﬁts made by a partner in breach of ﬁduciary duty. First. Strangely. The ﬁduciary will therefore be subject to strict duties of loyalty in the performance of undertakings. noted D. But the outcomes of working for both companies were plainly not aligned.Q. That British Columbian Act was itself based on s. Binnie J. even if a ﬁduciary performs its obligations loyally.C. First. when a director makes unauthorised proﬁts in breach of ﬁduciary duty.Q.12 of the Partnership Act.S.C.10 of the UK Act of 1890 which had sought to codify the common law. CMS Dolphin Ltd v Simonet  2 B. Secondly. Payne (2006) 122 L.R. The conclusion was based on a generous reading of the words of s. the ﬁduciary will be liable to account for all the proﬁt made by that other person.JANUARY 2008] Notes 25 (2000)). It was in the interests of Monarch to discover it as early as possible. the other directors are not liable to disgorge the breaching director’s proﬁts (Regal (Hastings) Ltd v Gulliver  2 A.) s. namely that the other partners are liable for “loss. it is counterintuitive to require ﬁduciaries like the partners of Davis & Co to disgorge a proﬁt of which they were never aware and the making of which they had forbidden (at ). 134.12 to disgorge the £32 million proﬁt for which Strother was liable. even though the breadth of those undertakings may not be clear. injury or penalty to the same extent as the partner [in breach]”. cf. as a matter of principle.
but in lengthy obiter dicta went on to consider the Court of Appeal’s reasoning with respect to the recipient liability of the third parties and an alternative submission by Say-Dee that the third parties were knowing assistants to the breach of ﬁduciary duty by Farah. Retainers (2008) 124 L. oversaw an unsuccessful development application to the local council. under the second limb of Barnes of Addy. Hence. It also held that Lesmint. it was also the ﬁrst opportunity for the High Court to consider the possibility of recognising a strict liability unjust enrichment claim in factual circumstances encompassed by equity’s knowing receipt rule. 124 Commercial ﬁduciaries have little cause to celebrate such expanded liability in circumstances that are difﬁcult. or impossible. in the course of which he learned that if adjacent properties were purchased. Fiduciary duty.R. to anticipate and prevent. App. consequently.26 Law Quarterly Review [Vol. the court continued to frame the legal questions in terms of the two limbs of the so-called rule in Barnes v Addy. Lesmint Pty Ltd. Canada. breached its ﬁduciary obligations by not imparting this information to Say-Dee and instead arranging for a related company controlled by Elias. to re-develop a block of land in Sydney. The High Court reinstated Palmer J. JAMES EDELMAN.. * Keble College. to purchase the relevant properties adjoining the joint venture’s land. Farah Constructions Pty Ltd.R. through Elias. The ﬁrst appellant. and his children were liable under the ﬁrst limb of Barnes v Addy (1874) L. 9 Ch. The director of Farah. Say-Dee alleged that Farah. and. Say-Dee Pty Ltd. a revised application would most likely secure Council approval. controversially.* EQUITABLE THIRD PARTY LIABILITY THE unanimous judgment of Farah Constructions Pty Ltd v Say-Dee Pty Ltd  HCA 22 (May 24. Mr Elias. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . 2007) marks the ﬁrst time in 30 years that the High Court of Australia has had the opportunity to consider and clarify the equitable liability of third parties to breach of trust or ﬁduciary duty. Importantly. The New South Wales Court of Appeal overturned Palmer J. It was alleged that in doing so Elias acted as his wife and children’s agent and. and Elias’ wife and two daughters.’s ﬁnding of no breach of ﬁduciary duty by Farah. formed a joint venture with the respondent.Q. 244 (knowing receipt of trust property in breach of a trust or ﬁduciary duty). that his knowledge of the breach of duty should be imputed to them. Elias’ wife. that the facts supported a strict liability claim in unjust enrichment.’s decision at ﬁrst instance that there had been no breach of ﬁduciary duty by Farah. Oxford.
Q. 17 at . per Buckley L. but rarely if at all decided” (at ).  F. or by Elias. and Foley v Hill (1848) 2 H.). that his actual knowledge could not be imputed to them. per Lewison J. per Tobias J. which it was not. that is. 652. the land acquired by the third parties as a result of the information was the relevant “trust” property.R. Further grounds for rejecting recipient liability were that the evidence did not establish that Elias was acting as the agent of his wife and children and. 393 at 405.JANUARY 2008] Equitable recipient liability Notes 27 There are at least two ways to interpret the Court of Appeal’s ﬁnding that the third parties had knowingly received “trust” property according to the ﬁrst limb of Barnes v Addy. the High Court also expressed doubt as to whether recipient liability should apply at all in relation to property which is not the subject of an express trust: this had been “assumed. it was part of the joint venture’s “intellectual stock-in-trade” ( NSWCA 309 at .S. the information acquired by Elias was not property to which a trust could attach (contra Edelman (2006) 122 L. the beneﬁciary or principal must have an equitable proprietary interest which can be identiﬁed in property received by the third party.R. unconvincingly.. that is. 174 at 177). The High Court. In this case.C. per Lord Cottenham L. which was then “received” by the third parties.g. In a surprising aside.A.). Recipient liability is the personal liability companion to a proprietary claim contingent upon the application of priority or tracing rules.A. Belmont Finance Corp v Williams Furniture Ltd (No. and nor was it possible to trace the information acquired by Elias into the properties. Ultraframe (UK) Ltd v Fielding  EWHC 1638. that is.J. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .R. Even if the information were conﬁdential. Nor was the land acquired by the third parties “trust” property as it was never held by the joint venture. the High Court held.L. rejected the Court of Appeal’s reasoning in both respects as fundamentally ﬂawed.R. correctly in our view. Previously.R.2)  1 All E. the requirement of “trust” property in the ﬁrst limb was assumed to encompass all situations where a ﬁduciary has property of the principal under his or her control (see. e. (2008) 124 L. this would not necessarily make it property for the purposes of recipient liability. Cas. per Tobias J. Alternatively. The ﬁrst possibility is that the information acquired by Elias was itself property belonging to the joint venture. The High Court’s approach is consistent with recent English authorities: Satnam Investments Ltd v Dunlop Heywood & Co Ltd  3 All E.).Q. the third parties acquired “the fruits of the valuable intelligence” obtained by Elias ( NSWCA 309 at . 28 at 35–36.
otiose (at ). The High Court categorically rejected the use of unjust enrichment to impose strict liability in this context and was highly critical of the lack of analysis by the Court of Appeal.223). however. precluded an intermediate court from taking such a radical step.L. the High Court emphasised the injustice of recognising a strict liability unjust enrichment claim on these facts. recipient liability should not be outﬂanked by the recognition of a strict liability unjust enrichment claim. to establish the receipt of any “enrichment’ at the claimant’s expense. Say-Dee had sought to explain the unjust enrichment claim as arising alongside the equitable claim. and did not have knowledge of any such breach. “Receipt” in Birks and Pretto (eds). regardless of whether the courts are to impose recipient liability or strict liability under unjust enrichment..28 Strict liability Law Quarterly Review [Vol. What was the enrichment: the information itself? Or the property purchased “using” that information? Clearly. including “seriously considered” (at ) obiter dicta of the High Court in Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 C. 124 The New South Wales Court of Appeal held that a restitutionary. p. e. Apart from precedent. and thus no knowledge needs to be proved where “recipients” have been unjustly enriched at the claimant’s expense. the High Court rejected the view that there had been any receipt of trust property by the third parties. but the High Court stated that even in England. “Breach of ﬁduciary duty” could not be such a factor. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . Such liability is strict. respectively.R. for the purposes of the knowing receipt rule. the requirement of notice or knowledge as a foundation of recipient liability in equity is too ﬁrmly entrenched to be abandoned. it is imperative to avoid loose and overly broad meanings of those concepts. Breach of Trust (2002). Speciﬁcally. unjustenrichment based claim was available to Say-Dee. The High Court stressed that the unjust enrichment claim should not be used (2008) 124 L. it is equally problematic. a number of conceptual arguments can be advanced in support of this view and the “want of intellectual merit” (at ) of a strict liability unjust enrichment claim in this context. and its notice requirement. on the receipt of property or enrichment. Hence. Thus. the High Court emphasised that long-established authority. subject to defences. as the third parties were not ﬁduciaries. Although the High Court did not separately consider the point.g.R. no case has treated ignorance as a basis for restitution (at ). First. At a normative level. correctly recognised that this would be to render the ﬁrst limb of Barnes v Addy.Q. 373. The only possible candidate was “ignorance”. and for similar reasons. The High Court also noted that there was no relevant “unjust factor” justifying restitution. rather than as a recasting of it (consistently with Birks’s later writing on the subject. The High Court.213 at p.
R.R. requiring the existence of speciﬁc qualifying or vitiating factors (at ). For those who may have thought that these views of Gummow J.. It also may distort well settled principles in other ﬁelds . Perhaps most importantly. at best. so that they will answer the newly mandated order of things” (at ).Q. If all this suggests that the divide between the English and Australian law of restitution is ever widening (on which. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .JANUARY 2008] Notes 29 to “cut down traditional equitable protection” (at ). Farah puts paid to such arguments. are essentially his own. the assumption by many that a strict liability unjust enrichment claim is both conceptually and normatively preferable to knowledgebased liability in such cases. 47).C. Unjust enrichment is not to be used as a mechanism to recast the law. we have extensively expressed our own views on the matter recently. The onus is on those advocating the recognition of the strict liability unjust enrichment claim to justify the normative merits of such change to the law (at ). .’s view that much modern unjust enrichment theory represents a dogmatism that “will tend to generate new ﬁctions in order to retain support for its thesis. 378 Lord Nicholls of Birkenhead drew on nineteenth-century case law concerning the liability of third parties who participated in breaches of trust to formulate a general principle of “accessory liability” for breaches (2008) 124 L. (2007) 31 M.U. of even more interest is the approach of the High Court to the “unjust enrichment” principle more generally. is ﬁnally being challenged at the highest judicial levels. This is something to be welcomed. in a probable reference to the Birksian school of unjust enrichment theory. in Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 C. The court adopted views of Gummow J. in particular rejecting the burdensome onus that strict liability under unjust enrichment places on innocent recipients to satisfy defences (Dietrich and Ridge. it operates in narrow terms. 759). It was not clear “how there was any justice in permitting restitution against a defendant who received trust property without notice of that fact” (at ). It also endorsed Gummow J. 516 at 544. . stressing that theory in the common law derives from judicial decisions rather than the other way around (at ).L. Hence.R. .R. inevitably correct” (Farah. at ). such as to be almost “foreordained and . This is not a concept to be given a free or wide-ranging operation. see Hedley (2004) 28 M.L.L.U. the High Court rejected “a mentality in which considerations of ideal taxonomy prevail over a pragmatic approach to legal development” (at ). . Knowing assistance liability In the Privy Council case of Royal Brunei Airlines Sdn Bhd v Tan  2 A.
176. In contrast. para. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .  4 All E. Jacob’s Law of Trusts in Australia. namely. should be maintained. Thus. Lord Nicholls used these cases to support his reasoning that a dishonest and fraudulent breach of duty by the trustee or ﬁduciary is not required and consequently he rejected Lord Selborne’s formulation of the second limb of Barnes v Addy. 161 at 235. 7th edn (2006).Q. extra-judicially. this is not necessary in order for a third party who procured or induced a breach of trust to be liable. Further reinforcing its divergence from the English position. has taken the opposite approach to that of Lord Nicholls by expressly differentiating the ways in which third-party participatory liability for breach of trust or breach of ﬁduciary duty may arise. the High Court afﬁrmed that for knowing assistance liability the breach of trust or ﬁduciary duty by the ﬁduciary must itself be dishonest and fraudulent before the third party is liable. The extent to which the knowledge criterion for knowing assistance liability in Australia differs in substance from the dishonesty test for English accessory liability continues to be an open question. whereas. and assistance. This is rather surprising given that one member of the court has referred.) as e e being of assistance in interpreting the judgments in Consul as to the third party’s requisite state of knowledge (contra Royal Brunei at 392. into one general principle with one criterion for liability (dishonesty by the third party). where Lord Nicholls suggested that the Baden scale of knowledge is “best forgotten”). Unfortunately. etc. Australian courts are to maintain the distinction between liability under the second limb of Barnes v Addy and liability by way of procuring or inducing a breach of trust. to the scale as “the zenith of complexity”: Heydon and Leeming.R. 136)..R. Eaves v Hickson (1861) 30 Beav. Nor is there any explanation of whether thirdparty liability for procurement and inducement applies only in relation to breaches of trust. whilst relying on almost the same nineteenth-century case law. Attorney General v Corp of Leicester (1844) 7 Beav. The court used the scale to clarify some uncertainties arising (2008) 124 L. inducement. and procurement or inducement by a third party of a breach of trust on the other. The immediate consequence of the High Court’s approach is that Lord Selborne’s statement of principle in Barnes v Addy is given far greater weight. 124 of trust and ﬁduciary duty for which dishonesty on the part of the third party is the requisite element for liability (Fyler v Fyler (1841) 3 Beav.. the High Court in Farah. procurement. Thus. whilst the Privy Council’s formulation of accessory liability incorporates various forms of third party involvement in breach of trust or ﬁduciary duty. there is little in the way of principled explanation for why the distinction between assistance by a third party in a breach of trust or ﬁduciary duty on the one hand. the High Court expressly adopted the Baden scale of knowledge (Baden v Soci´ t´ ee G´ n´ rale. per Peter Gibson J.30 Law Quarterly Review [Vol. 550.
* JOACHIM DIETRICH. the two concepts drawing on German and French law respectively. whilst the High Court made some attempt to address the conceptual and normative merits. For the moment. which regulate the relationship that commercial agents have with their principals. but offered limited guidance on the meaning of such terms or how they should be calculated. which builds upon precedent in an acceptable way. Third parties.17(1)). One of the most important protective features of the Directive is to give commercial agents. “knowledge of circumstances which would indicate the facts to an honest and reasonable man” is sufﬁcient for liability.. there is little substantive discussion of the normative questions raised by the court concerning the proper scope of equitable wrong-based liability for third parties to breach of trust or ﬁduciary duty. on termination of the agency relationship. a principled and normative analysis.R. we would suggest. the right to claim a lump sum payment. advisers and bankers of [an] insolvent company” (at ). Particular reference is made to the situation of “directors. It is designed to capture the “morally obtuse” defendant who does not recognise an impropriety that would have been recognised by an “ordinary person” (at ). arguments based upon precedent have won the day. then. ‘‘Knowing assistance” in Australia now has a much narrower scope than English accessory liability. A pressing question after Farah. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .Q.17(1)). Breach of ﬁduciary duty. Unjust enrichment (2008) 124 L. In * Australian National University. Nor. PAULINE RIDGE. Unfortunately. is this question solely an Australian concern. Strict liability. or lack thereof.JANUARY 2008] Notes 31 from Consul. in the longer term. and concluded that level (iv) on that scale. however. Breach of trust. of an unjust enrichment claim. The Government did not select one or the other and instead left the choice between the two options to the parties (reg. The Directive allowed Member States to choose between “indemnity” or “compensation for loss” (Art. The motivation for this appears to be a concern with the potential for injustice when third-party liability rules developed in relation to traditional express trusts are applied to breach of ﬁduciary duty in general. implement an EC Directive which aims to reinforce the legal protection of commercial agents. Australia.* FINAL GUIDELINES ON COMPENSATION OF COMMERCIAL AGENTS THE Commercial Agency Regulations. is required. concerns the extent to which breach of equitable duties by ﬁduciaries and trustees should be treated as interchangeable for the purposes of third-party liability. It is to be hoped that it will not be another 30 years before the High Court has that opportunity.
not all common law principles would be disregarded. Following such uncertainty.17(6)) and how to assess the compensation (reg. Thus compensation was due even “where the principal shuts down the relevant part of his business. Much depends on the courts clarifying the scope of application of this part of the implementing text by explaining what “damage”.R. said compensation should be assessed as if one were valuing a business. and merely copying the Directive out does not make things easier. Moore-Bick L. he calculated the compensation without taking account of the fact that the principal’s business was reduced following the closure of the part of the business of which the agent was in charge.R 1281. compensation applies (reg.  1 W. he nevertheless insisted that he was applying Scots law. as it reduced the value of the agency and therefore the value of the compensation.R. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . it is accepted that the loss for which the agent can claim compensation pursuant to reg. Although Lord Caplan considered the approach of the French courts and awarded two years worth of commission. In spite of this.17(6) is speciﬁc to the agency relationship and as such different from any existing common law principles.17(2)).L.J.J. In King v Tunnock Ltd 2000 SC 424 Lord Caplan stated that the agent’s loss is that caused by “the termination of [the agent’s] relations with his principal” and an agency “has commercial value” (at ). Moore-Bick L. In the Court of Appeal for England and Wales. In King v Tunnock Lord Caplan said that reg. 2055) upheld (2008) 124 L. Although the Directive and the Commercial Agency Regulations offer some guidance as to the application of such concepts. 124 the absence of choice. Moore-Bick L. stated that the loss suffered was “the loss of the goodwill attaching to the agency business” (at ) for which a claim would not otherwise arise.  1 W. cannot be said to be clear. The House ( UKHL 32.32 Law Quarterly Review [Vol.  1 W. In his analysis.e.R 1281. in Lonsdale v Howard & Hallam Ltd  EWCA Civ 63.Q. In Lonsdale v Howard & Hallam Ltd  EWCA Civ 63. the Directive is not troubled with what happens after the date of termination” (at ).J. especially as to compensation.17(7)).L. the Scottish and English courts have disagreed on the proper assessment of the compensation.L. i. refused to consider the French approach even as a broad guideline. however. leave to appeal to the House of Lords was granted. One such event was the fact that the principal’s business was in decline. and therefore events following termination that were likely to affect its value were also relevant. Most cases to date have involved compensation rather than indemnity. loss. what is actually meant.17(7) did not “set out the exclusive circumstances giving rise to compensation” (at ).. After stating that the pursuer’s business enjoyed considerable goodwill. agents suffer on termination (reg. Although the value of that business was to be considered at the date of termination. or say ceases to trade because the company goes into receivership” and “so far as entitlement to compensation is concerned.
Interestingly however. his Lordship remarked upon the (little) advertised French practice of “droit d’entr´ e” whereby an incoming e agent would pay an entrance fee of.Q. He concluded that French law places a value on the right to be a commercial agent and that the loss the Directive requires commercial agents to be compensated for is the loss they suffer by being deprived of the beneﬁt of the agency relationship (at . This part of the decision is unproblematic since it conﬁrms that the loss for which agents are compensated is a special one. the difference in the French and English methods to calculate the loss is not a problem.17(2) of the Directive is based on French law. with a resounding “no” for three reasons. usually. Lord Rodger of Earlsferry. because they are operating in different market practices” (at )..JANUARY 2008] Notes 33 the Court of Appeal position and rejected the Scottish approach. although Art. Commenting on the French origin of the option.R. and gave guidance on the assessment of compensation. unsurprisingly. “the difference between French and English practices exist . he answered. he said that one could therefore “look at French law for guidance or conﬁrmation as to what [the loss] means” (at ).R. the determination of the compensation. Member States are allowed some discretion over the method of calculation of termination payments (Honyvem Informazioni Commerciali Srl v Mariella De Zotti (Case C–456/04. he stated that he ﬁrst had “to decide exactly what the agent should be compensated for” (at ). JANUARY SWEET & MAXWELL AND CONTRIBUTORS . ). . Secondly. the French and English implementing texts both contain provisions requiring commercial agents to be compensated for the loss suffered on termination: what differs is simply the method by which the loss is calculated. (ii) whether the question of calculation should be referred to the European Court of Justice (“ECJ”).  E. Commercial Agents. two years of commission (at ). and if not (iii) what precise method of calculation should be adopted. Lord Carswell and Lord Neuberger agreed). Lord Hoffmann noted that whilst in France agencies often changed hands. Consequently. (i) whether their Lordships should follow the French method of calculation and award two years’ worth of commission. raised three separate questions. Finally. I–02879). Thus. (2008) 124 L. Lord Hoffmann delivered the leading speech (with which Lord Bingham of Cornhill. the EU Commission did not endorse it as a true reﬂection of community law (at ). in turn. Principles of European Law. . Before deciding how compensation should be determined. To the question whether the French system should be followed. To state that English commercial agents operate in different market conditions than their French counterparts without empirical evidence is somewhat controversial. First. this did not seem to be the case in the United Kingdom. Lord Hoffmann then turned his attention to the issue at the core of the decision. Judging from the mention of such a practice in a comparative academic study (Sellier. which.C.
.103). Yet. he added that it was not the meaning of the Directive which was uncertain. he stated that it was therefore “impossible to argue that [compensation] requires a payment of twice gross commission whether the principal has derived any beneﬁt or not” (at ). what was uncertain was the way the discretion had been implemented domestically. Since Member States have discretion in this matter. doubtful. the task of resolving this uncertainty therefore fell on their Lordships and not on the ECJ. His Lordship then concluded that to value the agency on the assumption that it continued was therefore not inconsistent with the protective stance of the Directive.Q. Lord Hoffmann also answered “no”. but the method by which the compensation is calculated. in contrast. Remarking that no indemnity would have been payable “in a case such as the present in which the principal went out of business and therefore derived no beneﬁt from the customers”. the indemnity focuses on whether the principal beneﬁted from the agent’s efforts (reg. To use the indemnity option as a rationalisation that the method of calculating the compensation due is consistent with the protective stance of the Directive is.34 Law Quarterly Review [Vol. By doing so.. The distinction is crucial. which is clearly different from the French approach. the value of the compensation is based on the value of the agency “on the assumption that it continued”. it seems to exist beyond France.R. i. 124 Franchise and Distribution Contracts (2006). JANUARY SWEET & MAXWELL AND CONTRIBUTORS .e. After agreeing that the lack of consensus between the Scottish and the English courts created uncertainty. Lord Hoffmann considered what an agent would have obtained under the indemnity option since “there is no doubt that this would satisfy the policy of the Directive” (at ). Since what had to be valued was “the agent’s expectation that “proper performance of the contract” will provide him with a future income stream” (at ). ). Compensation considers whether the agent suffered a loss following the termination of the relationship. by reference to what a “hypothetical purchaser” “would have been willing to pay for similar businesses at the time” (at . . p. On the question whether it was necessary to refer the matter to the ECJ. whilst the agent can claim compensation for (2008) 124 L. To the claim by counsel for the appellant that anything less favourable to commercial agents than the French method of calculation would not give effect to the protective stance of the Directive.17(3)(a)). Lord Hoffmann held that the level of compensation was to be assessed by reference to the open market sale value of the agency. which represents “the amount which the agent could reasonably expect to receive for the right . to continue to perform the duties of the agency and receive the commission which he would have received” (at ). that of a precise method for calculating the compensation. how widespread it is is unclear. with respect. given the different approaches of the two termination payments. Turning to the most difﬁcult question. the court takes account of “what the parties were likely to have expected to happen” after termination (at ).
and when the agent has several agencies.R. his Lordship’s ﬁnal task was to deﬁne the necessary factors for assessing the quantum of the compensation. The last was considered in relation to the intervention of the Australian Winemakers’ Federation whose concern was the event where. he nevertheless criticised the ﬁnal assessment for lack of evidence that anyone would have paid this ﬁgure for a comparable business (at ). The ﬁrst is the level of net commissions received by the agent. a difference that the EU Commission merely referred to as a “difﬁculty”.Q.. Continuing on the method of assessment. the costs must be fairly attributed to each (at ). and therefore the principal’s business. L. The difference in question relates to the fact that given the unfamiliar nature of the concept of compensation to a common lawyer. Furthermore. compensation is not. This argument seems (2008) 124 L. H. is apparently not a problem. is in decline is important too. the indemnity is capped at one year’s remuneration (reg. L. following termination. even if different from the French approach.H. 578 was similarly rejected for being based on cost rather than what one would have paid for the agency (at ). Such factors are closer to indemnity than compensation. the House appears to be having regard to common law principles. no indemnity will be due if the principal has not gained ﬁnancially from the agent’s efforts. By calculating the compensation due by taking account of what the parties were likely to have expected to happen after termination. 189 for calculating compensation on net earnings. since they are what matters to the hypothetical purchaser. An interesting argument in his Lordship’s reasoning can be seen in his comment that although the EU Commission Report stated that the UK and the French approaches as regards to compensation were different. since a buyer would pay less for the agency (at ) and there must be a deduction for accelerated receipt (at ).R. He cast a critical eye on the case law to date. the agent can transfer the goodwill created to another principal. The fact that the market. After praising the judge’s approach in Tigana Ltd v Decoro  Eu. in view of the report. Bailey Palmer v Howard and Hallam Ltd  Eu. Lord Hoffmann considered that to pay compensation in such circumstances would be unfair since the former principal does not retain the goodwill (at ).JANUARY 2008] Notes 35 the loss suffered even if the principal does not acquire new customers. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . Lord Hoffmann insisted on the need for the valuation to be done by reference to what is happening in the “real world” (at ). there was no suggestion that either approach would fail to implement the Directive. Emphasising the importance of a clear methodology for the valuation.R. the UK courts would be likely to have regard to existing common law principles when assessing it. which. Judge Overend’s assessment in Smith. rejecting King v Tunnock and stating that the sheriff’s analysis that the goodwill disappeared when the business closed was the correct one.17(4)).
if. his Lordship reiterated the need for a clear methodology for the valuation. which will be costly. it is not clear whether this is correct. the “hypothetical purchaser” could not be sure that the customers could continue to trade with him.36 Law Quarterly Review [Vol. As the ﬁrst ruling of the House of Lords on the method of calculation of the compensation due. the burden of proof of the value of his agency falls on him (at ). yet. This analysis. If the effect of (2008) 124 L. is closer to indemnity than compensation. arguing that “once it is ﬁrmly understood that the compensation is for the loss of the value of the agency. their Lordships accentuate the fact that the Directive stipulated a remedy for a loss but left it to Member States to decide how that remedy is to be calculated. The recognition of the speciﬁcity of the loss the agent suffers on termination and the need for a clear methodology for its assessment is to be welcome. to take account of the fact that the principal’s business is failing as reducing the value of the agency and therefore the value of the compensation blurs the distinction between compensation and indemnity and appears to calculate compensation by reference to existing common law principles. “after a period of experience in such valuations” the courts will be able to apply a “going rate” for what Lord Hoffmann refers to as a “standard case”. Member States have some discretion in the matter. However. as previously mentioned. In fact. also recognises the different emphasis between compensation and indemnity. in spite of losing the agency. 124 to consider the principal’s gain rather than the commercial agent’s loss. Expert evidence will therefore be needed. “he would be unlikely to be prepared to pay much for the agency” (at ). By stating that the loss suffered is that of the agency as an asset to the agent. which. Since the agent is the one claiming compensation. in line with French law. Lord Hoffmann also added that. Aware of this problem. which may be against the protective stance of the implementing text. Although the EU Commission did not consider that calculating compensation by reference to common law principles was a failure to implement the Directive. hence reducing the need to repeat boilerplate evidence in every case (at ). Lord Hoffmann nevertheless emphasised the importance for the judge to be “fairly conﬁdent that he is dealing with the standard case” (at ). doing so may nevertheless undermine the speciﬁcity of the loss agents suffer on termination. this unanimous decision is of great importance. relatively few cases will go to court” (at ). the agent will be left with no compensation. JANUARY SWEET & MAXWELL AND CONTRIBUTORS ..Q. in such a situation.R. By emphasising the domestic discretion in the calculation of compensation. In fact. the court seems to accept that the basis of the payment is the expropriation of the agent’s quasi-proprietary interest and not the principal’s gain. given the previously mentioned different emphasis between the two options. However. looking at the state of the principal’s business means that in certain cases.
declared that a risk is foreseeable unless it is “far-fetched or fanciful” (at 47).. McHugh J.R. the High Court proceeded to hold that. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .R. was adopted over a more demanding formula suggested by Barwick C. For instance.* WHEN IS A RISK OF INJURY FORESEEABLE? IN 1980 the High Court of Australia pronounced judgment in a case that has a strong claim to being the most signiﬁcant authority concerning the law of torts in Australia. 99 at 101–102 of “not unlikely to occur”. asserted that * University of Shefﬁeld. The undemanding test selected in Shirt all but removed the requirement of foreseeability as a precondition to liability in negligence. Consequently. in its Action Plan on a More Coherent European Contract Law (Com (2003) 68 ﬁnal) criticised the Directive for creating uncertainty (Com (2003) 68 ﬁnal at para..J. the risk of injury was foreseeable. This stimulated further growth of the tort of negligence. “Torts Turnaround Downunder” (2001) 1 O. is that. 517 at 549.Q. in Caterson v Commissioners for Railways (1973) 128 C.R. The plaintiff in those proceedings suffered quadriplegia in a water-skiing accident. Compensation. the Shirt test came in for severe criticism. it is unsurprising that when the pendulum began to swing back in favour of defendants at around the start of the 21st century (see Luntz. Unsurprisingly. 40.L. on similar facts. Commercial agents. from the perspective of the reasonable Council. domestic courts interpret the Directive differently. That case was Wyong Shire Council v Shirt (1980) 146 C. The issue was whether the risk of injury generated by the ambiguity in the warning sign was foreseeable. In fact.C. This test. Mason J.L.U. This not only increased the circumstances in which negligently inﬂicted injuries were compensable but it also signalled a sympathetic attitude towards plaintiffs in the High Court. That injury was sustained because the plaintiff interpreted a sign that read “Deep Water” as indicating that the water beyond the sign was deep. in Swain v Waverly Municipal Council (2005) 220 C. the sign.L. who.L.JANUARY 2008] Notes 37 such a discretion. 617.2)  1 A. SEVERINE SAINTIER. While skiing in what he wrongly believed to be deep water. marked a channel that had been dredged for the use of water-skiers.C. 95). derived from the Judicial Committee’s advice in The Wagon Mound (No.18). Termination (2008) 124 L. in a classic passage. a problem recognised by the European Commission.R. which had been placed by the defendant Council.J. the plaintiff fell and struck his head on the bed of the lake. this raises wider questions as to the effectiveness of this Directive as a tool for harmonisation of European private law.
remarked that “with enough imagination and pessimism it is possible to foresee that practically any misadventure. . It also provides fresh impetus to re-examine the reason why a risk of injury must be foreseeable before the defendant is required to take reasonable care to avoid its materialisation.J.R. during the hearing of that case. a majority of the High Court overruled the decisions below and held that the defendant was not liable. the decision in Fahy reveals a marked difference of opinion in the High Court as to the appropriateness of that test. . However. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . in [Shirt] requires everyone to be a Jeremiah. The gravamen of her complaint was that Mr Evans had.L. 1021. The next opportunity arose in New South Wales v Fahy (2007) 81 A. 124 the Shirt test was a “pernicious principle [that] has done much damage to the utility of the common law doctrine of negligence” (see also Tame v New South Wales (2002) 211 C.R.R.L.Trans. 774.. The plaintiff entered the room where the victim was being seen by a doctor. 44 at 64 Callinan J.38 Law Quarterly Review [Vol. that test escaped intact. The plaintiff contended that this injury would not have been sustained had the New South Wales Police Service taken reasonable care to ensure that the “partner system”. among other things. The ﬁrst opportunity came in Paua Nominees Pty Ltd v Miller  H. the Court of Appeal unanimously afﬁrmed the correctness of the District Court’s ruling on liability ((2006) 155 I. The difference of opinion in the High Court did not concern whether the risk of psychiatric injury was foreseeable.Q.C. without good reason. the court came to the view that it was an inappropriate vehicle for reconsidering the Shirt test and rescinded special leave to appeal. The stress to which the plaintiff was subjected in this situation resulted in her suffering a psychiatric injury. The facts in Fahy were straightforward. to reduce the bleeding from a very serious wound. 317 at 351–357). It was accepted that it (2008) 124 L.R.A. 54). While in the treatment room the plaintiff tried. In this matter the court gave full consideration to whether the Shirt test should be retained. However. it did not take long for the High Court to give permission for the correctness of the test for foreseeability as enunciated in Shirt to be contested. The plaintiff succeeded at ﬁrst instance in the District Court of New South Wales.R. whereby paired ofﬁcers would work together and support each other. In the end. However.” Once the retreat of negligence was underway.L. was carried into effect on this occasion. from mishap to catastrophe is just around the corner” and lamented that “the rule . Although her damages were reduced by the Court of Appeal on account of her failure to mitigate her loss. Mr Evans waited outside. The plaintiff police ofﬁcer and another ofﬁcer with whom she had been assigned to work. Similarly. Senior Constable Evans. in Koehler v Cerebos (Australia) Ltd (2005) 222 C. abandoned her. attended a medical centre where an assault victim was being treated.
In brief. .J.. Callinan and Heydon JJ. disagreed. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . went to considerable lengths to commend the Shirt test. The minority. principally on the basis that the trial judge’s conclusion was open to him on the evidence and was therefore not susceptible to appellate disturbance.. and Gummow and Hayne JJ. . the High Court divided over whether there was a breach of duty. no matter how the risk of psychiatric injury was analysed. Gummow and Hayne JJ. Gleeson C.J.R. only a few words will be said about it. Callinan and Heydon JJ. Callinan and Heydon JJ.JANUARY 2008] Notes 39 was. their Honours thought that the Police Service. Kirby J. presumably because the risk in question was so obvious. they said that its replacement was desirable as it is so easily satisﬁed that it seriously detracts from the traditional learning. did not feel that it was necessary to express any view on the correctness of the Shirt test since. Although their Honours considered that Fahy was an unsuitable case for replacing that test. that “. Gleeson C. His Honour argued that the entrenched position of that test in negligence law coupled with considerations of accident prevention were reasons for afﬁrming it. . held that the Shirt formula should be retained. We can now turn our attention to the issue of foreseeability. 562 at 580. is no doubt based on a general public sentiment of moral wrongdoing for which the offender must pay”. . regardless of the applicable test. constituted by Gleeson C. As this point is less interesting than the issue of foreseeability. Furthermore. thought that the reasonable employer would not have instructed police ofﬁcers who were assigned to work in pairs to stay together unless operational circumstances required otherwise because such an instruction would be so lacking in precision that it could not be effectively implemented. and Kirby J. However. Crennan J. Kirby J. took aim at the test. Their Honours also considered that the proposed instruction would impermissibly qualify the statutory obligations of police ofﬁcers. While the foregoing Justices expressed concern at the fact that the courts had sometimes jumped from a ﬁnding that a risk was foreseeable to the conclusion that the defendant was negligent without pausing to ask whether the defendant acted reasonably in the circumstances.C. Gummow and Hayne JJ. it was incontestably foreseeable. in providing training to police ofﬁcers and taking other measures to combat stress. they considered that this was a ﬂaw in the application of the Shirt test rather than a problem with that test itself.J. concluded that the postulated instruction was impractical as the situations in which police ofﬁcers would become separated in the course of their duties were very numerous. liability for negligence .Q. remarked that they had not heard any convincing reason for doubting the correctness of that formula. In contrast.. did not reach (2008) 124 L. and Crennan J. memorably expressed by Lord Atkin in Donoghue v Stevenson  A. Rather. had taken reasonable care for the plaintiff in the circumstances.
423. (N. the retention of that test is rather unexpected. the court has refused to recognise actions for “wrongful life” (Harriton v Stephens (2006) 226 C. on the whole.R.R.g. one cannot help but wonder whether the test would have been retained had the risk in Fahy been less obvious.W. declined to ﬁnd an exception to the rule that principals are not liable for the negligence of independent contractors where the contractor acts as the “representative” of the principal (Sweeney v Boylan Nominees Pty Ltd (2006) 226 C.R. addressed (2008) 124 L. 200). that the Shirt test survived the challenge to it.S. It is somewhat surprising. 686.R. In that case.R. it has gone to considerable lengths to conﬁne it and to emphasise factors militating against liability (see. The High Court has also lately rejected attempts to extend the reach of the tort of negligence.L. sitting at ﬁrst instance in The Wagon Mound (No. 161) and rebuffed efforts to impose a non-delegable duty of care on highway authorities with respect to road users (Leichhardt Municipal Council v Montgomery (2007) 81 A. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .Q.J.2)  S. the High Court held that a man who suffered quadriplegia when he dived off a rock platform into water without checking its depth could recover damages from the authority responsible for managing the area on the grounds that it was negligent in failing to warn that the water was shallow.. 422). only Callinan and Heydon JJ.R.R.L. This is particularly obvious in relation to so called “diving cases”. On a different note.L. 124 a ﬁrm conclusion on what should replace the Shirt formula. e. The high-water mark in such actions is the decision in Nagle v Rottnest Island Authority (1993) 177 C. As noted above.L. in recent years. However. In view of this restrictive climate and the trenchant attacks made on the Shirt test. This test had been advanced by Walsh J. they expressed a preference for a test of whether the risk in question was “signiﬁcant enough in a practical sense” (at ). the High Court has been busy restricting the circumstances in which the tort of negligence affords a remedy.L. Vairy v Wyong Shire Council (2005) 223 C.L.40 Law Quarterly Review [Vol.) 948 at 957. While the High Court has not expressly declared that Nagle was wrongly decided. For instance. 52). Although one would expect that the reason for this requirement would cast light on when a risk ought to be regarded as foreseeable. it is disappointing that the High Court did not. (2007) 233 A. This may signal that the High Court believes that the common law of negligence now strikes an appropriate balance between the interests in bodily security and freedom of action.R. considering the present hostile attitude of the High Court towards the tort of negligence. grapple with the issue of why a risk of injury must be foreseeable before a defendant is required to take reasonable precautions against its materialisation. However.
Responsibility and Fault (1999).339–345. As mentioned above. Philosophical Foundations of Tort Law (1995).321 at pp. that modiﬁes the breach element of the tort of negligence.5B). is intended to bring about a degree of correspondence between liability and moral blameworthiness. Consequently.U. as cases (2008) 124 L. enacted legislation.R.JANUARY 2008] Notes 41 this matter.33–38 and Goudkamp. at pp. Harm. According to a commonly held view.. However. and Responsibility” in Owen (ed.’s reasoning runs into difﬁculty because liability in negligence departs from notions of moral blameworthiness in so many profound ways that simply tightening the test of foreseeability would hardly reduce the vast chasm that exists between liability and culpability (regarding this gap. Civil Liability Act 2002 (NSW) s.).g. Honor´ . their Honours embraced the conventional judicial understanding that the requirement of foreseeability. simply keep alive the unhelpful ﬁction that negligence law is based on culpability. Callinan and Heydon JJ. it is necessary (but not sufﬁcient) that he had an opportunity to avoid that outcome (see Perry. like the other elements of the tort of negligence.Q. minor adjustments such as that proposed by Callinan and Heydon JJ. this is a matter that will gradually become less important in Australia. prompted by the 2001–2002 “insurance crisis”. That legislation provides that a defendant is not negligent in failing to take particular precautions unless the following conditions are satisﬁed: (1) the risk of injury was “foreseeable”. applicable to most personal injury actions. Finally. The Damages Lottery (1997). Although the extent to which it is more difﬁcult to show that a risk of injury is “not insigniﬁcant” than it is to establish that it is “not far-fetched or fanciful” is debatable. cf. Governments in all Australian States. at p. it should be noted that although the issue of when a risk of injury is foreseeable has long attracted the interest of courts of ﬁnal appeal.L. no such opportunity exists. 342). The reality is that the tort of negligence is so far out of kilter with considerations of blameworthiness that nothing short of a wholesale reworking of that tort would be sufﬁcient to bring liability and culpability into step. p. It follows that unless e the outcome in question is foreseen. (2) the risk was “not insigniﬁcant” and (3) the reasonable person in the defendant’s position would have taken those precautions (see. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .18). it is now harder to make out a breach of duty than had previously been the case. They thought that the Shirt test was so expansive that it failed to advance this aim and that a more rigorous test was needed. e. see Atiyah. “The Spurious Relationship between Moral Blameworthiness and Liability for Negligence” (2004) 28 M. “Risk. for a person to be to blame for bringing about an undesirable outcome. There is no doubt that there is a close relationship between foreseeability and blameworthiness.R. As it is unlikely in the extreme that the courts would undertake such a reworking (assuming it to be within their powers).
C. Foreseeability. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . University of Wollongong.* REFINING THE DUTY OF CARE IN SINGAPORE EVER since Lord Atkin espoused a general principle upon which to found a claim in negligence (Donoghue v Stevenson  A.C. 562).42 Law Quarterly Review [Vol.C.  1 A. using the test to take small steps rather than giant leaps forward (favoured in Caparo and generally supporting a more restrictive approach). Pure economic loss cases have sometimes been resolved by other. another equally signiﬁcant contest is between the underlying methodologies to be applied in developing the law of negligence: a choice between a “general principles” approach.Q. 124 to which the common law still applies are gradually ﬁnalised. Personal injury claims (2008) 124 L.R. 181. The Anns test was reﬁned to limit the legal test for duty to proximity and policy. Customs and Excise Commissioners v Barclays Bank Plc  UKHL 28. apparently independent tests. while the Australian courts have abandoned the search for a universal test. Faculty of Law.  1 W. 728). based on reasonable foreseeability. after an extensive review of Commonwealth and domestic jurisprudence. where the court ignores earlier cases and merely applies the test to the instant facts (favoured in Anns and generally supporting a more expansionary approach) and an incremental approach where the court reasons by analogy from existing categories. courts around the common law world have endeavoured to formulate a precise. 605). The Singapore Court of Appeal in Spandeck Engineering (S) Ptd Ltd v Defence Science & Technology Agency  SGCA 37.. Canadian and New Zealand courts have applied a variant of the Anns test. The motivation to challenge it will slowly disappear. Australia.L. The court essentially modiﬁed the test from Anns and grafted it onto the incremental methodology of Caparo. just and reasonable. proximity and what is fair. universal test for duty of care with varying degrees of success.C. based on proximity and policy. including assumption of responsibility and incrementalism (Customs and Excise Commissioners v Barclays Bank Plc  EWCA Civ 1555. the position at common law will become of less concern to insurers. cf. which was later rejected in favour of the Caparo three-stage test (Caparo Industries Plc v Dickman  2 A. 2082. held that a universal test for duty of care could and should be formulated. as well as academic writing.R. * Visiting Fellow. with reasonable foreseeability being relegated to a purely preliminary factual inquiry. JAMES GOUDKAMP. At one stage. Apart from the tension between the various tests. where the House of Lords expressed unease with this multiple approach but declined to clarify the law). the English courts applied the Anns two-stage test (Anns v Merton London Borough Council  A.
it is arguable that a proximate relationship between the parties. just and reasonable for obligations that had been deliberately structured under a contractual arrangement to be undermined by the imposition of additional tortious duties.C.R.J. The defendant. it would not be fair. which it held was indistinguishable on the facts. 831 to Customs and Excise Commissioners reafﬁrming that “voluntary assumption of responsibility” is a legal inquiry based on an objective test. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .JANUARY 2008] Notes 43 Brieﬂy. a division of the Ministry of Defence. was designed to avoid any direct relationship between the defendant and the claimant and to shield the Government from any liability to the claimant arising out of the defendant’s fault. Russell L. while Purchas and Ralph Gibson L.JJ. for the purpose of the duty inquiry. the absolute discretion vested in the defendant to certify payment and the disclaimer by the Government of any liability for the fault of the defendant. typical of its kind. it may be that the Court of Appeal in Spandeck perhaps overemphasised the factual basis of voluntary assumption of responsibility. The Court of Appeal upheld the trial judge’s decision dismissing the claim on the ground that there was no proximity between the parties. was appointed to supervise the project. Eventually. A close reading of Paciﬁc Associates suggests that the principal reason the Court of Appeal rejected a duty of care was due to the third limb of the Caparo test. went further and rejected the duty on the ﬁrst two limbs of the Caparo test as well. thus not facilitating its progress payments. It is not whether the defendant in fact assumed or disclaimed responsibility (although that would be a material consideration). (2008) 124 L.B. the claimant sued the defendant in tort for economic losses incurred as a result of the defendant’s alleged negligence. the defendant alleged that the claimant was underperforming. was responsible for certifying interim payment in respect of the claimant’s works under the project. The contractual structure. i. given that there is a long line of House of Lords authorities from Smith v Eric S Bush  1 A. Indeed. the Court of Appeal in Spandeck relied on Paciﬁc Associates Inc v Baxter  1 Q. could have been found to exist. Given the vulnerable position of the claimant in Spandeck. In support of its ﬁnding on proximity. The contract also provided for arbitration in case of disputes. Problems occurred after the claimant commenced work. and the claimant alleged that the defendant was undercertifying its works. akin to that which was established in Smith. Proximity was determined by examining whether there was voluntary assumption of responsibility and reasonable reliance.Q.. the facts in Spandeck were that the claimant had entered into a contract with the Singapore Government to redevelop a facility for the Ministry of Defence.e. but whether the court. 993. would deem the defendant to have assumed responsibility. rejected the duty solely on this ground. as well as by considering the contractual matrix linking the three parties. On one reading. and amongst other things.
Paciﬁc Associates itself shows how reasonable foreseeability was used as a normative inquiry to deny duty of care. as opposed to a normative one based on reasonableness..Q. pure economic loss and psychiatric injury. 124 However. Returning to where it began. proximity and policy: in that sense Spandeck is a bold decision that balances robust pragmatism and doctrinal integrity.g. which inquiry the court said belonged to the realm of remoteness (at ). per Purchas L. Reconceptualising reasonable foreseeability in this manner inevitably renders it redundant as a legal test. While it may have less value in the well-established areas of negligence relating to positive acts causing physical injury. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . To determine the existence of a duty of care by ignoring reasonable foreseeability and (2008) 124 L. whom we could reasonably foresee would be affected by our conduct (Donoghue v Stevenson. which is the foundation of the modern tort of negligence. The relegation of reasonable foreseeability from the test of duty of care is the controversial aspect of Spandeck.J. it remains a useful device to control the duty of care where only non-physical damage is caused.J. He then deﬁned “neighbours” as those who are “so closely and directly affected” by our conduct—this is the precursor to proximity. in effect. Lord Atkin held that a duty of care was owed to all our “neighbours”.Y. While it was factually foreseeable that the engineer’s negligence could have resulted in economic loss to the claimant..R. per Ralph Gibson L. Reasonable foreseeability and proximity have had a symbiotic relationship in the neighbour principle.). also raises the question of whether an objective or subjective approach is to be employed. 339 (1928). e. Bourhill v Young  A. is closer to the remoteness test. Contrary to Paciﬁc Associates. Reasonable foreseeability has long been at the heart of duty of care jurisprudence (Palsgraf v Long Island Railroad Co 284 N. the defendant must foresee that the claimant may suffer some form of economic loss or psychiatric injury for a duty of care even to be considered. their analyses suggest that their rejection of duty was largely based on the absence of reasonable foreseeability as a legal criterion. 1031. above at 580).44 Law Quarterly Review [Vol. The reasonable foreseeability test in pure economic loss and psychiatric injury cases is more narrowly construed and. Indeed. Treating reasonable foreseeability as a purely factual inquiry. both judges were of the view that it was not reasonable to expect the engineer to foresee that the claimant would be so affected given the existence of the contractual structure which was clearly intended to remove such reliance (Paciﬁc Associates at 1011.C. it may well be that it is not necessary to have three layers of normative inquiry—reasonable foreseeability. Spandeck held that it was not necessary for the defendant to have foreseen economic loss to the claimant. It is not enough for the defendant to foresee that the claimant may be affected by the defendant’s conduct. 42).
analysed sequentially. which has two distinct. Reasonable foreseeability was more than a mere factual inquiry to decide the instant case. provides a workable universal framework. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . Spandeck’s aim of articulating a universal test for duty is laudable and may well herald a universal approach that is doctrinally sound and pragmatic. Duty of care. it will be sufﬁciently nuanced to apply across all areas of negligence.* * National University of Singapore. it is only when it is reasonably foreseeable that our “neighbour” may be affected that a duty of care is owed to that neighbour. The Caparo three-stage process of reasonable foreseeability.Q. The proximity inquiry with respect to psychiatric injury will be different to that with respect to public authority liability. it was a control mechanism to deﬁne a recognised category of duty. it is only our legally recognised neighbours to whom we owe a duty of care.JANUARY 2008] Notes 45 merely focusing on proximity would be contrary to Lord Atkin’s formulation. the framework remains universal—but internally. perhaps the test proposed could do with the minor reﬁnement of reinstating the normative reasonable foreseeability inquiry. Proximity. i. those who satisfy the proximity requirement.e.R. Nevertheless. just and reasonable. Singapore (2008) 124 L. Thus. proximity and what is fair. Each element within the universal framework should continue to evolve to meet the unique requirements of the distinct categories of negligence. At the end of the day. KUMARALINGAM AMIRTHALINGAM.. albeit greatly overlapping elements. Secondly. Foreseeability. the reasonable foreseeability inquiry in the context of economic loss will be different to that with respect to physical injury. First.
