^^m THE

HAMLYN
LECTURES
TURNING POINTS OF THE
COMMON LAW

The Rt. Hon. Lord Cooke

of Thorndon, K.B.E. '

Sweet & Maxwell

 Turning Points of the
Common Law
By
The Rt. Hon. Lord Cooke of Thorndon, K.B.E.
former President of the New Zealand Court of
Appeal, Lord of Appeal, newly appointed member
of the Privy Council.

In this title, based on the 48th series of Hamlyn

Lectures, Lord Cooke focuses on four great cases
which were all major turning points in the
development of common law, namely:
Salomon v. Salomon: " A Real Thing?" (1897) A.C.
Woolmington v. DPP: "One Golden Thread?"
(1935) A.C.
Hedley Byrne v. Heller: "The Temptation of
Elegance Rejected" (1964) A.C.
Anisminic: "The Liberation of English Public
Law" (1969) A.C.

The cases cover the areas of public law, crime, tort

and company law, three of which are core
undergraduate subjects and the last a popular
option as well as an important practitioner area. The
analysis of each is that of a practising judge rather
than an academic, interested primarily in how
"leading judicial craftsmen have solved problems".

In each instance Lord Cooke examines the effect of

the case at the time, subsequent developments in
case law and the attitude of the academic world to
each. He introduces a Commonwealth dimension to
each subject area, discussing relevant case law from
jurisdictions such as Canada, Australia, New
Zealand and South Africa.

Turning Points in the Common Law is a unique

insight into the concerns and thinking of one of the
world's leading common law practitioners. It will
appeal to law students, academics, public lawyers
and the judiciary.

Published under the auspices of ISBN 0-421-59860-3

THE HAMLYN TRUST
1997 Also available in paperback

SweetfirMaxwell
 THE HAMLYN LECTURES
FORTY-SEVENTH SERIES

TURNING POINTS OF THE COMMON LAW

 AUSTRALIA
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TURNING POINTS OF THE COMMON LAW

by

THE RT HON. THE LORD COOKE OF THORNDON

KBE

Published under the auspices of

THE HAMLYN TRUST

LONDON
SWEET & MAXWELL
1997
 Published in 1997 by Sweet & Maxwell Limited of
100 Avenue Road, Swiss Cottage,
London NW3 3PF
Typeset by Selwood Systems,
Midsomer Norton
Printed in England by
Clays Ltd, St Ives pic

No natural forests were destroyed to make this product;

only farmed timber was used and replanted

A CIP catalogue record for this book is available from the British
Library

ISBN 0 421 598 603 (HB)

0 421 598 700 (PB)

All rights reserved. UK statutory material in this publication

is acknowledged as Crown copyright.
No part of this publication may be reproduced or transmitted
in any form or by any means, or stored in any retrieval system
of any nature without prior written permission,
except for permitted fair dealing under the Copyright, Designs and
Patents Act 1988,
or in accordance with the terms of a licence issued by the
Copyright Licensing Agency in respect of a photocopying and/or
reprographic reproduction. Application for
permission for other use of copyright material
including permission to reproduce extracts in other
published works shall be made
to the publishers. Full acknowledgement of author, publisher
and source must be given.

Robin Cooke
1997
 TABLE OF CONTENTS

The Hamlyn Lectures vii

The Hamlyn Trust xi
Preface xiii
Table of Cases xv

A Real Thing: Salomon v. A. Salomon & Co. Ltd 1

One Golden Thread 28
The Temptation of Elegance Resisted 48
The Liberation of English Public Law 63
Appendix: Times Crossword 81

Index 83
 THE HAMLYN LECTURES

1949 Freedom under the Law

by the Rt. Hon. Lord Denning

1950 The Inheritance of the Common Law

by Richard O'Sullivan, Esq.

1951 The Rational Strength of English Law

by Professor F.H. Lawson

1952 English Law and the Moral Law

by Professor A.L. Goodhart

1953 The Queen's Peace

by Sir Carleton Kemp Allen

1954 Executive Discretion and Judicial Control

by Professor C.J. Hamson

1955 The Proof of Guilt

by Professor Glanville Williams

1956 Trial by Jury

by the Rt. Hon. Lord Devlin

1957 Protection from Power under English Law

by the Rt. Hon. Lord MacDermott

1958 The Sanctity of Contracts in English Law

by Professor Sir David Hughes Parry

1959 Judge and Jurist in the Reign of Victoria

by C.H.S. Fifoot, Esq.

vu
 The Hamlyn Lectures
1960 The Common Law in India
by M.C. Setalvad, Esq.