114 and 115 have given criminal. as set forth in s.  1 W. 11th edn (2007).2 evidence a new deﬁnition of hearsay. esp. I like it not.P.1(2)(a). in addition to being admissible as ‘implied assertions’ under the Act’s new deﬁnitional provisions. e. 4  2 A. Similarly.118 the legislature chose to retain eight common law exceptions to the rule against hearsay.LEGISLATION THAT WOULD “PRESERVE” THE COMMON LAW: THE CASE OF THE DECLARATION OF INTENTION “FIRST CITIZEN: What is the word reform? What does it mean? SECOND CITIZEN: Marry. PART 11 of the Criminal Justice Act 2003 made telling. As the Court of Appeal has conﬁrmed in Singh. per May L. 1  EWCA Crim 660. Additionally. 46 . which excludes (at least. changes to the rule against hearsay. N(K)  EWCA Crim 3309. as statements by an admitted co-conspirator against another party to the enterprise. 3 The court acknowledged that “the interrelationship between sections 114 and 115 is deeply obscure. 222. The Court of Appeal ﬁrst tells us that the evidence falls outside the deﬁnition of hearsay.116 and 117. numerous situations which would have previously fallen within the hearsay rule’s purview for one reason or another now lie beyond its grasp. and generally welcome. Cross and Tapper on Evidence.P. then buttresses its argument by suggesting two statutory exceptions to the rule against hearsay through which the evidence might also be admissible. The court surely cannot have it both ways. for the most part)3 those implied assertions whose prior inclusion by the House of Lords in Kearley 4 prompted such a barrage of criticism.” and for good measure.23–26 of the Criminal Justice Act 1988. This is confusing.R. in s.5 The Act.C. (2007) 171 J. in what one court has designated “the labyrinthine recesses” of ss. App. 228.118(1) rule 7. “[a] third possible route to admissibility is provided by section 114(2)(d) [sic]”:  1 W. r. 17.118(1). 1564 at –. 206 at . The Duchess of Padua (1883) Act II. if not civil.J.g.P. Either the evidence is hearsay or it is not. 6 Kordansinki  EWCA Crim.R. 158.1 ss. it means leaving things as they are. 5 See. R.L. See generally. pp. (2006) 170 J.L. The fourth of these concerns res gestae. (2007) 171 J.” Oscar Wilde. It is very perplexing.” It held that. the contested evidence was “also admissible under s.4.6 has also hollowed out and (more likely than not) clariﬁed statutory exceptions to the rule previously elaborated in ss.625 et seq. At a parochial level the paper’s concern will be the relatively narrow issue of teasing out the true meaning of one contested feature of the res gestae doctrine. 2984. and to explore one perplexing feature of the statute’s oddly wrought provision. The purpose of this paper is to examine this not unimportant common law exception to the hearsay rule. 1564.  1 Cr. 2 The deﬁnition of “hearsay” in civil proceedings is to be found in the Civil Evidence Act 1995 s.
to put it kindly. The precise difﬁculty is that prior to this enactment.Q. given that the section is expressed—and. provides as follows: “Preservation of certain common law categories of admissibility (1) The following rules of law are preserved. at common law there existed profound doubt as to whether a declaration of intention actually was admissible in criminal cases under this particular common law exception. PARLIAMENT’S PRESERVATION OF THE COMMON LAW DOCTRINE OF RES GESTAE Section 118(1). r. indeed.. Any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated if— . what actually is the status of a party’s hearsay declarations of intention under the Criminal Justice Act 2003?7 7 In notes accompanying a presentation delivered in Leeds on May 19. I.JANUARY 2008] Legislation that Would “Preserve” the Common Law 47 However.4(c) refers to one retained common law exception as including a statement relating to “a mental state (such as intention .4 is inextricably intertwined with a perplexing question. so far as is relevant for present purposes.).. removing (2008) 124 L. r. interpretation of r. At ﬁrst blush. However. . 2005..4 poses a real interpretative puzzle. (c) the statement relates to a physical sensation or a mental state (such as intention or emotion). of far deeper import: namely. David Ormerod wrote that “118(1) 4 c conﬁrms that statements as to future intentions are to be treated as res gestae. .118(1) and the heading refer expressly to the “preservation” of the common law categories of admissibility. what exactly does it mean when the legislature “preserves” a rule of common law. it will be seen that both s. Almost certainly.4. . the more orthodox view was that under English law res gestae were conﬁned to declarations affecting present state of mind and did not extend to declarations of future intention. Was r. Res gestae 4. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . If that is so. as understood at the date of entry into force of the 2003 Act. r. more than once—in terms of “preservation” of certain existing “categories of admissibility”.” (Emphasis added) Cutting to the chase..118(1). s.R.” Evidence lawyers will immediately recognise that this provision presents a difﬁculty.. this would suggest that the existing common law rules governing res gestae are retained and that the ensuing rule restates that exception.4(c) intended to encompass declarations of intention? If so.
before going out on patrol. In Buckley Lush J. in Thomson Lord Alverstone. 12 (1873) 13 Cox C. on closer examination. this has meant that courts have tended only to admit statements of present state of mind—statements like “I am afraid”. 8 (1875) 13 Cox C. As will become clear in this paper.. DECLARATIONS OF INTENTION AT COMMON LAW: A [Vol. the words of a murdered policeman. which could have been anticipated had that formed the basis of his decision. who. 124 REMINDER The res gestae exception relating to contemporaneous state of mind is of comparatively long standing. He cited Buckley (1893) 13 Cox C.9 Similarly. The ofﬁcer’s statement was received as evidence implying that PC Green had carried out his declared intention and that he had subsequently had a fateful encounter with B. it was settled that the prohibition applied without fear or favour to both prosecution and defence evidence.48 Law Quarterly Review II. above. but. W. 172n. as well as in my construction of the 2003 Act. I hesitantly differ from David Ormerod. (2008) 124 L. at 21. It is true that one particular nineteenth-century authority might at ﬁrst have suggested that such statements could sometimes be adduced in evidence.J. declarations of intention have regularly been excluded from the ambit of this exception where the purpose has been to prove that the intention was in fact carried out. Signiﬁcantly. Lush J. In Buckley 12 the court admitted. was rejected by Sir Alexander Cockburn. 10  3 K. delivered a ruling that was both decisive and conﬁdent: one senses that by the late nineteenth century the courts considered that the question was closed.6.C. See also Pook (1871) 13 Cox C. C. 171. Mellor J. this authority probably does no such thing. In general. After some initial hesitation.C.C. Thus. did not in fact stipulate on what ground the police ofﬁcer’s declaration of intention was admitted. it has traditionally been emphasised. did step out of court brieﬂy to confer with his brother judge. Such statements. “I am bemused”. at 172.’s judgment makes no reference to the contemporaneous state of mind hearsay exception to the rule against hearsay. on the ground that “it was only a statement of intention which might or might not have been carried out”. had reported to his superior ofﬁcer that he had heard that B was up to his old tricks again and that he was going out looking for him. Signiﬁcantly. It is highly the ambiguity at common law” (The Sweet & Maxwell Criminal Justice Act Update Conference). (as judges were wont to do at the time) before ruling on the matter. 293. 19.C. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . 293 as authority for the common law ambiguity.J.B. must refer to contemporaneous states of mind. fn. indicating that she intended to perform the operation upon herself. was ruled inadmissible for the defence. 9 (1875) 13 Cox C. 11 “In our opinion there is no principle upon which this evidence is admissible any more than any other hearsay evidence”:  3 K. in Wainwright 8 a murder victim’s statement that she intended to visit the defendant.11 Moreover. probably in my reading of both the history and the content of this area of law. in Thomson 10 a statement made by the victim of an illegal operation. without demur. cf.B.R. Lush J.C. C.Q.
in 1873. focused tightly on the reporting procedures followed by his ofﬁcers before they ventured out on patrol. This would have shown S’s motive to kill as well as the true character of her relationship with her “reluctant. It conveys a strong impression that. M and his mistress. along with the Crown’s acknowledgement that it was S who had actually stabbed the victim—and 12 other obliging Crown concessions—Scarman 13 See.461. she had previously threatened to do exactly that.573.14 Buckley.g. M. At his subsequent trial.g. sometimes taken to suggest that declarations of intention do in fact fall within this exception to the hearsay rule. e. Lush J. 14 e.R. made at a family conference roughly eight months before the murder. I would contend. indeed. That report was verbal. Colin Tapper. cowardly and passive” lover. as recorded in the law reports.15 Moghal 16 is another authority.595. fn. Green did make a report to me on that occasion of his intended duty that night. “If a constable was going on a particular duty he should report to me. or by one or other of them. had initially been jointly indicted for the murder of S’s former lover. The murder could only have been committed by the two of them jointly. (2008) 124 L. having run the defence that it was M who had committed the fell deed.9. held that the tape recording would have been admissible because S’s feelings and state of mind before and at the time of the killing were relevant facts at M’s trial. had cast the blame on S. Ian Dennis. admissible. the court was clear that the tape recording of S’s truculent and overbearing declarations were “relevant to [M’s] defence” that S alone had committed the killing and.80. 16 (1977) 65 Cr. One contested issue on appeal arose from the circumstance that M had been wrongly discouraged from adducing evidence of a tape recording. Owing to what might be generously described as unusual circumstances. The Law of Evidence (2002). 6th edn (1985) p.Q. p. S had successfully applied for a separate trial and been acquitted of murder. Scarman L. in turn. The judgment. Cross on Evidence. 441 at p.R.” 15 This could explain why a Chief Justice and a Lord Chief Justice of England each omitted to refer to Buckley in their rulings in Wainwright and Thomson respectively. App. however.13 This would certainly explain why the inspector’s evidence in Buckley. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . At M’s trial the Crown conceded that it was S who had performed the actual killing and that. therefore. R. 56. is not especially sure-footed or clear. in all likelihood has nothing whatever to do with the contemporaneous states of mind exception to the hearsay rule. fn. if convenient. by Sir Rupert Cross and Colin Tapper.. it has to be said. “Hillmon Rediscovered and Lord St Leonards Resurrected” (1990) 106 L. M. would have opted for the uncontroversial course of admitting the police ofﬁcer’s statement under a quite distinct common law exception to the rule against hearsay—which has not been retained by s.Q. in which S announced her intention of killing the victim and accurately prophesied his death within months.JANUARY 2008] Legislation that Would “Preserve” the Common Law 49 likely that.J. Although contemporaneity is a matter of degree.118 of the Criminal Justice Act 2003—that admitted the declarations of deceased persons made in the course of duty. Moghal. is another problematical case. S.
C had earlier told a witness.R.” 21  2 S.J. Moghal.595. In Starr 21 that court divided 5:4. unclear at English common law. had been the target of a gangland “hit”.. I would suggest. In 2000 its Supreme Court had to consider the admissibility of declarations of intention under this res gestae exception. particularly to prevent a conviction which that evidence would render unsafe.114(1)(d) of the Criminal Justice Act 2003.C. G. for which no particular authority was cited. 18 Dennis. to argue that for certain defendants an inclusionary discretion.50 Law Quarterly Review [Vol.20. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . when the decision ﬁrst appeared. Canada.R. . 373. 302 at 321). was straining to show that every allowance was being made to assist M’s case even though. the majority held that evidence of a murder victim’s declaration of intention had been wrongly admitted by the lower courts. 124 L. Nor was England the only jurisdiction to encounter difﬁculty in determining whether to admit statements of intention in order to suggest that the intention was carried through. C. hearsay evidence is admissible” ( 1 Cr. commentators seem not to have spotted that Moghal had wrought this great change in the status of declarations of intention:  Crim.: “It is not .R. in the ultimate resort. Thomson [and.20 At common law it can be seen that the admissibility of declarations of intention was. (2008) 124 L. was an essential evidentiary perquisite. Finch  EWCA Crim 36 at .J. Wainwright for that matter] was not cited. The Law of Evidence. that he had to “go and do an Autopac scam with (the defendant)”.J. hits the nail square on the head: “It is very doubtful whether [Moghal ] can be taken as authority for any proposition of law.17 and in any event the prosecution had conceded that the declarant was the principal party in the murder. resembles the sort of case which provoked the Law Commission. is Beldam L.’s remark in Gilfoyle: “When the intentions or state of mind of a person making the statement are relevant to a fact in issue. at best. No. the law that every reluctant witness’s evidence automatically can be put before the jury under s.” But cf. his conviction would be allowed to stand. Whereas four judges would have admitted such evidence.133: “Our purpose is to allow for the admission of reliable hearsay which could not otherwise be admitted. Another dictum that one could mention for the sake of completeness.Q. the dominant view was that such evidence was inadmissible under the res gestae exception presently under discussion. . fn. therefore. indeed. 20 Evidence in Criminal Proceedings: Hearsay and Related Topics (Law Com. 17  A.C. App.245. The victim. 144. the dictum regarding the admissibility of the pre-act declaration was subsequently doubted by Lord Bridge in Blastland. R.”18 Moghal is of deeply dubious authority.8. if anything. Professor Dennis. which operates a more ﬂexible approach to the admission of hearsay than English law prior to the Criminal Justice Act 2003.13 above. 41 at 60.19 In post-2003 terms. L. fn. 1997). has been similarly troubled by this situation.114. now enacted in s. per Hughes L. the implication being that C could be assumed to have carried out his stated intention and to have met up with the defendant. 19 Interestingly. para. in its report on the hearsay rule. p.
(2008) 124 L. 26 (1989) 166 C. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . para. it is thought that such evidence would require a high degree of probative force to be admitted today.”25 Because this cluster of cases proves so problematical and their reconciliation inevitably tentative. Most frequently.L.R.22 When it comes to declarations of intention which are being used to prove that the intention was carried out. Academic literature In the literature there is universal agreement that the evidential status of declarations of intention is at best moot. More speciﬁcally. Murphy.”24 The late Sir Richard May’s take on the matter was that there were “conﬂicting authorities as to the scope of the rule” and that. they found that C’s declaration had been made in “circumstances of suspicion” when C might have had a motive for lying to G. pp.R. given its apparent importance” but also that “The English cases on the point are not consistent. Some writers have simply designated them the “present tense” exception to the hearsay rule. p.8.26 Judges in other jurisdictions have sometimes displayed a greater willingness to allow such evidence to be presented to the tribunal of fact either by taking declarations of intention out of the realm of hearsay altogether. Ian Dennis notes not only that it is “surprising how little authority there is on this question. who happened to be a former girlfriend. 2nd edn (2004). p. without feeling a need to mention that future intentions fall outside the exception as well. emphasises that past physical and mental states have not normally been admissible under this hearsay exception. in likelihood: “in the absence of any modern authority deﬁning the scope of this rule.594. by treating them 22 Murphy on Evidence. 23 The Law of Evidence. 9th edn. many writers have sought the answer in overseas authorities. (2005). but the majority support the view that such a declaration is not admissible to prove performance of the act.651. 283.JANUARY 2008] Legislation that Would “Preserve” the Common Law 51 The majority gave as its principal reason for excluding G’s evidence its inherent unreliability. 25 May and Powles. for instance.Q. 24 Criminal Evidence. 2nd edn (2002). they have pored over the conﬂicting judgments of the Australian High Court in Walton v R. Criminal Evidence. 5th edn (2004). p..239–40.218.60.”23 Roberts and Zuckerman cautiously state: “English precedents are divided on the question whether a declaration of intention can be admitted to prove the intention was subsequently carried out.
para. or by judging their admissibility in terms of their likely reliability.L. r.4(c) would be rendered redundant. as and when need arises? These questions are far from easy. That makes no sense. III.27 proceeds to analyse the disparate views expressed by Australian judges on the question in Walton v R.28 Choo.J. paradoxically.R. 16th edn (2005). And (ii) What. before addressing them.2. 29 Evidence (2006). Tapper. the admissibility of declarations of intention where the implication is that the intention was carried out. “Hillmon Rediscovered and Lord St Leonards Resurrected” (1990) 106 L.1. Hearsay and Confrontation in Criminal Trials (1996. those intentions being a fact in issue or a fact relevant to a fact in issue” ((1989) 166 C. See also A.. it might brieﬂy be mentioned that. the Chief Justice’s thesis takes such statements outside the realm of hearsay altogether. having swiftly outlined how “the English case law on this point is in disarray”. C. Nevertheless. The same term is employed by Cross and Tapper on Evidence.R. the words “such as intention” in s. feels that “a sensible approach” might be to follow Mason C.118(1). p.’s argument in Walton was that the defendant’s declaration of intention to meet and kill the victim. this approach is now problematical under the 2003 Act: to the extent that Mason C. as well as in the subsequent case of Bull.R. Thus. In fact.4? This involves making sense of the relevant case law in the context of the 2003 Act.31. too.34.Q. I would contend. For a reason which will be spelled out presently.’s view in Walton. as reported to the court by his wife.29 although it needs to be recognised that Walton has not found favour with every English evidence scholar. 124 (mysteriously) as analogous to “conduct”. 283 at 288).30 Fortunately. THE SHAPE OF THE PROBLEM By now. No longer is it possible to dodge the bullet by maintaining that a declaration of intention does not constitute 27 Phipson on Evidence. (2008) 124 L. one leading text.135. itself. ought actually to have been viewed as original evidence which had “independent evidentiary value in proving the author’s intentions. 30 e.118(1). it seems unnecessary to conduct a detailed review of the overseas case law. Choo.R. Were this analysis accepted in England. r. it will be apparent that two conjoined questions have to be considered: (i) What is actually “preserved” by s. the Criminal Justice Act 2003 can be said to have dispelled one (relatively minor) uncertainty concerning declarations of intention. at worst hostile towards. Phipson. The better view. p.Q. may the courts do in the future either to modify the scope of the rule—possibly. if anything. 443.L. is that hitherto these declarations have fallen outside the hearsay exception under discussion. making the rule conform to likely parliamentary expectations—or to develop and re-model the preserved rule. 11th edn. 28 (2000) 201 C. (2007).g.J. sufﬁce it to say that English law is at best uncertain about.52 Law Quarterly Review [Vol. 441.3. For the time being. none of this matters much in the context of the present study.613. §4. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .
a mental state (such as intention .4? What. . r.Q. WHAT IS THE LIKELY EFFECT OF S.R. So far as relevant.4? If one accepts that. (b) any rule of law preserved by section 118 makes it admissible . a mental state (such as intention or emotion).31 IV. 32 Clause 6(1) reads: “The rules of law to which this section applies are preserved. has the 2003 legislation now resolved such doubts one way or another? The Law Commission’s Final Report on Hearsay The ancestry of s..). discussion was restricted to one footnote. but only if — . . (2008) 124 L. this positive achievement of s. 283 at 288. .118(1).R. para. beyond the clutches of the rule against hearsay—an idea encouraged by Mason C. the provision reads: “Admissibility of hearsay evidence (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if.” (Emphasis added) The declaration of intention. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .118(1). is the likely effect of s.JANUARY 2008] Legislation that Would “Preserve” the Common Law 53 hearsay evidence at all.118(1).32 In retrospect. the somewhat truncated account of the law given in the body of the Law Commission’s report. is one of a catalogue of exceptions to the re-drafted hearsay rule. Parliament has conclusively ruled out the notion that a declaration of intention is original evidence.26.L. If it has only clearly achieved one thing.126.” Clause 6(5) then provides that “[t]his section also applies to any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated if . it is very doubtful whether declarations of intention fell within the common law’s understanding of res gestae. However. r. then.” 33 LC No.(c) the statement relates to . .4(c) can be retraced directly to cl. however.8.6(5)(c) of the Law Commission’s Draft Bill on hearsay evidence. Arguably. Evidence in Criminal Proceedings: Hearsay and Related Topics. “if the statement relates to .. . . above fn. . The wording of this provision is not utterly dissimilar from that used in the Act. according to the English case law.. because that is exactly how it is introduced in s.J.114(1)(b) is more than offset by the puzzling phenomenon of traditional common law exceptions being retained in the 2003 Act but being applied to a newly-deﬁned species of hearsay.”33 It did discuss the content of this branch of the res gestae doctrine. . which made it seem 31 (1989) 166 C. for example. may not have been altogether helpful. which was appended to its ﬁnal report. then. . The report advocated retention of the common law exception.114(1)(b) of the 2003 Act.. .245. in Walton v R. R.
118 “preserves a number of common law exceptions to the old rule against the admission of hearsay evidence”. above fn. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .125. 124..”34 Otherwise.P. 35 e. 124 that the only relevant authority on the point was the Court of Appeal’s decision in Moghal.” 34 LC No. uses the word “preserve” on no less than six occasions—repeats what we already know: namely. the report did add that Moghal had been “doubted” in the House of Lords in Blastland.8.g.54 Law Quarterly Review [Vol. . para. even if the exact wording of the Commission’s proposed Bill did not survive the legislative phase. “Explanatory Notes and Statutory Interpretation” (2006) 170 J. It explains that “one justiﬁcation for this exception is that reported words which are very closely connected to a relevant event are reliable accounts and should therefore be admissible in certain circumstances. 36 Pursuing my vendetta against the use of these notes as authoritative aids to construction. Parliament could more or less plausibly be said to have taken the content of that exception from the Law Commission’s report. “but on the grounds that it was an isolated declaration of intention made six months before the murder and was thus insufﬁciently relevant. What may have been a well-meaning desire on the part of the reporters either to spare readers the Calvary of trying to make sense of the contorted case law. such as an intention or emotion. that s.R. incidentally. Parliament clearly intended to preserve the existing common law exception because it said so. Jo.26.” Paragraph 412 is marginally more informative.”36 Then.. (2008) 124 L.. . the note continues: “Such statement may be admitted if one of the following conditions is met: . But if the Law Commission was in error in its description of that exception—which may well have been the case—which version ought Parliament to be taken to have enacted : the orthodox or the heterodox? The Explanatory Notes accompanying the Criminal Justice Act 2003 Although this author has repudiated the authority of these wretched documents. They shed little light on the matter. In fairness. I would have been fascinated to have heard the Home Ofﬁce lawyers’ account of the other justiﬁcations for this hearsay exception at which they broadly hint in this annotation.Q. the statement relates to a .35 ex abundanti cautela brief reference might be made to the Act’s Explanatory Notes. mental state. just wild speculation—complicates the picture further. fn. simply noting that “ ‘res gestae’ will be admissible.245.173. If one wished to wrangle. of course. the scope of the exception was not really ventilated in the report. or even to impose a particular interpretation of the exception—the latter suggestion is. Paragraph 411—which.
pardons and commissions) are admissible as evidence of facts stated in them. and returns made under public authority with respect to matters of public interest) are admissible as evidence of facts stated in them.7 of the Civil Evidence Act 1995.g. that these reported words were not necessarily very closely connected to a relevant event and.37 Rather. (b) public documents (e. dictionaries and maps) are admissible as evidence of facts of a public nature stated in them.Q. as we know. Section 118 is drafted along broadly similar lines to s. that is. Crown grants. public registers. 9(3) and (4) of the Civil Evidence Act 1968. both held on January 28.9(1) and (2)(b) to (d) of the Civil Evidence Act 1968. any rule of law whereby in civil proceedings— (a) evidence of a person’s reputation is admissible for the purpose of proving his good or bad character. which. the very reason for common lawyers’ suspicion of such statements was precisely. (3) The common law rules effectively preserved by s. scientiﬁc works. Public Bill Committee) B. carry us no further forward...R. any rule of law whereby in civil proceedings— (a) published works dealing with matters of a public nature (e. they appear to compound the confusion. histories. This is nevertheless an offbeat reading of the old law because. to adopt the language of the Explanatory Notes themselves. then. superseded s. (2008) 124 L. 2003. shall continue to have effect.9 of the Civil Evidence Act 1968. or (c) records (e. could not be treated as reliable accounts of what actually occurred.118 of the Criminal Justice Act 2003. or (b) evidence of reputation or family tradition is admissible— (i) for the purpose of proving or disproving pedigree or the existence of a marriage. JANUARY SWEET & MAXWELL AND CONTRIBUTORS ..g.. or 37 The issues considered in the present paper seem not to have arisen during discussion in Standing Committee (now. Two close legislative precedents The legislative drafting device of “preserving” common law rules is not unique to s. therefore. the records of certain courts. Section 7 of the 1995 Act provides: “(2) The common law rules effectively preserved by s.g. treaties. 15th and 16th sittings. in turn. The Explanatory Notes. that is.JANUARY 2008] Legislation that Would “Preserve” the Common Law 55 The assumption seems to be that what has been “preserved” is an exception that does indeed incorporate declarations of intention.
as is the case with the overwhelming majority of the eight common law rules retained in s. in s.4 is that.P. If.38 the formulation of s. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . In place of the concept of “preservation”. retains several of the same rules of common law as feature in s.. s. there is what appears at ﬁrst to be a material difference between the drafting of s. Therefore.7(4) the Civil Evidence Act 1995 provides that: 38 e.118(1).” Does the civil enactment—which. and accordingly .7 represent undisputed exceptions to the rule against hearsay that have been settled. Secondly. the admissibility of declarations of intention is anything but settled at common law. . there is an argument that in the Civil Evidence Act 1995 s. for centuries. “The Rise of Modern Evidence Law” (1999) 84 Iowa L. in many instances the common law rules “preserved” in civil cases by s. Where any such rule applies.7 and s. the 1995 Act conﬁned itself to stating that such rules had been “effectively preserved” and “shall continue to have effect”. and ﬁxed in their courses. . only “began to mature in its modern form during the late eighteenth century. Fourthly and ﬁnally. to this day. reputation or family tradition shall be treated for the purposes of this Act as a fact and not as a statement or multiplicity of statements about the matter in question. 124 (ii) for the purpose of proving or disproving the existence of any public or general right or of identifying any person or thing. there are no judicial intimations of what “preservation” might signify.7 seems not to have given rise to any dispute in the courts. one looks at the Occupiers’ Liability Act 1957. and it seems clearly to have been envisaged that those well-established classes of person would not be extended or reduced following the Act’s entry into force. 39 The hearsay rule. say.Q. shall not alter the rules of the common law as to the persons on whom a duty is so imposed or to whom it is owed. Rev. the persons who are to be treated as an occupier and as his visitors are the same . Martin v Myers  EWHC 1947 (Ch) at . The majority of that jumble of exceptions to the rule seems to have been in place before the advent of the nineteenth century—virtually all save the res gestae exception”: T. Thirdly.” This identiﬁes which classes of person are affected by the new enactment.g. which had spoken in terms of “preserving” certain rules of common law.118. (2008) 124 L. as the persons who would at common law be treated as an occupier and as his invitees or licensees. First. which legislated on the duties occupiers owe to visitors. . Critically. r.C. .118(1) of the criminal statute—shed light on this notion of “preservation” of rules of common law? I am not persuaded that it does. in the words of one writer. Q.39 What is entirely distinctive about s.R. shall continue to have effect in so far as they authorise the court to treat such evidence as proving or disproving that matter.1(2) of that Act provides that “The rules so enacted . . apart from the very occasional glancing reference. per Nicholas Strauss. let it be noted.56 Law Quarterly Review [Vol. 499 at 533. Statutes do not always take the common law as a point of reference in an identical manner.118. Gallanis.7(2) and (3) the legislature forsook the wording of the Civil Evidence Act 1968. .
7(4) itself is unclear. On the one hand.9 of the Civil Evidence Act 1968. that Parliament’s intention can be clearly read in this way. and shines preserved in amber. it is open to the courts to set matters “right” if that is what they choose to do. 41 “Et latet et lucet Phaethontide condita gutta. nothing really can be read into Parliament’s omission to incorporate an identical or equivalent provision into s. Epigrams IV. it might be noted. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .Q. s.118 of the Criminal Justice Act 2003. have to the slightest degree been extended or modiﬁed whereas the Criminal Justice Act does not do so. which is framed in identical terms—this question would erupt into life in both civil and criminal domains.7(4) might be read so as to leave it open to the judges to develop or contract the designated rules within the framework of the law in their accustomed manner. ut videatur apis nectare clusa suo..9(6). The Civil Evidence Act 1995 states that it retains rules “effectively preserved” by s. The meaning of s. by determining that anything published by whomsoever on the internet constituted “published works dealing with matters of a public nature” within the meaning of s. as described in the statute. however.”40 One might seek to argue that since s. used to be found in the now repealed Civil Evidence Act 1968.118(1). was more felicitously expressed than the equivalent provisions in the 1995 and 2003 statutes.7(4) of the Civil Evidence Act expressly precludes any suggestion that the rules.7(2)(a) of the 1995 Act or of s. s. This fourth argument has some initial appeal. so far as pertinent. It is not obvious.R. (2008) 124 L. the common law rules are forever ﬁxed in amber. The 1968 Act. 32.7(4)—which has not been the subject of any meaningful litigation—the “preservation” of rules of common law is an established device which now neither requires legislative explanation nor ampliﬁcation. I would submit) that. like Martial’s bee.1 of the 2003 Act. the subsection might signify that not only does the Act not alter the preserved rules but it is not anticipated that the courts will modify them either. were we to imagine that the judges today took it into their heads to extend one of these preserved rules—for example. r. as a result of the success enjoyed by s. the latter enactment does not prevent the courts from developing the rules. even if declarations of intention have been incorporated into r.JANUARY 2008] Legislation that Would “Preserve” the Common Law 57 “The words in which a rule of law mentioned in this section is described are intended only to identify the rule and shall not be construed as altering it in any way. Parliament might even have assumed (wrongly. a living organism ﬁtted snug within the greater structure. Section 9.4 because Parliament was mistaken as to the true scope of the common law rule. Of course. According to this construction. so that it seems encased in its own nectar”: Martial. According to this reading of s. Therefore. ran: 40 A similar provision.41 On the other hand.7(4).” “The bee is enclosed.
44 Lewis Carroll.Q. The 1995 Act’s declaration.L. 43 See.g. but the words in s. Perhaps the draftsman meant to say “in effect preserved”? Yet. 86 Croom-Johnson L.R. (2008) 124 L. then.1(1) ‘but not otherwise’ prevent the introduction of any others” (emphasis added).118 does not ineluctably point to such a conclusion. unreported. October 31.”42 Under the 1968 Act. December 17. as described in s. connected point. was an error of English.. however: e. if this Part of this Act had not been passed. ex hypothesi a similar construction ought likewise to be imposed upon the other. per Purchas L. Hewgill v Hewgill. if not identical.118(1) of the 2003 Act. remarked: “Section 9 preserves certain of the old common law exceptions to the hearsay rule. courts were spared the need to wrestle with the word “preserve”. e. The fact that they have for long enjoyed this identity of form and have been retained by Parliament in similar. and “preservation”. In H v H (Minor) (Child Abuse: Evidence)  Fam.9(1) and (3) of the 1968 Act. One does just wonder whether the use of the word.”44 This leads us to another short. that the common law rules were “effectively preserved” adds to one’s puzzlement. 1251.(2) below have been admissible as evidence of any fact stated therein shall be admissible as evidence of that fact by virtue of this subsection. at two points. “ ‘Curiouser and curiouser!’ cried Alice (she was so much surprised. are of sufﬁcient antiquity as to hail from an era when both civil and criminal law shared evidential principles.58 Law Quarterly Review [Vol. even that expression conveys strange connotations. 124 “(1) In any civil proceedings a statement which. Ch. unreported.R.43 That the legislature uses the term “preserve” in both the later enactments may in fact complicate our problem as it suggests that what was meant was something other than simply the retention of the rules of common law which would have rendered admissible certain categories of hearsay but for the intervention of the legislature. as employed in s.9(3) of the 1968 Act is drafted in similar terms. 1984. the language of s. “effectively”.J. Alice’s Adventures in Wonderland (1866).. Kuwait Oil Tanker Co SAK v Al Bader et al. The common law rules. Rule 4 simply speaks of the preservation of 42 s. per Moore-Bick J. language could suggest that whatever construction we were to place upon the preservation of the one.. would by virtue of any rule of law mentioned in subs. preserved in virtually identical language by both the civil and criminal enactments. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . as it suggests that there may be two separate processes: “effective preservation”.2. 1998. The internal evidences Whilst there exists a case for saying that r.J.4 may quite possibly have been enacted upon the assumption that declarations of intention fell within the res gestae doctrine. that for the moment she quite forgot how to speak good English). Humberside CC v DPR (an Infant)  1 W.g. Judges did occasionally use the term in their judgments.
r. when particular restrictions apply to a preserved rule. then. Moreover. “any rule of law under which”—as opposed. We have seen that a number of the leading texts. .” Overseas solutions One hypothesis can be fairly conﬁdently discounted. .2 of the 2003 Act.118(1). according to which “evidence of a person’s reputation is admissible for the purpose of proving his good or bad character”.J. The natural meaning of this expression seems to enjoin us to identify the true scope of the common law rule as it existed prior to the enactment of the Criminal Justice Act 2003. .45 It can safely be assumed that Parliament was not endeavouring to “preserve” the common law of Australia or to subscribe to some romantic notion of either a “common 45 (1989) 166 C. one might imagine. they have been drawn to the approach espoused by Mason C. the equally casual expression. once again. After all.) More important still.R. are left scratching their heads.)” The fact that Parliament chose the casual. . Thus. The very language of the Act. are behavioural scientists. it may just be possible to say that had the legislature meant to be prescriptive—either altering the content of a rule or even settling a moot point—one could have legitimately anticipated that Parliament would have made this explicit. . does little to dispel our perplexity. in his judgment in Walton v R.L. “such as”. the real puzzle is what other “mental states” might Parliament have had in mind when it inserted the phrase. Not infrequently. Uncertainty is factored into the formula. Back to square one. looks as much like a vague. have resorted to overseas authority. In fact. is the circumstance that what the Act explicitly “preserves” is the “rule of law” under which such statements are admissible. Parliament has taken this step. Evidence lawyers. mental state (such as intention . . probably. 283. the statement relates to a . JANUARY SWEET & MAXWELL AND CONTRIBUTORS . to “those rules of law that”—looks almost designed to leave open the possibility that there exists no such rule. (2008) 124 L.R. mystiﬁed. then. possibly tentative. wording. set in parentheses. say. (So.Q. “such as”. is accompanied by the following note: “Note The rule is preserved only so far as it allows the court to treat such evidence as proving the matter concerned.. suggested line of inquiry as a reference to an existent rule of law. the common law rule preserved in s.JANUARY 2008] Legislation that Would “Preserve” the Common Law 59 “any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated if . Against this backdrop. despairing of making sense of the English case law on declarations of intention.
II of Pt 11 of the Criminal Justice Act 2003.R. which had previously done 46 Criminal Justice Act 2003 s. was one of the most fraught areas of English law.60 Law Quarterly Review [Vol. the law is no longer permitted to drift from precedent to precedent. It is noticeable. in some instances the provisions of c. which is entitled “Hearsay Evidence”. will have no bearing on our question: What can s. therefore. however. to “rules of law” simpliciter. would construe the Act’s preservative provisions from a purposive angle. r. The text becomes the matrix.. 118(2). too.4 legitimately be taken to mean? Attaining an evidential ﬁxity To the extent that our question is capable of any authoritative answer. On the one hand. authoritative deﬁnition of what actually constitutes hearsay evidence. It is the English rules of common law. once and for all. following this approach. (2008) 124 L. However. it could be contended that the object of c. one interpretation would be that the statute was designed to instil certainty into what. the common law rules governing the admissibility of hearsay evidence in criminal proceedings are abolished”: Criminal Justice Act 2003 s. It presented a fresh. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . in a complete.118”. “Preservation”. An opposing view. Once incorporated into the statutory schema. r. 47 “With the exception of the rules preserved by this section.118(1). This would imply that the intention was to nail down those common law rules. Here. The language of the statute virtually implies that Parliament’s wish was to denature the common law’s creations. including “any rule of law preserved by s. 124 law of the Commonwealth” or of the common law of any other of our former colonies. that have been preserved. without frills or furbelows. common law method no longer would have a valid place in fashioning future law. pointedly perhaps.4 chooses to speak not of rules of common law but refers. a key consideration is likely to be what we identify as the role of s.Q. clear.II was to ﬁx. selected for retention and enumerated in s.118 within the overall scheme of c.118(1).118. that s. it would seem that two contradictory philosophies present themselves. together with an exclusive list (“if. Twice.118(1). The argument would run. r. codiﬁed form the mazy precedents and scattered enactments that had previously made up that notoriously protean rule against hearsay.46 True. the 2003 Act was meant to distance the rule against hearsay from that divorce between the reliability of evidence and its admissibility. would mean that a court construing a provision like s.II are expansively drafted. but only if”) of exceptions to the rule against hearsay. traditionally.114(1)(c). after all.47 The legislature’s expectation would not have been that the courts would blithely continue developing their “common law”.4 would approach the task in the same way that it would in construing any other statutory enactment. Hypotheses advanced by these text writers.
TOWARDS A CONCLUSION In practice. Although the Government made the sweeping claim during the passage of the Criminal Justice Bill that it had remodelled its provisions along the more “progressive” lines sketched out in Sir Robin Auld’s Review.. it could be said that it is of little import whether or not declarations of intention qualify under s. L.Q. 1001 at 1024. 49 Review of the Criminal Courts of England and Wales (London: HMSO.R. V. After all.C. which reads: “In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if. No matter how cogent particular evidence may seem to be. it is excluded. does this issue greatly matter? For practical purposes.49 the basic structure proposed by the Law Commission was in fact retained in the Act. 2001). “Hearsay: Same Old Story. Same Old Song?”  Crim.JANUARY 2008] Legislation that Would “Preserve” the Common Law 61 little to enhance the reputation of the Law of Evidence. but that evidence would not be admitted although it might be by far the best evidence available. if a statement is inadmissible under this preserved common law exception.114(1)(d) of the 2003 Act. whose connotations are pointedly conservative. (2008) 124 L. The only problem with this second approach is that it places considerable strain on the natural meaning of the words “preserve” and “preservation”. subject to satisfactory safeguards.”48 The Law Commission’s objective had been. it could be argued. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .R.. to liberate English law from this astonishing philosophy and to seek to admit relevant evidence whenever its admission coincided with the interests of justice. 556 at 558–559. but only if— .. unless it comes within a class which is admissible.4. it might remain open to a court to admit a declaration of intention under the inclusionary discretion provided for in s. Half a dozen witnesses may offer to prove that they heard two men of high character who cannot now be found discuss in detail the fact now in issue and agree on a credible account of it. Birch. To receive declarations of intention as an exception to the hearsay rule. Evidence lawyers well recall the words of no lesser judge than Lord Reid in Myers v DPP: “The whole development of the exceptions to the hearsay rule is based on the determination of certain classes of evidence as admissible or inadmissible and not on the apparent credibility of particular evidence tendered.118(1). r. See D. 48  A. is to fulﬁl the purpose of the legislature by admitting evidence on the ground that it is relevant—although this will not invariably be true.
along with any others it considers relevant. fn. Section 116. As Latham L.P. Before a court can admit evidence under this inclusionary discretion. However clear it may be to a judge that the document in question should be admitted in the interests of justice.P. Munday.(2). should the court determine that it will be in the interests of justice to admit the declaration of intention—and. provides: “(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if— (a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter. it is important to underline that care must be taken to analyse the precise provisions of the legislation and ensure that any route of admissibility is correctly identiﬁed. (2007) 171 J. the provisions requiring the judge to consider under (h) the amount of difﬁculty involved in challenging a statement or (i) the extent to which that difﬁculty will be likely to prejudice the party facing it. M and others  EWCA Crim 219 at –.114(1)(d) is not guaranteed. observed in Maher v DPP: “Although the purpose of the hearsay provisions .614.114(2)] which are required before a statement under section 114(1)(d) can be admitted. admissibility under s.50 it must still weigh all nine factors listed in s. which deals with cases where witnesses are unavailable.Q. in the present context. was undeniably to relax the previously strict rules against the admission of hearsay. the courts are resorting to s.216. 52 (2006) 170 J. Translated into terms of s. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . if it exercises its inclusionary discretion a court must have attributed adequate weight to all the factors enumerated in s. where the Divisional Court determined that justices had failed to give any.2 above.114(2): see McEwan v DPP  EWHC 740 (Admin).g. However.” True.J. R. 441 at . fn. observed in S  EWCA Crim 335 at . 308. Jo. . even if it is now excused from reaching a publicly declared conclusion on each and every one of those nine and more matters.114(1)(d). it is nonetheless incumbent upon him to consider the matters set out in subs. App.”52 This minimal demand for intellectual rigour ensures that our problem cannot simply be ignored. 14. and in particular. 276. As Leveson J. or any sufﬁcient. . 50 Taylor  2 Cr. See. (2008) 124 L. weight to the prejudicial effect that the defendant’s inability to challenge a supposedly sick witness’s evidence would have had on the former’s case. Alternatively.” 53 Cross and Tapper. let it be noted. e. 124 (d) the court is satisﬁed that it is in the interests of justice for it to be admissible. as Colin Tapper has pointed out. “it is unfortunate that [the judge] failed to deal with the matters set out in [s. 51 See further.53 the evidence of intention in most of the cases under consideration would in likelihood be admissible under s.P..114(1)(d).114(2).114(1)(d) quite readily51 —in its ruling it cannot neglect to state the logical steps that have led it to resort to s. p. “The Judicial Discretion to Admit Hearsay Evidence” (2007) 171 J.62 Law Quarterly Review [Vol. so far as relevant.R. R.116 of the 2003 Act.
JANUARY 2008] Legislation that Would “Preserve” the Common Law 63 (b) the person who made the statement (the relevant person) is identiﬁed to the court’s satisfaction, and (c) any of the ﬁve conditions mentioned in subsection (2) is satisﬁed. (2) The conditions are— (a) that the relevant person is dead; (b) that the relevant person is unﬁt to be a witness because of his bodily or mental condition; (c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance; (d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to ﬁnd him have been taken; (e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.” If the witness (i) could have given the evidence in person were they available as a witness, (ii) is identiﬁable to the satisfaction of the court, and (iii) fulﬁls any one of the ﬁve conditions laid down in s.116(2), the court has to treat the hearsay statement as admissible. If this is correct, the practical impact of the point discussed in this paper is likely to be relatively small. Correcting an obvious drafting error? Casting about for solutions, the question might arise whether the courts can treat s.118(1), r.4 as an obvious drafting error which they would then be entitled to rectify. In Inco Europe Ltd v First Choice Distribution the House of Lords reviewed this judicial power, afﬁrming that where it is clear that the language employed by the draftsman has failed to give effect to Parliament’s plain intention, it is permissible to read words into an enactment to give effect to that undoubted intention.54 As Lord Nicholls of Birkenhead explained: “I am left in no doubt that, for once, the draftsman slipped up . . . The language used was not apt to achieve [the desired] result. Given that the intended object of [the provision] is so plain, the paragraph should be read in a manner which gives effect to the parliamentary intention . . . The role of the courts in construing legislation is not
54  1 W.L.R. 586.
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conﬁned to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors.”55 His Lordship added: “This power is conﬁned to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this ﬁeld is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words.”56 Lord Nicholls stipulated that, before exercising this power, a court had to be “abundantly sure” of three matters: (i) the intended purpose of the relevant provision; (ii) the fact that, through inadvertence, the draftsman had failed to give effect to the intended purpose of that provision; and (iii) “The substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed.”57 The third requirement, his Lordship stressed, in particular, was “of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation.”58 Once in a while the courts employ this faculty to correct drafting oversights. In one recent case, R. (CPS) v Bow Street Magistrates’ Court,59 it was obvious that Sch.2 to the Identity Cards Act 2006 had inadvertently repealed the provision of the Forgery and Counterfeiting Act 1981 which made it an offence to possess a false passport before the replacement offences of possessing false identity documents under ss.25 and 26 of the 2006 Act had been brought into force. Instead of the smooth transition sought for, the draftsman had created an embarrassing hiatus. Forbes J. declared himself “abundantly sure” that the purpose of the legislation was to secure a smooth transition, and also that he was “satisﬁed” that Lord Nicholls’s two further conditions were both met so a degree that justiﬁed the court in correcting the drafting error.60
55  1 W.L.R. at 592. 56  1 W.L.R. at 592. 57  1 W.L.R. at 592. 58  1 W.L.R. at 592. 59  1 W.L.R. 291 60  1 W.L.R. at –.
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JANUARY 2008] Legislation that Would “Preserve” the Common Law 65 In all probability, in the case of declarations of intention the issues are insufﬁciently clear-cut to satisfy Lord Nicholls’ three criteria and to justify a court correcting an “obvious drafting error”. Despite the likelihood that s.118(1), r.4 was intended to implement the law as understood by the Law Commission, the legislature did elect to use (on more than one occasion) the unusually strong—and, to some intents, untested—term, “preserve”, in respect of the retained common law rules. Further, as has been seen, r.4 can be read in a permissive manner, almost leaving open whether declarations of future intention do in fact fall within the res gestae exception to the rule against hearsay—which, in the uncertain state of the law existing at the date of the enactment, may have been an understandable posture for an informed legislature to have adopted. Is there a deeper moral to this story? It seems plausible that courts eventually will have interpretative fun and games with the declaration of intention. It is also possible, however, that a wider lesson can be drawn from use of the device the legislature has implanted in the Civil Evidence Acts, and now in the Criminal Justice Act, too. One is bound to ask: are common law and legislation actually incompatible to such an extent that the former cannot be successfully absorbed into the latter by the simple device of “preservation”? “Preservation” leaves a lot of moot questions. More generally, we may discover that the respective outlooks of these two forms of law-making are so radically different from one another that an unadorned concept of “preservation” makes no sense.61 Even in a system such as our own, where the common law’s exclusive bailiwick—not to mention its very method—shrinks and mutates day by day as the legislature extends its sphere of inﬂuence and as an oral system of law acquires habits ever more reminiscent of written systems,62 it hardly needs stating that common law and statute still operate in wildly divergent ways. The obvious property of statutory enactments is that they possess a ﬁxity. No matter what, would-be interpreters of legislation ﬁnd themselves anchored to a written matrix, inexorably compelled to engage every time with the settled text, with judicial precedents providing an additional sheet
61 In a nutshell, my great concern is not unlike that expressed in Lord Hope of Craighead’s thoughtful concurring opinion in the Pitcairn Island sexual abuse case, Christian v R.  2 W.L.R. 120 at . There his Lordship wondered “whether the legislative technique that was adopted by the Governor was sufﬁciently well adapted to conditions on Pitcairn for it to be possible for us to say that the [Sexual Offences Act 1956] was in force there at the relevant time . . .” Is Parliament’s technique in s.118, r.4 adequate to fulﬁl its probable intention to make declarations of intention admissible under the res gestae exception? (I might add that the quality of Lord Hope’s opinion does not quell my unease at this newfangled practice of delivering concurring opinions in the Judicial Committee: see R. Munday, “Coming of Age in the Privy Council” (2006) 170 J.P. Jo. 244.) 62 See, notably, Lord Rodger of Earlsferry, “The Form and Language of Judicial Opinions” (2002) 118 L.Q.R. 226.
(2008) 124 L.Q.R., JANUARY SWEET & MAXWELL
is capable of protracted growth. Human rights law and a few rogue precedents apart.J. who had delivered the ruling..g. 465. imagining that it could be accurately pinpointed. even to drift. On the one hand. resembling a grinding of tectonic plates. the majority of “preserved” rules—such as the rule that character may be proved by evidence of reputation71 —have been more or less stable for considerably in excess of a century. 68  A. Munday.g. currently being acted out between an imperialist tort of negligence and a beleaguered rule in Rylands v Fletcher 64 .C. 70  A. per Lord Mustill (“the consumer surplus”).R. (2008) 124 L. and so on. the “recognition” of new heads of contractual damages65 . to conjure novel doctrines out of virtual thin air. r. 69 e. 104. Turnbull (1985) 80 Cr. 71 See Civil Evidence Act 1995 s. Lord Wilberforce’s obiter views expressed in the Privy Council in Ratten v R. It may seem unlikely that the evidence of reputation rule would suddenly erupt into life from its nighcryogenic state—although one could have imagined that. r. In Bedingﬁeld 66 the hearsay exception relating to the admissibility of excited utterances was given so narrow an ambit that Sir Alexander Cockburn C. The steady.68 supplied a secure launching pad from which the Court of Appeal69 and. 64 For its latest manifestation.C. see Transco Plc v Stockport MBC  2 A. in short. 65 e. Over time the law may variously appear to expand or contract. ultimately. the emergence of broad restitutionary doctrines. Ruxley Electronics & Construction Ltd v Forsyth  A. preserving the ruling in Rowton (1865) Le.C.67 Just under a century later. The common law rules selected for “preservation” in the Civil Evidence Acts and the Criminal Justice Act 2003 are of two basic sorts. Common law is of another kidney. sometimes with no need for courts ever to return to a rule’s point of origin. 520.C. for the House of Lords in Andrews 70 could transform the doctrine into something closely resembling the formulation presently enshrined in s. & Ca. 67 See R. s. it is the very antithesis of legislation. R. in a bid to instil greater realism into the law affecting 63 Hedley Byrne & Co Ltd v Heller Partners Ltd  A.C. to re-invent itself in fresh conﬁgurations.L. yet unpredictable accretion of judicial decisions. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . 303. “The Judge who Answered his Critics”  C.4(a) of the Criminal Justice Act 2003. 281. had it not been for the legislation. is anything but ﬁxed. 378. reminiscent of a random accrual of polyps on a coral reef.. to decay.118.118(1).Q. In the law of evidence we have the doctrine of res gestae itself. 124 anchor. 341. 344 at 360. The common law.66 Law Quarterly Review [Vol.J.C. statutory law is pretty much nailed down. 66 (1878) 14 Cox C. App.2. the tussle for territory. was subjected to almost unparalleled criticism for his day. 1.7(3)(a) and Criminal Justice Act 2003. In some ways. Well-known examples of large-scale common law activity abound: the sudden emergence of a tortious liability for negligent misrepresentation63 .
73 Orthodoxy: The Romance of Faith (1904). Ought the legislature to be taken.100 of the Criminal Evidence Act 2003? Could the courts restrict the delivery of such evidence to the testimony of members of designated religious orders. Chesterton often reminded us. could they impose a corroboration requirement. As G. not only to have “preserved” the genus. As well as having to determine whether these rules. beyond anything presently contemplated in respect of evidence of non-defendants’ bad character under s. such as the res gestae exception to the hearsay rule. But following the entry into force of the legislation. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . Since the legislature has “preserved” the rule. making it difﬁcult—or even impossible—to ascertain exactly what has been “preserved”. of res gestae in these provisions. may the courts undertake further “reﬁnement” of the reputation rule? For instance. preface. even though the doctrine has been absorbed into a would-be comprehensive statutory framework? Do the courts treat interpretation of the retained provisions as a conventional exercise in statutory construction or as the province still of traditional judge-made law? This is largely unknown territory. the legislature’s description of the rule may be at variance with the common law construct that it seeks to “preserve”.Q.JANUARY 2008] Legislation that Would “Preserve” the Common Law 67 character evidence. independent source? Could the courts impose a stringent leave requirement for this highly questionable species of evidence.. We have seen that their more volatile nature can present an additional puzzle.R. not all preserved common law rules are completely settled. an adventurous court might just have contemplated the rule’s abrogation. Rules that have been subject to recent dispute and even signiﬁcant recent extension. p. “it is futile to talk of reform without reference to form”.3. but also to have kept that “preserved” common law organism alive in captivity? Is there an assumption that the res gestae exception will continue to grow organically. are also “preserved” in the 2003 Act. our fault was that we never really knew the form before we set about the “reform”. (2008) 124 L.72 for “reform implies form”. making admissibility of evidence of reputation dependent upon conﬁrmation from a second. therefore.K. elected local representatives and suitably accredited community leaders? As I have tried to show. say. that avenue now looks to be barred. Sometimes the statute 72 The Superstition of Divorce (1920). may continue to develop as conventional common law entities within what is meant to be a rigid statutory framework. too.73 In the case of declarations of intention. Legislative technique The draftsman employs a range of techniques when seeking to integrate common law survivals into a new legislative setting.
but discards others: “(1) Where this Part applies as regards things falling to be done after the relevant time in relation to an alleged offence.”74 The Public Order Act 1986 s.21 retains some common law elements in the new statutory rules governing disclosure. Thus. the Terrorism Act 2000 laid down: “A power conferred on a person by virtue of this Part— (a) is additional to powers which he has at common law or by virtue of any other enactment. entertain or determine proceedings (including criminal proceedings) under any other enactment or at common law. The Criminal Procedure and Investigations Act 1996 s. provides: “Nothing in this Act affects the common law powers in England and Wales to deal with or prevent a breach of the peace.40(4). and (b) relate to the disclosure of material by the prosecutor. prosecute.” 75 See also Criminal Justice and Public Order Act 1994 s.” In similar vein. 74 See also Merchant Shipping Act 1995 s. etc.”75 The common law may actually be employed as a yardstick for determining the future scope of a statute’s provisions.6 will tell us that certain rules of common law are not “prejudiced” by the new enactment: “Nothing in the foregoing provisions of this Act— (a) prejudices any defence available at common law to a charge of contempt of court under the strict liability rule. too.7 para. (2) Subs.68 Law Quarterly Review [Vol. 124 will simply supplement the common law. .4 lays down: “(1) This paragraph applies in relation to writs directed to one or more enforcement ofﬁcers under paragraph 3. . of enforcement ofﬁcers in relation to High Court writs of execution.. do not apply as regards things falling to be done after that time in relation to the alleged offence.Q. the Courts Act 2003 Sch. .60(10): “Nothing in the regulations or done in pursuance of the regulations shall be construed as affecting any power to institute. . duties. the rules of common law which— (a) were effective immediately before the appointed day.(1) does not affect the rules of common law as to whether disclosure is in the public interest. . . (2008) 124 L. in delineating the rights.” (s.34(5).R.105) Sometimes the Act will specify particular features of the common law that are to be kept in the new law by specifying that they are “not affected” by the legislation. In this spirit. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . other statutes like the Contempt of Court Act 1981 s.
It is important that these connections are not lost and that company law may continue to reﬂect developments elsewhere. perhaps. As the Department of Trade and Industry explained in the Act’s Explanatory Notes: “In the company law ﬁeld. powers. on more than one occasion the Companies Act 2006 has had to invoke those very common law rules and equitable principles. for example. Section 178(1). the duties. .Q. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . the major provision that outlines the scope and nature of directors’ general duties. s. and . also demonstrating keener awareness of the difﬁculties posed when attempts are made to marry up statute and common law than was shown in the case of s. Frequently the courts may formulate the same idea in different ways. inter alia: “(3) The general duties are based on certain common law rules and equitable principles as they apply in relation to directors and have effect in place of those rules and principles as regards the duties owed to a company by a director.171 to 177 are the same as would apply if the corresponding common law rule or equitable principle applied. (2008) 124 L. . enacts that “the consequences of breach (or threatened breach) of ss.JANUARY 2008] Legislation that Would “Preserve” the Common Law 69 (2) The relevant ofﬁcer has. in particular trusts and agency. The legislature saw its task as setting forth the “(perhaps unstated) general principles” that were thought to have lain behind the declarations of principle expressed in individual judgments of the courts.” Lately. privileges and liabilities that a sheriff of a county would have had at common law if— (a) the writ had been directed to him. and regard shall be had to the corresponding common law rules and equitable principles in interpreting and applying the general duties.170.118 of the Criminal Justice Act 2003—in treating of the civil consequences of various breaches of general duties owed by directors.R. the Companies Act 2006 adopts unusual phraseology. declares. (4) The general duties shall be interpreted and applied in the same way as common law rules or equitable principles. when “codifying” the rules of common law and equity that hitherto have governed director’s duties.” For the same reason.” (para. In contrast legislation is formal. the principles being applied will frequently be taken from other areas. rights.305) To foster this approach—and. It is not easy to reconcile these two approaches but the draft sections seek to balance precision against the need for continued ﬂexibility and development. in relation to the writ..
L. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .3. Its choice of uncharacteristically inﬂexible language in s. and to the extent that.7. it may be the following. above. it had in mind something more stiff and uncompromising than was present in other enactments in which elements of the common law have been retained. It is not even as though the declaration of intention necessarily presents a case of unique difﬁculty. L. neither ﬁsh nor fowl.118 of the Criminal Justice Act 2003 is singular. r. L.” This common law rule.70 Law Quarterly Review [Vol. when the time comes. Platten  EWCA Crim 140.L.76 ‘‘Preservation” looks to create a mongrel law. and appears to be still in course of evolution. One can.118(1). it will be recalled. until now the practice of declared “preservation” (and “effective preservation”. it would seem that comparison with the methods customarily employed when it is sought to insert portions of common law into a legislative initiative only strengthens the suggestion that when the legislature resorted to the concept of “preservation”. alluded casually to this rule in Singh  1 W. 920. whatever that may be) has been conﬁned to evidence legislation—requires either that the retained rules be clearly settled or that the draftsman use less unyielding terms than “preserve” and “preservation” (which emphatically denote a static situation) and leave the courts more obvious room for prudential manoeuvre. See recently. 124 (5) The general duties apply to shadow directors where. It may be that. is notoriously slippery. 333. too. (2008) 124 L.  Crim. our courts will simply bulldoze 76 Sir John Smith. which preserves “Any rule of law under which in criminal proceedings a statement made by a party to a common enterprise is admissible against another party to the enterprise as evidence of any matter stated.Q. 1564 at : see fn. for example. too.. “Proving Conspiracy”  Crim. it does not normally use the term “preserve” or “preservation” in order to bring about this result. “More on Proving Conspiracy”  Crim. The technique of “preservation” of common law rules pursued by Parliament—and. Sir John Smith. so far as I am aware. foresee trouble ahead in respect of s. Parliament has other tried and tested techniques. the corresponding common law rules or equitable principles so apply. Rose L.R. Although Parliament from time to time assimilates existing elements of common law into new legislative frameworks.R. The moral of the tale If this tale has a moral. The point is made.R.. Given that one must begin by assuming that all the legislature’s words are meant to have signiﬁcance. 386.J.R.R.” It would serve little purpose to go on multiplying the examples.
12 as an attempt to make the “common law” a law of the Commonwealth.R. thanks to a few stray words in a public Act of Parliament. because it perceives the common law to be different from what it was earlier perceived to be. into a comprehensive statutory regime. Res gestae (2008) 124 L. in their entirety. was invalid either because it purported to confer legislative power on the courts or because the enactment of the common law relating to native title found no constitutional support in the statute. the common law of Australia in respect of native title has. See further. may in truth be—and be subsequently declared to be—different. so declares it. As Mason C. had explained almost a decade earlier in Giannarelli v Wraith (1988) 165 C. Hearsay. the High Court of Australia was required to consider. if a court.R. if s. though they record the perception of the common law which was then current. However. * Fellow of Peterhouse. change from time to time according to the changing perceptions of the courts.12 of the Native Title Act 1993.JANUARY 2008] Legislation that Would “Preserve” the Common Law 71 through this problem. The principal obstacle derived from the nature of common law itself. for the only power to make Commonwealth law is vested in the Parliament” (at ).W. the technique is either best avoided altogether or only employed when the relevant rule of common law can be exactly identiﬁed and all risk of its being further developed is safely passed. Brennan. “If s. Bar Association Bar News 30. On the other hand. They may just conclude tout court that declarations of intention are admissible as an exception to the rule against hearsay.77 Probably. If the “common law” is taken as the body of law created and deﬁned by the courts. under the terms of the 1993 Act the content of the common law would. adopting an outlook to statutory construction akin to omnia praesumuntur rite et solenniter esse acta. warned. cannot be the unwritten law. 543 at 584. Gaudron and McHugh JJ. in the ordinary course of events. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . earlier decisions which are not binding upon it do not necessarily represent the common law of the earlier time. Toohey. RODERICK MUNDAY. “A ‘law of the Commonwealth’.12 is construed as importing the common law as an organic. In Western Australia v Commonwealth (1995) 183 C. “Statutes: 2005 Sir Maurice Byers Lecture” (Summer 2005/2006) N.” Thus. after 30 June 1993. The majority went on to assert.12 “attempts to confer legislative power upon the judicial branch of government. it does show how fraught this enterprise can prove. The judges therefore concluded that to construe s. “the ‘common law’ must be understood either as a body of law created and deﬁned by the courts or as a body of law which. the judges reasoned.S. It did so by providing: “Subject to this Act. Mr Justice Gummow. then effect will be given to that declaration as truly representing the common law. developing but unwritten body of law. Such changes would occur without reference to Parliament in which is reposed the power to make special laws for the people of a race as the Parliament deems necessary which would be unlawful under the Act.L. strongly suggests that the legislative technique of “preservation” of rules of common law is ﬂawed. there are objections to its being treated as a law of the Commonwealth” (at ). 373. having been declared by the courts at a particular time.L. It is necessarily statute law. Cambridge.. inter alia. Although the impugned legislation operated in a quite different setting. as that term is used in the Constitution..R. s.Q. the very fact that a discussion such as the present is possible and that questions of this degree of opacity can beset us. the attempt encounters some constitutional obstacles” (at ). it could be mentioned that at least one other legislature has found itself constitutionally entangled when it selected an unfortunate method of integrating the common law into an overarching.12 be construed as an attempt to make the common law a law of the Commonwealth. Intention.* 77 That said. As Brennan J. which required that laws deemed necessary for the people of a race must have been considered by the Parliament. This provision sought to incorporate the common law principles affecting native title. Whether the common law be understood by reference to its source in judicial reasons for decision or by reference to its content as developing from time to time.J. Deane. legislative structure. That attempt must fail either because the Parliament cannot exercise the powers of the courts or because the courts cannot exercise the powers of the Parliament” (at ). Common law. the force of a law of the Commonwealth” (emphasis supplied). the validity of s. “In the view of a court sitting at the present time.
however. which is only to say that its beneﬁciary is the person who made the transfer of rights now forming the subject-matter of the trust. Birks.g. e. The word “result” comes from the Latin resalire or resultare. Mapping the Law: Essays in Memory of Peter Birks (2006). But exactly why the law should impose a trust in such circumstances has yet to be satisfactorily explained. 3 The only such claims not generating resulting trusts would be those involving transfers of rights under contracts later frustrated or terminated for breach: Birks. by contrast.247–264. resulting trusts inevitably cut across the categories with which they are traditionally aligned. Equity and Contemporary Legal Developments (1992).R. “Restitution and Resulting Trusts” in S.C. it tells us that the trust “springs back”. of a declaration of trust in favour of its beneﬁciary. express. pp. In order to keep them in check. argue that they are the law’s response to “nonbeneﬁcial transfers”. But it does not tell us why. meaning “to spring back”.2 above (1997). Chambers. “Resulting Trusts” in A.2 above (1992).335–373. When used to qualify the word “trust”. pp.L. pp.).3 This article will argue that neither thesis is correct. 378. THE TRADITIONAL CATEGORIES OF RESULTING TRUSTS Because the word “resulting” looks to the identity of the beneﬁciary and not the reason why the trust arises. 669 at 708.R. which do ask that question. fn. though one thing this cannot be is as a response to a “non-beneﬁcial transfer”. 2 P.346–359. judges and textbook-writers artiﬁcially limit their incidence to three situations: 1 Westdeutsche Landesbank Girozentrale v Islington LBC  A. For reasons of space. Burrows and Lord Rodger of Earlsferry. Resulting Trusts (1997). they are species of consensual trusts. those involving surpluses and so-called Quistclose trusts.EXPLAINING RESULTING TRUSTS THE most difﬁcult question one can ask about resulting trusts is why they arise. The third. pp. will not be discussed. 72 .2 This latter thesis is particularly important because it is extrapolated from to generate resulting trusts in the generality of unjust enrichment cases. it arises by operation of law. Lord Browne-Wilkinson has said that they arise because of a presumption that the transferor intended them so to do. Like the express trust. implied. and constructive trusts. by evidence or presumption.4 two arise because of a legal presumption that a trust was declared by the transferor in his own favour. Chambers.1 Birks and Chambers. arises where there is no proof. fn. “Trusts Raised to Reverse Unjust Enrichments: The Westdeutsche Case”  R. 4 These are enumerated immediately below. Of the three trusts traditionally classiﬁed as resulting. R. There have been two recent attempts to explain the incidence of resulting trusts. Goldstein (ed.143–170. 3. In that respect. I. other cases. “Resulting Trusts in Canada” (2000) 38 Alberta L.
voluntary conveyance and purchase-money resulting trusts do not arise where the right transferred is an interest under a trust. 5 Wherever the phrase “proved by evidence” is used. T. There are at least four differences between the voluntary conveyance and purchase-money resulting trusts and the failed trust resulting trust. unless rebutted.R. by contrast.). First. or both. ii. whereby A and B held as equitable tenants in common in proportion to their contributions (Lake v Gibson (1729) 1 Eq. voluntary conveyance and purchase-money resulting trusts do not arise where the transfer or provision of purchase-money is made by a father to his child or a husband to his wife. as we have seen.J. However. We will call this a “failed trust resulting trust”. The Equitable Jurisdiction of the Court of Chancery (1846). Failed trust resulting trusts.JANUARY 2008] Explaining Resulting Trusts 73 i.8 Thirdly.. where it is proved by evidence5 that rights were voluntarily transferred by A to B inter vivos and A is not the father (or other person standing in loco parentis) of B or the husband of B. 297 at 303 (Dixon C. can arise in all four situations. We will call this a “voluntary conveyance resulting trust”. Cas.L. and Windeyer JJ. a “presumption of advancement” is said to arise. neither voluntary conveyance nor purchase-money resulting trusts arise in the case of transfers by will. McTiernan. 9 Spence. In Stack v Dowden  UKHL 17. where it is proved by evidence that A inter vivos paid C in whole or in part to convey rights to B. In such cases. Abr. Here. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .9 And fourthly.. no voluntary conveyance resulting trust arises where the interest conveyed is something different from that held by the transferor. either in whole or in part. 6 A resulting trust also traditionally arose where A and B contributed unequally to the purchase price and the title was conveyed to A and B as joint tenants. causes B to hold the rights so conveyed on trust for A. to hold on declared trusts which are void because they lack objects. p. 7 “It is called a presumption of advancement but it is rather the absence of any reason for assuming that a trust arose”: Martin v Martin (1959) 110 C.Q. a presumption arises which. unless rebutted. where it is proved by evidence that A conveyed rights to B either inter vivos or post mortem. a presumption arises which. as we have also seen. 8 Rogers v Rogers (1733) Cas.7 Secondly. (2008) 124 L. Fullager. B will hold the rights so conveyed on resulting trust for A.454. Here. a majority of the House of Lords held that this rule no longer applied in the case of “matrimonial or quasi-matrimonial homes”. it is more accurate to describe this only as a situation where the resulting trust presumption does not apply. 290).R. and A is not the father (or other person standing in loco parentis) of B or the husband of B. offend the rule against perpetuities. Talbot 268. Here. since no fact is there proved by presumption. causes B to hold the rights so conveyed on trust for A. iii. it should be taken to include proof by admission.6 We will call this a “purchase-money resulting trust”.
.12 They usually arise because the existence of the secondary fact is the most likely inference to draw from proof by evidence of the basic fact.146–151. Murphy on Evidence. the evidence in rebuttal must show on a balance of probabilities the untruth of the fact proved by presumption.47–53.”14 A well-known legal presumption is that of legitimacy.L.g. See also I.C.635). In such cases. pp. 16th edn (2005). 11 The amount of evidence required in rebuttal depends on whether the presumption is “persuasive” or “evidential”. It is more accurate to talk of proof by evidence and proof by presumption. 10th edn (2007). Sir John Smith. the main protagonists in this debate demonstrate some fundamental misunderstandings in this regard. paras 6-16–6-31. They sometimes arise because of the seriousness of the allegation (possibly the explanation of the presumption of legitimacy: Murphy. said Murphy J. proof by evidence of one fact. the burden will be discharged if sufﬁcient evidence is adduced to make the existence of the fact proved by presumption a live issue.74 Law Quarterly Review II. Phipson on Evidence. the second is presumed. fn. The burden then lies on the other party to adduce evidence to rebut the presumption. 14 (1984) 155 C.632–643. 12 Cross and Tapper on Evidence. Dennis..13 “Presumptions”.10 above. (a) “True” presumptions Presumptions properly-so-called form part of the law of proof. another fact also exists. the tribunal of fact must ﬁnd the secondary fact proved. The contrast drawn between proof and presumption is unfortunate.). facts can be proved by admission.). In the absence of admission and judicial notice. Very occasionally. however.10 This is especially important for. (ed. the law sensibly operates on the basis that if the ﬁrst is proved. (2008) 124 L. Murphy.184(1) of the Law of Property Act 1925 regarding the order of death of joint tenants in circumstances where it is uncertain which survived the other). the burden of proving those facts lying on the party alleging them to have occurred. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . the “secondary” fact. We need. the fact is proved by presumption. the “basic” or “primary” fact. variously known as “legal presumptions” or “presumptions of law”. “arise from common experience . or evidence. pp. in Calveley v Green. C.10 above.508–513. 11th edn (2007). Proof by presumption that a child is the legitimate issue of a husband and wife 10 The best account is P. the general rule is that facts must be proved by evidence. 242 at 264 (Murphy J. or to resolve evidential impasses (e. the statutory presumption in s. 124 It is a matter of agreement on all sides that the ﬁrst two resulting trusts arise because of the operation of a presumption. Cross and Tapper on Evidence.Q. The Law of Evidence. as we will see.144. 3rd edn (2007). therefore. H. p. gives that party to the litigation the beneﬁt of another fact. pp. Tapper.R. without any need to adduce evidence in proof. In the case of evidential presumptions. Malek Q. In the case of persuasive presumptions. p. are described in Cross on Evidence as the only “true presumptions”. Such presumptions. Generally speaking.R. It is a process of standardized inference. pp. If common experience is that when one fact exists. to understand how presumptions work.H. 13 This is not the only reason. PRESUMPTIONS: USE AND ABUSE [Vol.11 If they do not. Criminal Evidence (1995). judicial notice. fn. .
a rule of law as to the incidence of the burden of proof is being restated in adjectival terms with the language of presumption adding nothing.R.  1 W.C.R. The Poulett Peerage Case  A. but this immediately shows that they are not presumptions at all. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . So.50.L. for example. there is said to be a “presumption” that a child under the age of 10 years cannot commit a crime. the word “presumption” is a much misused term. not evidence.18 and that a criminal conviction is conclusive evidence in certain civil proceedings that a crime has been committed.15 It is then for the other side to adduce evidence in rebuttal showing that the husband could not be the father. as Cross points out: “There is no basic fact at all. 15 The Banbury Peerage Case (1811) 1 Sim.10 above. and that the husband was alive at the date of conception.19 Such “presumptions” are often known as “irrebuttable presumptions of law”. but of substantive law. 1500. None are “true” presumptions. (b) “False” presumptions Unfortunately.”17 In truth. for example. p. when they do. 153. fn. (ii) Presumptions describing rules of substantive law A second misuse occurs when the word “presumption” is used to describe.13(1). In this sense.Q. or.144. for they either involve no issue of proof. not a rule of evidence. 18 Children and Young Persons Act 1933 s.16 However. However. v Keogh  EWCA Crim 528. and the presumption does no more than express the incidence of the relevant burden. though known as the “presumption” of legitimacy. there is said to be a “presumption” of innocence in favour of the defendant in a criminal trial. it is vital to appreciate that legitimacy is not the secondary fact proved. 395. what we mean is that it has been proved by presumption.JANUARY 2008] Explaining Resulting Trusts 75 occurs on proof by evidence that the child was born to the wife. 16 R. So. therefore. & S. When we say that a child is presumed legitimate. (i) Presumptions indicating the location of the burden of proof The most common misuse occurs in statements indicating the location of the burden of proof in a civil or criminal trial. that it was born during lawful wedlock or within the normal period of gestation after wedlock had ended. they are all misnomers. 19 Civil Evidence Act 1968 s. no question relating to proof of a secondary fact on proof by evidence of a primary fact. for legitimacy is a legal conclusion from proved facts.. (2008) 124 L. that the husband impregnated the mother and that it was this impregnation which led to her giving birth. 17 Cross and Tapper on Evidence. and there are at least four senses in which it used to describe something different from the legal presumption outlined above.
77.). 23 P.R. v Schama and Abramovitch (1914) 11 Cr. 22 For this reason. 45. to ﬁnd the fact in question proved. not of a presumption.Q. 21 R. 24 A whole chapter is devoted to the “presumptions” used in the construction of statutes in G. and a contracting party intends to deal with the person in front of him. . but of a rule of construction. 594. in the case relied on. Harpum. Carter. Dworkin.L. C. R.6-17.22 They have therefore been described as “no more than rational inferences to be drawn in the light of experience and common sense . However.1031.B. 29 Ingram v Little  1 Q. Cases & Statutes on Evidence.1. 26 Ward v British Oak Insurance Co Ltd  1 K. correctly spoke. 733. 27 Jefferys v Boosey (1854) 4 H.R.29 Even the rules laid down in the Sale of Goods Act 1979 for the passing of property under a 20 R. v Garth  1 All E. 5th edn (1967). fn. and other instruments.21 These are variously called “presumptions of fact” or “provisional presumptions”. deeds. 124 Being incapable of dislocation by contrary evidence. the beneﬁt of a covenant restrictive of the user of land is annexed to each and every part of the dominant tenement28 . that a person intends the natural consequences of his acts.B. 997.. 2nd edn (1990).20 and the “presumption of guilty knowledge”. Megarry & Wade: The Modern Law of Real Property. (iii) Presumptions of fact A third misuse lies in the use of the word “presumption” to describe a rule providing that upon proof by evidence of one fact.R.24 wills. the “presumption of fact” is described by Phipson (fn.10 above) as a misnomer: para. 392 at 397 (Scrutton L. as it is with legal presumptions. 28 This is how most textbooks present it: e. v Steane  K.J. the tribunal of fact not being compelled. p.B. Federated Homes Ltd. 560 at 566 (Sir Jocelyn Simon P).J. R. v Mill Lodge Properties Ltd  1 W.C.R.J.L. . 6th edn (2000). The law does no more than recognize factual probability. statutes are not intended to operate retrospectively26 .387–416. But though close to legal presumptions. there are said to be “presumptions” that: a consolidating statute is not intended to effect a change in the law25 .8. 25 H v H  3 All E.). Thus. Odgers’ Construction of Deeds and Statutes. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . App. Brightman L. Examples of such “presumptions” include the “presumption of intention”.g.76 Law Quarterly Review [Vol. the operation of statutes is conﬁned to the United Kingdom27 . 31 at 61 (Pearce L.”23 (iv) Presumptions as rules of construction A fourth misuse occurs in the context of the construction of words in statutes. p. pp. Criminal Justice Act 1967 s. (2008) 124 L. they are different in that they are not concerned with the allocation of the burden of proof. that an accused proved by evidence to have been found in possession of goods recently stolen the acquisition of which he cannot explain is “presumed” to be guilty of handling stolen goods. 815 at 970 (Lord Brougham). a tribunal of fact may ﬁnd a second fact proved in the absence of sufﬁcient evidence to the contrary. they tell us nothing whatever about proof.
he acquired an interest in the yacht .Q. despite themselves never using the word. (2008) 124 L. 218 at 230.P. The Court of Appeal held this approach to be fundamentally misconceived. Is the word “presumption” being used in its true sense? If so. When Andrew died intestate. what is the fact proved by presumption? (a) The type of presumption in “presumed” resulting trusts The presumption in play in the “presumed” resulting trust is undoubtedly a legal presumption. (ii) evidence is admitted to rebut the presumption. for in none is a question of proof of facts in issue. though the phrase “presumption of law” is rendered only as “presumption”. 31  P.31 Percy Stone proved by evidence that he contributed £550 towards the £1.J. are said by some textbook-writers to involve “presumptions”. Neither party adduced any evidence to substantiate these allegations. THE TRADITIONAL EXPLANATION OF “PRESUMED” RESULTING TRUSTS Because the voluntary conveyance and purchase-money resulting trusts are universally accepted as resting on a presumption. e. they are collectively. The corresponding passage in  P. Bridge. and (iii) courts refuse to invoke the presumption where there is no gap in the evidence.g. alleging that Percy had only provided the £550 by way of loan.. 105 at 108 (Farwell L. his widow claimed possession of the yacht. The Court must therefore give effect to the presumption. Bridge describes them as “presumptive rules of intention”: M. is essentially the same.050 purchase price of a title to a yacht which had been conveyed by the vendor to Percy’s brother. Andrew. giving the judgment of the court). .30 None. but she has entirely failed to bring any such evidence. It was for the plaintiff to displace that presumption by bringing evidence to the contrary.R. 105. and must hold that. Percy alleged that the money was put up by way of partnership.. This is illustrated by cases where: (i) the presumption is dispositive of the result where no contrary evidence is adduced. The registrar held that Percy had failed to make out his case and gave judgment for the widow. The Sale of Goods (1997).J.”32 30 So. . p. the presumption of law arose that he was beneﬁcially entitled to a corresponding share in the yacht. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .J. though somewhat unfortunately known as “presumed” resulting trusts. and that title to the yacht had been held by his brother on trust for them both.62.. are true presumptions. “On its being proved that Percy Stone had advanced a certain part of the purchase money. (1907) 77 L. 218. (i) Presumption dispositive of the result In The Venture. as the defendant paid a part of the purchase money. III. Two questions arise.P. however.JANUARY 2008] Explaining Resulting Trusts 77 contract of sale. 32 (1907) 77 L.
37 (1875) L. the issue was whether the surrogate grandson held them outright or on resulting trust for the testatrix’s estate. by this time a young man. Eq.) 289 at 303. held that a presumed resulting trust arose in favour of the testatrix’s estate. where Dickson J. leaving a widow. 10 Ch.R. App. Though Baroness Hale described it as “not a rule of law” (at ). App. 343 at 345.”35 An example is Fowkes v Pascoe itself.R. investment was made for the purpose of gift and not for the purpose of trust. See also Rathwell v Rathwell (1978) 83 D. As the successor of joint tenants. if there is evidence to rebut the presumption. The facts of this case are discussed immediately below. the Court must go into the actual facts.L.R.R. App. and look at the circumstances of this investment.78 Law Quarterly Review [Vol. 36 (1875) L. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . .”38 33 (1875) L. Eyre C.J.R. . a son. which trust had not been rebutted. the testatrix bought a number of annuities in the joint names of herself and her surrogate grandson. and therefore any evidence which shews that it was not for the purpose of trust is evidence to shew that it was for the purpose of gift. saying: “. to come to any other conclusion than that the . 34 (1875) L.B. . App. 38 (1875) L. n. 343. . Cas. which annuities at the time of her death were valued at some £7.37 His decision was reversed on appeal. It was either for the purpose of trust or else for the purpose of gift. He predeceased her.R.Q.R. described the presumption as a “matter of law”. 10 Ch. . 831. 343. . 92 at 93. Sir George Jessel M.R. App. 10 Ch.1. During her lifetime. Thus.36 The facts proved by evidence were that the testatrix had an only child.’s judgment in Fowkes v Pascoe. . 343 at 353. (3d. said: “it is the established doctrine of a court of equity that this resulting trust may be rebutted by circumstances in evidence. At ﬁrst instance.  2 W. 35 (1788) 2 Cox. Similar comments are found in Stack v Dowden  UKHL 17. Mellish L. then . .L. who remained living with the testatrix and who remarried from her house..R. in Dyer v Dyer. The widow’s son and daughter from her second marriage were treated by the testatrix as her own ﬂesh and blood. where Lord Neuberger (at ) described the presumption as effecting a shift in the burden of proof and Lord Walker spoke of it in matrimonial cases as no longer operating as a “legal presumption” (at ). And if we are to go into the actual facts.33 where the presumption is described as a “rule of law” which “must prevail” even though “the court might not believe that the fact was in accordance with the presumption”. (2008) 124 L. her Ladyship would only seem to be there saying that the presumption is capable of rebuttal. 343 at 353. 10 Ch.000.34 (ii) Presumption rebutted by contrary evidence Decisions in which contrary evidence has been effective to rebut the presumption are legion.J. 10 Ch. 124 The same view of the operation of the presumption is found in Mellish L. it appears to me utterly impossible .
for “resulting trust” is similarly a legal response to proved facts. The claimant and her lover. There was no room.Q.173–207. claimant.175.JANUARY 2008] Explaining Resulting Trusts 79 (iii) Presumption cannot be resorted to where there is no gap in the evidence An example of a case where the court refused resort to the presumption where the evidence was complete is Goodman v Gallant. 46 Simpson. and seventeenth centuries. the defendant. who would then hold to the purchaser’s will. Wms.42 First. An Essay on the Nature and Laws of Uses and Trusts (1791).41 To have a fee simple title in use for oneself had a number of advantages. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . it must be noted that just as the fact proved by presumption in the case of legitimacy is not legitimacy. it avoided escheat 39  Fam.W. p. it allowed a will of the title to be made. so too the fact here cannot be “resulting trust”. A. it allowed the title to be used for the payment of debts on death. It is accepted on all sides that in times past. (2008) 124 L. it was standard practice for those with fee simple estates in land to put them in use for themselves. successfully negotiated to jointly buy out the husband’s interest.43 Fourthly.44 above. Simpson. A conveyance was executed by the husband. They later fell out. pp. 40  Fam. fn.39 A title to a house was vested in the claimant’s husband on trust for himself and the claimant as joint tenants.J. and defendant. fn. 106 at 110–111 (Slade L. Thirdly. it avoided both dower44 and curtesy. said the court. and the claimant sought a declaration that she had a three-quarter share under a purchase money resulting trust. 229 at 233–234. 2nd edn (1986).46 And sixthly.45 Fifthly. Her claim failed.). pp. 45 Saunders. The marriage broke down and the husband left. the fact proved by presumption was that the transferor declared a use. 42 See generally. The device of a “feoffment to uses” was also employed in purchases of such titles. A History of the Land Law. the purchaser simply instructed the vendor to enfeoff his feofees direct. p.109–110. it avoided reliefs and wardship.W. F.R. 43 Though the common law rule was that debts died with the debtor.40 (b) What is the fact proved by presumption in a presumed resulting trust? At the outset. 44 Chaplin v Chaplin (1733) 3 P.109.. Saunders.42 above.B. there was a concern that the deceased would suffer eternal damnation unless they were repaid. it enabled the creation of settlements of land of greater complexity than was possible at law. 41 Rather than the vendor enfeofﬁng the purchaser and the purchaser enfeofﬁng his trusted friends. In the ﬁfteenth. sixteenth. the forerunner of the modern trust. 106. in his own favour. reciting that the title was conveyed to the claimant and defendant “upon trust for themselves as joint tenants”. Secondly. to invoke a presumption where the words accompanying the transfer were proved by evidence.
11 above. (2008) 124 L. spoke of trusts where the declarations “appear either by direct and manifest proof. and made it an advancement. for an unexpressed intention to create a trust when proved by evidence does not generate a trust. The solution lay in the use in certain cases of a presumption of a declaration to uses. As Megarry J. however. 269 at 294. not merely that the feoffor possessed at the time of the transfer an unexpressed intention to create a use. it was difﬁcult to distinguish them from outright transfers. Lord Browne-Wilkinson spoke of a presumption of “intention”. The presumption nowadays is only evidential: Pettitt v Pettitt  A. the point was not there in issue. 49 (1676) 3 Swanst.”49 The presumption of declaration of trust was not.48 But because it was not usual to include words of trust on the face of the conveyance. Lord Nottingham L.47 In fact.C. as it was the constant practice to attaint the vanquished. 669 at 708. that it was said that “few men be sole seised on their land”. An Essay on Uses (1795). so common did feoffments to uses become. not procedure. and that is. in Cook v Fountain. As the same judge later explained in Grey v Grey: “A feoffment to a stranger. 594 at 598. and because such transfers were gratuitous. 51  Ch. as Lord Nottingham makes clear. we would be dealing with a rule of substantive law.”51 47 “During the contests between the houses of York and Lancaster. 777 at 814 (presumption “readily rebutted by comparatively slight evidence”: Lord Upjohn). p. raised no use by implication to the father.C. or violent and necessary presumption.22. a declaration to uses. or Dialogues between a Doctor of Divinity and a Student in the Laws of England (1528–1531). said in Re Vandervell’s Trusts (No.30. without consideration.2). without other consideration. though the plain and direct proof thereof be not extant. ii. for the consideration of blood settled the use in the son. Doctor and Student. upon consideration of all circumstances presumes there was a declaration.Q. raised a use to the feoffor. The word “violent” is here used in the sense of “strong” or “compelling”. 585 at 591 (emphasis supplied). 124 and forfeiture for treason.C. but a feoffment to the son. universally applied. almost all the lands in England were conveyed to Uses”: W. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . 50 (1677) 2 Swanst.80 Law Quarterly Review [Vol. c. Thus. These last are commonly called presumptive trusts. the latter being especially problematic in the turbulent times of the late ﬁfteenth century. Cruise. either by word or writing. when the Court. 48 Christopher St Germain.”50 It is important to appreciate that the fact proved by presumption was.R. Were it otherwise.. “the mere existence of some unexpressed intention in the breast of the owner of the property does nothing: there must at least be some expression of that intention before it can effect any result. Though in Westdeutsche Landesbank Girozentrale v Islington LBC  A. In modern terminology we would call it a persuasive presumption: fn.
and £250 into the names of herself and Defendant. in 1788.. 55 (1788) 2 Cox. Strahan and G. and to make the testator’s title to land available to pay his debts. See also Lord Nottingham’s list of “mischiefs” carried on by trusts in the place of uses: D. however. .). 10 Ch. and. in my opinion.55 And in Fowkes v Pascoe.H. . says Chambers. for the two statutes addressed only some of the reasons causing titleholders to create trusts for themselves.38. Their combined effect. Yale (ed.20.54 Moreover. such trusts were also used to avoid dower and curtesy. p. there are a number of cases since 1660 in which the judges saw themselves operating the resulting trust no differently from the resulting use. it is also found in the judgment of James L. Kendrick.2 above (1997). fn. we are told that the purchasemoney resulting trust operates “on a strict analogy” with the old law on uses. e. 54 So. as trustees upon trust for herself ? What trust—what object is there conceivable in doing this? If this case were tried before a jury. HAS THE PRESUMPTION CHANGED? 81 Though admitting that the fact proved by presumption in this early period was a declaration of trust. App. As we have seen.A. A Digest of Equity (1905). is weak. Lord Nottingham’s “Manual of Chancery Practice” and “Prolegomena of Chancery and Equity” (1965). discussed above57 . no 52 See the passages set out below.B. 92 at 93. both Birks and Chambers argue that this is no longer the case.J. 57 Text to fn.E. 343.Q.48. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .g. to allow for the creation of more sophisticated settlements than was possible at law.52 It is said that the presumption changed around 1660. who asked whether it was: “. when trusts replaced uses.JANUARY 2008] Explaining Resulting Trusts IV. was to remove the incentive for title-holders to create trusts for themselves. no Judge could withdraw the facts of the contemporaneous purchases and of their repetition from the consideration of a jury. 53 Chambers.J. (2008) 124 L. 56 (1875) L. p. possible to reconcile with mental sanity the theory that [the deceased] put £250 into the names of herself and her companion. they say. J. We saw this in the dictum of Mellish L. The argument.56 the Court of Appeal in 1875 still spoke in terms of a presumption of transferors declaring trusts for themselves. the Wills Act 1540 and the Tenures Abolition Act 1660. The reason was the enactment of two statutes.C. is a “non-beneﬁcial transfer”. Eq.53 the former allowing fee simple titleholders to leave their interests by will.R.. The fact proved by presumption today. These purposes still subsisted after 1660.R. Thus. the latter abolishing a number of feudal incidents.77–79. in Dyer v Dyer. p. Cas.177 state that the practice “of taking conveyances of freeholds in the names of other persons than the purchaser to bar dower” continued until the passing of the Dower Act 1833. text to fnn.
11. Thus. in Rathwell v Rathwell. that fact being the intention of the person who has provided property to another”: Chambers. 777 at 824. 62  A. 61 Text to fn.R. when the evidence conclusively shews that she never intended to create any trust of the kind ” (emphasis supplied). The argument was rejected in limine. but with this difference—that the intent is inferred.”60 Given that the only intention which counts is one which is expressed. .C. Adopting Birks’ argument. 124 jury would or could be found who would hesitate to say that the thing was done by way of gift and not trust. (3d. or is presumed as a matter of law from the circumstances of the case. Dickson J. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .2 above. the “inference” arises from a presumption of law. fn. . framed the inquiry thus: “The Plaintiff . and sought to establish a trust in her favour.J.C.. saying: “. the point was not in issue. 282. The same error is present in the statement of Chambers that “The presumptions of resulting trust and advancement are presumptions of fact. why is it described as anachronistic? Further. where the question was whether the presumption of resulting trust had been rebutted on the evidence. (1997). See also Standing v Bowring (1886) 31 Ch. Since that trust arose because of a “presumption of non-beneﬁcial transfer”. the content of the presumption in 1978 was still a declaration of trust. And the mistake is easily made. 343 at 348–349 (emphasis supplied). the resulting trust was unrebutted.) 289 at 303. But it is impossible to impose such a trust on the Defendant. While it is true that his Lordship immediately before spoke of presumptions of “fact”. they had been paid gratuitously.63 It sought to recover the money and compound interest thereon.64 The presumption of resulting trust. 1. it argued that because the payments were made pursuant to a void contract. p. No trust will sufﬁce short of an absolute trust for herself.”59 If the presumption had really changed. said: “Resulting trusts are as ﬁrmly grounded in the settlor’s intent as are express trusts. the only issue on appeal was the claimant’s right to interest.C. however. the case (2008) 124 L. for though we are dealing with “inferences” of fact.R. rested her case on equitable grounds.61 for Dickson J. and because there was no evidence that the money had been paid by way of gift. 59  A. at least. there is the decision of the House of Lords in Westdeutsche Landesbank Girozentrale v Islington LBC. in Pettitt v Pettitt. . App. 10 Ch. Finally. 63 Hazell v Hammersmith & Fulham LBC  2 A. Lord Diplock criticised the presumption of resulting trust as an inference of fact “which an earlier generation of judges drew as to the most likely intentions of earlier generations of spouses belonging to the propertied classes of a different social era.62 Westdeutsche transferred substantial sums of money to Islington pursuant to contracts which in subsequent litigation were held to be ultra vires the local authority.82 Law Quarterly Review [Vol..51.R.Q.”58 Nor did the content of the presumption change in the twentieth century. With no examination of the underlying unjust enrichment. Its claim to interest turned on whether the money was held by the authority as trustee at the point of receipt.D. 60 (1978) 83 D. at 289. Lindley L. . said Lord Browne-Wilkinson. 58 (1875) L. and thus gave rise to a presumed resulting trust.L. 669. 64 Chambers seeks to downplay the signiﬁcance of Westdeutsche.
Lord Millett described the argument that no resulting trust could arise as reveals little about why proprietary restitution was unavailable”: Chambers. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . fn. for it is precisely the argument of Birks which his Lordship immediately goes on to reject. The Privy Council held that the surplus was prima facie held on resulting trust for the contributors. It mattered not.2 above (2006). Proof by evidence of a contrary intention was therefore irrelevant. 1399. 67 (1995) 184 C. It must be admitted that Lord Browne-Wilkinson had immediately before described the presumed resulting trust as involving a “presumption that [the transferor] did not intend to make a gift to [the transferee]”. not because of the operation of a presumption. The title was later sold.  2 W.R. Unfortunately. and. Moreover. for the precise nature of the fact proved by presumption was not in issue.67 But too much should not be made of this.130–139. 291. provided that: “No moneys which at any time have been contributed by the [employer] under the terms hereof shall in any circumstances be repayable to the [employer]. therefore. Applying this reasoning. not only by evidence of an intention to make a gift. 65  A. 66 (1995) 184 C.C.R.. 68  1 W. that the precise ground of recovery was not identiﬁed. What cannot be denied.R. the employer and the employees. since it describes a legal conclusion from proved facts. Clause 4 of the trust deed. however. however. an intention not to make a gift. In the High Court of Australia. Also said to support a change in the content of the presumption is an obiter dictum of Lord Millett in the Privy Council decision in Air Jamaica Ltd v Charlton. cannot form the subject-matter of a presumption.” Did this clause prevent a resulting trust arising? As we will see. if it did. be admitted that there are dicta which appears to support the contrary view. 69 Text to fnn.L.R.L. whether the mother’s illegal conduct precluded her from adducing evidence in rebuttal. 70  2 A.L. 538 at 549. 669 at 708.L. But this must be a slip.R.Q. as we will see below (text to fnn. spoke of the evidence showing that she “had no intention to confer any beneﬁcial interest” over the title or the proceeds of sale on her children. and the mother sought a declaration that the children held the proceeds of sale for her on trust. however. the conveyance being made to her children so as to enable her to make fraudulent claims to state beneﬁts. is that the House did address and reject the initial premise of Professor Birks’ thesis. (2008) 124 L.”65 It must.100–114). Deane and Gummow JJ. 831. p.66 a mother provided the purchase price for a freehold title to land. 538. In Nelson v Nelson.69 the House of Lords in Vandervell v IRC 70 held that the failed trust resulting trust arises.JANUARY 2008] Explaining Resulting Trusts 83 “is rebutted by evidence of any intention inconsistent with such a trust.C. the statement probably misled Baroness Hale (at ) and Lord Neuberger (at ) in Stack v Dowden  UKHL 17. for it could have made no difference to the ﬁnal result.257.68 which concerned the distribution of the surplus of a pension trust which failed as offending the rule against perpetuities. but by operation of law. The only question was whether the “presumption” of advancement applied in the case of a gratuitous transfer from mother to child.
since only a failed trust resulting trust was in issue. 75  Ch. it says nothing of the content of the presumption operating in the other types of resulting trust.R.2 above (2006). 777 at 823 (Lord Diplock)..”73 This article does not seek to defend the continuation in the modern day of a presumption of declaration of trust where the common experience is that citizens do not generally create trusts for themselves. Presumptions represent a “consensus of judicial opinion disclosed by reported cases as to the most likely inference of fact to be drawn in the absence of evidence to the contrary. 1399 at 1412. a resulting trust arises by operation of law. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . it did not attempt to say anything new about resulting trusts. 72 Chambers. 83. This is not to say that the presumption of a declaration of trust should continue. .34. Air Jamaica v Charlton provides nothing more than an unremarkable application of a decision of the House of Lords. confuses questions of substance and procedure. it gives effect to intention. And in any case. (2008) 124 L. p.J. Like a constructive trust.72 This. We should ﬁnally note the argument of Chambers that a presumption of declaration of trust is inconsistent with the modern law on certainty of intention: “Why should the presumed intention to create a trust be effective to do so? It would contradict the well established requirement of certainty of intention to create a trust.R. Exercises of construction.Q. But it arises whether or not the transferor intended to retain a beneﬁcial interest—he almost always does not—since it responds to the absence of any intention on his part to pass a beneﬁcial interest to the recipient.84 Law Quarterly Review [Vol.L. was concerned with in Re Schebsman 75 was the construction of words proved by evidence to decide whether they amounted to a declaration of trust. as we have 71  1 W. fn. It may arise even where the transferor positively wished to part with the beneﬁcial interest.’ ”74 This objection. as in Vandervell v Inland Revenue Commissioners . fn. 74 Chambers. . however. 124 “. 73 Pettitt v Pettitt  A. wrong in principle. though unlike a constructive trust. however.C. What du Parcq L. .”71 It is said that this statement now represents the “prevailing view” of resulting trusts.J. I think the court ought not to be astute to discover indications of such an intention. stated in Re Schebsman.. p.248. ‘unless an intention to create a trust is clearly to be collected from the language used and the circumstances of the case. The point is only that no change in the content of the presumption has yet occurred in the view of the courts.2 above (1997). As du Parcq L. . is doubtful.
few and narrow. Birks says: “. that is. starts from the assumption that an apparent gift—that is. are not presumptions at all. that 76 Text to fnn. p. and then..343–344. unless there is afﬁrmative proof that he intended it not to . Outside relationships. their reasoning on this point is brief.”77 Chambers speaks in similar terms: “Equity tends to be suspicious of gifts and often asks the recipient of an apparent gift to prove that it was intended as a gift. Equity .11. . before it will allow the transferee to retain the beneﬁt of the transfer. pp. is the provider’s lack of intention to beneﬁt the recipient.24–30. He gets his property back.21. . . . the apparent gift creates a presumption of resulting trust. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .JANUARY 2008] Explaining Resulting Trusts 85 seen. common to all cases of resulting trust. equity approaches gifts with suspicion. In other words. when it is thinking in terms of resulting trusts.”78 And later: “The essential fact of intention. 78 Chambers. “I give you these rights to hold for me on trust”. . fn.Q. In short the apparent donor gets his gift back unless. In talking of the voluntary conveyance resulting trust.2 above (1997). that equity is suspicious of gifts. his intention to give is evident . . it jumps back to him under a resulting trust.”79 Five separate propositions seem to be involved here: that gratuitous transfers are “apparent gifts”.. fn.76 Indeed. it requires positive evidence outside the fact of the transfer without consideration showing that the donor did indeed intend to donate. 77 Birks. a transfer without consideration—must result back to the apparent donor. which generate the presumption of advancement—it presumes that the ‘gift’ is not one.2 above (1997). V. The failure to do so means that it will be held in trust for the apparent donor. . p. he could not but have found that they amounted to a declaration of trust. scil. fn. (2008) 124 L. if the same judge had been asked to construe the meaning of the words proved by presumption in a presumed resulting trust. 79 Chambers.2 above (1989). . when the matter is double-checked. within which gift-giving is to be expected—relationships.R. how do Birks and Chambers arrive at a presumption of “non-beneﬁcial transfer”? Though it forms the crux of their argument. A PRESUMPTION OF “NON-BENEFICIAL” TRANSFER? History apart.
Understanding Equity and Trusts (1987). however.A Simpson and E. It is therefore not correct to describe gratuitous transfers outside the range of advancement as “apparent gifts”. merely ambiguous transfers.. Each proposition. then we need to know the sense in which the word “apparent” is used.Q. Weiner.I. (b) Equity is suspicious of gifts Because in the majority of cases what is proved by evidence is a gratuitous transfer to a person outside the relationships of advancement. for example. Hackney. the facts proved by evidence are equivocal. “appearing to the senses or mind. The Oxford English Dictionary. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . not presumed trusts. or interests 80 J. one thing we can say is that it is not used as a synonym for “presumed”. p. (2008) 124 L. and that a “presumption” of “non-beneﬁcial” transfer triggers a trust in favour of the transferor. “seeming”. However.563.86 Law Quarterly Review [Vol. as distinct from what really is. not real”.149. which proof triggers the “presumption” of resulting trust. by the court ﬁnding as a matter of presumption that the transferor declared a trust in his own favour. it could also have been on trust. are “apparent gifts” of life estates. for though the transfer might have been outright.81 But even if it was correct to see it in this way. entails. Vol. viz.C. Unfortunately. this is nowhere spelt out. (a) Gratuitous transfers outside the range of advancement are “apparent gifts” If we are to see the transfers which trigger the ﬁrst two types of resulting trust as “apparent gifts”. for the gratuitous transfers with which we are concerned are not “seeming gifts”. Perhaps what is meant is its ordinary dictionary meaning. that the presumption of “not-gift” is a presumption of “non-beneﬁcial transfer”. The evidential gap is closed.S. Nor can “apparent gift” mean a transfer having one of the attributes of a gift. In the cases where the presumption applies.80 But this is not its meaning either. not the “presumption” of advancement. it is easy to see how the “presumed” resulting trust might be thought to reﬂect a presumption by equity “against generosity”. for these too involve gratuitous transfers. 81 J. is false. p. as will be demonstrated below. it is not the same thing as saying that equity is “suspicious” of gifts. 124 equity consequently presumes that “apparent gifts” are “not gifts”. If it is really true that equity entertains a suspicion of gifts.R. 2nd edn (1989). how then do we explain the many situations in which this “suspicion” does not arise? Why. at least in cases outside the range of advancement. for we would then be talking about presumed gifts. Stack v Dowden  UKHL 17 at  (Baroness Hale). as they could just as well be called “apparent trusts”. that no value was given in exchange for the transfer.
’s judgment cited above. even if it was. fn. it cannot be completely unintended losses which are its concern.Q. for if it really is unintended losses which concern the courts. (2008) 124 L. we are told: “The true nature of the presumption of resulting trust is revealed by the evidence which conﬁrms or rebuts the presumption. The question at issue in these cases is whether the transferee took the rights outright or on trust. for there is in every case in which a resulting trust arises an effective conveyance of rights. the presumption must be one of “not-gift”. it seems only to have been arrived at by working backwards from the existence of the “presumed” resulting trust itself. But because in neither does it make sense for the transferor to have created a trust for himself.R. The courts ask whether the apparent donor intended to make a gift and not whether he or she intended to create a trust.. In the ﬁrst two cases.2 above (2000). no authority is provided for this assertion.J. The idea that we are dealing with a “suspicion” of gifts has led Chambers to state that courts of equity use the “presumption” of resulting trust as a “safeguard against the unintended loss of assets”. And in cases where it is proved by evidence that an outright transfer was made. p.D.83 this would not seem to be the case.84 However. as we saw from Fowkes v Pascoe. Indeed. 83 See the passage from James L. and that of Lindley L. Exactly why should equity be suspicious of “apparent” gifts? Unfortunately.JANUARY 2008] Explaining Resulting Trusts 87 under trusts not “suspicious”? Why are post mortem “apparent gifts” not suspect? And most importantly. 84 Chambers. it does not follow that because proof by evidence of a gift rebuts the presumption. the presumption is not triggered for the simple reason that no ambiguity remains. for in so doing. It is therefore wrong to couch the presumption in terms of a “suspicion”. why is the concern not present when the transfer is between father and child or husband and wife? Moreover. text to fn. there is potentially a declaration of trust. in Standing v Bowring (1886) 31 Ch.J. p. this provides no clue as to the origins of the “suspicion”. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .386. no presumption of declaration arises.18.394. 282 in fn. a further difﬁculty arises. and proof by evidence of an intention to make a gift simply shows that it was not a transfer on trust. why is the “suspicion” not present when words of gift are proved by evidence to have accompanied the transfer? These difﬁculties disappear if we think instead in terms of presumptions.58.58.2 above (2000). Thus. Moreover. fn. we leave the realm of presumptions altogether. who wrote: “It is as though equity cynically supposes that a transferor who receives 82 Chambers. But even if it was right to talk of a “suspicion” of gifts. fn.”82 However. In reply. p. This is clearly the view of Birks.2 above (1996). it might be said that by “unintended” is meant the sort of vitiation of intent found in cases of unjust enrichment. See also Birks.
723. for common experience shows that most gratuitous transfers are not mistaken or otherwise defective. Once again. to equate the presumption of resulting trust with the presumption of undue inﬂuence. rev. the presumption of undue inﬂuence. p. on proof by evidence of certain facts.C.64. (transfer from husband to wife). more generally. parent/child (Turner v Collins (1871) 7 Ch.86 The two doctrines. Tufton v Spurni  2 T. Indeed. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . spiritual leader/follower (Allcard v Skinner (1887) 36 Ch. however. many of the cases involve transfers where it is admitted that the transfer was made as a gift.R. at least outside certain ﬁxed categories of relationship. as “Class 2B undue inﬂuence”.L. in Allcard v Skinner (1887) 36 Ch. 180 at 189–190. First. a presumption arises that a gift was procured by undue inﬂuence. That it is this which is referred to is evident from the description of one of the situations attracting the presumption. p. the presumption is not conﬁned to gifts: a conveyance for consideration can still attract its operation. even if it did. 516. 27).386. 90 Goldsworthy v Brickell  Ch.92 How can a court “presume” that a transfer was not a gift when it is admitted on all sides that it was? It cannot be right.. solicitor/client (Wright v Carter  1 Ch. An Introduction to the Law of Restitution.”85 Unfortunately. where.91 And ﬁfthly. 92 As.88 Secondly. proof by evidence of words of gift does not prevent the presumption arising. why equity should jump to this conclusion is not then explained. Moreover. the presumption applies to the grant of lesser interests. 378. a search of the equity textbooks for anything remotely resembling a “presumption” that transferors labour under defects of judgment when making voluntary dispositions turns up nothing. App. a large gift from a parent to a child.g.R.D. and most tellingly. 145.Q.88 Law Quarterly Review [Vol.90 Fourthly. e.L. it is not restricted to transfers outside the relationships of advancement. 87 e.g. it is hardly the most likely inference to draw from the facts proved by evidence.g. 88 Described by Lord Browne-Wilkinson in Barclays Bank Plc v O’Brien  1 A. 89 e.2 above (2000).R. with a presumption of vitiated consent to the transfer. or. not suspicions. 91 Simpson v Simpson  1 F. 329).D.89 Thirdly. 124 no value for his transfer must necessarily be labouring under a mistake or some other defect of judgment. 145).87 only arises where there is proof by evidence that the donor reposed trust and conﬁdence in the donee. these difﬁculties disappear if we think in terms of presumptions. Huguenin v Baseley (1807) 14 Ves. 86 Chambers. Furthermore. (2008) 124 L. Birks. we still need an explanation why transfers proved by evidence to contain words of gift are not viewed in this way. The nearest we get is the equitable doctrine of undue inﬂuence. Indeed. 85 P. which is never the case with “presumed” resulting trusts. therefore. as a “situation of which equity ought to be suspicious”. fn. edn (1989). are distinct.
McKendrick. J. between inferences of fact and law.2 above (1997). the other view can also explain every one of these cases.S. it is a legal conclusion from proved facts.2 above (1997). not merely an interest for life. in N. Palmer and E. p. for whether a transfer will be recognised as effecting a gift is a question of the application of legal rules to proved facts.R. Tyler and N. R. which makes the transfer “not a gift”.E. for this is to confuse inferences of fact with inferences of law. “Conditional Gifts”.R. can be seen in the fact that no case relied on by Chambers in support of his argument as to the nature of the fact presumed involves a true presumption. for proof by evidence that the mother provided the whole purchase price would have given her a trust of the fee simple. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . However. the only issue was the legal inference to be drawn from those facts. because the provider’s intention to keep any portion of the beneﬁcial interest necessarily means that he or she does not intend to pass that interest to the recipient. See also E.L.2 above. (2008) 124 L. 127. Dullow v Dullow.E. 95 (1985) 3 N..299–321. 531 at 541. pp.JANUARY 2008] Explaining Resulting Trusts 89 (c) Equity presumes that apparent gifts are “not gifts” Even if it was correct to say that a proved by evidence gratuitous transfer to a person outside the relationships of advancement is an “apparent gift”. not proof of a fact itself. pp. 93 A useful summary of the law of inter vivos gifts can be found in the entry entitled “Gifts” by P. Chambers. Crossley Vaines’ Personal Property. Take. a “presumption” that the transferor “did not make a gift” is no different to a “presumption” of “legitimacy” or “resulting trust”. (1997). the result in the case could not have been reached through the application of the presumption. Hope J. pp.94 All are decisions in which the totality of the facts was proved by evidence.429–60. 97 Chambers. for example.W. The rules on post mortem gifts can be found in the standard works on succession.95 This intention entitled her to a “resulting trust of a life estate”96 : “Cases of this sort support the view that the presumption of resulting trust is of an intention to create a trust. fn. 5th edn (1973). proved by evidence or presumption. In this respect.1 of his book: fn. fn. “The Role of the Donee’s Consent in the Law of Gift” (2001) 117 L. 2nd edn (1998).Q. 94 The argument is made in Ch. that equity is “suspicious of gifts”.”97 But even if this “other view” was right. Interests in Goods.21.21.).L. Halsbury’s Laws of England (2004). Hill. Indeed. said that despite the fact that she was “lacking in any familiarity with the elementary concepts of property ownership” and “did not have any clear view of what legal results ﬂowed from her intentions”. Vol. The same confusion. “[her] intention was to reserve a beneﬁcial interest in the properties for herself during her lifetime”. Palmer. and further. it cannot be the case that courts presume that the transfer was “not a gift”. Pettit in Lord Mackay of Clashfern (ed. where it was proved by evidence that a mother paid for a title to land to be conveyed to her two sons.Q.R.93 We still need to know the fact. p.A. 96 Chambers.20(1).G.1–55.
. though there are legal and equitable rights over land. not the proof of an additional fact through the operation of a presumption.98 the court found a resulting trust in the claimant’s favour. or as security for the performance of an obligation. What precisely is a “non-beneﬁcial transfer” is nowhere explained. land that they have a “beneﬁcial interest” in that land. To say that a person holds a right beneﬁcially is only to say that he does not hold it on trust or as security. 101 The “question of intention” to which his Lordship refers is discussed below. text to fnn. Sharp v McNeil (1981) 36 O.100 Lord Upjohn said that it was a question of intention101 whether the taxpayer and the trustee company “intended that the option should be held by the trustee company beneﬁcially or as a trustee . . say. 98 Ryall v Ryall (1739) 1 Atk.Q. it is said. Lane v Dighton (1762) Amb.R. 102  2 A. is that they did not intend to beneﬁt the recipients of the property. 717. El Ajou v Dollar Land Holdings Plc  3 All E. There was no question in the case of the particular right being held as security. Merchants Express Co v Morton (1868) 15 Gr. in Vandervell v IRC..R. however. In the seven cases cited. when spoken of rights.90 Law Quarterly Review [Vol. that concerned with “ignorance”. 133–137. without his consent. capable of giving rise to a resulting trust. though I may hold a title to a chattel outright (beneﬁcially). So. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . However. fn. Rights can be held in one of three ways: outright. The ﬁrst is as an adverb. The second is as an adjective.”99 But even if it could be said of the respective claimants that they had “no intention to beneﬁt” the defendants. What we do know. is that the word “beneﬁcial”. (2d. 409. where the claimant’s money is. The ignorance of those whose money was used is said to show that the “only possible inference.120–122. 291 at 315.) 473. could an intention to create a trust be inferred. is commonly used in two different senses. (2008) 124 L. 370. to describe a particular type of right. 274. this can only mean that they hold in respect of that land a right of a type known as “beneﬁcial”.2 above (1997).C. In none.21. on trust. Similarly. 124 The same confusion is evident in the next class of case relied on. it is once again a legal inference from facts proved by evidence.R. there is no third category of “beneﬁcial” rights. 291. p. (d) The “presumption” of “not-gift” is a presumption of a “non-beneﬁcial transfer” A further difﬁculty concerns the description of the subject-matter of the “presumption” of “not-gift” as involving a “non-beneﬁcial transfer”.C.”102 But when it is said of a person with an interest over. Only the ﬁrst usage is correct. 99 Chambers. for example. 100  2 A. to describe how a right is held. Williams v Williams (1863) 32 Beav. used by the defendant to purchase rights for himself. 59.
104 and that the cases cited in support of his argument for the content of the presumption are ones concerning resulting trusts “in which the provider did not intend to beneﬁt the recipient and yet could not have intended to retain the beneﬁcial interest . the transferee should hold beneﬁcially and.25: “Her intention to create a trust was signiﬁcant because it proved the lack of intention to transfer the beneﬁcial interest.2 above (1997). See also Chambers (1997) at p. though he starts by speaking of a transferee holding “beneﬁcially”.107 But this is not how Chambers uses the word.108 103 Birks.2 above (1997). . cannot be contrasted with legal or equitable. p. “Beneﬁcial”.”103 Thus.106 Lord Upjohn spoke of a body to which shares had not yet been transferred as having “no legal or beneﬁcial interest in the shares”.” 106  2 A. for he is at pains to stress that an equitable interest under a trust is not the same thing as a beneﬁcial interest.JANUARY 2008] Explaining Resulting Trusts 91 on trust. 291. p. 108 Chambers.2 above (1992). Examples of the second usage can also be found in Chambers’ work. . or as security.R. and again in Vandervell v IRC. he describes the content of the presumption as being “that the provider did not intend to give the beneﬁt of that property to the recipient”. (2008) 124 L. p. Thus. fn.. fn. on trust. further. and that the phrase “beneﬁcial interest” can cover both legal and equitable interests.2 above (1997). 104 Chambers. did not indicate any intention as to any other person or persons in whom the beneﬁcial interest should be located.21.Q.55. Thus. Unfortunately.19. because those terms describe the two different jurisdictions which make up the common law. whenever it is found that the transferor did not intend that. fn. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .C. I have no right to that chattel which can be described as “beneﬁcial”. in the events which have happened. 291 at 313.352. Birks tells us that: “there is a resulting trust whether the transfer is made upon an initially valid trust or not. and is sometimes described as having a “beneﬁcial” interest. it is this second sense which seems to have been adopted.C. there is no third jurisdiction called “beneﬁcial”. therefore. p. fn. 107  2 A. And though I may hold the beneﬁt of a chose in action outright (beneﬁcially). So. Birks immediately slips into talk of a “beneﬁcial” interest. 105 Chambers. or as security.”105 Perhaps “beneﬁcial” is here being used as a synonym for “equitable”? A person entitled under a trust is known as a beneﬁciary. there is again no “beneﬁcial interest” I have against the debtor separate from my right to sue.
97 above. he says. 113 (1841) 9 M.111 an intention by the mother to create a trust in her own favour was said to be equally consistent with the view that she did not intend to beneﬁt her sons.43.2 above (1997). it was held that it could recover the sum from the widow in a common law action for money had and received.. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . But it can hardly be said that the company did not intend the right to be held by the widow outright. Such usage would cure the problem of resulting trusts in cases of contracts of sale or payments of taxes.387. we immediately run into a further problem. for example. 111 Text to fn. It thought it owed her the money and its intention 109 “All resulting trusts arise in response to the same type of event: the receipt of an asset by someone who was not intended to be its beneﬁcial owner.110 where. the fact proved by evidence.2 above (2000). In such cases. 112 Chambers.R. This usage is also implicit in the discussion of the failed trust resulting trust. there was a lack of intention to make a gift’: Chambers.113 An insurance company claimed to have paid out £197 10s on a life insurance policy to the widow of the assured having forgotten that the policy had lapsed.W. 54. fn. “Beneﬁt” cannot therefore be equated with “gift”. Indeed.Q. In the same way. though a citizen paying their validly demanded tax bill can hardly be said to be making a gift. (2008) 124 L. for though such transferors do not intend to make gifts. A different meaning seems to emerge from Chambers’ discussion of Dullow v Dullow. Yet when a vendor conveys rights pursuant to a contract of sale.R. 124 Might it then be that a “non-beneﬁcial” transfer is nothing more than a transfer not intended as a gift?109 The difﬁculty is that this would lead to resulting trusts arising in situations in which no one would say they should. shows that he was not meant to take beneﬁcially. 531. Assuming it was indeed mistaken.L. It is. We know. and “not-beneﬁt” with “not-gift”. 110 (1985) 3 N. However. it is clear that he has no intention of making a gift to his purchaser. In other words. fn. however. no resulting trust arises.92 Law Quarterly Review [Vol. their whole thesis rests on a perceived correspondence between the traditional categories of resulting trusts and the generality of cases of unjust enrichment. for we know that both Birks and Chambers consider cases of mistaken payments to involve non-beneﬁcial transfers. Take the well-known case of Kelly v Solari. as we saw. This might be seen to show that the word “beneﬁt” is being used as a synonym for “hold outright”. & W.112 An intention not to beneﬁt a person is thus equated with an intention to vest in him rights not to be held outright. p. that no resulting trust arises in the case of a transfer proved by evidence to have been made for valuable consideration.S. where “non-beneﬁcial” means “not outright”. they do intend the recipients to take outright (beneﬁcially). p. difﬁcult to see how the typical unjust enrichment scenario can be said to involve a “non-beneﬁcial transfer”. that the transferee was to take the rights as trustee.
the company was acting under a mistake.L..Q. that the transferee was not meant to take the transferor’s “beneﬁcial” interest. and proof by presumption can yield no different result. of which he says: “Because the beneﬁcial interest has not been completely disposed of and the trustees were not intended to enjoy the beneﬁt of the legal ownership for themselves. Indeed.”116 114 cf. The Rt Hon. not the capacity in which the rights were to be held. One does not discharge a debt by transferring money to ones creditor to hold “not outright”.R. Thus. for if it really was the transferor’s intention “not to beneﬁt” the transferee. Though it is acknowledged that this is not the only reason why legal presumptions arise (fn. Sir Peter Millett.R. (2008) 124 L. Assuming again that such an interest can exist. “Restitution and Constructive Trusts” (1998) 114 L. 242 at 264 (Murphy J.JANUARY 2008] Explaining Resulting Trusts 93 in transferring the right to her was to discharge its perceived obligation. 115 Calveley v Green (1984) 155 C. Of course. and.114 Of course. no other reason has been put forward here. then there clearly was an intention to “beneﬁt” her. We have seen how presumptions “arise from common experience”. and if “beneﬁcial” is to be equated with “outright”.R. fn. 116 Chambers. for we know that the law responds to proof by evidence of that fact with a trust. But why is the raising of a trust a response to proof by presumption of a “non-beneﬁcial” transfer? The reason is to be found in Chambers’ discussion of the failed trust resulting trust. But even if the law did recognise a notion of “non-beneﬁcial transfer” distinct from a transfer on trust or as security.2 above (1997). but it was a mistake as to its motive for the transfer.54. the trust response is irresistible if the fact proved by presumption is a declaration of trust.13 above). p. this “fact” would seem no more likely than a declaration of trust for the transferor. 399 at 412. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . that a “non-beneﬁcial” transfer can form the subject-matter of a presumption. the plaintiff’s intention can have only been to constitute the widow an outright holder of the right. it is difﬁcult to see how the “fact” of such transfer can form the subject-matter of the presumption triggered by proof by evidence of a gratuitous transfer.). it seems to contradict the facts proved by evidence. the most likely inference to draw from a gratuitous transfer is hardly that it was “non-beneﬁcial”.Q.115 However. further. the resulting trust arises. why did he make the transfer at all? (e) The presumption of non-beneﬁcial transfer triggers a trust in favour of the transferor The ﬁnal claim is that the law responds to proof by presumption of the “fact” of “non-beneﬁcial” transfer by raising a trust in favour of the transferor.
where the testatrix left her residuary estate to the Bishop of Durham “on trust for such objects of benevolence and liberality as the Bishop in his own discretion should most approve of. VI.g. Kekewich J. 118 (1804) 9 Ves.R. it is not a true presumption at all. though one which can be “rebutted” by “proof” that the transferee was intended to take absolutely. and. (2008) 124 L. 669 at 708.120 117 An early case is Lloyd v Spillett (1740) 2 Atk. if answered in favour of the transferee. LORD BROWNE-WILKINSON’S EXPLANATION OF FAILED TRUST RESULTING TRUSTS The rule that a transfer accompanied by a declaration of trust which fails to declare effective trusts generates a resulting trust in favour of the transferor is sanctioned by many years of authority.”119 But while it is true that the language of presumption can be found in some of the failed trust resulting trust cases. e. Lord Browne-Wilkinson said that this trust was no different from the other resulting trusts and arose because of the operation of a presumption: “Both types of resulting trust are traditionally regarded as examples of trusts giving effect to the common intention of the parties.118 In an obiter dictum in Westdeutsche Landesbank Girozentrale v Islington LBC. The question is unfortunately often described as involving a “presumption” of resulting trust. prevents a resulting trust arising. If there is no such interest. in the events which have happened. In re West  1 Ch. There is sometimes an initial question whether.1199. this is not the case.M. 84 at 89. 13th edn (1886). the transferee was intended to take outright the rights over which there was no effective declaration of trust or whether the trust was intended to extend to the whole.94 Law Quarterly Review [Vol. said that there was a “presumption that a gift in trust is not a beneﬁcial gift”. 399. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . Bigelow. para.117 Typical is Morice v Bishop of Durham.. as we have seen. As we have seen.C. His Lordship’s references to the common intentions of the parties and the presumed intentions of the trustee are odd. A resulting trust is not imposed by law against the intentions of the trustee (as is a constructive trust) but gives effect to his presumed intention. 124 But this explanation only works if there is such a thing as a “beneﬁcial interest” separate from the legal interest. the fact proved by presumption is a declaration of trust by the transferor. 120 See. 148. 119  A.” The court held that the objects were uncertain and the intended trust void. with the consequence that the rights were held by the bishop on trust for the testatrix’s estate.Q. its disposal can never be described as “incomplete”. This is a matter of construction which. M. Story’s Commentaries on Equity Jurisprudence as Administered in England and America.
The resulting trust could not “rest on any evidence of the state of mind of the settlor. M. The court does not decide how the parties might have ordered their affairs: it only ﬁnds how they did.11–14. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . Restatement of the Law of Trusts (1935).45–46. 122 This point is also made in D. The decision foreshadowed that of the House of Lords in Vandervell v IRC  2 A. 51.JANUARY 2008] Explaining Resulting Trusts 95 However. This point seems not to be appreciated by Chambers: fn. it was for this reason that Harman J. an unexpressed intention is never enough to create a trust. as we have seen. it might be said that the resulting trust arising on failure does so because of a “presumption” that.Q. for once we admit that we are dealing with a ﬁctitious intent. discussed immediately below. The initial exercise of construction merely decides whether the transfer was or was not outright and not whether the transferor intended to create a trust for himself in the latter event. Smith. but we immediately encounter the problem that the House of Lords has forbidden courts from creating trusts based on speculative intent. 300 at 310.R. Indeed.”124 Even if not contemplated.122 In truth. 125 cf. in the events which have happened. As Lord Morris of Borth-y-Gest said in Gissing v Gissing: “When the full facts are discovered the court must say what is their effect in law. the content of the words accompanying the transfer having been proved by evidence. (2008) 124 L. pp. p. for in the vast majority of cases no doubt he does not expect to see his money back: he has created a trust which so far as he can see will absorb the whole of it. The ﬁrst difﬁculty is that. 124  Ch. that this is what the transferor would have wanted had he thought about it?125 This explanation.51 above. might it be said. But this does not work either. not only do we step outside the realm of presumptions. as we have seen. 3rd edn (2005). Gillen and L.2 above (1997). in Re Gillingham Bus Disaster Fund rejected presumed intent as the explanation for such trusts. the raising of the resulting trust is a question of intention only in a negative sense. the transferor would have wanted the rights to be so held. and then not as a matter of presumption. 66. for no additional facts are proved. adopting the economists’ ﬁction that people are selﬁsh. Moreover. this is not a presumption at all.1247. In Lord Browne-Wilkinson’s defence.123 The second is that in all likelihood the transferor did not address his mind to the question. The court cannot 121 Text to fnn.. p. however. Waters’ Law of Trusts in Canada.121 All that is involved is a question of the construction of facts already proved by evidence. it is impossible in such circumstances to invoke a presumption to prove that the uttered words had some different content. 123 Text to fn. Waters.107.C. fares no better than the last. 291.
the shares were transferred by the bank to the college. because this conclusion was reached. the resulting trust only arises.96 Law Quarterly Review [Vol. That tax would then be recovered by the college as a charity.”126 Moreover. 1234) was there made.415 of the Income Tax Act 1952. his intention being that the college take the shares outright.R. There can therefore be no facts capable of rebutting the “presumption”.128 no presumption at all.C.L. 128 Text to fnn. Indeed. On Vandervell’s instruction. A failure to do so would mean that. he would be liable to surtax (a higher rate tax of 50 per cent) on the dividends declared. the trust only fails. Apparent statements to the contrary in Stack v Dowden  UKHL 17. 291. The trustee was National Provincial Bank Ltd.120–122 above.L.C. 33. his accountant advised that it be arranged for the college 126  A. 831 fall foul of the doctrine of precedent. Yet we already know. and an irrebuttable presumption is. Similar statements can be found in the speeches of Viscount Dilhorne (at 900) and Lord Diplock (at 904–905). The dividends were to be gross dividends from which tax at 33. If the “presumption” is that a trust was declared in the transferor’s favour. but by the public purse. But the scheme would only work if Vandervell divested himself of all rights in respect of the shares. of which he was also managing director and principal shareholder. VANDERVELL V IRC That we are not here dealing with a presumption was the ratio decidendi of the House of Lords in Vandervell v IRC. 886 at 898. 124 devise arrangements which the parties never made.127 that this particular transferee was intended to do neither. He was the beneﬁciary of a trust of a parcel of shares in a private company (the company). JANUARY SWEET & MAXWELL AND CONTRIBUTORS .. The plan was for the company to declare a dividend on the shares sufﬁcient to fund the chair. 129  2 A.  2 W. There was also a settlement for his children. Unfortunately for Vandervell.33 per cent. The court cannot ascribe intentions which the parties in fact never had. by virtue of s. not by Vandervell himself. VII.18–19 above. (2008) 124 L.129 Vandervell wished to donate a substantial sum of money to the Royal College of Surgeons to establish a chair of pharmacology. the only facts capable of rebutting it will be ones showing that the transferee was to take outright or as security. The reason the donation was structured in this way was to ensure that a substantial part of the total sum.R. was given.R. having undertaken the process of construction discussed above. for no invocation of the 1966 Practice Statement (Practice Statement (Judicial Precedent)  1 W. 127 Text to fn. as we have seen. the trustee of which was Vandervell Trustees Ltd (the trustee company). insurmountable difﬁculties arise in terms of rebuttal if we see the failed trust resulting trusts as resting on a presumption.33 per cent would be deducted at source.Q.
132  Ch. . . There was.” Although that presumption could be rebutted by proof by evidence that Vandervell intended the trustee company to hold the option outright or on some other trusts. . Two possibilities were that they be applied to the children’s settlement or to a new settlement in favour of the company’s employees. The dividends were duly declared and paid. who was the beneﬁciary of the failed trust resulting trust? A majority of their Lordships130 held that though the college was in terms the grantor of the option. One thing was certain. on the assumption that Vandervell was the grantor and that the trust company took the option on trust for undeclared objects.”131 But because no words of trust were expressed in the grant to the trustee company. who was the grantor of the option? Secondly.C. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . at this time the college had no legal or beneﬁcial interest in the shares and they could only comply with it. For estate duty purposes. The Court of Appeal132 resolved the issue by the use of a “presumption” of resulting trust: the grant of the option being gratuitous. . the real grantor was Vandervell. it was [Vandervell] who procured the college to grant the option to the trustee company. no settled plan as to what was to happen to the shares on their return. especially when it was known that its objects went beyond merely acting as a trustee. “this was a matter of courtesy. 291 at 314 (Lord Upjohn).C. it had not been rebutted.R. First. in what capacity did the trustee company take the option? And thirdly. [I]n law . but the Inland Revenue charged Vandervell surtax on the amounts.. and that he had therefore failed to divest himself entirely of any interest in the shares. Though it had been asked to grant the option. 131  2 A.JANUARY 2008] Explaining Resulting Trusts 97 to grant to the trustee company an option to buy back the shares once they had served their purpose. however: the shares would not go back to Vandervell. 291 at 320. arguing that the option to purchase was held by the trustee company for him on resulting trust. it was thought prudent that the company be made public before Vandervell’s death and therefore inadvisable for a parcel of shares to be left outstanding in the hands of a third party. it was not immediately obvious how it took the option. . the trustee company was “presumed to have acquired the beneﬁt of the option upon a resulting trust in favour of the settlor. 261. (2008) 124 L. To reach that conclusion.Q. three issues had to be decided. however. for that would ruin the tax efﬁciency of his scheme. for “the evidence shows that the settlor did not intend to grant the beneﬁt of the option to the trustee company 130 Lord Donovan dissenting:  2 A.
on the facts found. could not be rebutted by proof by evidence of any fact whatever. possibly to be deﬁned later.2). not evidence.. 136  2 A. held that the option had been granted to the trustee company on trust.137 in which he coined the terms “presumed” and “automatic” to describe the operation of the two types of resulting trust. 269 at 294. whereas here. and it was perfectly consistent with Vandervell’s plans that the company took the option outright or “beneﬁcially”. In truth. 124 beneﬁcially nor did the trustee company intend to accept it for its own beneﬁt. all the relevant facts were known. Lord Wilberforce likewise rejected the use of presumptions to resolve the issue. 321–323 (Lord Donovan). presumptions only operate where there is a gap in the evidence. (2008) 124 L. or room .C.134 The majority. 135  2 A.C. The conclusion. but said that he need not decide that question because “the facts and circumstances are sufﬁcient for this purpose without resort to this long stop presumption. to invoke a presumption. doubted whether the presumption of resulting trust could apply to options to purchase.) 134  2 A.C. 261 at 289 (Diplock L. as we have seen. Looking at the evidence. he said that the case showed that the failed trust resulting trust did “not depend on any intentions or presumptions. a failed trust resulting trust arose in Vandervell’s favour which. 137  1 Ch. with whom Lord Pearce agreed. because it was not triggered by a fact proved by presumption.”135 His Lordship found that the intention of Vandervell was that the option be held by the trust company upon such trusts as he or the trustee company should from time to time declare. . 291 at 308–309 (Lord Reid). an approach based on presumptions is ﬂawed for. Lord Reid and Lord Donovan held that the grant of the option was not on trust at all. That the resulting trust in Vandervell had nothing to do with a presumption is also made clear in Megarry J.Q. however.R. 138  1 Ch.’s judgment in Re Vandervell’s Trusts (No. No trust was declared in the grant to the trust company.J.”138 133  Ch. After a detailed analysis of the speeches of Lords Upjohn and Wilberforce. a fact clearly appreciated by the House of Lords. saying there was “no need. 291 at 329. 291 at 315. is simply that the option was vested in the trustee company as a trustee on trusts. . not deﬁned at the time. the Court of Appeal’s “presumption” was a rule of construction.”133 However. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . 269.98 Law Quarterly Review [Vol.” but was “the automatic consequence of [the settlor’s] failure to dispose of what is vested in him. Lord Upjohn.”136 A trust for objects to be deﬁned later being void for want of objects.
142  2 A. e Nor is it an inevitable response here.2)  Ch. If our only concern is to strip out the enrichment of the transferee of the failed trust. The failed trust resulting trust does not arise of its own volition. fn. 269 at 294. the funds are often applied cy pr` s. “If the beneﬁcial interest was in A and he fails to give it away effectively to another or others or on charitable trusts it must remain in him.I. Megarry J. 349. Despite Lord Browne-Wilkinson’s obiter comments in Westdeutsche. cannot remain in the air: the consequence in law must be that it remains in the settlor. Megarry J. Vol.C. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .80 above. there need be no such response. 291 at 329. then what is it which causes failed trust resulting trusts to arise? (a) The Vandervell explanation As we have seen.C..”140 However. was of course only paraphrasing the speeches of Lord Upjohn and Lord Wilberforce in Vandervell v IRC. or beneﬁcial interest.JANUARY 2008] Explaining Resulting Trusts 99 The Vandervell litigation therefore shows that an explanation of the failed trust resulting trust in terms of a presumption of intent does not work.141 However. it could be done by giving the settlor a personal claim in unjust enrichment for the value received.R.”143 However. there is nothing “automatic” about the law. by awarding the settlor the beneﬁt of a trust. described the failed trust resulting trust as arising “automatically”. Suppose I convey my fee simple title to land to a friend to hold on trust for 139 Re Vandervell’s Trusts (No.139 This label is misleading. for the settlor generally has no equitable interest to retain. 141 Especially since the bar on recovery of payments made under mistake of law was removed in Kleinwort Benson v Lincoln CC  2 A. a theory based on “retention” of an equitable interest does not work either. but because courts say it does. 140 Oxford English Dictionary.805. “Automatic” means “self-acting. the failed trust resulting trust. having the power of motion or action within itself.”142 Lord Wilberforce spoke in similar terms: “But the equitable. VIII. arises for a reason having nothing to do with proof by presumption of anything. Moreover. (2008) 124 L. we take the rights out of the estate available for distribution to the unsecured creditors and give him a privileged position in relation to them. for we know that where the failed trust is charitable. least of all an intent by the settlor to create a trust for himself. p. both as a matter of logic and of the highest authority. 143  2 A. WHY DO FAILED TRUST RESULTING TRUSTS ARISE? If it is not an intent proved by presumption. What for Lord Upjohn made the trust “automatic” was the fact that. 291 at 313.Q.C.
There is no need to resort to a presumption of the provider’s intention where it has been proved”: Chambers. The legal title carries with it all rights. At the end of it.C.S. 145 “. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .R. As Lord Browne-Wilkinson explained in Westdeutsche: “A person solely entitled to the full beneﬁcial ownership of money or property. to impose a trust on the [recipient]. If so.). The only question is whether the circumstances under which the money was paid were such as. for it implies their prior existence. His Lordship’s talk of a “separation” of legal and equitable rights is unfortunate. that title is held by my friend.2 above (1997). 124 “such objects of benevolence and liberality as he in his absolute discretion should most approve of. something I did not have before. in equity. At the beginning of the story. 309 at 311 (McLelland J.145 Since in the latter the facts show that the transferee was not meant to take outright 144 Westdeutsche Landesbank Girozentrale v Islington LBC  A. an equitable interest arose for the ﬁrst time under that trust. fn. Might it be said that prior to the transfer. Unless and until there is a separation of the legal and equitable estates.R. We should instead talk in terms of the equitable interest being “engrafted upon”. the resulting trust arises because the provider did not intend to beneﬁt the recipient. the three types of resulting trust are said to be one and the same. not carved out of. What I now have is an interest under a trust.100 Law Quarterly Review [Vol.W. (2008) 124 L. and that though I gave away the former. .” The trust will fail for want of objects and the friend will hold the title for me on resulting trust. although Lord Upjohn and Lord Wilberforce correctly identify the failed trust resulting trust as not resting on a presumption. 669 at 706. But that does not mean that he agrees with the explanation in Vandervell.”144 Thus. I retained the latter? This seems to be implicit in the reasoning of Lord Upjohn and Lord Wilberforce. There is no retention of anything by the settler: a new interest arises in his favour and there is nothing “automatic” about it. Instead.. does not enjoy an equitable interest in that property. But it is mistaken.Q. I had both a legal and an equitable right. there is no separate equitable title.L. Therefore to talk about the [transferor] ‘retaining’ its equitable interest is meaningless. (b) The Chambers explanation The view taken by Chambers is that the failed trust resulting trust does not rest on a presumption. I had a fee simple title to land. But I have “retained” nothing. . both at law and in equity.43. the reason they go on to give as to why it arises is ﬂawed. for having an equitable right is the consequence of there being a trust. the only difference being that the fact “presumed” in the voluntary conveyance and purchase money resulting trusts is now the fact “proved” in the failed trust resulting trust. the legal interest: Re Transphere Pty Ltd (1986) 5 N. p. like the separation of the yolk and white of an egg. not the reason why one arises.
is a legal conclusion from proved facts. p. As we have seen. 146 cf. This is the type of presumption in play in presumed resulting trusts. for reasons which echo those given when rejecting his explanation of the “presumed” resulting trust. First. a secure understanding of presumptions is required. if our only desire is to strip out the transferee’s enrichment. as we have seen.R. the presumption of law. not an additional fact in itself. a transfer with “no intention to beneﬁt” has been “proved” to have occurred. At best. There are transfers which cause transferees to hold outright. at least where that phrase describes something distinct from a transfer on trust or as security. for such a transfer is.146 Secondly. the phrase “transfer with no intention to beneﬁt” does not describe a fact and is therefore not susceptible of proof.. even if there was such a thing. Chambers’ distinction of “actual” and “presumed” facts: fn. IX. so that “presumed” facts are just as much proved as facts proved by evidence. Finally.43. However. (2008) 124 L. there is no compelling reason why the law should respond to its “proof” by raising a trust. like “legitimacy” and “resulting trust”. this explanation does not work either.JANUARY 2008] Explaining Resulting Trusts 101 but only as trustee. Thus. CONCLUSION Before any progress can be made in the search for an explanation of resulting trusts. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . because it ensures equality of treatment between creditors in the event of the transferee’s insolvency.2 above (1997). “transfer with no intention to beneﬁt”. As we have seen. Thirdly. even if “transfer with no intention to beneﬁt” was a fact susceptible of proof. like evidence. but only one true one. albeit for a trust which has failed. presumptions. are methods of proof.147 something unknown to English law.Q. while it makes sense to describe Morice v Bishop of Durham as involving a proved by evidence mistaken transfer. but there is no fourth category. or by way of security. The difﬁculty with the two explanations of resulting trusts examined in this article is that this does not seem to have been appreciated. the contrast between “proof” and “presumption” is false. a response in the nature of a personal claim for the value received serves that purpose perfectly well. where proof by evidence of one fact generates proof of a second fact without the need for evidence. for what would now be “proved” would be a legal conclusion from facts.100–114 above. 147 Text to fnn. it is impossible to say that the trust arises because of proof of a transfer with “no intention to beneﬁt”. There are many false presumptions. it might be thought to do it better. on trust. Indeed. by evidence or presumption. we cannot say that it involved a proved by evidence “transfer with no intent to beneﬁt the transferee”.
R. WILLIAM SWADLING. was shown to be based on a number of misunderstandings. Though Lord Browne-Wilkinson said it arose because of the operation of a presumption. only ambiguous transfers. for the settlor retains nothing when making such a transfer. And ﬁfthly. be resulting trusts in the generality of cases of unjust enrichment is unsustainable. Thus. the explanation then put forward by their Lordships in Vandervell itself did not work. the “automatic” resulting trust still deﬁes legal analysis. that the fact “presumed” in such circumstances is that the transferor did not intend to beneﬁt the transferee. And Chambers’ explanation. by a logical extension of the traditional resulting trusts.C. the law should respond to its “proof” by the raising of a trust for the transferor. Oxford. Colin Tapper. suspicions are not the same things as presumptions. I have beneﬁted greatly from discussions with Alexandra Braun. gratuitous transfers outside the relationships of advancement are not “apparent gifts”.102 Law Quarterly Review [Vol. and James Walmsley. framed in terms of “proof” of a “non-beneﬁcial transfer”. equity is not “suspicious” of gifts. the fact proved by presumption being that the transferor declared a trust in his own favour. Lord Upjohn and Lord Wilberforce showed in Vandervell v IRC 148 that this was not so: there is no room for a presumption where all the facts have been proved by evidence. Secondly. and in any case.. it is not possible for equity to “presume” that “apparent” gifts are not gifts. 291 at 329. However. assuming there is such a thing as a “nonbeneﬁcial transfer”.Q. no satisfactory explanation was given as to why. a “presumption” of “not-gift” cannot be a “presumption” of “non-beneﬁcial transfer” for the law does not recognise a notion of non-beneﬁcial transfer distinct from transfers on declared trusts or as security. James Penner. and in the case of a failed trust resulting trust there is no fact left outstanding. This was the position in the seventeenth century and nothing has changed since. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . * Fellow of Brasenose College. Neil Jones. failed for the very same reasons that a “presumption” of “non-beneﬁcial transfer” could not be the explanation of the “presumed” resulting trust. Fourthly. For these reasons. Mike Macnair. First. Resulting trusts (2008) 124 L. the argument that there should. We then examined the resulting trust which arises on proof by evidence of a transfer of rights on trusts which fail. Presumptions.* 148  2 A. for “not-gift” is at best a legal conclusion from proved facts. The argument of Birks and Chambers. though we have a convincing though anachronistic explanation for the “presumed” resulting trust. Thirdly. 124 We saw that the voluntary conveyance and purchase money resulting trusts arose because of the operation of a true presumption. not a fact in itself.
R. This paper ﬁrst argues that there is currently no general trend in the case law of the highest courts of England and Canada to use risk-based 1 Cumulative causal processes will therefore not be commented on. As difﬁculties resulting from the existence of several alternative causes are characterised by the impossibility of determining each of the causes’ effective contribution to the injury. or as requiring a legal inference to be drawn absent evidence disproving the existence of causation. including the defendant’s negligence. Most recently. All of these variations allow the plaintiff to recover in full. ENGLAND. but uncertainty renders impossible the determination of which of the different causal candidates is culpable. On the distinction. 389 at 401. all that can be said is that the defendant increased the total risk of the outcome by adding one more possible cause. Part II: the Relationship Between ‘Damage’ and ‘Causation”’ (1988) 104 L. Risk-based analysis has proved particularly useful in the context of uncertainty affecting alternative causation mechanisms resulting in indivisible injuries. one of two or more mutually exclusive causes. Risk enhancement has justiﬁed inferring that causation has been proven by the required standard of proof where the defendant has materially increased the plaintiff’s risk of injury. may have produced the whole of the damage. material increase of a risk has been considered a sufﬁcient basis for liability without the need to prove causation. “The Gist of Negligence. especially in the presence of scientiﬁc or factual uncertainty. in proportion to the defendant’s risk contribution. The notion of risk has also grounded an alternative test of causation whereby materially increasing the risk of injury is treated as the equivalent of materially contributing to the injury.Q. Appeals for increased ﬂexibility in causal assessments have become more numerous. It has been relied on in different decisions as either permitting the judge to draw a discretionary factual inference of causation or material contribution to the injury.1 In these cases. Stapleton. Liability based on negligently increased risk is one of the most controversial amongst the different avenues explored by the supreme courts of Canada and the United Kingdom to depart from the traditional causal assessments in cases involving uncertainty. 103 . as have judicial decisions responding to these calls. risk-based analysis may also ground partial recovery. However. AND FRANCE INTRODUCTION THE past two decades have witnessed a rise in judicial concern over problems in proving factual causal links.CAUSATION AND RISK IN THE HIGHEST COURTS OF CANADA. see J.
it was impossible to assess whether or not the defendant had contributed to the resulting damage other than by simply increasing the risk that the plaintiff suffer injury by adding an additional potential triggering agent. this paper subsequently proceeds to argue that in light of the 40-year history of proportional liability reasoning in the French Cour de cassation. Recently. ABSENCE OF A TREND IN FAVOUR OF RISK-BASED FULL RECOVERY Despite the striking generosity of recent House of Lords decisions. To address this challenge. full recovery of the plaintiff’s damage (I). 124 reasoning to ground causal assessments in the presence of uncertainty.R.C.L.5 Although the House of Lords also initially subscribed to 2 The trend in the lower courts is different. 4  1 W. under the particular circumstances of this case. The absence of a general trend can be observed with regard to risk-based analysis used to justify. demonstrates a general preference for preserving the integrity of traditional causation and evidence principles and only exceptionally accords generosity in assessing causation based on the idea of risk.C. (4th) 289. Therefore.Q. 3 Bonnington Castings Ltd v Wardlaw  A. the House of Lords has proven more expansive by relying on the defendant’s negligent increase of the risk of injury to allow for proportional recovery of the claimant’s damages. 5 Snell v Farrell (1990) 72 D..L. be treated as equivalent to materially contributing to the plaintiff’s injury. the supreme courts of England and Canada have generally insisted on grounding causal analyses in traditional civil liability and evidence principles. Historical developments In common law. the House of Lords in McGhee v National Coal Board 4 granted full recovery by accepting that materially increasing the plaintiff’s risk of injury could. The predominant Canadian interpretation of McGhee is that it grounds a factual inference of causation on risk increase.R. however. HL. (2008) 124 L. 311. 613.2 The highest court of the United Kingdom. 1. together with the Canadian Supreme Court. Apart from very circumscribed situations. common law courts should give careful consideration to the French experience with the numerous conceptual problems that this mechanism presents (III). however. despite the uncertainty of causation. In such cases.R.  2 S. as well as proportional recovery (II).104 Law Quarterly Review [Vol. there is no emerging trend in common law favouring risk-based liability to solve instances of causal uncertainty involving alternative mechanisms.R. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . I. the increase of risk justiﬁcation for full recovery resulted from the necessity to adapt the Bonnington Castings v Wardlaw test of material contribution to the damage3 to cases involving uncertainty in alternative causal mechanisms.
After Wilsher. 32 at .6 it later abandoned this position7 for an interpretation of McGhee’s increase of risk test as being either a new approach to causation necessitated by policy8 or. 9 Barker v Corus UK Plc  UKHL 20. at 1090. more recently. 32 at  while acknowledging absence of proof of causation under the traditional but-for or material contribution tests. Unlike McGhee. 8  1 A.6 above.C. (2008) 124 L. see Lord Hutton who treats McGhee as introducing a legal inference of causation: at . one innocent and the other negligent.Q. an industrial disease case.11 both controlled by the same defendant. brick dust. as grounding liability without proof of causation. 7 Fairchild v Glenhaven Funeral Services  1 A. Both McGhee’s increase of risk reasoning and the restrictions imposed to it by Wilsher. 13 This text refers to “UK common law” to acknowledge that some of the main cases discussed here actually originate from Scotland. 1074. the claimant’s employer. originating from two sources.R. had involved a single risk agent. The House of Lords refused to extend it to compensate a premature baby suffering from retrolental ﬁbroplasias (RLF) in the 1988 case of Wilsher v Essex HA.10 above. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . each linked to distinct risk agents: the defendant’s negligence in administering excessive oxygen to the baby or different medical conditions that can affect premature babies.C. adopting a robust and pragmatic approach to undisputed primary facts.10 Lord Bridge of Harwich explained that the only way the plaintiff’s claim could succeed would be to establish. fn. McGhee.. However. In Wilsher.JANUARY 2008] Causation and Risk 105 this interpretation. the McGhee test was restricted to cases where an element of the causal inquiry has been proven. according to the traditional rules of evidence. McGhee was presented as a case in which the majority. 10 Wilsher v Essex Area HA. had concluded that it was a legitimate common sense inference of fact that the defender’s negligence had caused (materially contributed to) the pursuer’s injury. 11 In the form of prolonged exposure to brisk dust due to the absence of a shower on the work premises.  2 A. that the defendant’s negligence was at least a material contributor to the injury.12 Thus. inﬂuenced the subsequent development of Canadian and UK13 common law. as where the injury was caused by one well-determined risk agent controlled by the defendant in both its innocent and negligent forms.C. 12 See fn. Canadian common law Although discretionary judicial inferences of causation are admitted in Canada. the Supreme Court of Canada’s position on inferences based on risk-enhancement remained unclear for some time.9 McGhee was soon restricted in its application.C. the Supreme Court approached full recovery based on increase of risk 6 Wilsher v Essex Area HA  1 A. 572. Wilsher involved more than one possible alternative cause.
R. (4th) 82 at 93.L. Sopinka J. the Supreme Court of Canada put an end to this line of cases by rejecting this possibility when addressing a civil law appeal from the province of Qu´ bec.g. on risk increase. Sopinka J. treated Wilsher v Essex Area HA17 as authoritative. 15 Snell v Farrell. 18 He allows an exception only “where defendants who have a substantial connection to the injury are escaping liability because plaintiffs cannot prove causation”: Snell v Farrell. 16 Sopinka J.I.C. (4th) 609. which may lead to think that this rejection of McGhee was limited to Lord Wilberforce’s position. 124 cautiously.A. Sopinka J. at 330.C.5 above. 11 years after Snell v Farrell was decided.R.106 Law Quarterly Review [Vol. but the inference was grounded on the defendant’s particular knowledge of the facts regarding causation and his negligent undermining of the plaintiff’s ability to prove causation.14 The admission of such a possibility was crucial to the outcome in this case since none of the experts had been able to afﬁrm the cause of the plaintiff’s injury—atrophy of the optic nerve leading to blindness in her left eye.20 e In St-Jean v Mercier. 109 at 116. fn. 541 at 609.16 While not expressly rejecting the possibility to rest causal inferences. R.  1 S.5 above. Taylor v Hogan (1994) 119 Nﬂd & P. (2008) 124 L. He also discarded what he referred ambiguously to as McGhee’s two “alternatives”: simply proving that the defendant created a risk of injury or imposing on the defendant the burden of disproving causation. Suchorab v Urbanski (1997) 156 Sask. Webster v Chapman (1997) 155 D. at 326. at 362. The plaintiff 14 Snell v Farrell. Ont CA. fn.5 above. 37. See also Laferri` re v Lawson (1991) e 78 D. while in Snell the experts were simply unable to reach any conclusion. discretionary or not. 20 Qu´ bec is the only Canadian province where civil law principles originating from France govern e private law matters. QB a contrario. other than a positive medical opinion. fn. subsequently discusses the option of reversing the burden of proof. conceded the possibility of drawing “common sense” inferences of causation “although positive or scientiﬁc proof of causation has not been adduced”. hypertension and diabetes. fn. Sopinka J.19 However. the patient was also suffering from glaucoma. Man CA. 46 at 55.Q. In Snell v Farrell.15 However. In response to this difﬁculty. at 330 and 336.R.L. did infer causation. This injury could have been the result of the defendant’s negligence in continuing—contrary to recognised medical practice—the surgical removal of a cataract despite the presence of a small retrobulbar bleed in the patient’s eye. This was so because of the differences in legal and scientiﬁc conceptions of “certainty” and “probability”: at 335–336. However. The Supreme Court of Canada acts as the highest appellate court for both civil law and common law Canadian jurisdictions. Sopinka J.18 Whether he was willing to allow such reasoning or not. giving priority to traditional methods of causal assessment. 17 Snell v Farrell.. However.5 above.R. permit”.E. some Court of Appeal cases of various common law provinces subsequently interpreted Snell v Farrell as supporting the grounding of factual inferences on risk increase. distinguishes Snell from Wilsher on the ground that the experts’ evidence in Wilsher was seriously in conﬂict. he was ambiguous about whether or not risk increase could be considered such a “circumstance”. 19 e. Robinson v Sydenham District Hospital Corp (2000) 130 O. all of which are potential causes of optic nerve atrophy.R. the court clearly rejected risk-based full recovery. stated that common sense inferences could be drawn where “circumstances. NﬂdCA. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .
C. 375 A. BCSC. McPherson v Bernstein (2005) 139 A. and were. (4th) 98. (2008) 124 L. nevertheless addressed. St-Jean.JANUARY 2008] Causation and Risk 107 was hit by a car at 90km per hour while hitchhiking. 491 at . (4th) 98.R. 22 Y. 3rd edn (2003). AltaQB at .R.R.  6 W. J. Gonthier J. autonomie.C. the issue of causal inference since the plaintiff had argued that causation should be presumed where. The plaintiff was unable to convince the Supreme Court that his paraparesis had been caused by the defendant’s negligent omission to order his immobilisation and to undertake neurological tests that would have allowed the identiﬁcation of his vertebral fracture. a diagnosis of paraparesis was made. pp.R. in obiter.C. although partly based on a reference to Snell v Farrell. but that its manifestation was delayed.22 While lacking in clarity. rejected the adoption of a separate means of proof based on increase of risk which would provide the plaintiff with a less stringent standard of proof to satisfy. such reasoning constituted an unacceptable attempt “at circumventing the traditional rules of proof on the balance of probabilities”.  S. He refused to rest presumptions of causation on risk increase and insisted that the only judicial presumptions that can be drawn are those permitted by Art. 56–65. (3d) 95. the car accident being thus the sole cause of the injury. 144.e. Droit qu´ b´ cois et droit fran¸ ais: communaut´ . Ont SCJ.W. 23 Allen v University Hospitals Board (2002) 5 Alta.R. 109.W. 13 C. In his opinion. e e c e Royer. factual inferences (called “factual presumptions”) based on e the judge’s discretionary evaluation of the whole of the case’s evidence. The court preferred the opinions of the defendant’s expert witnesses who testiﬁed that the neurological impairment was complete by the time the patient was admitted to the hospital.. It was only two days later that the patient started showing signs of neurological damage.L.S. which would force the judge to deduce causation as soon as the defendant is shown to have negligently increased the plaintiff’s risk of sustaining an injury. Alta CA. i. 50 Alta. (3d) 780 at .C.23 However. the doctor’s fault had created a risk within the ambit of which the injury fell.Q. L. concordance (1993). Gonthier J. Jackson v Kelowna General Hospital (2006) 148 A.T.). La preuve civile. After he was discharged and subsequently consulted a neurosurgeon.W..C. He was immediately operated on by the defendant orthopaedic surgeon who. (3d) 807 at .21 the standard of proof that Qu´ bec civil law e inherited from the common law. “L’inﬂuence du droit francais sur le droit de la preuve au Qu´ bec” in H.S. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .M.424 et seq. paras 43. (4th) 513. O’Grady v Stokes (2005). interpreted as rejecting risk-increase as the ground for a binding inference. although aware of a suspected fracture of the T7 vertebra. concluded that it was either stable or benign and would not impede his ability to operate. as here.R. L.P. these statements can be. St-Jean v Mercier was thereafter accepted as authoritative by the lower common law courts which have accordingly rejected risk-based full recovery.R. 48. Glenn ¸ e (ed. Morissette.L.2849 of the Civil Code of Qu´ bec. was inﬂuenced by considerations particular to the Qu´ bec e 21 St-Jean v Mercier (2002) 209 D.
French doctrine and case law have long acknowledged the existence of judicially created legal presumptions of causation. Judicial presumptions must consequently be based solely on inductions from the individual factual circumstances of each particular case. binding on the courts. (2008) 124 L. Against: L. the House of Lords has allowed for some striking exceptions.N. despite the common origin of their respective civil law principles. “From Presumptions of Fact to Presumptions of Causation: Reﬂections on the Perils of Judge-made Rules in Quebec Medical Malpractice Law” (2001) 32 R. In February 2007. French courts rely on such reasoning less than on the loss of chance technique. –. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .27 gave some indication that causation could be found based on negligent risk creation where it is impossible to prove it under the but-for test due to factors outside of the plaintiff’s control. 24 Art. Meanwhile. 240. pp.25 It is conceivable that the decision in St-Jean v Mercier was motivated by a desire to protect the integrity of the civil code by refusing to grant those judicial powers characteristic of the common law.5.1350 C. such as absence of scientiﬁc knowledge. although the predominant position in the United Kingdom has been to reject this approach.R.C.207–211.L.Q. only a legislative text can create a “legal” presumption..24 Consequently. Kouri.26 The Supreme Court’s conservatism is thus not shared by the jurisdiction that has inspired most of its civil law principles. as well as the notions of cumulative and alternative causation: at . 25 R.U. (4th) 643. a technique that raises no conceptual difﬁculties in the common law.R.P.R. 27 (2007) 278 D. (4th) 643 at .2847 C. 26 Khoury. in the problematic decision of Hanke v Resurﬁce Corp. at Ch. including those based on risk increase. the Supreme Court of Canada. Qu´ bec orthodoxy in this area is in e clear contrast with the expansive approach taken by French law. The Supreme Court’s insistence on an orthodox application of traditional civil law principles may actually be explained by two elements: its desire to protect the integrity of Qu´ bec civil law from the inﬂuence e of common law techniques. as well as its understanding of the civilian judiciary’s creative role. which came too late for full discussion here.25 above. According to the Qu´ bec (as well as the French) e civil code. however. Uncertain Causation in Medical Liability (2006). This decision.S. 124 civil law tradition.L.. This militates against a too hasty treatment of this decision as authoritative for common law jurisdictions.D. 28 (2007) 278 D. Art.Q.28 It is thus now unclear what the position of the highest Canadian court is with regard to ﬁndings of causation based solely on negligently increased risk in the face of causal uncertainty.108 Law Quarterly Review [Vol. fn. one author argues that the civilian judge’s power to draw factual presumptions does not include the drawing of presumptions deduced from general pre-determined postulates. 213 at 237. is open to criticism since it confuses the concepts of material contribution to the injury and material increase of risk: at . Khoury. Interestingly.
originated from a single source.  S. Rev.29 Based on these decisions. the employer. result in mesothelioma 29 In Canada. Stapleton.Q. 241 at 241.g. the three claimants contracted mesothelioma after several years of service under different employers. Fairchild did extend McGhee’s application to a greater variety of causal difﬁculties since it involved a very different set of facts. 32 See fn. unknown whether the employer’s wrongdoing—not providing showers on the work premises—participated at all in causing the disease. 1. In Fairchild v Glenhaven Funeral Services Ltd.L. “‘Loss of a Chance’ Revisited: Gregg v Scott” (2003) 66 M. 33 E.R. Beyond these situations. the risk agent. Therefore.R. during which they had inhaled asbestos ﬁbres.31 After Wilsher. (2008) 124 L. It was.4 Environmental L. In McGhee. problems of identiﬁcation of the culpable wrongdoer may be dealt with by reversing the burden of proof of causation in accordance with Cook v Lewis  1 D. the employer. the authority of Wilsher prevails and English orthodoxy is maintained in cases where distinct risk agents operate alternatively to cause an injury. “Toxic Torts—a Landmark Decision” (2002) 4. in Fairchild.g. asbestos) is known to be in a causal relationship with the ultimate damage (e. Peel. 34 It seems that there was also environmental exposure in this case. lung cancer)30 .R. was responsible for both innocent (not wrongful) and guilty conditions which could equally have been the cause of the disease..J. Moreover.JANUARY 2008] UK common law Causation and Risk 109 Prior to the recent House of Lords decision in Barker v Corus (UK) Plc. but need not. brick dust.7 above. 30 A. compensation of industrial diseases is dealt with under Workers Compensation Schemes only.C. and this essentially for policy reasons. 623 at 628.L. (ii) the risk agent originates from different sources which are all under the control of one or several negligent defendants. however.34 Though mesothelioma is clearly caused by asbestos. increase of risk may ground a ﬁnding of liability if: (i) the risk agent (e. the process by which inhaling a ﬁbre can.R. However. Layard. 276 at 281. “Lords a’Leaping Evidentiary Gaps” (2002) 10 Torts L.33 By contrast. McGhee’s increase of risk reasoning was maintained only in well-deﬁned and restricted circumstances involving industrial diseases litigation. 31 This limitation has particular importance in the area of medical malpractice. all the cases in which the House of Lords relied on risk assessment to face causal uncertainty were instances of industrial diseases involving difﬁculties in identifying the culpable wrongdoer in a situation of alternative causation. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . but that was ignored by the court: J. the House of Lords indeed repeatedly reiterated its attachment to the traditional approach in alternative causation cases involving distinct risk agents. since the injury could still have resulted from contact with brick dust despite the availability of showers.32 the House of Lords restricted McGhee to cases in which the connection between the risk agent and the injury could be demonstrated. a single source. 830. and (iii) there are no other alternative causes aside from the defendants’ negligent actions.
42 At  (Lord Hoffmann).V. Godleski. See also Lord Hoffmann: at . and creating a risk from 35 J. fn.J. genetic predispositions. thereby satisfying at least some element of the causal connection. McGhee’s material increase of risk test was interpreted as an adaptation of the orthodox test of causation to the demands of justice which required that the pursuer be provided with a remedy. 39 At . 38 At  (Lord Nicholls).35 Therefore.7 above. Pass.  and  and Snell v Farrell. “Genetics of Malignant Pleural Mesothelioma: Molecular Markers and Biologic Targets” (2004) 14 Thoracic Surgery Clinics 461 at 461.110 Law Quarterly Review [Vol. See also at  and  (Lord Hoffmann). Zellos and D. Biologic Behavior. (2008) 124 L.41 The Law Lords were wary of encouraging unwarranted extensions of risk-based causation in tort law. Although one of the negligent defendants undoubtedly caused the plaintiff’s injuries. 124 is unknown. medical evidence could not say whether any particular exposure to asbestos dust at any particular time caused the plaintiffs’ disease. M. 37 Fairchild v Glenhaven.36 McGhee was described alternatively as a variation to the ordinary approach to causation. and the SV40-contaminated polio vaccines administered to millions of people in the late 1950s and early 1960s in the United States and Europe: K.  (Lord Rodger).5 above. Against: Lord Hutton. Lord Rodger’s list of conditions is particularly illuminating.43 It demonstrates that Fairchild is applicable to only two types of situations: (i) where damage is proven to originate from one single agent emanating from the misconduct of at least one identiﬁed defendant. H.  (Lord Rodger). L. fn. 40 At – (Lord Bingham). Gordon. “Role of Asbestos in Etiology of Malignant Pleural Mesothelioma” (2004) 14 Thoracic Surgery Clinics 479 at 479 and 482. “Epidemiology.37 as a different and less stringent test of causation. Bueno and G.  (Lord Nicholls). The House of Lords nevertheless extended McGhee’s reasoning and found all of the defendants liable for the whole of the plaintiffs’ damage. at  (Lord Bingham). However. Shah. 41 At  (Lord Hoffmann).38 and as treating material increase of risk as sufﬁcient to satisfy the causal requirement.C.Q.  (Lord Hutton). at  (Lord Bingham of Cornhill).J. Lord Hutton ultimately defends the view that McGhee’s inference should be considered legal. the Law Lords’ were inﬂuenced by policy factors. Bocchetta and M.42 Lord Hoffmann and Lord Rodger of Earlsferry limited its application by imposing strict conditions. “Evidence of an Important Role for SV40 in Mesothelioma” (2004) 14 Thoracic Surgery Clinics 489 at 489. it was impossible to attribute the cause to any one of them.  (Lord Nicholls).   (Lord Rodger).39 In reaching their decision.7 above..  (Lord Bingham).40 as well as by the fact that it had been established that the plaintiffs’ disease was caused by exposure to asbestos. and – (Lord Rodger). 43 At –. “Causality of Mesothelioma: SV40 Question” (2004) 14 Thoracic Surgery Clinics 487 at 487. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . and Natural History of Mesothelioma” (2004) 14 Thoracic Surgery Clinics 469 at 469 and 471.I.R. Lord Bingham admits that his approach or that of drawing legal or factual inferences do not result in much practical difference in this case. R. Most Lords rejected the factual inference interpretation in cases where medical experts’ opinion did not support them: at  (Lord Bingham). Against: Lord Bridge in Wilsher who treated it as grounding an inference: at  (Lord Bingham). fn. Christiani. not factual: at . and  (Lord Hoffmann). 36 Fairchild v Glenhaven. at . Carbone. Other suspected co-carcinogenic causes include radiation therapy. on the ground that each of them increased the plaintiffs’ risk of injury.
45 J. It also recognised that liability without proof of causation may exist for policy reasons. Legal Stud.R. fn. causation ﬁndings based on risk increase would not be found in all alternative cause cases where the background risk originates from a cause foreign to the defendant. thereby allowing recovery in proportion to the risk created by each defendant.47 Indeed. “The Raising of Lazarus: the Resurrection of McGhee v National Coal Board ” (2003) 7 Edinburgh L.R.44 Hence. This last aspect of the case is discussed in section III. limiting their liability to the extent of that contribution would come close to treating the injury as the loss of a chance. Indeed. liability for the damages was not apportioned in Fairchild on the basis of the extent of the defendant’s contribution to the risk.  2 A. 80 at 81. particularly those cases of alternative causation involving a non-tortious cause in which the exact agent of the damage is unidentiﬁable and might have ﬂowed from disparate risk sources. 47 Khoury. 176 at  (Lord Hoffmann).JANUARY 2008] Causation and Risk 111 which the damage materialises (Fairchild ). (2008) 124 L. at 299 and text between fnn. although still necessitating that all alternative causes be linked to the same risk agent. Had they done so. such apportionment might have been problematic since it would amount to indirectly accepting a form of risk-based proportional assessment of damages which was yet to be admitted by the House of Lords. 48 See also Fordham. Against: M.25 above. fn. Medical cases are for the most part governed by such causal mechanism. relying on Fairchild ’s approval of Wilsher. and  (Lord Hutton).45 above.Q. Stapleton. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . Fordham. The Law Lords also conﬁrmed Wilsher’s continued governance of cases not falling within the circumscribed exceptions.46 Fairchild is one exceptional case in which the House of Lords allowed a risk-based assessment to ground full recovery.48 Barker v Corus (UK) Plc was to break down many of the above limitations in May 2006.C.Q. and not attributed to anyone’s negligence. 44 At  (Lord Bingham). Rev. and (ii) where the different possible negligent and innocent causes of the damage involve an identical risk agent originating from only one defendant (McGhee). but this was essentially because the defendants did not request it.45 This was conﬁrmed in the 2004 House of Lords decision in Gregg v Scott. “Causation in the Tort of Negligence—a Dispensable Element?”  Singapore J. 388 at 398. dissenting on other grounds). Hogg. since the defendants’ contribution in Fairchild was to the risk of injury. It extended McGhee and Fairchild beyond those cases in which the alternative causes were tortious acts by several defendants (Fairchild ) or the wrongful and non-wrongful acts of one defendant (McGhee). “Cause-in-Fact and the Scope of Liability for Consequences” (2003) 119 L. 85. 285 at 298. it departed from the traditional House of Lords wariness of proportional recovery by accepting the redeﬁnition of the injury as an increased risk.61–66 below. Finally. 46  UKHL 2. See also at  (Lord Phillips. M..
also reinterpreted the mechanism through which liability is imposed. including the claimant’s employment under two negligent employers. However. Although its causal mechanism remains unclear. In his opinion. Lord Scott of Foscote agreed. operates in the same way50 ). 52 At  (Lord Hoffmann).. is always of the same nature (or. the authority of Wilsher remained intact since in Barker.9 above. 53 At .54 49 See fn. (2008) 124 L.49 Nonetheless. The causal agent (asbestos dust) originated from three different alternative sources. stating that liability was not found because the defendants’ breaches of duty had caused the mesothelioma—causation had actually not been proven—but because they had materially increased the risk that the employee would contract it. 51 At – (Lord Hoffmann). Lord Hoffmann.g. similar reasoning had just been applied in the informed consent case of Chester v Afshar (even in the absence of any evidence of increase in risk) although it could have been resolved under traditional principles. Fairchild and Barker can be distinguished because in Barker the third source of the risk agent was independent of the defendant employers’ conduct and outside of their control. Thus. in those alternative cause cases where there are several risk agents emanating from distinct tortious and non-tortious causes.112 Law Quarterly Review [Vol. .51 Besides further extending risk-based liability. as in McGhee and Fairchild. at .  (Lord Rodger). Legal Stud. the claimant in Barker died of asbestos-related mesothelioma. at  (Lord Nicholls). fn. . traditional principles still apply. although originating from various sources. Lord Hoffmann stated that the material increase of risk concept could extend to cases in which there is a non-actionable source of risk.Q. Only Lord Hoffmann expressly refused to proceed on that basis: Fairchild v Glenhaven. this interpretation is subject to criticism since most of the Lords agreed in Fairchild that McGhee’s increase of risk test constituted a less stringent test of causation: e. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . 246.9 above. it established a way to impose liability without causation. the agent of the risk. 54 L. Khoury. As raised by Lord Rodger at .R. It was Barker’s contributory faulty exposure to asbestos dust while self-employed. at  (Lord Hoffmann). 124 As in Fairchild. writing the main majority decision. “Chester v Afshar: Stepping Further Away from Causation?”  Singapore J.53 Barker’s imposition of liability without evidence of causation was not entirely new to the House of Lords.7 above. a risk created by someone who is not a wrongdoer in relation to the injured person. one of which was bankrupt and without an identiﬁed insurer. See also Lord Walker’s more ambiguous position: at . at – (Lord Hoffmann). Fairchild did not proceed upon a ﬁction that a defendant who has created a material risk of mesothelioma is deemed to have caused (materially contributed to) the plaintiff’s disease. 50 See fn. mesothelioma was treated as involving an alternative causal mechanism since it is thought that even a single ﬁbre can trigger the disease.52 Rather. in the words of Lord Hoffmann.
La responsabilit´ m´ dicale e e e (1977).7. For instance. This was because the court was of the opinion that liability in the absence of causation can not fairly exist unless it results in proportional recovery of damages. or probabilistic increased-risk concept. J. “Damages: Assessment of Uncertainties” (1998) 13 J. or it represents the proportion of the chance to avoid suffering injury of which the defendant deprived the plaintiff.Q.. para. CA. the plaintiff may recover compensation for 40 per cent of the ﬁnal outcome. “L’indemnisation pour les chances perdues: une forme d’appr´ ciation quantitative de la e e causalit´ d’un fait dommageable” J.104.R. para.57 In these cases. or made the plaintiff lose a 40 per cent chance of avoiding an injury. 57 Chaplin v Hicks  2 K. para.59 But these classic cases must be distinguished from the more controversial instances that interest us here.58 above.L.I. sickness or disability—is not shown on traditional evidence and causation principles. Les obligations. para. such as according to each defendant’s risk contribution.C. I.R. Bor´ . Tacchini-Laforest. 1974. Droit civil. Aubert. To overcome this impasse. Vacarie.P.2620. “La perte d’une chance” (1987) 3 Revue de la recherche juridique 903 at 924. 59 J. Penneau. In these cases. if it is established that the defendant increased the risk that the plaintiff would suffer an injury by 40 per cent. II.C. Some examples are when a lawyer has caused the limitation period of his client’s claim to lapse56 or where a person has been prevented from participating in a beauty contest. Flour and J. “R´ ﬂexions a propos de la perte de chance” (1999) 142 Petites Afﬁches 7 at e ` 8.29. 56 Kitchen v Royal Air Force Association  1 W. 1 at 5.134. 58 J. This reasoning has long been accepted in the “classic” loss of chance cases in which the defendant’s negligence crystallises the plaintiff’s situation. Waddams. (2008) 124 L. the chance language is used to impose liability notwithstanding that causation between the defendant’s negligence and the plaintiff’s actual injury—for instance death. causation may be assessed with regard to an alternative head of injury. 2) Le fait juridique (1997).JANUARY 2008] Causation and Risk 113 Allowing liability to be imposed even in the absence of the traditional demonstration of the causal connection permitted the House of Lords in Barker to go one step further and grant proportional recovery.L. e fn. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . ABSENCE OF A TREND IN FAVOUR OF RISK-BASED PROPORTIONAL RECOVERY Generalities Proportional recovery55 regards exposure to risk and lost chances as actual injuries worthy of redress.M. This amount reﬂects the risk created by the defendant and the damage suffered by the plaintiff as a result of that risk. the language of chance is used to assess the resulting injury58 by calculating not the value of the anticipated end result. preventing him altogether from seizing a chance. which is now deﬁned to be the lost chance of avoiding the 55 Also called probabilistic assessment of damages. V. S. 786. Bor´ . but the probability of its realisation.L. 563.B.
334 e at 335. Depending on the selected reference point.R. Stein and S. 271 at 295. D. fn. as an actual injury worthy of redress. while risk describes the probability of a negative outcome. chance or risk. also cited at: Bull.64 Others have also conﬂated chance and risk by stating that. e e (2008) 124 L. whether the injury is expressed in terms of a lost chance or an increased risk may not make any difference: the two approaches may coincide in their results. “Risk Exposure as Injury: Alleviating the Injustice of Tort Causation Rules” (1990) 35 McGill L. 125 at 149.33 above.M. In many cases. the calculation of the plaintiff’s damages may differ.14753 (note Savatier).9 above. 1965.II. p.T.g.J. “Perte de chance de gu´ rison par suite d’une erreur de diagnostic” (1963) R. a chance of which the defendant negligently deprived the plaintiff.C. at .J. “Negligence and the Chance of Injury” (1986) Professional Negligence 119.L. “The Idea of a Lost Chance” (1999) 19 O. Against: N.. Ren´ e Savatier.J. Law of Torts. Porat. at p. this will not always be so. civ. Peel. For example. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .62 Fleming has argued that loss of chance “has its mirror image in the proposition that exposure to risk should itself be compensable”.S.229. Gerecke.D.60 above. 1966. “Perte de chance en droit m´ dical francais” (1986) 32 McGill e e ¸ L. “Causation.541. This form of proportional recovery or apportionment is to be distinguished to that which takes place as between wrongdoers on the basis of their respective degree of fault as a corollary to the imposition of joint liability. This approach is found in some French cases. at 626.9 above.jur. R.L.Q. 750 at 786. 62 e.61 It seeks to compensate for the proportion of the risk of damage that the defendant’s negligence increased. Fleming.C.63 above. M´ meteau. civ. 667. it may be the result of a court’s decision to indemnify the plaintiff for the negligently increased risk he is now facing.T. Stauch. Nevertheless. fn. “Indeterminate Causation of Damages: an Essay on Holtby.J. J. Stauch.J. 797 at 801. “Le droit des chances et des risques dans les assurances. and Fairchild” (2003) 23 O. it is sufﬁcient to prove that the wrongdoing increased the risk of damage and that compensation 60 Another approach views proportional recovery as replacing the all-or-nothing balance of probability standard with a technique that calculates damages on the basis of a judge’s assessment of the ex post probabilities of existence of causation between the injury and the fault: A. While the doctrine and case law has most often illustrated the use of proportional recovery in the context of compensation for lost chances.L. at 223. Cohen. Savatier. Numerous judges and authors have recognised this duality of the phenomenon of proportional recovery.P. under the loss of chance argument. e.S.G. Jansen. Grenoble.114 Law Quarterly Review [Vol. at  and Lord Mackay in Hotson v East Berkshire AHA  1 A. However. it may actually be grounded in various other concepts.63 However. 9th edn (1998).D. C. both Fleming and French author. Risk and Loss of Chance in Medical Negligence” (1997) 17 O. 63 J. fn. not lost chance. fn. 61 D.G.60 Risk-based liability (or liability for risk) sees risk. G.J. civ. loss of chance and risk-based proportional recovery are but two species of the same phenomenon: proportional recovery of damages. Allen. 181 (note Durry). (1967) R. See also Lord Walker in Barker v Corus.g.453. Lewis. A. Lord Scott in Barker v Corus. 24 October 1962 (unpublished) commented on by A. note under Cass civ 1re. fn. distinguish the two concepts by stating that chance quantiﬁes the probability of a positive outcome. 64 Fleming. 1966. Savatier. See also M. 14 December 1965. la responsabilit´ civile dans la m´ decine et sa synth` se dans l’assurance de responsabilit´ m´ dicale” e e e e e (1973) 44 Revue G´ n´ rale des Assurances Terrestres 457 at 458.I.229.S. Tunc. 124 ultimate damage. 205 at 223. .
B. Rev.2004-024471. 1990. Durry. 1982. “Sur un probable revirement de jurisprudence en mati` re de r´ paration de la perte d’une chance de gu´ rison ou de survie” e e e (1983) R.02-13416.IV. Cass crim. JurisData no.jur. There is no trend in UK and Canadian common law favouring the use of proportional recovery. Although the House of Lords has not taken such a ﬁrm stand. the House of Lords has recently taken position in favour of proportional recovery based on the increase of risk line of reasoning. 1991.305.358: the increase of risk was too small to apply loss of chance. See also M. “Overcoming the Causation Hurdle in Informed Consent Cases: the Principle in McGhee v N. Civ.T. J. Resp. e e e e 66 This leads Robertson to argue that McGhee was concerned with loss of chance: G. 547 at 547. as a technique to by-pass causal difﬁculties. Against: Cass civ 1re.66 French courts have also recognised this parallel implicitly by sometimes compensating lost chances of cure or survival on the basis that the defendant doctor had. 17 November 1982.20056 (note Saluden)) commented on by G.I.Q.G. 1983.G. civ. commented on by P.L.n10.905. 75 at 90. 67 e. Cass civ 1re. Therefore.D. 71 at 73. 20 March 1996.somm. 912 (In France.g. “La perte d’une chance.P. Robertson.W.O. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . civ. increased the patient’s risks of suffering the injury which has occurred. July 6.II. 308 (note Dorsner-Dolivet). civ. Juris-Data no.65 By increasing the risk that the plaintiff would suffer the illness. Bull. Civ. (2008) 124 L. no. the approaches to loss of chance provide interesting points of reﬂection in addressing the validity of risk-based proportional liability in the common law.1998-043577. Hogg. D.C.283. Yet. “Expertise m´ dicale et causalit´ ” in Congr` s du Barreau du Qu´ bec (1992). either grounded on risk or chance. In doing so. J. p.L. a stand antithetical to the Canadian Supreme Court’s conservative position.JANUARY 2008] Causation and Risk 115 should be in proportion to this increase of risk. et ass. In fact. Jourdain. the House of Lords clearly introduced into UK common law very similar reasoning to the French Cour de cassation’s justiﬁcation of proportional recovery in the context of lost chances. 1996. 10 January 1990 and 5 February Bull.. “Lost Chances in Contract and Delict” (1997) S.comm.D. the Supreme Court of Canada has expressly rejected proportional recovery grounded in loss of chance language in alternative cause cases shrouded with causal uncertainty.R. Chamb´ ry. 1984.41. by his negligence. Jutras. 5 e February 2002. D. the defendant has in effect reduced the latter’s chances of avoiding the outcome that the risk portends. Toulouse ch. 1983.n333.P.67 There is thus enough commonality between the two types of reasoning to treat proportional recovery based on chance as the ﬂip side of proportional recovery based on risk.380. 29 June 2004.C.1.T. dommage par ricochet” (1996) R. D. the Canadian common law position on proportional recovery in light of causal uncertainty has been greatly inﬂuenced by a civil law decision rendered by the 65 D. the victim of a penal infraction who has sustained an injury may become a civil party to a penal trial). 1998.897 at p.” (1984) 22 U. Canadian common law As in the case of full recovery based on risk. quashed by the Cour de cassation on another question: Cass civ 1re. this court has failed to apply proportional recovery based on loss of chance in cases where it was clearly possible to do so.I. 1983.C.T.
Probabilities were to the effect that the deceased patient would not have survived. “Materially Increasing the Risk of Injury as Factual Cause of Injury: Fairchild v Glenhaven Funeral Services Ltd. Gonthier J. dissenting). in Canada” (2004) 29 Advocates’ Q.C. (4th) 235. however.R. In the 1991 case of Laferri` re v Lawson. when used in the medical context. Gonthier J. 69 Laferri` re v Lawson. However.15 above.68 It not only rejected the argument that loss of chance constitutes a simple redeﬁnition of the damage. at 605. manifesting itself in sickness or in death. Gonthier J. (iii) the chance has been realised and the damage has occurred. fn. On this case: J.70 Canadian common law courts thereafter treated this judgment 68 Laferri` re v Lawson. As an illustration.L. also considered the loss of chance analysis less objectionable when used to evaluate hypothetical or future damages where no other competing causal factor aside from the defendant’s negligence can be identiﬁed. he approached loss of chance with extreme caution in cases where there are serious doubts as to the defendant’s causal role because of other identiﬁable causal factors. in the medical context. 124 Supreme Court of Canada. it artiﬁcially bypasses the causation requirement. fn. e the Supreme Court rejected the use of loss of chance in medical liability cases involving absent or uncertain causation. Laferri` re involved a breast e cancer specialist who failed to inform his patient of a malignant lump in her breast and to arrange follow-up treatment. the damage has already occurred. considered compensation for lost chances admissible only in exceptional cases where the damage could be understood solely in probabilistic and statistical terms. 458 at 478.  3 S. the chance is not suspended. he referred to the classic example of the individual negligently deprived of a chance to participate in a lottery. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . Jones. Major J. it has already been realised. Thus. Cassels and C.Q. Bar Rev. This decision involved a cumulative causation mechanism. at 609–612 (LaForest J.69 Thus. and where it is impossible to evaluate whether or how the chance would have been realised in the plaintiff’s particular case.116 Law Quarterly Review [Vol. however. and. but also held that. a reduction of the damages would have been considered.15 above. with the future outcome remaining forever hypothetical. He did not reduce damages on the basis of the defendant’s contribution to the injury. Speaking for the majority. (2008) 124 L.R. He was also concerned with the fact that usually. as in the classic cases.’s decision epitomises a general rule that denies proportional liability where (i) other causal factors can be identiﬁed (in an alternative causal process). observes that if the trial judge had found the existence of a realistic chance that injury would have occurred at some point in the future without the accident. assessed at 25 per cent by the trial judge.. e 70 See also Athey v Leonati (1996) 140 D. 253. “Rethinking Ends and Means in Mass Tort: Probabilistic Causation and Risk-Based Mass Tort Claims after Fairchild v Glenhaven Funeral Services” (2003) 82 Can. Cheifetz. even had appropriate treatment been administered in time. The Supreme Court refused to compensate the plaintiff for the loss of a chance of getting treatment at an earlier stage. It granted damages for anguish e and frustration. 597 at 621 and 626–627 and D. (ii) there are serious doubts as to the defendant’s causal role in the face of these other causal factors.R.
UK Common Law The House of Lords’ attitude towards proportional recovery as the remedy for causal uncertainty is less categorical than its Canadian counterpart’s. However.JANUARY 2008] Causation and Risk 117 as authoritative despite the fact that it was analysed according to the rules of Qu´ bec civil law and was predominantly based on the critiques of e the French doctrine. But they simultaneously maintained a ﬁrm reluctance to extend its application to medical malpractice cases. the loss of which could be compensated in tort if foreseeable and proven on the balance of probabilities to have been caused by the defendant’s negligence. Meanwhile.72 Lord Mackay of Clashfern. 72 At 782 (Lord Bridge). the House of Lords actually avoided directly addressing the issue in that case. restricting it to its traditional application to the classic cases.Q. 73 At 792–793 (Lord Ackner). although it has demonstrated interest in proportional recovery on some occasions. The Law Lords avoided addressing the contention that a substantial. A negligent delay in treatment allowed for the development of avascular necrosis in the claimant’s left hip. 785 (Lord Mackay).. refused to resort to proportional recovery based on loss of chance in order to overcome causal difﬁculties in medical malpractice litigation. The medical evidence showed that it was likely the disability would have resulted anyway but that there was a 25 per cent chance that the claimant would have recovered had he been promptly treated. which arises only once such a link is established on the balance of probabilities. at 750. the Law Lords clearly allowed such recovery in the absence of causation. and Lord Bridge distinguished the determination of contingent future events from the determination of past events. Lord Ackner. some of which are detailed in section III. referring to risk justiﬁcation rather than lost chance.62 above. They preferred to focus on whether the claimant had demonstrated a causal connection on the balance of probabilities between the avascular necrosis and the defendant’s negligence. however. 793 (Lord Ackner). Lord Bridge 71 See fn. since the objections cited in the French doctrine regularly ﬁnd their source in many concerns relevant to the common law. the House of Lords has. Lord Ackner and Lord Bridge restricted the loss of chance concept to the valuation of damages. chance of beneﬁt or advantage is an asset. the House of Lords adopted a similar position.73 However. in the recent industrial disease case of Barker. (2008) 124 L. This incorporation may be justiﬁed. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . as opposed to a speculative. Never squarely rejecting the concept. stressing that the latter must be decided on the balance of probabilities.R. however. Although Hotson v East Berkshire Area Health Authority 71 is often cited as the authority for the rejection of loss of chance.
Gregg v Scott conﬁrmed the House of Lords’ reluctance to adopt loss of chance reasoning. –. 81 At . 80 At .81 Baroness Hale of Richmond distinguished Gregg from Hotson.74 As for Lord Mackay.46 above. 77 Gregg v Scott. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . He also raises practical difﬁculties in identifying in terms of percentage the effect that clinical negligence has on the chances of a favourable outcome: at . he drew a parallel between materially increasing the risk of injury and materially decreasing the chance of escaping injury. at .78 He considered the adoption of this possible. reduced the latter’s 10-year prospects of disease-free survival from 42 per cent to 25 per cent. (2008) 124 L. he was “doomed”. That was not the case here since the claimant’s prospects of being cured were less than 50 per cent at the moment of the doctor’s breach of duty. However.82 but she was also concerned with the consequences of adopting the loss of chance argument since. . in Hotson the plaintiff had no chance of avoiding the necrosis.118 Law Quarterly Review [Vol. 75 At 786 (Lord Mackay).Q. although several of the judgments comment favourably on the concept. but not where it was still prospective. inter alia. The defendant physician’s negligent misdiagnosis of a cancerous lump. since.76 Referring to the Qu´ bec civil law decision of Laferri` re e e v Lawson. the ﬁnal outcome was still prospective at the moment of the trial. in contrast with Hotson. 78 At –. where the adverse outcome has occurred.79 Lord Phillips of Worth Matravers was willing to concede to some application of the loss of chance doctrine. 82 At –. 124 admitted that sometimes. He was thus not ready to hold that loss of chance could never support a successful claim in damages until the House of Lords overruled McGhee. particularly in instances of medical negligence. although that was not the present case. fn. causation may be so shrouded in mystery that the court can only measure statistical chances. Lord Phillips and Baroness Hale agreed. which led to a nine-month delay in the claimant’s treatment.R. with Lords Nicholls of Birkenhead and Hope of Craighead even accepting it. almost any claim for loss of an outcome could be reformulated as a claim 74 At 782.77 Lord Hoffmann stated that the loss of chance principle has no application unless the ultimate damage can be clearly attributed to the defendant’s wrongful act.80 He also worried about the possible blow to the coherence of the common law “if special tests of causation are developed piecemeal to deal with perceived injustices in particular factual situations”.75 Seventeen years later.. 76 Gregg v Scott. by the time he ﬁrst presented himself at the hospital. In Gregg. so radical a change to the law as to amount to a legislative act better left to Parliament. 79 At  (Lord Hoffmann). rather than probable. causal link as the criterion of liability.
albeit under some restrictions. the House of Lords held that the necessary and fair corollary to the Fairchild decision which imposed liability based on negligent risk increase without actual proof of a causal link to the injury.85 He was ready to extend loss of chance to cases where the patient’s reasonable prospects of recovery from a preexisting illness or injury were fraught with a signiﬁcant degree of medical uncertainty. the House of Lords ﬁnally granted proportional recovery. and that denying him recovery in the second case would void the substance of the doctor’s duty to his patient.C. Lords Hope and Nicholls. Chester v Afshar  UKHL 41. However. 86 For these. CA which are not cited in Barker. Lord Hoffmann.JANUARY 2008] Causation and Risk 119 for loss of a chance of that outcome. which has materialised. justiﬁed it using reasoning long known to the French Cour de cassation and extensively applied in its loss of chance case law. 421. 134 (breach of a medical duty to inform). namely the issue of whether damages should be apportioned based on each defendant’s risk contribution. was caused by the particular defendant. This approach involves having to quantify the likelihood that the ultimate injury. He insisted that if the basis of liability is the wrongful creation of a risk or chance of causing the disease. Lord Nicholls contended that whether the prospect of recovery was above or below 50 per cent. writing the majority reasons supporting this conclusion.  1 A. and hypothetical events: see – citing Lord Diplock in Mallett v McMonagle  A. at  and – (Lord Nicholls) and – (Lord Hope). . was resolved positively in Barker v Corus (UK) Plc. they would have granted damages for loss of chance despite also distinguishing Hotson.R.87 Refusing to impose joint liability (solidary liability) on the defendants. these cases involved cumulative causes. On these cases see Porat and others. Chester v Afshar. CA and Allen v British Rail Engineering Ltd  I.. The question left unresolved by Fairchild. fn.C. Recovery in proportion to each defendant’s contribution to the injury had previously been granted by the Court of Appeal in Holtby v Brigham & Cowan (Hull) Ltd  3 All E. rather than a lost chance. cf.84 Among other arguments. 83 She was also concerned that nothing would prevent this approach from being extended to medical negligence: at  and that the coexistence of loss of chance and the all-or nothing rule as alternatives would have substantial implications: at . 85 At –. (2008) 124 L.88 Interestingly. especially when applied to hypothetical events: at –. cf.86 In May 2006. fn. 87 See fn. future possibilities.R. 942.83 As for the dissenting judges. then “the damage which the defendant should be regarded as having caused is the creation of such risk or chance”.R. was to apportion damages based on the extent of each defendant’s contribution to the risk. 88 At  (Lord Scott): Fairchild is perhaps an anomalous exception to causation principles necessitating consequential adjustments to other principles of tortious liability. the patient had lost something of value. 84 At  (Lord Nicholls) and – (Lord Hope). Part of Lord Nicholls’ reasoning is also based on the distinction between past events. where the degree of exposure was considered to impact on the gravity of the injury. 166 at 176.C.60 above. although it was for a negligently increased risk. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . see Gregg v Scott.9 above.85 above. although he is critical of it.Q.
the defendant was liable for causing mesothelioma.120 Law Quarterly Review [Vol. 98 At . 99 At .90 to be calculated by taking into account the duration of the exposure.91 as well as its intensity. in order to “smooth the roughness of the justice which a rule of joint and several liability creates”.  (Baroness Hale).98 Lord Scott argued that while Fairchild did not establish an overarching principle in the law of tort.99 there was no conceptual objection to treating the diminution of the chance of a favourable outcome or the increase of the risk of an unfavourable outcome as actionable damage. 91 At  (Lord Scott).  (Lord Walker). 96 At . However. In other words. she arrived at the same conclusion as did the majority in relation to apportionment based on risk contribution on the ground that there should be a logical connection between the law’s approach to “causation” and its approach to the extent of liability.R. not for causing the risk of mesothelioma.Q. 93 At . the damage was mesothelioma.89 Lord Walker of Gestingthorpe agreed that the damage must be apportioned according to each defendant’s contribution to the risk. 124 as is done in classic loss of chance cases.92 Baroness Hale disagreed with the approach that describes the gist of the claim as the risk of contracting mesothelioma. 97 At . This reference to causation appears erroneous if one considers that Baroness Hale agrees with Lord Hoffmann’s reasons. Lord Hoffmann was careful to protect the Gregg v Scott precedent and refused to extend the Barker approach to medical malpractice cases. 89 See fn. not the risk of causing it.95 For Lord Hoffmann. . JANUARY SWEET & MAXWELL AND CONTRIBUTORS . 92 These factors demonstrate that proportional recovery based on risk may lead to results different from that based on lost chances. 95 At –.9 above.. Lord Walker agreed on the basis that “such an extension would lead to a great uncertainty in a large number of clinical negligence cases”. at –.96 Lord Walker also insisted on the need to reduce the unfairness to an employer caused by burdening him with liability for an injury which may not in fact have been caused by the exposure for which he was responsible.97 Regardless of their different approaches. noting that in Fairchild. See also . 90 At . (2008) 124 L. the decision was taken for policy reasons. 94 At .93 Lord Rodger also dissented on the characterisation of the injury. He nevertheless expressed concerns about the possible extension of Fairchild to all cases of medical negligence.94 Preoccupied with maintaining the consistency of the Fairchild approach with the main body of law on personal injuries. the Law Lords all insisted on the exceptional nature of the liability found in this case. he also dissented on the question of apportionment and objected to treating an increase of risk as the injury.
101 At .3(3). rather.JANUARY 2008] Causation and Risk 121 if not beyond.R. The defendant(s) providing payment may thereafter seek a ﬁnding of contributory negligence or contribution from other responsible persons calculated in proportion to the length of the periods of exposure or on some other basis (s. (2008) 124 L. defendants will be held jointly and severally liable for any contribution to the claimant’s risk. but the source of the culpable ﬁbre is unknown. proportional damage assessment is premised on the reasoning that a lost chance may constitute a valid head of damage independent of the ultimate injury suffered by the plaintiff.100 He consequently restricted the application of proportional recovery to cases in which only a single injurious agent is involved101 . as adopted in Barker. III. However. (4)). the reluctance to establish new generalised tort principles. even where such injury has been realised. Despite a similar redeﬁnition of the injury. limitations on the extent of Barker’s application are based on the fear of creating uncertainty in the law. and the desire to maintain the authority of Wilsher. As demonstrated above. the House of Lords judicial acceptance of proportional recovery is so narrowly restricted that one cannot identify a general inclination in its favour. The Act allows a return to the Fairchild principle with the result that in the McGhee-Fairchild-Barker mesothelioma situations.Q. allowing the latter to recover 100 per cent of his injury against any defendant which is in front of the court (s. in cases where it is known that asbestos caused the injury. The relevant sections of this Act came into force on December 1.103 This reversal was not intended to act as an opposing stance to proportional recovery as such. which would create inconsistencies with Wilsher. THE FRENCH EXPERIENCE WITH PROPORTIONAL RECOVERY Comparisons between Barker and the French case law demonstrate that the French Cour de cassation has previously and systematically accomplished much of what the House of Lords attempted in Barker. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . 103 Compensation Act 2006.. Therefore. and its related policy implications. 2006. Moreover. for example. the French approach to proportional recovery appears to be conceptually superior to that of Lord Hoffmann in Barker. since the reasoning in Barker can be paralleled with the French Cour de cassation’s treatment of proportional liability over the past 40 years. French law has managed to 100 At . the approach adopted in Barker still opens the door to a larger debate on the admissibility of proportional risk-based liability. It simultaneously serves a cautionary tale against the use of such reasoning. despite this recent legislative measure. In France. the extensive French experience can operate as a remarkable guide in assessing both the validity of the concept. 102 At . The UK statute that reversed Barker reinforces this conclusion. it was based on Parliament’s desire to maintain full recovery for victims of mesothelioma.3(2)).102 Thus. a case which did not resort to the loss of chance doctrine even though the defendant did in fact deprive the patient of the chance to avoid injury.
redeﬁned as the lost chance.106 The Cour de cassation has applied this 104 G. (ii) maintaining the orthodox requirement of causation by insisting that the plaintiff prove with certainty that the defendant’s fault caused the injury. Comp. 106 Couturier. 2005. dir. critics of the French approach have been emphasising for several decades that affording compensation for this alternative head of damage introduces several conceptual difﬁculties.122 Law Quarterly Review [Vol. 18 March 1969 (2008) 124 L. French law shows no concern for distinguishing between past facts and future eventualities and easily extends this reasoning to cases involving uncertain alternative mechanisms. Viney and P. 105 See fn. K.C.somm. 124 maintain a traditional assessment of causation.I.).G. It has also used the loss of chance technique in cases where the defendant’s fault is characterised either as having destroyed a chance previously held by the plaintiff. p. and (iv) granting “partial” recovery calculated in proportion to the chance lost. D. This loss can be compensated if the opportunity’s destruction is found to have been caused by the defendant’s fault. Clermont and E. The French judicial acceptance of proportional recovery Proportional recovery based on the loss of chance concept is the French Cour de cassation’s preferred tool for dealing with causal difﬁculties which arise often due to the French law’s stringent standard of proof of requiring of certainty in the causal link. See also. However. Cass civ 1re.M.. 1989. D 1991. J. (iii) restricting the extension of this reasoning by requiring that the ultimate injury has manifested itself and that the chance lost be “real and serious”. Ghestin. Lagarde.294. 1991. “Finalit´ s et principes du droit de la preuve” J.somm.P.IV.P.323). Trait´ de droit civil. 243 at 250.362. when it has increased the risk of injury to which the plaintiff was already subject before the negligent act occurred. para. e. 1991.323.g. less frequently. As a result of this redeﬁnition of the plaintiff’s damage as the lost chance of avoiding injury. Sherwin. Les conditions de la responsabilit´ . X. France’s highest court has applied this reasoning extensively in instances of medical liability and beyond.Jur. 7 June 1989.104 Perhaps it is in reaction to the severity of its evidential rules that French law often surmounts causal difﬁculties by (i) redeﬁning the injury as the loss of a chance. L.67 above. e e 2nd edn (1998).R.105 The Cour de cassation decisions characterise loss of chance as an independent type of damage which results from the loss of an opportunity either to realise a beneﬁt or to avoid an injury.Q. as well as. The Cour de cassation does so by insisting that causation between the defendant’s negligence and the plaintiff’s lost chance of avoiding an injury—or increased risk of suffering an injury—that eventuated be demonstrated. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . Jourdain (J.C. note under Cass civ 1re.771 e at 777.158 at 159 (also reported at D. as a means of addressing difﬁculties with which plaintiffs contend when proving causation in the face of uncertainty. J. as the House of Lords should have considered. “A Comparative View of Standards of Proof” (2002) 50 Am.
Cass civ 1re. Cass civ 1re. Cass crim. 1981.IV. Cass civ 1re. Cass civ 1re.116. note under Cass civ 1re.106 above.111 or the certainty of its existence.315. fn.C. p601. D.P. diagnosed his dislocated elbow. 12 November 1985.17643 (note Savatier). D. J.251.C.n98. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .108 above. fn. Cass civ 1re.60 above.106 above. Cass civ 1re.P.I.P.C.60 above. Cass civ 1re.C. 4 November 2003.C. 27 March 1973. Cass civ 1re. 1972. Bull. 108 e. 1986.113 Proven absence of causation between the actual injury and the fault is said to automatically exclude causation between and 27 January 1970.108 Losing a chance of recovery is characterised as a form of damage in its own right. Cass civ 1re. 9 May 1973. 11 October 1988. fn. J.somm. J. many decisions of the highest court compensated for lost chances. 8 January 1985. Cass civ 1re.P. fn. Cass civ 1re. fn. 1974.534 (note Penneau). 1973. 25 May 1971 (1re et 2e esp` ces).109 the redeﬁnition of the damage as a lost chance allows granting full recovery. 25 May 1971 (1re et 2e esp` ces).G. 18 January 1989 D.212.JANUARY 2008] Causation and Risk 123 reasoning both to cases where the injury was of an economic nature and to those where it consisted of bodily injury. It granted recovery for loss of chance in a factual context very similar to that of Hotson as early as December 14.P. 111 A.G.P. But it was only after drawing a factual presumption of causation between the injury suffered by the child and the defendant’s misdiagnosis that the Cour de cassation used the loss of chance language to characterise the injury suffered.n9. 15 June 2004.42 (Konstantinow v Manrique).II. 18 March 1969 and 27 January 1970. Cass civ 1re. Cass civ 1re. the uncertainty of the causal link between the fault and the ultimate injury suffered in the form of sickness. Cass civ 1re.67 above). 1976. 1981. 1973. 1985.IV. Civ.595 (note Penneau).18966 (note Savatier). Although the compensation is a fraction of what would be awarded for the ﬁnal outcome suffered. independent of the ﬁnal outcome suffered. 21 November 1978.II.106 above. Cass civ 1re. 10 January 1990.jur. Cass civ 1re. Civ.I. 112 Couturier. Bull. Civ.II.n298. D.19033 (note Savatier). Dorsner-Dolivet. Cass civ 1re.315. Bull. 1989.II.g.106 above.II. Cass civ 1re.C.631 (note Doll). See also Grenoble.39 (note Penneau). 20 March 1996. J.G.106 above. J. Cass civ 1re.I. 7 June 1989. 18 January 1989.110 However. Cass civ 1re. 107 See fn.C. 16 July 1991. 1978.114 below. 24 March 1981. Juris-Data no.P. 10 January 1990. 9 May e 1973. and in a timely fashion. Cass civ 1re. at 160.18483 (note Savatier). 2 May 1978. J. 16 July 1991. through presumptive reasoning or otherwise. 24 October 1962. 24 March 1981. Pal.108 above.C.G.024201. fn.67 above (note Jourdain). 1 June 1976. e. fn. fn.G. D. Cass civ 1re.C. 1981.21947 (note Dornser-Dolivet) (breach of the duty to inform). Gaz. 1971. the Cour de cassation has insisted that loss of chance can only be used to qualify the injury and rules it out where the evidence demonstrate the absence of a causal link between the fault and the ﬁnal injury. fn. (2008) 124 L.n299 (Germain v Estragnat) and Bull.107 In this case.Q. 2004.16859. n 106 above.106 above. 1973.545 (note Penneau). Gaz. 113 See also Bernfeld. J. fn.G. Cass civ 1re.R. D. disability. at  and the following.C.106 above. fn. D. 1974. Pal. 1978. even doing so without addressing. fn. 2 May 1978. 8 January 1985. 1992.46. J. 27 March 1973.2.106 above. Cass civ 1re.G.II.P.P.II. e 1971. 7 June 1989. 1970.g.n170.108 above.67 above. Cass civ 1re. 1985.jur.I.somm.somm. Cass civ 1re. 1965. Cass civ 1re. fn.G. Civ. 17 November 1982. or death.g.16422. fn.. 1971. J. fn. the lower court’s experts expressed doubts as to whether the plaintiff child could have avoided the injury had the defendant doctor correctly. Cass civ 1re.g.II. fn. fn. 109 e.112 on an application of the ordinary certainty standard.G. D. Subsequently. 25 May 1971.P. 1986.17643 (note Savatier). 110 e. D. J. 1989. note under Cass civ 1re.Jur. 17 November 1970. 1979. Cass civ 1re.Jur. n 67 above.146 above. 12 November 1985.
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the fault and the lost chance.114 These decisions can be interpreted as conﬁning the function of loss of chance to its classical role of deﬁning the damage115 and as underscoring that the concept should not be used to bypass the clear absence of causation between the ﬁnal injury and the defendant’s fault.116 However, distinguishing loss of chance as a head of injury from its use as a means to facilitate the plaintiff’s proof causation is not always straightforward; in fact, redeﬁning head of injury as the lost chance necessarily has the effect of lightening the plaintiff’s burden of proof in demonstrating causation. The French courts have extended the loss of chance reasoning to several areas. For instance, it is used in informed consent cases to afford maximum protection to the patients’ autonomy and right to choose by allowing the patient to be compensated for his lost chances to make a different therapeutic choice or to refuse a procedure.117 This approach allows the French courts to ignore the causal uncertainty about what exactly the plaintiff would have done had the risk been revealed. It is also used more generally to respond to all cases where a professional has breached his obligation to inform.118 Risk-based proportional recovery and the French doctrinal critique By ensuring that the award of damages is calculated in proportion to the increased risk, the chance lost, or the possibility that the defendant actually caused the plaintiff’s injury, the proportional recovery technique overcomes the unfairness of the traditional evidential and causal principles. Victims can obtain damages despite causal uncertainty, and the defendant, held liable only to the extent that he is shown to have contributed to the risk of injury or to have destroyed the plaintiff’s chances, is not forced to shoulder an unmerited burden.119 In the common law, proportional recovery also eliminates the conceptual tension between accepting full recovery based on risk increase and simultaneously resisting the loss of
114 e.g. Cass civ 1re, 2 May 1978, fn.106 above; Cass civ 1re, 17 November 1982, fn.67 above; Cass civ 1re, 12 November 1985, fn.106 above; Cass civ 1re, 11 October 1988, Bull. Civ. 1988.I.n281; Cass civ 1re, 10 January 1990, fn.67 above. 115 M´ meteau, fn.63 above, at 141; G. M´ meteau, “Perte de chance et responsabilit´ m´ dicale”  e e e e Gaz. Pal. 1367 at 1370; Durry (1983), fn.67 above, at 548; C. M¨ ller, La perte d’une chance (2002), u para.108. 116 Durry (1983), fn.67 above, at 547; Dorsner-Dolivet and Saluden’s notes under Cass civ 1re, 17 November 1982, fn.67 above. For a more detailed account of the French approach to loss of chance: Khoury, fn.25 above, at Ch.4. 117 e.g. Cass civ 1re, 7 February 1990, Bull.I.n39 at 30; Cass civ 1re, 16 July 1991, fn.108 above; Cass civ 1re, 7 December 2004, Bull.I.n302, p.253; Cass civ 1re, 14 June 2005, Juris-Data no.028962. See also, M¨ ller, fn.115 above, at  et seq., particularly cases cited at fn.1740. Cf. Chester v Afshar, u fn.85 above. 118 M¨ ller, fn.115 above, para.429. u 119 R. Goldberg, “The Role of Scientiﬁc Evidence in the Assessment of Causation in Medicinal Product Liability Litigation” in H. Reece (ed.), Law and Science (1998), p.55 at p.59.
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chance approach.120 This is particularly hard to reconcile since rejecting compensation for a lost chance arguably constitutes a refusal to grant compensation for the fact that the defendant’s negligence has merely increased the plaintiff’s risk of injury.121 Barker resolves this difﬁculty by treating proportional recovery as a corollary to liability based on risk increase in cases involving causal uncertainty.122 Besides for these positive impacts, the strongest argument in favour of proportional recovery is the contention that loss of chance or increased risk are valid types of damage, independent of the ultimate loss, i.e. the beneﬁt missed or the injury that was not avoided.123 As Lord Hoffmann noted in Barker, there is a ﬁne line between accepting that increase of risk reasoning may ground a more generous approach to causation, and assimilating increase of risk to a compensable head of damage. Although Barker never developed this argument, deﬁning increase of risk as a type of injury may allow the liability analysis inquiry to fall within the traditional framework, since causation must still be proven between the lost chance or increased risk and the wrongdoing, whether on the balance of probabilities or with certainty.124 Moreover, once this causal link is demonstrated, the loss calculated based on the statistical chance of its realisation is payable in full and there is no reduction for the possibility that the chance might have been lost through the operation of other causes.125 This approach, which has been adopted predominantly in French law, is prima facie compelling because it allows for apparent conceptual validity of the notion and conformity with the rules of civil liability. However, Barker’s characterisation of increased risk as a valid head of injury is not without conceptual problems. It deserves to be assessed in the light of the French civil law’s 40-year-old loss of chance debate. Despite its wide judicial application, the approach that redeﬁnes the injury as the lost chance has been extensively critiqued by French commentators.126 Their criticism is predominantly based on the fact that this alternative head of injury is not truly distinct, as its calculation is always contingent on applying the percentage of the lost chance to the
120 Porat and others, fn.60 above. 121 See text accompanying fnn.62–66. 122 This was noticed by Lord Mackay in Hotson v East Berkshire AHA, fn.62 above, at 786. 123 Stapleton, fn.1 above, at 392–393, 396–397; Jansen, fn.63 above, at 274 and 282; Gerecke, fn.61
above, at 802; G. Durry, “Faute m´ dicale et perte de chances de survie” (1972) 70 R.T.D. civ. 408 at e 410; A Tunc, “Perte d’une chance de gu´ rison par suite d’une erreur de diagnostic” (1963) 61 R.T.D. e civ. 334 at 335; Bor´ , fn.58 above, at para.38. e 124 F. Descorps Decl` re, “La coh´ rence de la jurisprudence de la Cour de cassation sur la perte de e e chance cons´ cutive a une faute du m´ decin”, D. 2005.p.742 at 746. e e ` 125 Stapleton, fn.1 above, at 396–397. 126 e.g. F. Bouvier, “La responsabilit´ m´ dicale” Gaz. Pal. 1984.doctr.284 at 288; Penneau, note under e e Cass civ 1re, 27 March 1973, fn.108 above, at 597; Dorsner-Dolivet, note under Cass civ 1re, 17 November 1982, fn.67 above, at 306; M´ meteau (1986), fn.63 above, at 145. e
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quantum of damage relating to the ﬁnal injury.127 It is argued that the ﬁnal injury, when it occurs, “absorbs” the intermediate head of damage (pr´ judice interm´ diaire) that loss of chance represents, so that when e e damages for a lost chance are granted, they constitute, in effect, partial compensation for the actual injury.128 If loss of chance were a truly independent type of injury, defendants would be forced to compensate the plaintiff even for the lost chance that results in no actual injury. Thus, proportional risk- or chance-based recovery can also been criticised for theoretically leading to liability for exposure to risk even in cases in which the risk has not yet eventuated and damage remains speculative.129 This consequence can in practice be avoided by requiring that the ﬁnal outcome have occurred or that it will occur in the near future.130 However, while such a restriction ensures the rejection of speculative claims, it simultaneously reinforces the arguments of those civil law authors who insist that this head of damage lacks independence. The identiﬁcation of the exact nature of the interest which the defendant’s negligence has destroyed is also described as problematic. Opponents—as well as some supporters131 —denounce the arbitrary, inaccurate and subjective nature of its assessment.132 Savatier, the most vehement French adversary to accepting loss of chance, has observed that, in the medical context, even the statistical calculation of lost chances is impossible given the “inﬁnite diversity” of medical faults, individual biological states, and medical pathologies.133 Even common law adherents to the loss of chance doctrine admit that it may be impossible, because of uncertainty, to disentangle the background risk to which the plaintiff is already exposed from the additional risk due to the defendant’s wrongdoing.134 French critiques also insist that statistical chances of a disease’s progress and an individual’s distinct chances of survival or
127 P. Jourdain, “Sur la perte d’une chance”  R.T.D. civ. 109 at 114; Penneau, note under Cass civ 1re, 27 March 1973, fn.108 above, at 597. 128 M´ meteau (1986), fn.63 above, at 145; Descorps Decl` re, fn.124 above, at 747; Penneau, note e e under Cass civ 1re, 24 March 1981, fn.106 above, at 547. 129 In Qu´ bec: S. Philips-Nootens, “La perte de chance: d´ tournement du lien de causalit´ ou dommage e e e distinct?” (1990) 50 Can. Bar Rev. 611 at 620. 130 As imposed by Cass civ 2e, 3 May 2006, no.05-12.069 (unpublished) and Cass civ 1re, 16 June 1998, D.1998.IR.180. 131 Viney and Jourdain, fn.104 above, at  who admit the evaluation is arbitrary. 132 R. Savatier, “La responsabilit´ m´ dicale en France (Aspects de droit priv´ )”  R.I.D.C. 493 e e e at 502; R. Savatier, “Une faute peut-elle engendrer la responsabilit´ d’un dommage sans l’avoir caus´ ?” e e D. 1970.chr.123 at 123; Savatier (1973), fn.64 above, at 473; Viney and Jourdain, fn.104 above, at para.371; Penneau (1977), fn.58 above, at paras 105–106. In common law, Stapleton also admits that such apportionment will necessarily be artiﬁcial in cases where the defendant’s contribution to the total risk is uncertain: Stapleton (2002), fn.34 above, at 284 et seq., 298 et seq. 133 Savatier (1973), fn.64 above, at 473. 134 Stapleton, fn.1 above, at 407.
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Against: Saluden.58 above.135 Perhaps wary of this shortcoming.137 Sometimes.R. can potentially lead to a complete revolution in the traditional rules of evidence and civil liability. fn. civ. . no. Savatier (1973). at 618. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .p34. note under Cass civ 17 November 1982. 138 Bernfeld. note under Cass civ 1re. Nootens.140 without.146 above and Cass. as has been the case in the French medical malpractice case law and beyond.124 above.J.104 above. 514 at e 514. Gaz. in practice.104 above. at 476. 2 May 1978. Accepted in common law in Gregg v Scott. Pal.JANUARY 2008] Causation and Risk 127 cure must be distinguished from one another. “Lien causal. Cass civ 2e.. Durry. p. Juris-Data no. fn.15 above. French law demonstrates that the approach that redeﬁnes the injury as the increased risk of suffering the ﬁnal outcome. 1998.46 above.7. fn.panor.421 (unpublished). at  (Lord Nicholls). at 743. One could respond to this argument by stressing that the expansive application of the loss of chance technique was necessary in France because of the greater hurdle French courts face in assessing causation. Bar Rev. 18 July 2000. fn.141 Their demanding standard of proof has had an obvious effect on the judicial responses to causal uncertainty. e 141 Laferri` re v Lawson. 517. 139 Savatier.  (Lord Hope).I. a tendency that has since been condemned by the Cour de cassation in numerous decisions. the French experience is a warning of the slippery slope upon which even isolated acceptance of proportional liability lies. fn. fn.03-20. 136 S.129 e e e ´ above.’s e comments in Laferri` re v Lawson. e (2008) 124 L. au bord du gouffre” (1989) 49 Can. French courts are often vague as to the basis of their evaluation of the lost chance and simply state the quantum of damages without identifying their method of calculation. which lacks the ﬂexibility of the more generous common law standard of balance of probabilities. See also Gonthier J. note under 17 November 1982. 21 December 2006. fn. e e e 1998. 1re. French judges are often eager to relax 135 Penneau (1977). This aim is admitted by G.110. some French advocates of the loss of chance approach have attempted to restrict its application to cases involving true uncertainty. at 307. some courts require that the experts situate the chance lost on a spectrum ranging from “weak” to “very important”. . if applied consistently.136 However. 143 Viney and Jourdain. “L’application de la e notion de perte de chances en droit m´ dical” (paper presented at the C. 28 September 2004. fn.Q.142 the French courts must ground their generosity on something other than their evaluation of the evidence such as on a redeﬁnition of the traditional substantive conditions for liability.371. at 602.67 above. 601–603.’s Conference: “Responsabilit´ e e m´ dicale et hospitali` re: Aspects juridiques et ethiques”.138 Most importantly. Also in the Qu´ bec doctrine: S. they have simply granted a lump sum.A. fn.T. 140 Descorps Decl` re.024471. at 266.106 above. e 142 Clermont and Sherwin. fn. Porchy. 797 at 798.379. at 124–125.025004. Montr´ al October 29. Parizeau.132 above.D. Juris-Data no. I. fn. para. para. 137 Bernfeld. pr´ judices r´ parables et non-respect de la volont´ du patient” D.chr. “La faute du m´ decin e diminuant les ‘chances de gu´ rison’ du malade” (1969) 67 R.15 above at. civ. fn. fn.146 above. however. fn. “Le lien de causalit´ . Because of this certainty requirement. fn. Cass civ 1re.143 However.67 above. Savatier.139 Recognising this problem. 29 June 2004. Dorsner-Dolivet. Cass civ 1re.64 above. 1990). Gaudet. deﬁning which cases might qualify as such.
D´ veloppements r´ cents du ¸ e e droit de la responsabilit´ civile (1991). 145 e. is extremely thin. 1991.). e 147 F.somm.128 Law Quarterly Review [Vol.582-2. C.174. Chabas requires some connection between the patient’s pre-existing risk of injury and the risk introduced by the defendant’s negligence. “L’indemnisation de la ‘perte de chance’ dans e e le domaine des accidents m´ dicaux: une situation dramatique pour les victimes” Gaz. there is no compelling conceptual justiﬁcation to strictly maintain this boundary between alternative cause cases where the risk agents operate in substantially the same manner and alternative cause cases in which risk agents are distinct. However. He excludes from the ambit of loss of chance cases in which the defendant’s negligence has created an entirely new source of risk unrelated to the patient underlying condition.145 Several authors recognise that the usefulness of the loss of chance doctrine is in responding to cases where it is impossible to identify whether the cause of the ﬁnal injury is the doctor’s fault or the underlying pathology from which the patient already suffered and which initially led him to consult the defendant. It is true that what characterises the McGhee-Fairchild-Barker situations is the fact that an element of causation is proven. “La perte de chance en droit francais” in O. p. For an application to indeterminate defendants situations: Cass civ 1re.032118. La responsabilit´ du m´ decin (2006). para. critiques observe that the distinction between these two e (2008) 124 L. Pal.178. Bull. Lambert-Faivre. the dividing line between those cases.n455. where the patient is not already engaged in a negative process in relation to the injury that occurred at the moment the fault was committed.33. one cannot say that his situation is reduced to only chances of avoiding the injury. since the risk agent that brought about the loss is well identiﬁed.g. are related to the same risk agent. 146 Y. Bull.. fn. Aside from the fear of overextending the doctrine. 10 January 1990. Even Barker attempts to restrict its application to cases in which all potential sources. mainly applied the loss of chance reasoning in cases involving alternative causal mechanisms related to distinct sources of risk which are not all under the control of negligent defendants—frequently in cases involving the negligent misdiagnosis.I. Bernfeld. fn. However. 5th edn (2004). or negligent delays in the diagnosis.n10. including those not under the defendants’ control. Juris-Data no. French courts have. Guillod (ed.146 However. 1990. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . One could also argue that there is no danger of an expansive application of risk-based proportional recovery in UK common law since the option to apply it beyond the McGhee-Fairchild-Barker exceptions is arguably foreclosed by decisions such as Gregg v Scott and Fairchild. D. Cass civ 1re. and the cases in which the alternative causes relate to distinct sources of risk. Droit du dommage corporel. in fact.Q.144 Causal presumptions based on sufﬁcient probabilities have cohabited with the frequent resort to the loss of chance doctrine. To his opinion.doctr. p. of an underlying disease or injury. Civ. 2006. R. paras 347.60 above. 124 this strict standard of proof and to ﬁnd that certainty in causation may be presumed on the ﬁnding of a “sufﬁcient degree” of probability.358 and Savatier (1966). Dorsner-Dolivet.147 144 Viney and Jourdain. Legeais. 362–369. 29 November 2005.I. Les r` gles de preuve en droit e civil (1955). Chabas. A. p382. 7 February 2006.R.104 above. in the recent case law: Cass civ 1re.
the reversal of the burden of proof of causation in the Supreme Court of Canada decision in Cook v Lewis. fn. “La pluralit´ des causes de dommage et la responsabilit´ civile. There are examples in the e e ´ French case law where this approach has been admitted. para.2339.60 above. 150 Viney and Jourdain.104 above. fn.104 above. presumptions of causation in the French HIV-HCV litigation and other product liability cases: Khoury. fn. fn. 18 March 1969 and 27 January 1970. arguing that what judges identify as an objective chance is in fact the extent of their subjective uncertainty as to categories of cases may not always be easily drawn and may lead to arbitrary results: Jourdain.JANUARY 2008] Causation and Risk 129 Policy. Cass civ 1re. 148 e.29 above.527 (unpublished).Q.154 This approach of allowing liability in proportion to the causal role that fault has played in producing the injury had long been rejected in France.106 above.127 above. fn. fn. Starck.104 above. J.152 For many French authors.149 Viney and Jourdain have argued that the determination of loss of a chance has sometimes deviated (d´ tourn´ e) e e from its usual meaning (as a compensable head of injury) and instead been used to facilitate the plaintiff’s task of proving causation. at 159. particularly in medical malpractice cases. the causal link between the injury and the risk agent is proven. note under Cass civ 1re.146 above.g.104 above. whether deﬁned “artiﬁcially”153 as a head of injury or not. however. Couturier. however: fn. paras 371 et seq.370. at 111. (2008) 124 L.g. Cass civ 1re. at 283. fn. loss of chance. 1970. For those cases that Chabas excludes from the ambit of loss of chance. In the ﬁrst class of cases where there is only one type of risk agent. the judge can grant partial recovery despite doubts remaining as to the causal link between the negligence and the ﬁnal and concrete damage. 151 This is even recognised by its supporters: Stapleton. fn. 15 June 2004. 152 e. fn. La vie br` ve d’une fausse e e e equation : causalit´ partielle = responsabilit´ partielle”. 24 March 1981. fn.106 above.151 Indeed. no. at 392. in reality.150 Using the loss of chance doctrine in this alternate way.I.R. note under Cass civ 1re. See also Bernfeld.C. one may contend that although the strict requirement of proof of causation appears to be maintained. may justify the above dichotomy. Jansen. 153 This qualiﬁer is from Viney and Jourdain who are not troubled by this fact.02-11. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . at Ch. thereby demonstrating elements partially fulﬁlling the factual causation requirement. 154 See account of Viney and Jourdain.155 Savatier has even gone further. Such partial demonstration of the causal connection in cases involving causal difﬁculties has inspired Canadian and French law to adopt pro-plaintiff solutions in other circumstances. the case law shows that loss of chance essentially ﬁnds application where the causal link between the fault and the actual injury remains uncertain. at 547. 155 B. 149 Penneau. Viney and Jourdain suggest that full recovery based on the negligent creation of a risk should be granted!: fn. fn. paras 370–371.148 Finally. The uncertainty lies only in assigning the culpable risk agent to one of the defendants.1 above.106 above. 7 June 1989.63 above.25 above. the qualiﬁcation of the injury as the lost chance conceals that liability is found despite the uncertainty of a causal link between the defendant’s breach of the standard of care and the actual damage.5. has the effect of allowing partial recovery where the existence of causation is uncertain and thus the traditional standard of proof is not met. however: fn..P.
fn. imposed without proof of causation between the negligence and the actual loss. e e para. e e 158 D. 155 at 160. Lord Hoffmann’s explicit recognition in Barker. paras 370–371. due. not to logical conceptual reasons. Cadiet. fn.58 above. using concepts such as risk increase or loss of chance. at 473. Droit de la responsabilit´ civile (1998). 17 November 1982. Jourdain (1992). or ground liability altogether. at 307.Q. in such cases. if merely increasing the risk of harm serves to satisfy the test for factual causation. In that sense. the House of Lords has arguably been more transparent and honest than the French Cour de cassation by recognising that proportional liability is. “causation has been effectively eliminated as a distinct element of the cause of action in negligence” since “breaching a standard of care consists in subjecting someone to an increased risk of harm”. although subject to criticism. the Supreme Court of Canada has stated these positions most clearly in the context of civil law cases. despite causal uncertainty. deserves some praise. 157 Savatier (1973). le Tourneau and L. Monzein.157 Both the Canadian and French doctrine has widely acknowledged that loss of chance is often used to by-pass the absence of causation.R.2. fn. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . 124 the cause of the injury. The House of Lords shows more ﬂexibility by accepting both full and proportional recovery for negligently enhanced risk. (2008) 124 L. P. Interestingly. categorically rejecting both risk and chance-based reasoning to support full or proportional recovery of damages. these instances are squarely 156 Savatier (1973).B.876. para.104 above. Meanwhile. Cheifetz and V. Boyer-Chammard and P. the highest courts of the United Kingdom and Canada have maintained a strong attachment to traditional theory in the area of causation. but to the existence of overriding policy objectives. fn. La responsabilit´ m´ dicale (1974).156 The amount of compensation granted can be seen as an expression of the extent of the judge’s uncertainty regarding causation. the Cour de cassation has largely continued to ignore it. Black.J. p. at 10.127 above.64 above.158 Thus. e Against: G.L. This objection is widely admitted in France and Qu´ bec: Viney and Jourdain. this outcome of the doctrine was also determinant in the Supreme Court of Canada’s rejection of the loss of chance doctrine. that proportional recovery based on risk is really granted in the absence of causation. However. essentially. Canadian law adopted the most rigid attitude. fn. CONCLUSION Overall.130 Law Quarterly Review [Vol. Bor´ . at 110. “Material Contribution and Quantum Uncertainty: Hanke v Resurﬁce Corp” (2006) 43 C. Tacchini-Laforest. Until Resurﬁce.67 above. which have thereafter been treated as authoritative by the lower common law courts. Dorsner-Dolivet. It has the advantage of acknowledging that.101.59 above. fn. The result is a general reluctance by the Supreme Court of Canada and the House of Lords to apply a more generous approach to causation or liability. note under Cass civ 1re. fn.64 above.. at 475.
These critiques have entertained. Proportionality. I would like to thank David Cheifetz for his helpful comments on an earlier version of this text. Risk assessment (2008) 124 L. Ultimately. the difﬁculties in assessing the value of these redeﬁned injuries. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .).. a sophisticated debate of proportional recovery that emphasises several issues relevant to the common law analysis. (Oxon.). Causation. (Oxon.R. and the potential for an application much broader than that illustrated by the McGhee-Fairchild-Barker line of cases. recently reversed by statute. for several decades. McGill University.C. D.). however. any attempts to develop this approach as a means to by-pass causal uncertainty should be informed by the extensive French experience and critiques. as well as Chana Edelstein and Ava Chisling for their editing assistance. LARA KHOURY. Assistant Professor.Phil. Although proportional recovery grounded on negligent risk increase is conﬁned to one House of Lords decision. (Sherb.Q. Canada.B.JANUARY 2008] Causation and Risk 131 limited to industrial disease cases where a single causal agent is clearly related to the injury and the uncertainty lies only in attributing culpability to one or more of the negligent defendants. the House of Lords also has a lesson for French law in Lord Hoffmann’s recognition of the true result of a wholesale adoption of proportional recovery: the abandonment of the traditional causation requirement. Criticisms particularly worthy of attention are those that raise the artiﬁcially independent nature of the alternative head of damage that lost chances or increased risks constitute. This text is partly based on Uncertain Causation in Medical Liability (2006).L. France.* * LL. Faculty of Law and Institute of Comparative Law. It was presented in June 2006 at the international conference “Emerging Issues in Tort Law” held at the University of Western Ontario Law School. B.
Ripstein. 4 J. However. “deception or fraud. it should not be thought that the correct way to deal with mistakes by the victim is easy or obvious. Equality. on the assumption that it is possible to ﬁnd such a line on a spectrum of pressure. Cases of pressure have. it is also difﬁcult to see why certain categories of mistake have been chosen over others (if indeed this has always been a conscious decision) and where the line is to be drawn in any given case. 320. 5 For a convincing argument along these lines.181. Cases of misapprehension.3 As a result there is a mismatch between the treatment of pressure cases and the treatment of misapprehension or mistake on the part of the victim.1 turned on whether the consent amounted to reluctant acquiescence (valid consent) or mere submission (non-consent). it is at least arguable that.R.S. 511.4 Not only have cases of mistake been treated differently from cases of pressure.DECEPTION. as a matter of fact. similarly to coercion. Herring. Responsibility and the Law (1999). The resulting category approach as a whole thus tends to give the impression of being based on unpredictable. since Olugboja. Is it Rape? On Acquaintance Rape and Taking Women’s Consent Seriously (2005) at p.209. see J. have always been dealt with by dividing mistakes into categories. as Joan McGregor argues. 275 at 286–291. 132 . with only some categories of mistake being thought to affect consent. the giving of consent conﬁrms a right on the part of the consenter because they have exercised a choice between granting and refusing consent6 and 1  Q. because the individual’s right to determine their course of action is impaired when they lack this knowledge. On the one hand. 2 The precise meaning of “misapprehension” or “mistake” and their relationship with fraud and deception will be discussed further below. MISTAKE AND VITIATION OF THE VICTIM’S CONSENT I. and yet. 3 This point is made by Simon Gardner in “Appreciating Olugboja”  L. MISTAKE AND AUTONOMY APPARENTLY autonomous consent to a particular action or transaction in criminal law will be undermined by the discovery that it was given in circumstances of pressure or under a misapprehension. any misapprehension undermines autonomy if consent would not have been given had the consenter known the truth.2 on the other hand. L. 6 A. affects the voluntariness of an agent’s action” and thus “undermin[es] the legitimacy of consent”. unarticulated and possibly even unjustiﬁable assumptions. p.B.5 As Ripstein argues. “Mistaken Sex”  Crim. McGregor.
If other policy considerations or rules are to play a part later they can then do so openly with full explanations of why apparently similar mistakes are being treated differently.. 9 And it should equally be noted that there have been several calls for precisely such a comparison to be made. stating that instead the word “must be construed in its own particular context” (at 330).8 Yet while the policy considerations in each area are different and require nuanced treatment. In Linekar  Q. speciﬁcally disagreed e with Cory J. for example. . giving the judgment of the Court of Appeal had “severe reservations about the use of civil law implications of fraud and mistake to assess the effect of the mistakes about the circumstances of sexual intercourse” (at ). if any. 318. “When is Consent not Consent? (When it is Vitiated by Mistake)” (1996) 6 Archbold News 5/7/95.” (2008) 124 L. R. citing support from the S. he was very careful to ensure that his deﬁnition of “consent” should not even be carried across to other areas of the criminal law.  162 D. v Cuerrier  2 S.10.S. as noted above.gov. which are not. let alone between criminal law and other ﬁelds.16 and 6.7 but the binary guilty/not-guilty nature of criminal law presents the problem in a stark form. ought to be considered legally operative and how such mistakes should be distinguished from those. as it then was (now the S.  Q. 250 the Court of Appeal drew the more far-reaching analogy between the context of sex offences and “the principles governing mistake vitiating apparent manifestations of will in other chapters of the law. For example. the practical consequences of allowing all “but-for” factual mistakes to have legal import may not be wholly desirable in policy terms.J.9 II.L.B. L’Heureux-Dub´ J. there are several reasons why comparisons should not be drawn even between different areas of criminal law. danger in assuming that the law adopts a uniform deﬁnition of the word ‘consent’ in all its branches” (at 326).. These current rules are largely based on unsupported assertions that mistakes as to certain matters vitiate the victim’s consent 7 Other examples obviously include the impact of mistake on contracts and on informed consent in tort law. 8 See.13). It is therefore necessary to examine which mistakes. in contrast to the rules dealing with consent under pressure the law has adopted a category-based approach to the rules dealing with mistaken consent.J. Cory J. criminal law is not the only area of law in which such issues arise. Similarly.R. on the basis that the relevant principles should be ‘consistent across the different assault contexts’ and Cory J. 371.J. (as he then was) not only warned that “there is. v Cort  EWCA Crim 2149. .JANUARY 2008] Vitiation of the Victim’s Consent 133 it is inherent in this right that the choice should be an informed one.lawcom.388.L. THE EXISTING CRIMINAL LAW It is necessary to begin with an understanding of the current situation and. the Law Commission expressed concern that “it would make things extremely difﬁcult for those who have to enforce the law if two quite separate regimes for consent existed in relation to sexual and non-sexual offences against the person”: Law Commission.Q. at paras 5.B. did himself draw an analogy with fraud in property offences (para.’s approach would not achieve that result (para. it is also arguable that at the core of each of these areas is an investigation into the presence of consent. noted by Williams  C. but on the other hand. Of course.L.R.135). if any. with no real possibility of loss-sharing. where Buxton L. Consent in Sex Offences: a Report to the Home Ofﬁce Sex Offences Review.B. See also Virgo. Equally. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . then consideration of mistakes should at least begin in the same way in each area.).L.uk/231. where Robert Goff L.T. On the other hand. Or Whittaker v Campbell  1 Q. (4th) 513.C. If it is true that any “but-for” mistake undermines consent as a matter of fact.htm#lcr271 .R. available online at http://www. in R. 271.P.
R. Similarly. above. yet in each area it has been treated differently. above. the law on mistaken consent for the purposes of sex offences is now governed by the Sexual Offences Act (“SOA”) 2003. 124 while others do not. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . This has always 10 G Williams. The law of consent arises in various contexts within criminal law. fn. as in Flattery 11 and Williams. (2) The circumstances are that— a) The defendant intentionally deceived the complainant as to the nature or purpose of the relevant act.1(3) of the Sexual Offences Act (SOA) 1956 and Elbekkay 13 remain. who contrasts the victim-centred approach taken to consent in cases of pressure with the categorised approach used for consent in cases of misapprehension. the old rules on partner impersonation from s. and b) that the defendant did not believe that the complainant consented to the relevant act. the most interesting section is s. Arbitrariness would be marginally less problematic if the law were at least able to fulﬁl the other requirement of the rule of law: legal certainty. and has the freedom and capacity to make that choice” (s. (2008) 124 L. 13  Crim. 410 12  1 K.3. The results produced by this technique are arbitrary and indeed are accepted by some to be so.10 This is unsatisfactory in itself. 340. b) The defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant. it is to be conclusively presumed— a) that the complainant did not consent to the relevant act.12 under s. 163. under which a victim consents if “he agrees by choice.. the rule of law requires us to treat like cases alike unless we can distinguish sensibly between them. For our purposes.D. “Mistake as to Party in the Law of Contract” (1945) 4 Can. but all of these concern factors such as force or physical incapacity.B. But this has hardly been achieved either.R. L. Sex offences In brief.B.5.76 which contains conclusive presumptions about consent: “(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances speciﬁed in subsection (2) existed. if the complainant is deceived by the defendant about the very fact that they are engaging in sexual activity of any kind.” Thus.134 Law Quarterly Review [Vol.76(2)(a) the complainant will not be consenting. 271 at 282. See also Gardner. fn. and Herring. Bar Rev. 11 (1877) L. 2 Q. Section 75 of the Act contains a series of situations which will raise an evidential presumption against the defendant that the victim did not consent.74).Q. 1.R.
JANUARY SWEET & MAXWELL AND CONTRIBUTORS . The defendant was convicted of two counts of the s. given that as a whole the Act has widened criminal liability in the sexual context. 1257. 2004. as was established in the landmark case of Dica. 1567. unknown to the complainant. who only ever contacted her by text message. but in relation to the episodes which took place after the SOA 2003 came into force on May 1.  2 Cr. HIV positive. App. Its reasons for doing so in terms of the general moral culpability of the defendant are obvious. 17 At .14 though it will vitiate their consent to run the risk of infection. if the defendant is. v B  EWCA Crim 2945. this will not vitiate the complainant’s consent to sex under the SOA 2003.76 itself does appear to have reduced liability for sexual activity with mistaken consent. but rather crystallised the existing common law rules. In fact the “police ofﬁcers”.3 of the SOA 1956 (“procuring a woman by false pretences”) has no direct counterpart in the new Act.JANUARY 2008] Vitiation of the Victim’s Consent 135 been an odd line to draw.15 This suggests that the court in that case did not feel the existence of the SOA 2003 gave it the opportunity to widen the rules. 16  EWCA Crim 1699. Yet when it is a necessary condition it will also automatically become legally sufﬁcient to render consent inoperative as a matter of law. Unusually..R.  1 W.74 of the Act. In Harvinder Singh Jheeta 16 the victim was caused to believe that she was being stalked and that the police ofﬁcers involved in her case recommended she have sex with the defendant in order to prevent the defendant from committing suicide.Q. s. or even a narrower version of them. Ultimately the Court of Appeal held that nevertheless the defendant had been safely convicted of rape on the basis that the victim had not given consent by free choice as required by the general provision of s.L. However. 34. 15  Q. One example of this is that s.3 offence in relation to his sexual encounters with the victim which took place before April 30. and none of the defendant’s alleged suicide attempts had in fact taken place. As a result she consented to sex with the defendant when otherwise she would not have done so. 2004 it was held not to be possible to use the conclusive presumptions in s. and counsel for the Crown had argued that “a statute which brought together all the offences of a sexual nature cannot have been intended to decriminalise deliberate conduct designed to deceive a woman into having sexual intercourse. in some cases the identity of the other party may not even be a necessary condition of factual consent to sexual activity in the ﬁrst place. as was the supposed stalker.R.”17 14 R.B. R. (2008) 124 L. Unlike a misunderstanding about the very nature of the activity.76. were the defendant himself.
e.76 beyond the old rules so that it would now include deceptions that the sex was for the purpose of consummating a marriage.23 2. those under s. Simester and Sullivan. And if the element of deception is indeed singled out in future cases as distinguishing the two situations.1) or now s.9. (2008) 124 L. This in turn sits ill with the Court of Appeal’s refusal to examine the issue of consent to sex in Dica 19 and B.L.22 though the Court of Appeal did not seem persuaded that sex for the purpose of stopping the defendant committing suicide was the result of such a deception in Jheeta.76. does she consent within the parameters of Olugboja (above. 22 Above. at pp. or whether implicitly such cases no longer give rise to criminal liability because they are not explicitly included in the Act. in his article in the Criminal Law Review. Non-sexual offences against the person As well as dealing differently with cases of HIV transmission.76 when the defendant takes advantage of the mistake. this must mean instead that the law now has two sets of deceptions to contend with. 124 Nevertheless. in doing so the Court of Appeal was forced to create a difﬁcult precedent for application in future cases. as in Papadimitropolos 21 or even for the purpose of making money for the victim. Criminal Law Theory and Doctrine. fn.428. 3rd edn (2007). this only happens where the defendant has deceived the complainant intentionally.74 or not? For further discussion of this conundrum see. Ormerod.Q. 434 and 689–691 and Smith and Hogan.16. Conversely. the rules for sexual and non-sexual offences against the person have also diverged in 18 If a victim is threatened with prosecution unless she has sex with the defendant or is offered a beneﬁt (such as an acting job) if she agrees to have sex with the defendant when she would not otherwise have done so. Jonathan Herring has argued that the use of the word “purpose” in s. and Elbekkay now give rise to conclusive presumptions under s. fn.20 Another example of the more restrictive approach of the 1956 Act is that although facts such as those in Flattery..R. at p. Criminal Law. fn.15. whether (as seems most likely) such mistakes should be considered as part of a general investigation into consent under s.76 and those under s.74. 21 (1957) 98 C.14. fn.R.76(2)(a) expands the scope of s. Where the victim was spontaneously mistaken it is now unclear whether the cases can be included in s. 20 Above.600. as in Linekar. 249.74 more generally. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . Williams. edited by D. Unless the element of deception in Jheeta is singled out as distinguishing this case from the traditional “casting-couch” problem. 11th edn (2005). fn. 19 Above. which seems unlikely. 23 Above.g. which would be an unnecessary and undesirable conclusion.136 Law Quarterly Review [Vol.18 the Court of Appeal may have inadvertently set a surprisingly wide limit to the scope of the criminal law.
There are three slight differences between Tabassum and Richardson. if not s.27 Either case could have been decided on the basis of an identity mistake or a mistake as to the nature of the act. In contrast. R.76 of the SOA 2003.R. 27  Crim. 26 “There is no basis for the proposition that the rules which determine the circumstances in which consent is vitiated can be different according to whether the case is one of sexual assault or one where the assault is non-sexual. as Sir John Smith commented. 444.JANUARY 2008] Vitiation of the Victim’s Consent 137 their treatment of the facts in Tabassum 24 and Richardson.B. It is nowhere suggested that the common law draws such a distinction”.Q. In Cort. Finally. rather than a principled choice. the fact that a dentist had been suspended from practice was held not to vitiate her patients’ consent to treatment for the purposes of non-sexual offences against the person. App. and the question is whether consent has been negatived. since qualiﬁcations were only a matter of attribute. per Otton L. However.74.R. namely that Tabassum’s lack of qualiﬁcations affected the nature of his act. a 24  Cr. while Tabassum had never received sufﬁcient medical training. and his examination of her breasts was therefore held to be indecent assault. the court referred to Tabassum.J. although the case concerned a nonsexual offence against the person. Tabassum’s victims could still be considered to lack consent to the nature of his actions under s. fn. 25  Q. A further non-sexual offence against the person in which this issue has arisen is that of kidnapping. fn. there is the ground actually used by the Tabassum court to distinguish the cases. the court in Richardson made it plain that the type of offence at issue should not change the rules in principle. The common element in both cases is that they involve an assault. so the use of one basis for one case and the other for the other seems a matter of random chance. and the inﬂuence of this difference was perhaps enhanced by the unconvincing nature of Tabassum’s denial of sexual motive. (2008) 124 L. a woman believed the defendant to be medically qualiﬁed when he was not. This third supposed difference cannot really be made out. while the court in Richardson had examined whether her lack of qualiﬁcations affected her identity and concluded that it did not. Although handcuffs.28 the defendant would stop at bus stops and offer lone women lifts to their destinations on the pretence that the bus for which they were waiting had broken down. Secondly.8.. in Richardson. 28 Above. a fact which could have been used to distinguish the cases but was not. there is the difference in the type of offence (sexual as opposed to non-sexual). there is the more important fact that Richardson had at least been trained and had practised as a dentist. Although the case was decided under the old law on sex offences there is no reason to suppose that its result would be different today. string. L. First. On two occasions the women accepted his offer. not to Richardson.25 at 450. above. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . Tabassum “did not seem distinguishable on its facts from Richardson”.26 and in Dica.25 In Tabassum. condoms. since. 328. 686 at 689.
16. in the sense that it was possible for a defendant to be convicted of the s.”29 Kidnapping is a common law offence. in Gilks 34 the defendant’s conviction for theft was upheld when he received money paid to him by a bookmaker. he pleaded that these were there for innocent purposes and the Court of Appeal observed. v D 30 : “. 34  1 W. 33 Above. 778.33 the precise scope of s. 30  A. 32 Even assuming that they are similar to each other. (2) by force or by fraud. and their consent was therefore valid. The misapprehension under which they had operated was sufﬁcient in itself and the defendant’s conviction was thus upheld.138 Law Quarterly Review [Vol. (3) without the consent of the person so taken or carried away. (2008) 124 L. 1341.C.74 is now less clear on this point. and here again the rules have varied. deﬁned by Lord Brandon of Oakbrook in R.J. 31 At 800. knowing that the 29 At .R. and (4) without lawful excuse. and as noted above this is not necessarily the case. fn. the appellant argued that since his victims were under no mistake in relation to the act of riding in the car to an intended destination they were thus not mistaken as to the nature of the act or the identity of the defendant.Q.R.. It therefore appears that in Cort the existence of a deception on the part of the defendant was permitted to expand the categories of mistake by the victim that would be held to invalidate consent as a matter of law. A similar oddity used to occur in the relationship between the old s.”31 In Cort. There are several property offences in which this issue has arisen or could do so. Property offences The issue of victim mistake is also relevant to property offences. giving the judgment of the court. . 124 knife and tape were recovered from his car. . Buxton L. There was thus no need for the prosecution to show that the victims had been mistaken about either the nature of the act or the identity of the defendant. the offence contains four ingredients as follows: (1) the taking or carrying away of one person by another. that there was no reason to suggest that this was “anything other than truthful and accurate. As noted above in relation Jheeta. For example.3 of the SOA 1956 (“procuring a woman by false pretences”) and the offence of rape under that Act. 3.3 “false pretences” crime even if the victim had not been mistaken about the defendant’s identity or the nature and quality of the act. held that the law applicable to assault and rape32 need not be applied to the offence of kidnapping.L. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .. perhaps surprisingly. as would have been required for a conviction of rape.
C. fn. consent is held to be automatically vitiated when an offence of fraud or deception is made out. She was convicted 35  EWCA Crim 389. all three cases share the belief that there is a fundamental distinction between offences of fraud and offences concerning a mere lack of consent. 100 (above. the view taken was that where the offence was one involving fraud. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . Conversely.36 though interestingly there does not seem to have been any discussion in that case of the kinds of mistake that would or would not vitiate the victim’s consent.Q.12 of the TA 1968 prohibits the taking of a conveyance without the owner’s consent. In Lambie. (2008) 124 L.3 “procuring a woman by false pretences’.12 offence was not made out38 and his reasoning on this point is essentially the corollary of that used by Buxton L. As a further example. giving the example of a defendant who gains entry to a house by pretending to be a gasman who has come to read the meter and then steals property.B. Victim consent is also relevant to burglary contrary to s. the director agreed to their hiring a van. giving the judgment of the court. 39  A. s. in Cort and in s. He would not have done so had he known that neither defendant held a full driving licence and would not therefore be insured to drive the van.J.. Nevertheless. Thus although they approach the question from different directions. 38 However. held that the s.. whereas if lack of consent is simply one of the elements the prosecution has to prove and it tries to do so by adducing evidence of the victim’s mistake.J. took the view that he was not dealing with an offence of deception and thus the consent given. 37 Above.JANUARY 2008] Vitiation of the Victim’s Consent 139 bookmaker mistakenly believed that the defendant had backed the winning horse. In all three.9 of the Theft Act (TA) 1968 in determining whether or not the defendant is a trespasser. 449. which he produced. he did point out that he expressed no opinion on the question whether the defendants could instead have been accused of dishonestly obtaining services by deception contrary to s. Robert Goff L.1(1) of the TA 1978: at 330. in Cort and inherent in the old distinction between rape and s. This conclusion ﬁts with a further widening of the operative categories of mistake in another series of cases concerning deception. was legally valid. consent would automatically be invalid. fn.39 the defendant used a credit card in a shop after she had exceeded her credit limit and agreed to return the card to the bank. only certain types of mistake will be successful.8. In Whittaker v Campbell 37 the defendants represented to the director of a vehicle-hire ﬁrm that the ﬁrst defendant was someone who held a full driving licence.9. Acting upon this misrepresentation. One example of this arose in Gallagher. 36 Virgo had previously suggested that this could be a possibility in a case such as Collins  1 Q. Robert Goff L. albeit reached through deception. regardless of the precise content of the mistake.J.3 of the SOA 1956.35 where the defendants gained entry to a 94-year-old’s residence by claiming to be an employee of the water board. In Whittaker.R. at 8).
therefore.3.R.44 40 Now repealed: see Fraud Act 2006 Sch.1 of the Act. negatively she would still not have agreed had she known of the countervailing lack of authority. The offence was thus made out. 372. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . 124 of obtaining a pecuniary advantage by deception. at 375. s.R. or to cause a loss to another or to expose another to a risk of loss.3 describes “fraud by failing to disclose information” and s. he represents to the payee that he has the actual authority of the bank to enter on its behalf into the contract expressed and that the bank will honour the cheque when it is presented.R. any one of which will constitute the commission of an offence under s. not because the shop assistant had positively relied on her mistaken belief.20(2) of the TA 1968. Sir John Smith in his comment on the later case of Kassim 42 thought this resulted in “an artiﬁcially wide meaning of deception”.140 Law Quarterly Review [Vol. though he argued that as a matter of law those decisions would now equally apply to the offence of procuring the execution of a valuable security by deception contrary to s. contrary to s. 42  Crim. This describes three forms of fraud. Each form of the offence is made out if the defendant undertakes the relevant form of prohibited behaviour dishonestly.16(1) of the TA 1968. the actus reus appears to consist solely of the prohibited behaviour in each case. L. intending through the behaviour to make a gain for himself or another. that in fact the s. All that really mattered to the shop was that it should receive payment.4 describes “fraud by abuse of position”.. she would not have completed the transaction. It was argued on behalf of the appellant that the case could therefore be distinguished from Charles because no representation made by the defendant to the shop staff in this case had induced them to complete the transaction. 177. (2008) 124 L. The previous case of Charles 41 had established that when the drawer of a cheque uses a cheque card.1 fraud offence is an inchoate result crime aimed at preventing the possibility that people will in fact be deceived. the offence at issue in Kassim itself. however. 41  A. 44 It will be argued below. The House of Lords nevertheless held that if the shop assistant had known that the defendant was acting dishonestly and had no authority from the bank to use the card in that way. 43  Crim.Q.15–16 and 20(2) of the TA 1968 have since been repealed by the Fraud Act 2006. Section 2 describes “fraud by false representation”. and it was bound to do so in any case as a result of its agreement with the bank on the basis of the card. but because although she had positively relied on the prospect of the shop receiving payment from the bank.C.43 The deception offences contained in ss.40 on the basis that she had evaded a debt by deception through falsely representing that she was authorised to use the credit card to obtain the goods. None of the three forms of the offence. L. Otherwise it is difﬁcult to see what harm is captured by the offence. The problem with applying that case in Lambie was that the shop seemed not to have relied on the defendant’s apparent authority to use the card at all. actually requires the defendant to cause a loss or make a gain.
is also one of the most difﬁcult to answer. 47 Obviously this is closely linked to the question of the causative operation of the mistake. the defendant must obtain them without making full payment for them. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .46 In this. 46 Fraud Act 2006 Explanatory Notes paras 35–36. The offence can cover situations of deception (the Explanatory Notes to the Act give the example of someone who uses false credit card details to obtain a service). or is deemed in law so to intend” and in Maskell v Horner  3 K. and someone who attaches a decoder to a television to watch channels without paying for them. WHAT IS A MISTAKE AND WHAT DOES IT DO TO CONSENT? It is clear.11 means that the offence cannot be committed by omission. the services must be made available on the basis that payment has been or will be made in respect of them. which equally can be committed by deception but need not be. since for those offences as noted above it is not necessary that the prosecution show any causal impact on the victim’s consent at all. what is a mistake? And in particular. let alone between different areas such as sexual as opposed to non-sexual offences against the person.47 but nevertheless. Unlike the s. such as burglary. that the effect of different kinds of mistake on victims’ consent in criminal law varies even within single types of crime. how sure must one be that one is right about a fact before one can be considered to be mistaken about it? This issue has arisen more frequently in private law. What is a mistake? The ﬁrst question.Q. held that the claim may fail where “the payer intends that the payee shall have the money at all events.R. whether the fact be true or false. 1. in Barclays Bank Ltd v WJ Simms Son & Cooke (Southern) Ltd  Q. the requirement of a dishonest act under s. A person is only guilty of this offence if he actually “obtains services for himself or another” by a dishonest act.11 is no different from the other offences mentioned above. 45 Fraud Act 2006 Explanatory Notes para.45 but it need not do so.B. 106 the claimant could not recover because he had paid to avoid litigation despite (2008) 124 L. From the context of unjust enrichment. s. III. is different. he must know that they are or might be made available on this basis and he must intend not to pay for them in full. It is also apparent that in order to make these rules more coherent and consistent it will be necessary to separate out some of the strands contributing to the present tangle. though obvious.JANUARY 2008] Vitiation of the Victim’s Consent 141 Section 11 of the Act.35.1 offence. In addition. 677 Robert Goff J.. which creates the offence of “obtaining services dishonestly”. therefore. However. the other changes made by s. turning the offences into inchoate result crimes or crimes of behaviour only do sever many of the links between property offences and vitiation of the victim’s consent. since the Explanatory Notes also give the example of someone who climbs over a wall to watch a football match without paying.1 of the Fraud Act.B.
JANUARY SWEET & MAXWELL AND CONTRIBUTORS .C. 558. or being in doubt as to his liability to pay. whereas Virgo would exclude recovery whenever the claimant was aware that there was a possibility that he or she was mistaken (Principles of the Law of Restitution.Q. R. 2nd edn (2002). preferred Lord Hope’s remarks in Lincoln to the effect that a state of doubt is different from that of mistake.  4 All E. to be disproved by the prosecution”49 From this passage it appears that some partial knowledge on the part of the victim about the fact of infection may be compatible with a state of mistake. emphasis added. 2nd edn (2006). (2008) 124 L.I. she may nevertheless have given an informed consent to the risk of contracting the H. 303. 48  EWCA Crim 706. virus. if it were indeed informed. The case of Konzani 48 concerned a defendant who was HIV positive and failed to reveal that fact to his sexual partners. A person who pays when in doubt takes the risk that he may be wrong”.V. receiving treatment for the condition. The focus of the case was on the defendant’s mens rea. The point was left open for decision in other cases and is not crucial to what follows. App. but may nevertheless have to be tackled in the future.  Q. once the victim is aware enough of the facts to be accepting some of the risk it becomes difﬁcult to suggest that he or she is still labouring under a mistake. dicta which have more recently been applied in Brennan v Bolt Burdon  EWCA Civ 1017. but the court also discussed the nature of the victim’s mistake and held that: “there may be circumstances in which it would be open to the jury to infer that. See also the ﬁrst instance decision in Deutsche Morgan Grenfell Group Plc v IRC  EWHC 1779 (Ch).  2 Cr.. .JJ.  1 A. 2.  Ch 243 Rix and Buxton L. which may have suggested that a level of uncertainty was not incompatible with mistake. may develop a sexual relationship with someone who knew him while he was in hospital. since knowing of a person’s treatment for HIV apparently does not automatically mean that consent to sex with that person was informed. her informed consent. Lord Hope of Craighead held that: “A state of doubt is different from that of mistake. had accepted evidence that the claimant was not in doubt whether or not a state of doubt could in theory be compatible with making a mistake:  UKHL 49.142 Law Quarterly Review [Vol. 645. an individual with H. would remain a defence. 14 49 At . By way of example. in the Court of Appeal.163). ﬁnding that Park J. but Lord Brown of Eaton-under-Heywood preferred the approach of Rix and Buxton L.B.V. In Kleinwort Benson Ltd v Lincoln CC  2 A. notwithstanding that the defendant .140). . Arguably. 124 doubt or uncertainty about a particular state of affairs can arise equally in criminal law.I. The majority of the House of Lords approved the decision at ﬁrst instance essentially on the facts. The effect of mistake on consent Secondly. p. 349.R.JJ.R. concealed his condition from the complainant.C. If so. Lord Hoffmann at . there is disagreement over whether the effect of a mistake by the victim is indeed to “vitiate” or to “negate” the victim’s consent. esp. though in the Court of Appeal  EWCA Civ 78. p. Burrows believes that the claim should only fail if the claimant thinks the facts are probably as they are in truth (Law of Restitution.
there is also disagreement over whether it is a mistake by the victim that gives rise to criminal liability.11 and Linekar.9. as noted above. fails to disclose information or abuses his 50 For example. It is difﬁcult to see why the law wishes to discourage deception unless it is because deception of any kind reduces the victim’s autonomy and ability to consent. Otton L. above. fn.J. the court held that there was “no true consent” (at 337. the same may no longer be true of “fraud”. This is what Buxton L. above.8. so that while only certain mistakes would remove consent in the latter category.51 Deception cannot therefore be contrasted with or seen as an alternative to lack of consent. Whittaker v Campbell and the old distinction between procuring a woman by false pretences and rape) the law seems to have suggested that cases of deception belonged in a different category from cases of simple vitiation of consent through mistake. In a similar vein. whether that consent is to a lift in a car. As noted above. 3.76 of the SOA 2003 only arise where the defendant has “intentionally deceived” or “intentionally induced the complainant to consent”. referred to “vitiation” of consent (at 450).24. Mistake or deception? Similarly. the courts referred to a need for an “absence of consent” by the victim to the defendant’s actions. or rather the inducement of that mistake by the defendant. 51 Above. in Flattery.50 It was argued above that in principle all “but-for” mistakes should be regarded as having a negative impact on factual consent because all such mistakes deny the victim the opportunity to give autonomous. but in Tabassum. In the light of the Fraud Act 2006.R. emphasis added. Indeed. the conclusive presumptions under s. It is submitted that this contrast between deception and mistake is wrong. to a ﬁnancial transaction or to some kind of physical contact. emphasis added) and in Richardson.. it might initially be thought that the new offence created by s. fn. Arguably it therefore does not matter whether we perceive this invalidation as “vitiation”.Q. at . The point is simply to ask whether the consent apparently given in fact was legally operative or not. on the other hand. above. all mistakes caused by the defendant would remove consent where the offence was one of deception. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . must have meant when he argued that there was “no room” for “consent” “when one is dealing with a case of fraud”. “negation” or “absence” of consent. What we are now trying to establish is whether all such factual mistakes should also invalidate consent as a matter of law.25. above fn.1 of that Act runs counter to the argument here. fn. informed consent. on three occasions (Cort.J. because the defendant can be guilty of that offence if he makes a false representation. the other two being some level of causal contribution to the mistake by the defendant and some form of mens rea concerning that causation.JANUARY 2008] Vitiation of the Victim’s Consent 143 whether the consent remains but is qualiﬁed in some way. (2008) 124 L. because that lack of consent is one of its three constituent elements. fn.
C. autonomous choices. Whittaker v Campbell and s.Q. It is true that fraud is wider than an offence of attempted deception (though it would certainly cover cases previously charged as such) but it is arguable that all its forms are concerned in one way or another to allow the law to intervene to prevent people from dealing with property without the owner’s fully informed consent. If that is the case. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .41 and 39. above. one of the purposes of the reforms was to capture two difﬁcult fact situations. para. See further. and the victim hands over the relevant property voluntarily. respectively. and Virgo. 124 position intending to produce a gain for himself or a loss to another. Machines could not be deceived for the purposes of the previous offences (Davies v Flackett  R. Swadling. 8. “A Claim in Restitution?”  L.11] offence is not inchoate: it requires the actual obtaining of the service” (above. Birks.4. and the argument here remains intact. even if no such gain or loss is actually made. This raises the difﬁcult question of the relationship between mistake and ignorance which the law of unjust enrichment and restitution has long found to be controversial (see. DC: see J. Ormerod.R.47. fnn. is on the same spectrum as a situation in which he tricks the owner himself with the same false coin. rev. This seems to fall somewhere between the new meaning of “fraud” and the old meaning of “deception”. 193. Law of Restitution. Principles of the Law of Restitution. Can the existence of those two other elements.T. 6th edn (2002). edn (1989). but while “deception” under the previous Theft Act only allowed the law to intervene when there had actually been a causative impact on the victim’s consent.g. at pp. Interestingly. failure to disclose information and abuse of position could lead to criminal liability without any impact on the victim’s consent unless the concern is that there could have been such an impact and the defendant thus posed a potential threat.M. fn. This is not the place to revisit that discussion.76 of the SOA 2003 does not require this impact in fact. The question is whether we must also reject their results. 54 For example. concerned to prevent even the possibility of this causative impact. Law of Restitution. fn.35). Crim. causation of the mistake by the defendant with some 52 The Explanatory Notes to the Act essentially support this conclusion when. above. “Can a Computer be Deceived?” (2000) 64 J.53 “Fraud” is.R.Q. Both concepts are concerned to protect the freedom to make full. “phishing” (falsely disseminating an email to large groups of people to elicit credit card and bank account numbers which are then used by the defendant to make or obtain money transfers) and machines.144 Law Quarterly Review [Vol.45. p180. Goff and Jones. L. but rather the existence of deception concerning one of the two key issues on the part of the defendant raises a conclusive presumption that the victim was not consenting and that the defendant lacked a reasonable belief in consent. and compare Burrows. “The Fraud Act 2006—Criminalising Lying?”  Crim.139–140 and 131). J. e.. the offence is made out even if the victim’s consent is not vitiated at all. (2008) 124 L. Law 89) but it is possible to “defraud” them under the new offence.3 of the old SOA 1956. D. like other inchoate offences. In either case it is difﬁcult to see how false representations.54 If all this is correct we can now reject the reasoning behind Cort.L. informed.47. in contrast to their comments on the s.R. 63. pp 140–146. but it is not impossible that a situation in which a defendant “tricks” a machine by inserting a false coin so that he obtains goods from the machine without their owner’s knowledge. above. Chapman. Lambie. deception under s. Ch. 53 Charles.1 offence they provide that “the [s. Introduction to the Law of Restitution. fn. In that sense there is no difference in principle between the harm captured by deception and that captured by fraud. unlike deception. Vitiation of consent cannot therefore be one of the constituent elements of fraud. In other words. the new Fraud Act offences must either be inchoate result offences52 or behaviour offences.
but it does so only to create a conclusive presumption in certain instances. 4.55 The only difference made by the lack of deception is that the prosecution will have to make out the victim’s mistake and the defendant’s mens rea on the evidence. It is true that s. Under Cort. We should not confuse matters by introducing policy factors relating to the source of the mistake. the initial similarity between s. If a victim has simply been mistaken about the nature and purpose of the act or mistakenly believes that the defendant is someone known personally to her. mistakes were considered irrelevant altogether unless they were produced by the defendant’s deception of the victim. Nevertheless. whereas the same mistake made by victim B did not because it was induced by a third party. “Active” and “passive” mistakes.3 of the SOA 1956.76 of the SOA 2003 is not quite as problematic as Cort. For this reason the approach of s. positive and negative mistakes A fourth preliminary consideration concerns the distinction sometimes drawn between what Graham Virgo refers to as “active” and “passive” 55 Indeed it is possible that the approach taken in Jheeta. it becomes difﬁcult to argue that a mistake made by victim A vitiated her consent as a matter of law because it was induced by the defendant. “reasons” and “conditions”.Q.76 is only a means of exacerbating liability.R. not of determining it altogether. then it is policy factors relating to that issue that should be considered. not to determine whether those instances can be legally relevant at all. Whittaker v Campbell or s.74 of the SOA 2003 and nothing in s. Whittaker v Campbell and s.. and yet if we are concerned with the kinds or types of mistake that should be legally relevant.76 and these three other instances does create the risk that the same confusion may occur under the 2003 Act and this would be undesirable. In this sense s. (2008) 124 L. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .76.76 prevents this.JANUARY 2008] Vitiation of the Victim’s Consent 145 form of mens rea. This has the added advantage of ensuring that we treat like victims alike.76 also focuses on the defendant’s deception or inducement of consent. If all “but-for” mistakes vitiate consent as a matter of fact. fn. rather than being able to rely on the conclusive presumptions of s. see above.3 of the 1956 on the other hand. this fact could still be relevant in determining whether she has “agreed by choice with the freedom and capacity to make that choice” as required by s. The defendant’s added culpability in cases of deception might thus be better dealt with instead by the rules of mens rea or by exacerbating their liability in some way.16. widen the categories of mistake that the law recognises as invalidating consent? Deception by the defendant certainly seems to provide a policy reason for giving legal effect to a factual “but-for” mistake. strengthens this conclusion.
V might consent to a particular physical activity because V believes it to be a necessary part of medical treatment. it is submitted that a better distinction (if indeed a distinction must be made at all) is instead between positive and negative mistakes. V may ﬁnd X physically attractive and may thus be positively motivated to consent to sex. Having thus separated out these different strands.118–119.. that the person treating me is a doctor? Or is my positive belief simply that the treatment will improve my physical wellbeing. yet had V known that the person in question was HIV positive this condition would have acted negatively to prevent V from consenting. e at pp. it is hard to argue that positive mistakes universally and inherently have any greater effect on the victim’s autonomy than negative. but it does mean that it may be difﬁcult to draw on the facts of any given case. above.R. However.Q. edited by Owen (1995). In addition to this. or vice versa. the next stage is to re-synthesise them in a way that produces more coherent and predictable results than can be found in the current law. or what Honor´ calls “reasons” and “conditions”.56 A passive mistake occurs where someone acts in ignorance of certain facts or has forgotten them. the line may be more difﬁcult to draw. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . In fact “reasons” are not the only kinds of positive mistakes. but subject to a crucial negative caveat. However. The key point is that they can all be grouped together as factors that positively motivate the decision. if asked why she had sex with X. whereas an active mistake occurs where someone relies consciously on a fact at the time of action. at pp. There is no question that in such clear-cut cases the line is easy to draw. in which case my requirement that the practitioner be qualiﬁed only acts as a negative caveat to my consent? If this question is difﬁcult to answer it does not mean that the distinction does not exist in principle. The most she could say would be that she would not have had sex with him had she known he was HIV positive.363–385. 57 Honor´ . they are acting solely because a particular fact exists. at pp.57 If the victim makes a e positive mistake. fn. For example. given that the line between acts and omissions is notoriously difﬁcult to draw. (2008) 124 L. or acts for a “reason”. When I consent to medical treatment is my reason.145–146. a negative mistake occurs where the victim acts for one or more positive reasons.5 of Responsibility and Fault (1999). Ch. This in turn suggests that there may be good reasons not to accord the distinction any signiﬁcance in law. ﬁrst published in Philosophical Foundations of Tort Law.47. 56 Virgo. given other sets of facts. V would not reply “because he was HIV negative”. For example. my positive belief. “Necessary and Sufﬁcient Conditions in Tort Law”. Conversely.146 Law Quarterly Review [Vol. 124 mistakes. motives and purposes could also be included.
Indeed. And even if we are happy with this inchoate or behavioural approach in the property offence context we might. if the aim of the new Act was to capture “phishing” offences and “deception” of machines58 there may have been other ways to do this which would not have involved merging the deception offences with other forms of liability or with their own inchoate forms.1 offence now does. it was seen that the new offence of fraud under s.1 offence be made out even if there is in fact no causative impact on the victim’s consent. On the other hand the Fraud Act is not the only statute to have adopted this approach. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .R.. with the intention that he or another shall use it to induce somebody to accept it as genuine.1 of the Forgery and Counterfeiting Act 1981: “A person is guilty of forgery if he makes a false instrument.3 offence of “procuring a woman by false pretences” did at least require that the woman in question be “procured’. the offence of forgery under s. V. ABANDON THE CONCERN WITH MISTAKES AND VITIATION OF CONSENT ALTOGETHER One option would be to adopt the approach of the Fraud Act 2006 which. Inchoate liability is. it is in the meantime possible to conclude that we should not necessarily abandon concern with the vitiation of consent through mistake altogether. THE SPECTRUM OF ALTERNATIVE LINES The answer is that there is a series of options that can be placed a long a spectrum which ranges from being pro-defendant at one end (because very few mistakes will be found to have a legal effect on consent) to 58 See above. it is still the exception rather than the rule of criminal liability and thus it does require strong justiﬁcation.” (2008) 124 L. for example. beyond the scope of the current inquiry. be more uneasy about an offence of “dishonestly making a false representation intending to cause a person to consent to sex”. and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice. without doubt. necessary in some forms.1 of the Act has not abandoned its focus on consent. we must have a means of deciding which “but-for” factual mistakes should be legally operative.JANUARY 2008] Vitiation of the Victim’s Consent 147 IV. Even the old s. but has just increased protection for consent by taking the form of an inchoate or behavioural crime.Q. Nevertheless. as the s. and it is on that much bigger issue that the choice of approach must ultimately turn. fn. However. If this is the case. for example. Nevertheless.54.59 The question whether the criminal law should in general focus on the prohibition of harm or on the prosecution of certain kinds of behaviour is an important but much bigger one. Creation of a risk of harm is not the same as creation of the harm itself and perhaps we should. as noted above. allows the s. therefore. hesitate before imposing such a wide form of liability too readily. 59 See.
No assumptions about admissible subjectmatter are required and it is not necessary to draw any ﬁne distinctions between different types of mistake.R. 124 Pro-defendant Improved policy balance Greater rationality Greater rationality FIGURE 1: The spectrum of alternative tests being pro-victim at the other (because a large number of mistakes will have this effect) (see ﬁg. Herring. and tests that are too pro-defendant or pro-victim in their application may not be best placed to do this.3. 1. Towards either end of this spectrum the lines drawn are better able to fulﬁl the rule of law in the sense that the reasoning behind the tests are readily understood and once the facts of a particular case have been determined it is relatively easy to decide whether the mistake made passes the test in question or not. It is therefore necessary to determine the extent to which each potential test can fulﬁl these two requirements. All “But-for” causative mistakes Pro-victim Law Quarterly Review 2. “Non est factum” mistakes only 5.60 As Simon Gardner has noted. There is much to be said for this alternative to the existing rules.61 there are no a priori limitations on the types of pressure that will negate victim consent and a “but-for” test for mistakes would thus align them with pressure cases.148 1. The chosen test must also produce desirable results in policy terms. the concern would be to protect the victim’s autonomy and it is relatively straightforward to argue that there has been an interference with this autonomy whenever the prosecution can show that had there been no misapprehension the victim would have acted differently. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . “physical difference” mistakes 4. However. This makes it easier to treat like cases alike and different cases differently. whatever the source of that erroneous belief (deception or mistake) and regardless of whether the mistake is positive or negative. fn.5. consent could be legally absent wherever the prosecution can prove that the victim would not have consented to or performed the act in question without relying on something which turned out not to be true. fn. 61 Above.Q.g. above. (2008) 124 L. and the results of any particular test are more coherent and predictable. 60 See. “But-for” positive mistakes only 3. “But-for” causative mistakes Beginning at the most pro-victim end of the spectrum.. In both. No mistakes have a legal effect on consent [Vol.1 above). e. a reduction of arbitrariness is not the only important consideration.
as to [his] position of responsibility .5 at 520-523.”66 Such lies might be “immoral and reprehensible”. as he states.67 Connected to this problem is the role of mens rea. the mistake should not have to be “to an issue which would be regarded as material to the reasonable person. 63 Above. In return for rule of law-fulﬁlling rationality it could result in a wide expansion of liability. the presumably more socially acceptable situation where the victim’s own religious beliefs require him to have relationships only with people of the same faith and the presumably more socially unacceptable situation where the victim has no particular religious beliefs of his own but is.R. (2008) 124 L. fn.5. Under the SOA 2003 this will now be fulﬁlled by a lack of reasonable belief in consent. But if Herring’s model were to be adopted it would incorporate mistakes which did not. Several of these drawbacks are outlined and answered by Herring. In Cuerrier the Supreme Court of Canada deliberately chose not to set the rules so widely that they would encompass someone who “lied . at 517. 65 Above.Q. fn. Nevertheless. or that he would never look at or consider another sexual partner. . but the court concluded that they should not result in criminal conviction. for example.9.5. 64 Above. D practises a particular religion and fails to disclose this fact to her partner. We might well feel less comfortable about striking Herring’s balance between privacy and sexual integrity where. or the level of his salary. this test is not entirely without drawbacks. it is submitted that we should not readily give it legal effect. for example. 67 Of course there are really two examples contained in this one. it is possible to argue that in his transgender example the relevant fact does at least relate directly to the physicality of intercourse. fn.”65 To introduce such a rule would be to reintroduce arbitrary assumptions of the kind we already have. fn. where the condition placed on the act by the victim is wholly unrelated to the physical act per se and potentially socially undesirable. or as to the extent of his affection for the other party. 66 Above. or as to his sexual prowess. It is not difﬁcult to see why. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .63 including the fact that under this rule a failure to inform a new partner of a past change of gender could lead to a charge of rape. if it was a prerequisite to consent for the particular victim.”64 It is certainly important that. so we are left with a situation in which the treatment of the victim 62 Subject to the presence of mens rea. a lot of weight will be placed on the defendant’s mens rea as the deciding factor for liability. at 523. anti-Semitic.. In a case like that. .JANUARY 2008] Vitiation of the Victim’s Consent 149 However. If “but-for” causative mistake negates consent so easily. Herring accepts that this is “an invasion of their private life”. . which is discussed in more detail below. at 563. .62 which may not be desirable for policy reasons. or the degree of his wealth. but goes on to suggest that “that right must be subservient to the right to sexual integrity of their partner.
124 of sex offences is wholly subjective while treatment of the defendant is objective. fn. If reasonableness were to become relevant to the mens rea of property offences we would encounter the same problems there. for example. v Konzani”  Crim. Weait. And it is not immediately apparent.Q. In the light of these considerations it thus appears that while the “but-for” line fulﬁls the requirement of being coherent and predictable in principle. All “but-for” positive mistakes should have a legal effect on consent.. will be much harder. 69 Above. Here the defendant must ask himself what factors the victim is likely to consider important to the particular situation and must establish whether the victim is in possession of all the relevant details about those factors. Under this rule Lambie 69 could not have been decided as it was. 2. See. This entitlement is only a 68 Above. In probably the majority of pressure cases.g. (2008) 124 L. it may be difﬁcult to apply in practice and it may entail policy consequences of an undesirable kind.R. then as long as that payment does follow the transaction is valid and consent is not inoperative simply because the defendant was not entitled to use the card.R. esp. at 770. the existence of pressure and its effect on the victim will be externally observable by the reasonable person and it will be relatively straightforward for the jury to assess the defendant’s failure to reach this standard. “Knowledge.39. whether this reasonableness should be based on the public at large—is it ever reasonable to proceed without informing one’s sexual partners of one’s religious beliefs? Or whether it follows the more usual victim-centred approach—given that D knows X is anti-Semitic should D inform X that D is Jewish before having sex with X? At present. L. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . 763. It will then be up to the jury to assess both whether the defendant’s mental list of relevant factors was reasonable and whether he should have taken further steps to clarify those factors with the victim. M. e. on the other hand. If the victim’s reason for accepting a credit card in payment was solely that they believed payment would follow. The assessment of reasonableness in mistake cases. or between “positive” and “negative” mistakes. the “reasonable belief” mens rea requirement only applies under the SOA and possibly to non-sexual offences against the person in the light of Konzani.68 but in principle these arguments are not offencedependent.48.150 Law Quarterly Review [Vol. but not negative mistakes about conditions This option would begin in the same way as the option above but would draw a line based on Honor´ ’s distinction between “reasons” and e “conditions’. Autonomy and Consent: R. Moral decisions may therefore have to be made by juries about whether defendants ought to have known of their victims’ beliefs or prejudices. fn.
70 Certainly this would ﬁt with the result in Dica. it may be very difﬁcult in some cases to decide which kind of mistake.15. It is also an undesirable line to draw in policy terms. 71 Above.Q. The line (nearly) drawn by the current case law on offences against the person Moving further along the spectrum it is submitted that the next line.7 of the SOA 2003 the line that is drawn by the law in future might move towards this. for example. 72 Above. from the victim’s point of view. it is equally possible to characterise such an act as “sex because the parties found each other attractive. If Herring is right about the potential for expansion of relevant mistakes using the word “purpose” in s. it is not immediately obvious that the infringement of autonomy present in Dica is any less serious than the infringement of autonomy caused by a positive mistake about the purpose or reason for the action.71 since it would be very difﬁcult to regard the act in that case as “sex for the purpose of not transmitting HIV”.. on condition. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .JANUARY 2008] Vitiation of the Victim’s Consent 151 condition placed by the victim on the transaction. fn. whereas evidence of a specialist nurse in Tabassum suggested that several of his actions had been unnecessary and would not have been performed by a qualiﬁed practitioner seeking to compile a database of the kind he 70 Though as noted earlier. has been made. it is more difﬁcult than the straightforward “but-for” line. For example. This could. It thus seems difﬁcult to support a distinction of this kind between positive and negative mistakes either on grounds of practical predictability and ease of distinction or on policy grounds. Taking Herring’s example of sex “for the purpose of consummating a marriage”.25. 3. while a line of this kind can sensibly be drawn. (2008) 124 L. As noted above. 73 Above. it is difﬁcult to see why sex “for the purpose of consummating a marriage” should really be separated from all later acts of sex between the same parties. As noted above. positive or negative. there may be other kinds of positive mistakes such as motives or reasons that do not necessarily constitute purposes. that they were already married”. drawn by almost all the criminal law on offences against the person (sexual and non-sexual). However. since “purpose” mistakes are positive mistakes but probably not negative “conditions”.24. The victim’s consent cannot really be said to be any less undermined on later occasions where the existence of a marriage is “only” a condition. explain the line between Tabassum 72 and Richardson. seeks to establish whether anything physical about the case would have been different if the act had been as the victim thought it was. fn.R. fn.73 since Richardson was presumably treating her patients the way she had always done before she was suspended from practice.
75 Above. (2d) 82. (1967) 63 D. that in the light of the recent enactment of the SOA 2003 without any provision for disease transmission cases. This rule would also provide a means of prosecuting cases like Dica 74 while exempting cases such as Linekar. 78 Above. The “physical difference” line. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . fn. From the sphere of offences against the person it includes cases where the defendant lacks a particular qualiﬁcation but (unlike Tabassum) acts in exactly the same way as if that qualiﬁcation had been present. the victim’s sexual autonomy is undermined just as much as their physical autonomy by the failure to disclose HIV positive status in any circumstance where they make a “but-for” mistake about the defendant’s HIV status.Q. if correctly drawn by the law in all future cases.C.9.L.R. fn. falls fairly centrally in the spectrum and thus provides a reasonable balance of rationality and desirable results. on the other hand.15. (2008) 124 L.R. At no time did 74 Above. 76 Of course the Court of Appeal in Dica. However.75 since in Linekar nothing would have been different about the act itself had the prostitute received payment afterwards. but since there had been no implicit exclusion of this issue from recent legislation in the area of non-sexual offences against the person the Court of Appeal may have felt more secure in developing the law in this direction itself.78 where the victim had sex with the defendant believing herself to be validly married to him. it cannot meet the challenge of “qualiﬁcation cases”..15. fn.C. One example of this is Papadimitropolos. to be discussed in the next section. 147). Another is the Canadian case of Bolduc and Bird 79 in which a physician allowed his friend to observe an internal examination for his own gratiﬁcation when the patient had only agreed to this on the basis of a false belief that the friend was a medical intern. since the very brief consideration given by the Court of Appeal to this matter concluded that consent to the sex had not been vitiated in that case. This could be for one of two reasons. 677. the Court of Appeal felt that it would not be possible to develop the law itself. fn. fn. 79  S. Of course this was not the line used in Dica. by separating the sex from the transmission the Court of Appeal seems to draw a different line. From the property sphere this includes cases such as Lambie 77 where a person is not entitled to use a credit card yet does so. The ﬁrst is that suggested above.R.76 The second could be the fact that the Court of Appeal saw transmission of HIV as a physical act separate from the intercourse itself. was developing the law on offences against the person without positive encouragement from Parliament (as indeed the House of Lords had earlier in Ireland and Burstow  A.39. only consent to the transmission of HIV. As a matter of fact. As a matter of law. whereas sex resulting in the transmission of HIV could be said to be physically different from sex with an HIV negative person. above.152 Law Quarterly Review [Vol. 77 Above. 124 described.21. especially when Dica had not been charged under the SOA.
4. 1004 at 1016. this rule would also catch a case in which V consents to D taking a box.JANUARY 2008] Vitiation of the Victim’s Consent 153 the friend touch the patient. fn. 85 Above. not knowing that it is in fact a real. fn.”81 Two criminal equivalents of the contract cases are Flattery 82 and Williams 83 where the victims were not even aware that they were engaging in a sexual activity at all. since although Richardson lacked the qualiﬁcations at the time she acted and thus falls into the category. fn. To give examples based on other kinds of crime. per Judge L. The sex. at 39. 83 Above. fn. The “physical difference” test.86 Thus if A lies to B 80 Above. but was conﬁrmed in B. above. heavy one. she had at least held them in the past. where it applies to “those who are permanently or temporarily unable through no fault of their own to have without explanation any real understanding of the purport of a particular document. at 185: “one way to defeat the in factum/in the inducement distinction is to build more into the description of what is consented to. at p. or where V consents to being hit with a polystyrene stage weapon. nothing in these qualiﬁcation cases is physically different from the way it would have been had the victim’s belief been correct.14. therefore fulﬁls the requirement of being coherent and predictable. 81 per Lord Reid in Gallie v Lee  A.. fn. it was because there was no such mistake in the factum that Dica was thought not to be guilty of rape.Q. 86 A. above. thereby making all in the inducement cases into in factum.R. McGregor.” (2008) 124 L. 84 The point was not at issue in Dica itself. A third example could be Richardson. treatments and payments are unchanged and thus would not be caught by this test.11.J. “Non est factum” mistakes only The fourth category along the spectrum borrows terminology from the contractual context. On the one hand. Conversely..84 His victims “consented to sexual intercourse”85 even if they did not thereby consent to the transmission of HIV.25. not knowing that D has placed a valuable item of V’s in the box. fn. unlike Papadimitropolos and Bird. whether that be from defective education. Wertheimer.15. illness or innate incapacity.12. 82 Above.C. yet on the other hand it is still arguable that the victim’s autonomy has been undermined through misapprehension. Wertheimer has argued that the distinction based on mistakes in the factum cannot actually be drawn since “everything turns on the way in which a case is described” and “it is not even clear how the factum/inducement distinction is meant to work”.80 but this case is slightly different again. See also J.206. but it may not strike the correct balance in policy terms if we are indeed concerned to prosecute the “qualiﬁcation cases”. Consent to Sexual Relations (2003). 4. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .
R. Posner has conjectured that if a woman is not “averse to having sex with a particular man. Where Wertheimer’s argument does carry force. B does at least know he is buying a car. Wertheimer argues that B could be said either to be mistaken in the inducement/attributes (B knows he is buying a car but is mistaken about the mileage) or the factum (buying a car with a particular mileage). It would therefore be possible to draw a coherent line that allowed only mistakes of this kind to prevent consent from operating. But in response it should be noted that in both cases. Sex and Reason (1992). . fn. . . There are some cases in which mileage of cars or identity of partners will be a matter of concern to the potential victim.A. however. it may even constitute a “physical difference” of the kind described above. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . However. B’s belief about the mileage of the car may be a “but-for” cause of his consent to the deal as a whole. given that many “but-for” factual mistakes would not be legally recognised under such a rule and thus many cases in which the victims did not consent as a matter of fact would have no legal consequences for the defendants? 87 R. as a matter of fact. 88 Above.. Mistakes about mileage or identity cannot therefore be separated rationally from mistakes about any other feature of the activity.154 Law Quarterly Review [Vol. It is not so much that “everything turns on the way in which a case is described”. Indeed. unlike the victims in Flattery and Williams. Nevertheless. but there will also be cases in which they will not. It is not possible to separate the two issues in this way. is in pointing out that this increased rationality has a high price in policy terms.87 This is to go too far in the opposite direction. the woman’s bodily integrity is. if any. and had the law thus conﬁned itself to Flattery and Williams it would have been defensible in terms of rationality. . it can be said that no victim can consent to an activity if they do not even know it is taking place. rather than in an invasion of her bodily integrity”. but B is not mistaken as to the whole kind of activity he is undertaking. (2008) 124 L. the wrong. 124 about the mileage of a car. Posner. is in the lies . Posner is right to identify the difference between knowing that one is undertaking an activity at all and knowing the details of that activity.86. in the context of sex offences. Why assume that fraud in the inducement is not a serious matter?”88 Is it really desirable to draw the line so tightly.392. undermined by the lies even if they do not lead to a non est factum mistake. but rather the second half of this sentence that is crucial: “there is no reason to think that the intercourse/non-intercourse distinction is the only plausible factual basis on which to distinguish one case from another . at p.Q.
Consent cannot be prevented from operating by any kind of mistake This most pro-defendant option is clearly rational but utterly undesirable in policy terms. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .. In the centre of the spectrum more desirable results are achieved in terms of policy. then.Q. Autonomy can. instead of trying to ﬁnd a single test capable of providing all the answers.R. being either too pro-victim or too pro-defendant.JANUARY 2008] Vitiation of the Victim’s Consent 155 It is worth noting that the law has in practice answered “no” to this question. be undermined by misapprehension as much as by pressure. ﬁrst that it is out of line with the wholly 89 Above. fn. but the “physical difference” line almost drawn by the current law fails to provide a satisfactory answer to “qualiﬁcation cases”. as explained earlier. The resulting law may be incoherent and unpredictable but this is not because the courts have chosen to draw a wider boundary in the ﬁrst place. Towards either end of the spectrum the lines drawn increase in coherence and predictability but decrease in desirability.13.3 “procurement by false pretences” offence. and see also the old deﬁnition of rape under the SOA 1956 as amended by the Criminal Justice and Public Order Act 1991 s. but this would still leave a gap where the victim’s autonomy had been undermined and their consent negated but not through the use of false pretences on the part of the defendant. Obviously this choice would be slightly improved if there were to be an equivalent of the old s. (2008) 124 L. as argued at the outset.3 style offence when they would not equally have effect for the purposes of a pure lack of consent offence. This existing approach has been found to have two major problems.” See now s.1(3): “A man also commits rape if he induces a married woman to have sexual intercourse with him by impersonating her husband. since a lack of consent is one of the three constituent elements of deception it would not make sense to recognise some mistakes as having legal effects for the purpose of a s. 6. Rather it is because having decided to give legal effect to mistakes which do not go to the factum the courts have not then found a satisfactory way to distinguish cases like Elbekkay from those like Dica. we should instead return to the “categories” approach to mistake cases with which we began. it is very difﬁcult to draw a line that will both operate rationally and produce desirable results in policy terms. 5. Conclusion on the spectrum of alternatives The conclusion to be drawn from this spectrum of options must therefore be that even if a change to a universal test could be effected.76 of the SOA 2003. Furthermore. allowing in cases where people know that they are having sex but are mistaken about the identity of the person with whom they are having it (Elbekkay 89 ). A return to the “categories” approach? Perhaps.
Simester and Sullivan’s scenario involving an illegal immigrant who is forced to work in the sex industry (above. then the ﬁrst objection falls away and we are left with the second. Thus. above. Secondly. in the light of Tabassum 93 and Richardson 94 predict whether qualiﬁcations will be seen as going to “the nature of the act” or “the identity of the defendant’. Thus at present one cannot. however. However.Q. fn. they must be predictable in the sense that it must be possible to ascertain in advance whether a particular case will fall into a given category or not. The real problem here.413) 93 Above. as explained above.3.. 91 Above.75 of the SOA 2003 has itself adopted a “categories” approach.25. However. or we may create a category of “qualiﬁcation mistakes” on the basis that we wish to protect the institution of marriage or the requirements of professional training. is not the use of categories per se. such as the “physical difference” category). at p. conclusive categories based on unarticulated and unjustiﬁable assumptions. fn. Whether or not the particular categories listed there are desirable in their own terms. 94 Above. on which the key line is to be drawn between “reluctant acquiescence” (consent) and “mere submission” (non-consent). it is possible to predict that if V knew she was having sex with D but did not know he was HIV positive she would not fall into the non est factum category (though she may fall into another. If this is accepted. It must be possible to describe the categories in such a way that the reason for their existence can be easily understood. fn. it is true that Olugboja 91 seeks to establish a spectrum of pressure. a person cannot be said to be consenting to an activity if they do not even know that it is taking place. for example. rigid. their existence in the pressure context means that if they were to be introduced to cope with instances of mistake the difference between the two areas would no longer be so great. 92 See. it is submitted that neither of these problems is insoluble.18. listing certain circumstances in which evidential presumptions will be raised against the defendant.24. fn. Unlike the existing categories of mistake. but the use of ﬁnite.R. any new categories must therefore fulﬁl three requirements. Thus we may reject a category of all “but-for” mistakes on the basis that it produces undesirable results in the case of anti-Semitic victims. we might include “non est factum” mistakes as one category on the basis that. (2008) 124 L. 124 subjective approach used in cases of pressure90 and secondly that it is currently based on unarticulated and unjustiﬁable assumptions. First.156 Law Quarterly Review [Vol. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .1. First. Thirdly. for example. s. Of course.92 The interesting point is that in order to help juries to ﬁnd the line. they must be rational. there will be differences of opinion about whether or not the 90 See Gardner. the lines drawn must produce acceptable results in policy terms. fn. but that line is notoriously difﬁcult to draw.
rather they would never have consented if they had known that it was. however. or cases where the victim mistakenly believes the defendant has one particular attribute which would not make a physical difference to the action or transaction itself. while this test cannot do all the work alone it is useful as far as it goes and mistakes of this kind should prevent consent from operating. that does not mean that its identiﬁcation as a category is useless. where the victim mistakes the defendant for another person altogether. It would not then matter whether the qualiﬁcation in question was the deﬁning characteristic or positive reason for the interchange (I do not care who my dentist is.. “condition” mistakes in the sense that if the victims were to be asked why they were consenting to the supposed “operations” they would not reply “because it is not sexual intercourse”. (2008) 124 L.Q. either kind should remove consent. where V has sex with D believing that he owns a yacht. since both kinds of mistakes are capable of undermining autonomous consent there is no reason in principle to distinguish between them. In case this conclusion is thought to be too open-ended. but the key point is that this discussion must take place openly and not be hidden behind apparently self-applying concepts such as “nature and quality of the act”. there is no reason in this category to distinguish between positive “reason” mistakes and negative “condition” mistakes. as long as he is a trained dentist) or simply a negative condition placed upon it (I go to my dentist because I have been pleased with his treatment of me in the past 95 For example. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . (b) Physical difference mistakes Again.95 Again. It is likely that mistakes of this kind will only be negative. entitlements to use credit cards or to practise) are included. include qualiﬁcation cases. It would not. (c) Legal qualiﬁcation cases This may be an instance in which a particular categorical line does have to be drawn so that only cases of legal characteristics (such as marriage. or about any of his other characteristics. known personally or not. my opening bid is that we might wish to regard consent as inoperative where any of the following three kinds of mistakes have been made: (a) Non est factum mistakes While it may very well be undesirable to conﬁne vitiating mistakes to this category alone. This would include cases of disease transmission and also “whole identity” cases.R. But as explained earlier. real or ﬁctional.JANUARY 2008] Vitiation of the Victim’s Consent 157 categories chosen do strike the right balance in practice. It can simply form one category of relevant mistakes that is readily identiﬁable. distinguishable and justiﬁable.
49 of the Medical Act 1983. articulating the similarities and distinctions between cases and the reasons for allowing certain categories of mistake to operate. the offence of bigamy under s. and it must not cause undesirable results in policy terms. once the facts are found it must be relatively easy to establish whether or not a given case falls within it or not.90 of the Police Act 1996. “quality” and “attribute”. unarticulated assumptions and thus whether the victim’s autonomy is protected can be both a matter of chance and relatively unpredictable. coherent and consistent in their operation and produce universally acceptable practical results.. 124 but would stop going were I to discover that he was not qualiﬁed to treat me). However. Any category chosen must be readily understood. as mentioned above. as the law grapples with the meaning of words such as “nature’. so that its results are predictable. are either over or under-inclusive in outcome. It has been suggested in the past that a test or spectrum approach is the correct way of dealing with this problem. the reasoning behind it must be coherent.96 VI. the offence of impersonating a Police Ofﬁcer under s. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . (2008) 124 L. although predictable and coherent. even within the sphere of criminal law. but towards the pro-defendant and pro-victim ends of the spectrum the tests. or pretending to be registered [as a medical practitioner] under s. CONCLUSION It is almost impossible in this area to set out a completely watertight set of rules which will be certain. It has not been that approach itself that has been at fault in the past. since that would avoid the establishment of arbitrary categories and allows cases of mistake to be aligned with those in which consent is removed by pressure. the set of categories taken 96 For example. many of the rules governing the present operation of mistakes are based on rigid. In the centre of the spectrum a better policy outcome can be achieved but there is no consistent or coherent means of dealing with the “qualiﬁcation cases”. A range of tests exists. but rather the inﬂexibility of its operation and a failure to analyse and articulate the reasoning behind the choice of particular categories. In policy terms. it has been shown here that it is not possible to devise a test to replace the current rules because no single test can provide an acceptable balance between rationality and policy outcome. It has therefore been suggested here that we should instead revert to a category approach.Q. in combination. It may well be that as an individual category it is then under-inclusive of the cases we think it desirable to catch. but that is not a problem as long as.R. such a category would support the protection given to such institutions elsewhere in law.57 of the Offences Against the Person Act 1861. In order to improve on this situation the law should therefore proceed on a case-by-case basis.158 Law Quarterly Review [Vol. Like cases are not treated alike. Certainly the existing law is a long way from achieving these goals.
Victims (2008) 124 L. conference at the University of Strathclyde in 2005. coherent and desirable set of practical results than has been achieved so far. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . Mistake.L. Jo Miles. I am very grateful for the feedback I received there and also for the helpful comments of Andrew Ashworth. Graham Virgo. This article is based on a paper given at the S. physical difference and legal qualiﬁcation cases. comprising non est factum. Consent. since that will itself lead to a more predictable. but of course any remaining errors are entirely my own.R. Jonathan Herring and John Armour. The most important point is that the correct criteria be used to choose the categories. Sexual offences. REBECCA WILLIAMS. Paul Roberts.* * Fellow of Pembroke College. One such combination has been suggested above.. Deception. but there may be others who would take a different view.S. Oxford.Q. Matthew Weait.JANUARY 2008] Vitiation of the Victim’s Consent 159 as a whole are thought to cover the right ground.
A paradox consists of two or more apparently true propositions which generate a conclusion that appears to be false.REVIEWS AND NOTICES The Paradox of Constitutionalism: Constituent Power and Constitutional Form. constitutionalism asserts that governmental power will only be effective and sustained if it is split between institutions and constrained by rules. PARADOXES are rare creatures. with an array of writers responding to the challenges it presents in different ways. The processes by which contemporary constitutions. First. or can no longer. Hardback: £50]. ambitiously contending that some of our modern constitutional confusions are the result of the obfuscation of the founding principles of this period. These propositions lead to the paradoxical conclusion that whilst the people are sovereign. The ﬁrst limb of the paradox makes an assertion about the source of governmental power. 2007. Secondly. exercise that power on which the existence and validity of the constitution is thought to turn. Martin Loughlin provides an account of the constitutional debates in England during the seventeenth century. scrutinising the debates that have surrounded the creation of various constitutional orders. [Oxford: Oxford University Press. One way of reading the ﬁrst limb of the paradox is as a factual assertion: that governmental power actually does come from. but it is hard not to feel that the tight focus on intellectual history leaves aspects of our paradox unexplored. constitutionalism asserts that governmental power is generated from the consent of the people. In a similar vein. they cannot exercise their sovereignty: they can never. It would have been interesting to see how the intellectual arguments interacted with the actual mechanisms devised to link the people with their constitution. supplying a captivating discussion of Machiavelli’s Florence which he contrasts with contemporary civic republicanism. Faced with a paradox. viii + 375 pp. or embrace the conclusion. the people. Edited By MARTIN LOUGHLIN and NEIL WALKER. John P. in some sense. Lucien Jaume and Christoph M¨ llers consider French and German constitutional history respectively. dispute the deduction. such as the South African 160 . In the ﬁrst part of the book the contributors employ the tools of intellectual history to tackle the origins and signiﬁcance of this claim. they claim. we have three options: we can dispute the premises. they claim. McCormick delves farthest into history. o whilst Stephen Grifﬁn meditates broadly on constitutional change in America. All of these authors provide useful and stimulating papers. Martin Loughlin and Neil Walker assert that a paradox lurks within constitutionalism. In their introduction to this collection. This supposed paradox provides a theme which runs through the book.
but quickly turns to more abstract matters. Intellectual history to one side. draw a tight connection between constituent power and popular sovereignty. Walker. perhaps. One worry with popular sovereignty is that its test of legitimacy may be so exacting that no actual political institution could ever meet its demands. the force of the paradox will be reduced.R. and what to do about those within the group who dissent from the majority. Ulrich Preuss’ paper on the exercise of constituent power in Central and Eastern Europe in the 1990s looks as if it might tackle this task.281). enabling them to change and respond to their citizens. consideration of these modern constitutional processes might have clariﬁed the possibilities for. to an extent at least. excluded to ensure their continuing effectiveness and stability. amongst others. and if we further assume that the ﬁrst limb of the paradox is correct. and that the Union’s legitimacy depends on its connection with the people of Europe. If we assume that the UN is.. The second limb claimed that constituent power is shut out of operating constitutions. through the democratic processes of the nation states. amongst others. mass involvement in constitutional drafting. Many of the contributors to the volume challenge this assertion. were drafted might have illuminated this aspect of the conundrum. Perhaps the resulting gymnastics suggest that we should reconsider our support of the ﬁrst limb? One notable omission from The Paradox of Constitutionalism is a defence of the assertion that constitutional legitimacy is grounded in the consent of the people. authoritative and worthy of our support. and limitations of. More ambitiously still. and conclude that the power of the UN must be grounded in the consent of the people. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . A number of other papers move away from intellectual history and directly address the implicit normative assertion embodied in the ﬁrst limb of the paradox.Q. for instance.JANUARY 2008] Reviews and Notices 161 constitution and the ill-fated European Constitution. Fassbender’s paper provides a good example of the possible trap set by popular sovereignty. Bardo Fassbender argues that the UN Charter “must” be referred to as the “constitution of the international community” (p. arguing that constituent power provides a resource for functioning constitutions. Neil Walker’s powerful paper on the European Union provides a careful reﬂection on these issues. Preuss spends sometime wrestling with the mysteries of popular sovereignty: how to deﬁne the group that wields it. The strain it creates becomes obvious when writers attempt to square international organisations with its requirements. contends that the idea of constituent power (2008) 124 L. Ulrich Preuss and Neil Walker. Fassbender goes on to argue that the requirement for popular participation is satisﬁed indirectly. we are led to reason backwards. through the beneﬁts it confers on those subject to it. Walker argues that challenges presented by constituent power are now faced by the Union as much as by the Member States. If there are other ways in which a constitution might be legitimated.
and perhaps even more intriguing. First. it also speaks to how the constitution should develop and operate. Emilios Christodoulidis and David Dyzenhaus focus on the paradox’s conclusion. economic and military—through which imperialism is accomplished.. constituent power helps preserve the institutions and structures of the constitution by allowing it to meet new challenges.R.Q. 124 demands an on-going connection between people and constitutions: it is not merely a claim about how a constitution should be founded. and instead present it as the raw political power to make constitutional changes without constitutional authority. For Damian Chalmers. therefore. Similarly. they may be retrospectively endorsed or excused by the judges. providing the continuing possibility of a challenge to capitalist forms of constitutionalism. in gloomy contrast. Here. the paradox is something to rejoice in. but draw different lessons from it. and a particular model of constitution enforced. Dyzenhaus argues that the paradox demonstrates that normative legal theory requires us to deny the existence of constituent power. Dyzenhaus’ case is at its strongest if we suppose that normative legal theory is exclusively concerned with judicial decision-making. for the extraconstitutional power which constituent power purports to be. The law cannot permit unlawful action—because such permission would render the act lawful—and so. apparent paradox. At least two difﬁculties face Dyzenhaus. it is just not obvious why legal theory—normative or otherwise—should be limited in the way he prescribes. Whilst such actions can not be prospectively authorised by the constitution. Stephen Tierney points to extra-constitutional referendums and assemblies which can facilitate constitutional reform when the formal mechanisms for change prove insufﬁciently ﬂexible. some contributors split constituent power from popular sovereignty.162 The Law Quarterly Review [Vol. In an interesting division of opinion. there may still be a need for recognition of unconstitutional change. Hidden within the volume we can also identify a second. In a stimulating paper. constituent power is exerted when the formal institutions of the constitution act outside of the constitutional powers allocated to them in response to the wishes of the political community. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . perhaps. For Christodoulidis. He argues that this brand of theory demands that authority within the constitution be constituted by law. even if we are narrowly concerned with judicial decision-making. Tully identiﬁes three forms of constituent power—political. Secondly. There is no space left. One of the many tasks of legal theory is to help us understand how legal systems change. An account that denied the possibility of unconstitutional change would be forced to ignore an important feature of the practice it purported to study. reﬂects on the West’s imposition of constitutional forms on non-Western peoples. James Tully. This relates to the temporal division implicit in the idea of constituent power: constituent power (2008) 124 L. it also cannot acknowledge the possibility of unconstitutional constitutional change.
never be shown to be present in the current constitution.W. N. that the authors need not have included. This conundrum is the subject of Hans Lindahl’s paper. until now.38 of the Refugee Convention. The topic of constituent power has been.. constituent power only exists once it has been successfully exercised. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . So.Q. xii + 840pp. The essays are of a generally high quality. The practitioner seeking judicial opinion on the meaning of. 2007. Loughlin and Walker have edited a ﬁne collection of essays. and can only be identiﬁed retrospectively. (2008) 124 L. [3rd Edition. by deﬁnition. in origin and evolution. include a reference to this provision in the table of international instruments. This may help explain the difﬁculties which some of the contributors have encountered in identifying the holders of constituent power. BARBER. The book last appeared in its second edition a decade ago. of refugees as the centre * Trinity College. and did not. indeed the persons and individuality. for example. the key terms of “persecution” and non-refoulement must refer to decisions of national courts although in the future the European Court of Justice (ECJ) will be able to interpret recent Directives of the European Council in what may be called the reworking of the Refugee Convention in its application to Member States of the EU. it can. He presents constituent power as a continuing redeﬁnition of the people in the light of their constitution. and determining the conditions and manner of its use. By GUY GOODWIN-GILL and JANE MCADAM. which assigns a role to the court in the settlement of disputes between the states party to the Convention. It is a commonplace within that academic discipline that the International Court of Justice does not enjoy an extensive jurisdiction. a constant re-creation of the founding of the constitution. and will spur further reﬂection on the issues they raise. part of public international law. Hardback: £80]. Oxford: Oxford University Press.* The Refugee in International Law. under-explored.R.JANUARY 2008] Reviews and Notices 163 is exercised when a constitution is created—or changed through extraconstitutional means—and yet we can only identify an exertion of this power by reference to its product. THE very title of this account of refugee law makes the obvious but often overlooked point that asylum law and practice is mediated through the normative acts of sovereign states but is. His paper is as demanding as it is insightful. Oxford. The new edition is divided into three parts which reﬂect the authors wish to locate the concept. It has had so little an impact on the development of refugee law that Art. Lindahl considers the interplay between the attribution of acts to social groups and their identity.
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piece of this work. First, there is a discussion of the relationship between the legal status of the refugee in international law and the political reality of states wishing to retain their obligations of non-refoulement but, at the same time, taking measures to prevent refugees from arriving on their frontiers. The chapter moves on to consider the responsibility of the UN Security Council in maintaining international peace and security when the acts of states may have created a refugee crisis—examples are given of the invasion of Kuwait by Iraq in 1991 and the more internalised conﬂict in Kosovo in 1998. But the authors make their view clear that the interpretation by national courts of the Refugee Convention as containing a principle of surrogacy of protection is inimical to the true interests of the refugee. A number of recent decisions in the House of Lords are criticised (pp.10–11) for adding a requirement of proof of the inability or unwillingness of a state to offer protection against the risk of serious harm to the risk of such harm occurring whether from the state or from non-state agents. But it is difﬁcult to see how a person can be classiﬁed as a refugee if the state can and does (always a difﬁcult issue of evidence) offer a sufﬁciency of protection against the acts of non-state agents. The book then addresses the central question of who is a refugee. The writers trace the concept as a term of international law from instruments initially arising from the League of Nations and later from the United Nations. But the book does not constantly look backwards. It introduces the EU Qualiﬁcations Directive at an early juncture. Internally displaced persons, those in a related category ﬂeeing from civil war or disturbance and those seeking protection from natural disasters are all examined with copious reference to the sad reality that organised hostilities have continued for most of the last century and they show no sign of abating today. Indeed, the category of terrorism and the dangers it poses to human rights receives separate treatment within a longer section on the loss and denial of refugee status. This is the most appropriate moment to refer to the very interesting discussion of the relationship between the Refugee Convention and the European Convention on Human Rights (ECHR). The Refugee Convention contains well-developed exclusion provisions in Art.F. Yet when interpreting the ECHR, almost an exact contemporary of the Refugee Convention, the Strasbourg Court has consistently held that the prohibition in Art.3 of torture and inhuman and degrading treatment is absolute. It applies as much to expulsion cases as to claims against a signatory state in relation to conduct on the territory of that Member State. This prohibition also generates protection for individuals irrespective of their personal conduct. The leading authorities are Soering v United Kingdom (1989) 11 E.H.R.R. 439 and Chahal v United Kingdom (1996) 23 E.H.R.R. 413. Litigation continues before the court about the principles set out in these two cases. The authors express the view that the court is unlikely to resile
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from its principled stance. There is continuing debate within the United Kingdom about withdrawal from the ECHR and its replacement by a national measure that neither contains nor adopts the absolute form of Art.3. Professor Goodwin-Gill has played a signiﬁcant role in developing submissions by interveners in the continuing European litigation. Although clearly supportive of the maintenance of the absolute nature of protection under Art.3 both authors do not adopt a partisan approach when explaining the contrary position adopted by the United Kingdom and some other Member States of the ECHR. They set out the existing law, express their view that the court is unlikely to modify its existing stance and interweave their treatment of the European Union Qualiﬁcation Directive (Council Dir.2004/83). This part of the book is amongst the best treatment of a provision that has only been required to have been implemented by October 2006. Instead of merely expounding the text of the law (a common habit of legal writers at both national and international level) the authors grapple head on with the consequences of the instrument having been negotiated at a political level and the difﬁculties this may create in future references to the ECJ from within Member States. Another feature of modern state practice concerns the policies of, notably, the United States and Australia in intercepting maritime trafﬁc in order to prevent the arrival of potential claimants for asylum. The central paradox of the Refugee Convention is exposed. The principle of non-refoulement does not imply, still less expressly require, an obligation to admit an asylum seeker in order to pursue that very claim. When discussing the Roma Rights decision of the House of Lords ( 2 A.C. 1), the authors skillfully set out how far customary international law contains a principle of admission at least for temporary purposes of asylum seekers in order that their needs for protection can be assessed. The book goes on to consider the nature of the obligation, if any, to provide a procedure for the adequate determination of refugee status. Here the discussion ranges over the omission in the Refugee Convention of any right to a particular method of the assessment of claims to the procedure speciﬁed as a minimum level of protection in the European Procedures Directive (EU Council Dir.2005/85) and how each of these strands of developing international law may impose increasing obligations on states. The lacunae in the Refugee Convention are gradually being made good. The purpose of sound procedures is, of course, to ensure that the provisions in the Refugee Convention are fairly and accurately applied. This leads to a discussion of the various strands of persecution envisaged by the Refugee Convention and their development in the case law of Member States. The most interesting ground of persecution and the one that is most likely to expand is that of a “social group” (Art.A2). There is detailed reference to UK jurisprudence and to that of other common law
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jurisdictions. After Fornah v Secretary of State for the Home Department  UKHL 46 this area of protection appears likely to lead to more claims. The text is supported by a fulsome set of international instruments and a thorough bibliography, very many footnoted references to other books, articles in learned journals and the case law of many countries. It should be at the reach of any practitioner in asylum and human rights. It ought also to inform decisions by the Home Ofﬁce on initial asylum claims. It is also essential for the specialised immigration and asylum judiciary and for those assembling an appellate case in the Court of Appeal or the House of Lords. Human rights law is an increasing component of law degree courses in the United Kingdom. Academic lawyers will ﬁnd the book invaluable. It is perhaps as well that the authors lay out in the early part of their work their conceptual approach and their general sympathy for those who challenge adverse state decisions. An exposition of the law which contains no hint of the authorial perspective would leave the reader with a sense of unrequited curiosity. CHARLES BLAKE.* Foundations of Private Law: Property, Tort, Contract, Unjust Enrichment. By JAMES GORDLEY. [Oxford: Oxford University Press. 2006. x + 481pp. Hardback: £60]. THE foundations of the philosophy of modern private law can be traced to the Greeks, particularly Aristotle (Nichomachean Ethics, especially book V). For centuries, however, famous writers in the Aristotelian tradition, such as Thomas Aquinas, were concerned with problems of moral philosophy rather than legal philosophy. But in the sixteenth and seventeenth centuries well known Dutch, Spanish and German writers such as Grotius and Vinnius, Lessius, and Pufendorf, began focussing on legal philosophy and particularly natural law. Although some modern North American writers such as Coleman, Perry, Weinrib and Wright now follow this tradition, a powerful counter-revolution exists in North America, particularly the United States. This is the school of law and economics. In contrast with the philosophy of private law, the foundations of private law doctrine can be traced to the Romans, particularly Gaius (Institutes) whose writing was a powerful inﬂuence upon Justinian’s Institutes and Digest. Although common law and civilian systems diverged in the Middle Ages, as English scholars and judges broke free from the constraints of the forms of action they borrowed heavily from Civilian thinking, rooted in
* Solicitor and Immigration Judge, London.
(2008) 124 L.Q.R., JANUARY SWEET & MAXWELL
Both constraints arise because of the book’s Roman structure. German and US law with occasional glances over to modern divergences in Australian or Canadian law. These are often the creations of contract. . French. The adoption of this Roman structure accords with Civilian law and the usual categories in which common law is taught. But it conceals the fact that property rights can arise as a result of the same event that generates personal obligations. that is. It spans from the principles of Roman law to principles of English. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . Why should not there be a proprietary response to this unjust enrichment? Gordley relies heavily on the German principle of unjust enrichment in §812(1) of the BGB that one who has received something at another’s expense “is obligated to give it back”. A more controversial example is the legal category of unjust enrichment which is considered in Chs 19–21. But afterwards ownership was made divisible”: G II. Suppose. In short. . a claimant makes a gift of his prized racehorse to the defendant. But the defendant has been unjustly enriched at the claimant’s expense. labouring under a serious mistake. in such a case. Title to the horse passes to the defendant at common law. Perhaps due to increasing recognition of this shared history. contract and unjust enrichment..JANUARY 2008] Reviews and Notices 167 Roman law. Gaius wrote that the law could be divided into persons. His study encompasses property. Although later Roman law described different types of ownership (“. Gordley’s task requires him to consider several millennia of philosophical and doctrinal legal history. An obvious example is the rights to servitudes considered in detail by Gordley. particularly from incursions by law and economics scholars who conceive the underlying matrix of the law as economic principle divorced from ethics. surely the best measure of restitution. Gordley sets for himself the task of placing modern private law doctrine in the context of both its philosophical and doctrinal roots and defending an Aristotelian account of the modern law. the nature of his task constrains the book in two important ways. modern doctrinal scholarship in England (although less so in the United States) has an increasing comparative focus on Civilian law. In a monumental work of scholarship. The Aristotelian conception of corrective justice comfortably underlies such statements. Things in this broad sense. is the return of the racehorse rather than merely its value? For a Romanesque structure which separates the law of property from the law of obligations.40) this was really just a way of implicitly recognising relative title in a system which (2008) 124 L. things and actions (G I. most consonant with corrective justice. such a question was concealed.8). Yet. the lifetimes of at least a dozen philosophers and doctrinal legal scholars combined. were later subdivided into property (“things” in a narrow sense) and obligations (primarily contract and delict: G III. he sets himself the task of a lifetime’s work. tort. He must make restitution of its value.R.88). Whilst Gordley’s book is a phenomenal work of scholarship.Q.
. that is a right in relation to the trustee’s rights themselves. such as the limited recovery of “pure economic loss”. How is such a restriction to be justiﬁed? Even if there is no particular right to economic proﬁt. Indeed. the common law treated the two ideas as creating concurrent actions. a defendant must infringe a legally protected right of the claimant’s. he observes that the structure of the common law of torts owes much to the treatise writers of the eighteenth and nineteenth centuries who borrowed from Civilian ideas. And the same problems arise. Secondly.R. both at common law and in equity. but also a type of proprietary subsidiary right. German law combined two different ideas. of the development of equitable wrongs. Cases have suggested different possible answers: a proprietary power to re-vest title by the act of the claimant or order of the court or beneﬁcial rights under a trust. even obliquely. In the context of the enormous scope of the book these constraints are miniscule. although the essence of the book is what the English would describe as common law rather than equity. First. Gordley attacks those problems head on. For example.168 The Law Quarterly Review [Vol. and not merely a proprietary power to vest legal rights held by the trustee. The genius of the trust was that it was an institution which gave a third party (the sui juris. the discussion of torts focuses upon wrongs such as negligence. just as they are common to common law and Civilian jurisdictions. trespass (to person and property) and nuisance rather than the wrongs developed in the courts of Chancery like breach of trust or ﬁduciary duty (the equitable wrong of breach of conﬁdence is discussed in the context of a developing common law tort of infringement of privacy). that infringement must occur either negligently or intentionally (see §823(1) BGB). many of the legal issues in equity are identical. English law is not so constrained. which covers losses intentionally caused contra bonos mores (which includes many of the torts known in English law as “economic torts” as well as torts such as malicious falsehood and deceit). JANUARY SWEET & MAXWELL AND CONTRIBUTORS . The tort of “negligence” became a pervasive action despite the fact that it did not. The book’s second constraint is related to the ﬁrst.Q. in relation to wrongdoing. after 1932. An exception is the residual provision. But many problems of theory are the same at common law and in equity. For instance. In contrast. exigible against third parties. protect a particular right. fully entitled beneﬁciary) not merely personal rights against a trustee. Further. §826. the story of the development of the trust and its effect on private law is an enormously important addendum to the detailed discussion of rights that Gordley presents in other areas. to a lesser degree. 124 claimed that ownership was absolute and property was completely distinct from obligations. The absence of discussion by Gordley of the trust is a gap in his consideration of the historical development of English and North American private law. The same story could be told. why is there no general right not to be subjected to economic losses as a result of the fault of another? Why do jurisdictions such as Germany (2008) 124 L.
But Gordley’s opening chapters provide a powerful defence for this mix which. donative promises might be enforceable based upon a requirement of deliberation. not formality or reliance. but which no longer exist. the short chapter is the perfect philosophical companion for any student of water law to Getzler’s A History of Water Rights at Common Law (2006). there is a diversion such as Ch. His carefully presented arguments come thick and fast: for instance. ﬁrst user. as with property. There are many. For philosophical purists who consider only one or the other to be legitimate justiﬁcatory theories this will be an anathema. and only in the case of imperfect knowledge. Although a diversion. an attack on the theory (for which Pollock is the most famous) that ownership differs only from other possessory rights in the number of people against whom the possession is exigible. Italy and the Netherlands? (The United States allows recovery generally where the economic loss is caused wilfully but not negligently.) In a chapter devoted to this problem.JANUARY 2008] Reviews and Notices 169 and England have general rules excluding liability for pure economic loss but not France. a suggestion that gratuitous.Q. Gordley’s explanations are based on a mix of rightsbased considerations and economic. as he observes. This short review cannot do justice either to the careful explanation of his philosophical methodology or to the succession of powerful and jolting insights the book contains.* * Keble College. a defence of a theory that motive mistakes count in contract. Few will agree with all of Gordley’s conclusions but none will leave the book unchallenged. he suggests that for reasons of commutative justice (notions that one person should not “subsidise another’s vulnerability”) the rule can be defended. many more. Gordley argues that the rule became entrenched for reasons which commended themselves to nineteenth-century conceptualists.. William James described derisively as “common sense made pedantic” (p. contract and unjust enrichment. Occasionally.8). JAMES EDELMAN. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . or arguments that servitudes should only be enforced to ensure that successive landowners did not need to remake them. subject to exceptions. utilitarian theory.R. Oxford. No one interested in the history and theory of private law can sensibly avoid reading Foundations of Private Law.6 which uses the instance of water rights to illustrate his approach to rights which are annexed to the use of property and to advocate a return to a principle which focuses upon distribution of water rights based upon need. (2008) 124 L. However. In the instance of torts described above.
with a “ﬁnancial market” being any organised process or procedure through which ﬁnancial contracts or claims may be issued and traded. 124 Financial Markets and Exchanges Law. The editors identify the purpose of FMEL as the examination of the legal and regulatory measures that presently govern the structure of ﬁnancial markets and exchanges. they mean any identiﬁable location.Q.170 The Law Quarterly Review [Vol. those ﬁnancial markets where lending and borrowing of money and securities takes place on a short-term basis. The short title of the Financial Services and Markets Act 2000 (FSMA). the contributors include academics. Parts V and VI. UK ﬁnancial derivatives and commodities markets. [Oxford: Oxford University Press. with chapters in Pt II on the general regime under the FSMA and Financial Services Authority (FSA) Rules governing “Recognised Investment Exchanges” (RIEs) and “Recognised Clearing Houses” (RCHs—the world of ﬁnancial regulation is rich in acronyms. The editors stress that. internet or digital systems. the wholesale money market. liv + 615pp. making it unsurprising that FMEL’s list of acronyms and abbreviations runs to seven pages) and follows with a chapter on ATSs. covers ﬁnancial services and ﬁnancial markets: the division follows this lead. dealing respectively with European and international securities systems adhere to the editors’ aim to make European and international coverage broader (2008) 124 L. while remaining in the United Kingdom. FMEL’s focus moves from the general examination of RIEs and RCHs to particular RIEs and RCHs with discussion of: the London Stock Exchange and Alternative Investment Market. They contrast FMEL with FSL: whereas the focus of FSL was ﬁnancial activities. Part IV. including alternative trading systems (ATSs). institutions and sectors. and GEORGE WALKER. FMEL follows its opening general chapter on ﬁnancial markets. system or other set of formalised locations through which any commodity or product may be bought and sold. FMEL is designed to consider more speciﬁcally the ﬁnancial markets and exchanges which service these activities. virt-x and other electronic UK equity markets. Stock exchanges are identiﬁed as one type of ﬁnancial market as are other electronic. lawyers in private practice and regulators. the primary piece of governing legislation. As with FSL. ﬁnancial institutions and ﬁnancial sectors. 2007. i. with a speciﬁc chapter on the legal and regulatory framework of the London money market. With these deﬁnitions in mind.. In Pt III. shifts to a different type of market.e. Financial Markets and Exchanges Law (FMEL) is the companion volume to Financial Services Law (FSL).R. Edited by MICHAEL BLAIR Q.C. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . by “market”. Hardback: £160]. and settlement in the United Kingdom. A chapter on UK payment systems follows. also published by Oxford University Press under the editorship of Michael Blair and George Walker in 2006.
FMEL is more likely to ﬁnd a home with practitioners than with students. an understanding of this process is vital not so much for its historical value but as an indicator of where the process is headed and the potential shape of the European and. indeed. currency. UK regulatory regime in years to come. those writing practitioner texts take context for granted and assume knowledge and understanding on the part of their readers. the writer’s own area of expertise.Q. The advantage of more general commentary. and speciﬁc UK exchanges. Part V contains chapters on the regulation of European markets and exchanges. new practitioner or. particularly the publishers of so-called “practitioner publications” (despite these often being a mere recital of rules. In addition to the usual challenge for any author seeking to set out and analyse rules and principles in a legal and regulatory environment which is constantly changing. Too often. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . although it does not stop many. (2008) 124 L. international settlement and Islamic securities exchanges. The same can be said of the chapter by Michael Blair and Nigel Phipps on the regulation of European markets and exchanges. commodity and insurance. Blair and Phipps in their chapter on European markets and exchanges. Alternatively. for the experienced practitioner seeking to conﬁrm and supplement their understanding. ﬁnancial derivatives. Walker’s opening chapter avoids this. He provides an outline of the various types of markets and instrument traded on those markets—capital. anyone writing on ﬁnancial markets regulation faces the challenge from regulators. worse still. gold. is that it creates an environment for the understanding of otherwise complex or arcane rules by sketching both the regulatory and the industry context. provides a very useful overview of the subject and should serve as an excellent point of reference for the student. but the ﬁrst chapter by George Walker.. function. Part VI contains chapters on the structure of international markets regulation. on ﬁnancial markets and rxchanges. On the whole. Similarly. money. Eurodollar. exchanges and organisations). they may feel that any comment on regulatory policy or the industry under regulation is beyond the province of a legal textbook or.JANUARY 2008] Reviews and Notices 171 than that in FSL. by necessary extension.R. too often absent from “practitioner publications”. structure. the Markets in Financial Instruments Directive 2004/39 (MiFID) and European ecommerce and emoney. regulations and analysis already undertaken by the regulators. For any UK ﬁnancial services student or practitioner. market operation. This can make it difﬁcult for those authors and publishers to justify the invitation to purchase their works. trading and orders. exchanges and trade organisations who publish and distribute detailed and authoritative guidance and analysis free to industry participants and their advisers. give an excellent overview of the process for bringing about the single European market in ﬁnancial services and provide a useful critical analysis.
 1 Cr. and to explore the implications which such a theory might have. would also be justiﬁed.Q. together with FSL. they may give some thought to the structure of both. the chapter on European e-commerce and e-money belongs more properly in FSL than FMEL and the discussion of Islamic securities exchanges could be extended or supplemented in FSL by a discussion of the regulation of Islamic ﬁnance generally.* Killing in Self-Defence. For the time being. the editors make a point of justifying the differences between FSL and FMEL. The author defends the word “killing” in the title on the ground that killings in self-defence must be the hardest of all to justify: lesser injuries. Hardback: £53]. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . however.172 The Law Quarterly Review [Vol. there will be a place for increased commentary on the regulation of Islamic ﬁnance and Islamic securities exchanges. THIS book is a primarily theoretical work which seeks to explain why self-defence is an exculpatory defence in criminal law.R. If and when the editors come to prepare a second edition. However. xxviii + 217 pp. (2008) 124 L. but more easily. “Testing the Water” (2007) International Financial Review 397). By FIONA LEVERICK. it does not deal with some of the more particular regulatory issues such as the question of whether Sukuk or Islamic bonds should be treated as collective investment schemes (see Henderson. As the regulation of Islamic ﬁnance develops with the growth in the demand for Shari’a compliant securities. remains a worthy addition to the growing number of works on ﬁnancial regulation and will contribute to an area worthy of study in its own right.. 124 The chapter on Islamic securities exchanges by Amr Marar and Wong Sau-Ngan also requires mention. Dubai. Much of the theoretical emphasis in the work concerns the right to life. R. FMEL should be viewed as supplementary to FSL and vice versa. App. The chapter shows a more general commitment to highlighting the growing importance of Islamic ﬁnance and the manner in which Islamic ﬁnance institutions are to be regulated. [Oxford: Oxford University Press. v Hatton  EWCA Crim 2951. in * Solicitor. 247. as in R. So it seems that the book is primarily about self-defence rather than about homicide. As mentioned above. ANDREW HENDERSON. by the same reasoning. 2006. However. and that might explain why relatively little is said (for example) about whether the person who kills following a drunken mistake should be guilty of murder. It provides a useful overview of Islamic ﬁnance instruments and the manner in which Islamic ﬁnance institutions are regulated. rather than as a mere subset of banking or corporate law. it seems. In particular. But to focus on homicide at all is rather distracting. FMEL.
Leverick‘s thesis is that self-defence is justiﬁed by the right to life. but if it does. Perhaps she should have done. No doubt this seems to be so if one compares self-defence with duress. the author considers it unnecessary to explore the case for selfdefence (as she deﬁnes it) as an excuse. More contentiously. need to explain and not to assume a principle of proportionality. which the defendant has but which the aggressor temporarily forfeits for as long as he provides a threat. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .JANUARY 2008] Reviews and Notices 173 explaining the commission of non-fatal offences in self-defence. the focus is ﬁrmly on the (possibly selﬁsh) decision on the part of one attacked person to prefer his or her own life or bodily integrity to that of the aggressor. is the only honest way in which we can explain why the defendant may save himself if his only option is to kill the aggressor. the author considers the relationship between self-defence and duress and necessity in more detail. But the thesis does not persuade. In fact. In particular. by saying that self-defence is the “archetypal justiﬁcation”. Leverick does not clearly explain whether the life is temporarily forfeited to everyone.8 the author concludes that it is always proportionate to kill to avoid rape. if killing is indeed necessary. but is written on the assumption that there must be a principle of proportionality alongside one of necessity. a wider theory of rights of bodily integrity will be needed and no such account is offered in this book. so that if we cannot justify (killing in) self-defence. then we cannot justify anything. however.g. But it is possible to rationalise selfdefence in some other way. Chapter 7 is devoted to killing in defence of property. she says. because the whole book depends upon the plausibility of her justiﬁcatory theory of self-defence. she does not mean to discuss “defence of others or private defence more generally”. It seems to explain why rape is a serious crime rather than why the rapist temporarily forfeits his right to life. But she also makes an important assumption already. and she does not explain why the defender might not choose the most gratuitously torturous way of killing. Those who rely on forfeiture.Q. as a complex mixture of the two. at least sometimes. In Ch. The reliance on forfeiture. at the very beginning of the work. because the rapist denies the humanity of the victim by using him or her as a sexual object. or just to the defendant. then the phrase “denies the victim‘s humanity” needs much more elaboration. e. Instead. but what about (say) exercises in crime prevention by trained policemen? Perhaps they are the “archetypal justiﬁcations” instead? As it is. as an expression of respect of the bodily (2008) 124 L. even where the victim does not fear the possibility of death. and not. Leverick’s attachment to forfeiture in order to justify self-defence stems at a deeper level from the assumption that exculpatory defences must be theorised as justiﬁcations or excuses. It is still not clear why (following a theory of forfeiture) the killing should need to be proportionate at all.R.. when the author refers to “self-defence” in the title.
Doctrinal problems also arise from writing through the lenses of justiﬁcations and excuses. but had provoked the putative aggressor to some sort of aggressive display by having committed some minor assault upon him? Would he be ineligible for the defence altogether. regardless of the relationship between the parties. We hear about forfeiture instead. It would. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .L.R. 839 that the defendant must show an unwillingness to ﬁght. Leverick says that a person may use self-defence despite having provoked the confrontation in certain culpable ways which would forfeit a defence of duress. v Julien  1 W. For example. for example. have much to say about the merits of the important principle in R. and the difference is explained on the ground that self-defence is classiﬁed as a justiﬁcation and duress is an excuse. “Self-Defence and the Right to Life”  Cambridge L. self-defence operates (again. Such a theory would also need a lot of ﬂeshing out. because it is a “justiﬁcatory” theory.J.174 The Law Quarterly Review [Vol.R. on the ground that the mistaken actor is excused and not justiﬁed. without having to argue that self-defence has to be seen as either exclusively justiﬁcatory or excusatory. They are never brought to the forefront in explaining the rationale of the defence itself. and discussed only at the stage of determining the necessity to act in individual cases. Its application would depend upon examining the conduct of the various parties on a case-by-case basis (as one would expect when deciding whether actions show appropriate “respect” for communal values). and the extent of the duty of the citizen to refrain from self-help.8.. and so he would then suffer from the harsher approach which applies to defendants who provoke the conditions of an excusatory defence? And would it have to follow that the same actor would not be a murderer but instead altogether justiﬁed if one thinks (more plausibly) that actions based on reasonable mistakes can be philosophically justiﬁed? These are the sorts of knots which pure justiﬁcation and excuse theorists (2008) 124 L. even if the mistake was a reasonable one. 124 integrity of others and of a commitment to prefer peaceful alternatives to disputes. she says elsewhere. But relatively little is said in Leverick‘s book of such notions as the duty owed by the state to protect its citizens. which is Leverick’s conclusion in Ch. Ashworth. for example. categorically) as an excuse when the defendant was mistaken in anticipating a life-threatening attack. It should be said that a theorist who would concentrate upon a commitment to peaceful alternatives to violence may be in line with the concerns of contemporary society. would Leverick say of the defendant who reasonably but mistakenly thinks that he is about to be stabbed. 282). then. these considerations are typically sidelined. for example. and it is perhaps too readily assumed that it is some such theory for which we are searching. For the justiﬁcation theorist. But. avoid the conclusion that it is always proportionate to kill to avoid rape. (See. What. It would not be conducive to hard-andfast rules—although that might be a strength rather than a weakness.Q. He will.
But he tried to defend that by invoking a general doctrine of abuse of rights. 949. such as Starke’s * University College. much of the law on assignment remains difﬁcult to access.JANUARY 2008] Reviews and Notices 175 (such as the author) tie around themselves. (2008) 124 L. It would seem more fruitful for writers on self-defence to decide whether to reject or to embrace Fletcher‘s preference for “structured” reasoning (where justiﬁcations are placed in a hierarchy above excuses) to “ﬂat” reasoning (where the two are mixed) before deciding anything about the nature of self-defence.R.R. Hardback: £135]. [Oxford: Oxford University Press. both on a practical as well as a theoretical level. one cannot but regret its selfimposed limitations. an account of the relationship between the citizen and the state in the use of force will prove to be indispensable. There may be different explanations for these apparently similar defences. Fletcher. Despite its obvious and growing signiﬁcance. We must also seek to explain selfdefence by comparison with the various associated forms of public and private defence. then we will need to identify them in order to understand each of the different defences that bit better. Fletcher criticised Anglo-American law for preferring uniﬁed defences where issues of justiﬁcation and excuse were “conﬂated”. lxxxv + 637pp. We need rather a treatise which reﬂects some of the modern scepticism upon the extent to which justiﬁcation and excuse theory might have doctrinal consequences. “The Right and the Reasonable” (1985) 98 Harvard L.. and if so. JONATHAN ROGERS. Until recently. Fletcher. and then at some point. Fletcher was the ﬁrst theorist to realise the concerns which others might have of using justiﬁcation and excuse theory as a tool of classiﬁcation: see G. And. Marshall’s Assignments of Choses in Action (1950) stood alone in the secondary Commonwealth literature on the topic. In the meantime. conceded that his “justiﬁcatory” theory of self-defence would deny any principle of proportionality. 2007. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . given the reality that wealth is increasingly represented not by traditional tangible realty and personalty but by intangible personalty (that is to say. By MARCUS SMITH. When one reads Leverick‘s account.* The Law of Assignment: The Creation and Transfer of Choses in Action. or (as in this case) fail to address altogether. the need for the legal practitioner to get to grips with this area of the law is unlikely to diminish. London. choses in action). which would compensate for some of the extreme conclusions which would follow from his preferred justiﬁcatory model. unlike Leverick.Q. THE commercial importance of the legal institution of assignment needs no elaboration. This work was joined by a few others.
perhaps inevitably.136 of the Law of Property Act 1925. The reader is directed to s. Smith sets out a small section on assignments and the conﬂict of laws. to explain the policy reasons which have led to the state of the rules today. shares.R. First. 124 Assignments of Choses in Action in Australia (1972). intellectual property. is Marcus Smith’s Law of Assignment: the Creation and Transfer of Choses in Action. So in Smith’s view. Smith attempts to explain what choses in action are and what their nature is. and documentary intangibles and money. Smith’s book is divided into ﬁve main parts. unlike Tolhurst who focuses solely on the problem of assignments of contractual choses in action.176 The Law Quarterly Review [Vol. given the limits of size. Within the very wide landscape which Smith has set himself the task of exploring. he goes further than even Marshall as he also attempts to discuss how speciﬁc types of choses in action are assigned. The next two parts focus on the heart of the topic and deal with the transfer of choses in action and the consequences and effects of assignments. Lastly. That said. However. it would be entirely unrealistic to expect the same degree of explication and analysis which a more narrowly-focused work might be able to bear.. but therein lies the catch. it never rains but pours. Indeed. more modest in its goals. leases of land. by Snell’s Equity. Although Smith’s work serves as a useful starting point to prompt further research and thought into the topic. but only in those cases where the assignor’s presence was unnecessary and therefore inconvenient” (at para. two major works on the subject have emerged. a good deal of care has been taken to ﬁnd some common principle to hold together the various modes of assignment. s. and the subject of this review. keeping true to its sub-title.10. but there may yet be more to do. traversing in quick succession involuntary assignments. for example. Like Tolhurst and the others who have written in the ﬁeld before him. as well as how the rules might be further reﬁned and rationalised. Smith concentrates mainly on equitable assignments and spends comparatively little time on statutory assignments. insurance contracts. So much done.05). The second. and is told that its object was to “dispense with the necessity for joining the assignor as a party.136 does not affect the substantive law (2008) 124 L. Smith has attempted to deal with assignments of all choses in action. examining how assignments work in particular contexts. It is (probably) all there. It is therefore a work of considerable breadth and offers its readers something akin to the “onestop shop” typiﬁed. Smith adopts a rather different approach which is more ambitious and. Smith’s work is far from being a laundry list of judicial phenomena. and in the last two years. Tolhurst’s Assignment of Contractual Rights (2006) was published last year. JANUARY SWEET & MAXWELL AND CONTRIBUTORS .Q. He then moves from the general to the particular. First. Recognising that an area of law left fairly fallow for 50-odd years had now been the subject of a penetrating survey in Tolhurst’s work.
but merely provides improved machinery (at para. 829. therefore.’s oft-repeated agreement with the proposition that s. This followed logically from the fact that equitable choses in action arose within equity’s exclusive jurisdiction.136 is mere machinery might. purports to pass and transfer from the assignor to the assignee the legal right to. it is rather odd. Down & Co  2 K.5 of his book.136 if such chose had not been assignable in equity. In support.25(6) of the Judicature Act 1873 (the statutory predecessor to s.). equity may not effect a transfer of a common law chose in action in the same manner as it might an equitable one (and. Smith is at one with Snell’s Equity in adhering to that maxim where the chose in action is not equitable). To suggest that s. But Channell J. and Sargant J. as equity follows the law.” Just what such legal title is.25(6) of the Judicature Act 1873 was “only to alter procedure” did not just stop there (see Re Westerton. Secondly.10.136) as being “merely machinery” (Marchant. Smith explicitly acknowledges and accepts (at para. This exposes the terminological problem that begins with the very title of the book. Section 136(1). 104 and Marchant v Morton. the simple transfer of the beneﬁts under a chose in action was barred at common law. Smith appears to assume that statutory assignment operates in a manner similar to its equitable predecessor. and other parts of the common law’s history of distaste for the free transfer of obligations. the Courts of Chancery recognised that the common law’s general opposition to the free transfer of obligations had no application to equitable choses in action (Smith traces this development to the case of Warmstrey v Tanﬁeld (1628–1629) 1 Chan. in this regard.B.’s reference to s. That chapter also traces the manner in which the courts of equity overtook their more conservative common law brethren. to persist in applying the language of “transfer” so (2008) 124 L. at 832) is obiter dicta. That agreement led Sargant J. Although no chose in action may be assigned pursuant to s. 29).6. on its face. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . Smith cites the cases of Re Westerton  2 Ch.Q. be taking the provision and its effects too lightly. to conclude that such change in procedure had substantive effects: that other requirements for relief in equity (such as consideration) might also be done away with so long as such question was regarded as being immaterial at law (ibid. at 113). then. But if this phrase is taken to mean.06) that equity cannot transfer what he terms to be the “legal title in a chose. Because of concerns as to maintenance and champerty. First. is set out by Smith in Ch. the legal and other remedies for and the power to give a good discharge for such debt or thing in action assigned thereunder.JANUARY 2008] Reviews and Notices 177 of assignment..R.06). “the entitlement of the obligor to a common law chose to bring proceedings in a common law court”. and the original conception within the common law that obligations were personal to the obligor and obligee (outside of the real or mixed actions). Rep. But it has never been the law that an equitable assignment effects any such transfer. This. is not made clear.
noting that this is precisely why the requirements of s.10. whatever the common usage of that word might be. Yet at para. 669.53(1)(c) of the Law of Property Act 1925 are inapplicable to such cases. be they common law or equitable in nature. the inaptness of the equation of “transfer” and “equitable assignment” is reinforced by Smith’s reduction of equitable assignment of a legal chose in action into two primary types: equitable assignment by means of an express trust constituted over the legal chose in action to be assigned. The New Shorter Oxford English Dictionary (1993) traces the etymology of the verb “to transfer” from the French “transf´ rer” and the Latin “transferre”. Smith describes equitable assignments of a legal chose in action as having the effect of causing the beneﬁcial interest in the chose to pass from the assignor to the assignee. 124 pervasively in relation to assignments (whether statutory or equitable) of all forms of chose in action. and neither case is truly on all fours with the effect of a statutory assignment of a chose in action (whether common law or equitable) pursuant to s.65). in relation to the latter.Q. the text to and in fn. over”) with “ferre” (meaning “bear. but the creation of a new one. perhaps. there can be no transfer per se.R. Smith accepts (at paras 7. The express constitution of a trust over a legal chose in action plainly entails no disposition of any equitable interest in the chose. again. The attempt to use the layman’s term of “transfer” so broadly is well intentioned but. Such transfer may only be ﬁgurative and cannot be literal. In the interest of enhancing the precision of analysis.6. but realty and intangible personalty cannot. carry”).25) that it is revealed that Smith’s use of the term “transfer” is not straightforward. And though. given the elusive nature of assignments of choses in action. For what occurs in the case of an equitable assignment of an equitable chose in action is certainly not what is happening in the case of an equitable assignment of a common law chose in action.178 The Law Quarterly Review [Vol. It is only by pressing on to para. “informal equitable assignments”). it may be helpful to remember just how limited the core meaning of a “transfer” really is.12 (in particular. application of that verb beyond the realm of tangible personalty ought to be done with care. And if we keep that etymology in mind. and equitable assignment by means of the imposition of a constructive trust over that chose in action (what Marshall had termed in his book. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . an equitable assignment of a legal chose in action entails not a disposition of an equitable interest.64–7.C. unhelpful. But the same is true of the latter.. Following Westdeutsche Landesbank Girozentrale v Islington LBC  A. This is a point which. e both being derived from the juxtaposition of the Latin preposition “trans” (meaning “across. Tangible property may be borne over from hand to hand. (2008) 124 L. Indeed. one may readily conceive of devices that the courts (common law and/or equitable) may recognise as having an effect equivalent to transfer.6.136 of the Law of Property Act 1925.
There is no “transfer” of any equitable estate.05–10. Smith has done the legal community a huge (2008) 124 L.12(1) of the Rome Convention. none of the legal estate. perhaps.06) that they operate as a mechanism allowing the legal estate in a chose in action to pass. there may be a point or two within this part that bears re-consideration. the editors of Dicey. an equitable assignment of a legal chose takes effect insofar as the courts of equity would recognise an equitable interest in the assignee following the constitution of the contract or the declaration of the assignment. Certainly. inevitable given that the conﬂicts issues are far from being the book’s core business. The conﬂicts issues discussed are.Q.598. This brevity is. Most of the discussion is conducted in light of the Brussels Regulation and the Rome Convention. If the argument is that statutory assignments operate similarly to equitable assignments. As pointed out above. If that is true.R.12(1) as well (leaving aside the instances where the particular sort of statutory assignment requires registration—as with the assignment of shares in an English-incorporated company). Smith directs the reader to refer to the mainstream textbooks. it is a tremendous achievement that Smith’s book exists at all. whether effected by means of a contract for value or a voluntary declaration. particularly of legal choses in action. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . At p. Smith takes up the difﬁcult task of providing some suggestions about private international law implications arising from his analysis. Morris & Collins on the Conﬂict of Laws do not deal with the question. even in relation to statutory assignment regimes which do not require any form of registration.JANUARY 2008] Reviews and Notices 179 One area where the decision to couch the analysis of assignment in terms of transfer may have hindered rather than aided a reader’s understanding of the complex issues underlying assignment may be found in Smith’s treatment of the conﬂict of laws or private international law issues commonly raised by assignments of choses in action. it is by no means clear that such autonomous construction is sufﬁciently broad to encompass equitable as well as statutory assignments. and spends only seven pages at the end of the book discussing the position as to choice of law where the Rome Convention is inapplicable. for equitable assignments never had and still do not have that effect. This is despite his recognition (at paras 10. Euro-centric. that similarity is hard to fathom. and ought therefore to fall within the ambit of Art. in the main. and certainly.. logic would impel us to take the view that statutory assignments (whether requiring registration or otherwise) are entirely distinct from equitable assignments. Even if an autonomous construction is placed upon the term “assignment” within the context of the Convention. Where the Brussels Regulation on jurisdiction does not apply. Given the unfathomably diffuse nature of its subject-matter and the lack of any contemporary precedent. In the ﬁnal part of his work. Nevertheless. Smith suggests that statutory assignments fall within the ambit of Art.
CHEE HO THAM. (2008) 124 L. JANUARY SWEET & MAXWELL AND CONTRIBUTORS . If it inspires others to reﬂect on the materials and reach conclusions of their own.* * Singapore Management University School of Law. 124 service by bringing together much of the relevant primary and secondary material which make up the large..R. so much the better for all.180 The Law Quarterly Review [Vol.Q. amorphous and growing body of law on assignment and mechanisms having an equivalent effect to transfer in one fairly compact and succinctly written volume.
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