1961 British Justice: The Scottish Contribution

by Professor Sir Thomas Smith

1962 Lawyer and Litigant in England

by the Rt. Hon. Sir Robert Megarry

1963 Crime and the Criminal Law

by the Baroness Wootton of Abinger

1964 Law and Lawyers in the United States

by Dean Erwin N. Griswold

1965 New Law for a New World?

by the Rt. Hon. Lord Tangley

1966 Other People's Law

by the Rt. Hon. Lord Kilbrandon

1967 The Contribution of English Law to South African

Law: and the Rule of Law in South Africa
by the Hon. O.D. Schreiner

1968 Justice in the Welfare State

by Professor H. Street

1969 The British Tradition in Canadian Law

by the Hon. Bora Laskin

1970 The English Judge

by Henry Cecil

1971 Punishment, Prison and the Public

by Professor Sir Rupert Cross

1972 Labour and the Law

by Professor Sir Otto Kahn-Freund
viii
 The Hatnlyn Lectures
1973 Maladministration and its Remedies
by Sir Kenneth Wheare

1974 English LawThe New Dimension

by the Rt. Hon. Lord Scarman

1975 The Land and the Development; or, The Turmoil

and the Torment
by Sir Desmond Heap

1976 The National Insurance Commissioners

by Sir Robert Micklewait

1977 The European Communities and the Rule of Law

by Lord Mackenzie Stuart

1978 Liberty, Law and Justice

by Professor Sir Norman Anderson

1979 Social History and Law Reform

by Professor Lord McGregor of Durris

1980 Constitutional Fundamentals

by Professor Sir William Wade

1981 Intolerable Inquisition? Reflections on the Law of

Tax
by Hubert Monroe

1982 The Quest for Security: Employees, Tenants,

Wives
by Professor Tony Honore

1983 Hamlyn Revisited: The British Legal System Today

by Lord Hailsham of St. Marylebone

1984 The Development of Consumer Law and Policy

Bold Spirits and Timorous Souls
by Sir Gordon Borrie

IX
 The Hatnlyn Lectures
1985 Law and Order
by Professor Ralf Dahrendorf
1986 The Fabric of English Civil Justice
by Sir Jack Jacob
1987 Pragmatism and Theory in English Law
by P.S. Atiyah
1988 Justification and Excuse in the Criminal Law
by J.C. Smith
1989 Protection of the PublicA New Challenge
by the Rt. Hon. Lord Justice Woolf
1990 The United Kingdom and Human Rights
by Dr. Claire Palley
1991 Introducing a European Legal Order
by Gordon Slynn
1992 Speech & Respect
by Professor Richard Abel
1993 The Administration of Justice
by Lord Mackay of Clashfern
1994 Blackstone's Tower: The English Law School
by Professor William Twining
1995 From the Test Tube to the Coffin: Choice and
Regulation in Private Life
by the Hon. Mrs Justice Hale

1996 Turning Points of the Common Law

by the Rt. Hon. The Lord Cooke of Thorndon
KBE
 THE HAMLYN TRUST

The Hamlyn Trust owes its existence to the will of the late Miss
Emma Warburton Hamlyn of Torquay, who died in 1941 at the age
of 80. She came of an old and well-known Devon family. Her
father, William Bussell Hamlyn, practised in Torquay as a solicitor
and J.P. for many years, and it seems likely that Miss Hamlyn
founded the trust in his memory. Emma Hamlyn was a woman of
strong character, intelligent and cultured, well-versed in literature,
music and art, and a lover of her country. She travelled extensively
in Europe and Egypt, and apparently took considerable interest in
the law and ethnology of the countries and cultures that she
visited. An account of Miss Hamlyn by Dr Chantal Stebbings of the
University of Exeter may be found, under the title "The Hamlyn
Legacy," in volume 42 of the published lectures.
Miss Hamlyn bequeathed the residue of her estate on trust in
terms which it seems were her own. The wording was thought to
be vague, and the will was taken to the Chancery Division of the
High Court, which in November 1948 approved a Scheme for the
administration of the trust. Paragraph 3 of the Scheme, which
closely follows Miss Hamlyn's own wording, is as follows:

"The object of the charity is the furtherance by lectures or otherwise

among the Common People of the United Kingdom of Great Britain
and Northern Ireland of the knowledge of the Comparative Jur-
isprudence and Ethnology of the Chief European countries including
the United Kingdom, and the circumstances of the growth of such
jurisprudence to the Intent that the Common People of the United
Kingdom may realise the privileges which in law and custom they
enjoy in comparison with other European Peoples and realising and
appreciating such privileges may recognise the responsibilities and
obligations attaching to them."

The Trustees are to include the Vice-Chancellor of the University

of Exeter, representatives of the Universities of London, Leeds,
xi
 The Hatnlyn Trust

Glasgow, Belfast and Wales and persons co-opted. At present there

are nine Trustees:
Professor J.A. Andrews, M.A., B.C.L.
Professor T.C. Daintith, M.A.
Professor D.S. Greer, LL.D., B.C.L. (Chairman)
Sir Geoffrey Holland, K.C.B., M.A. (Oxon.)
Mr. P.J.Seago,J.P.,LL.M.
Professor A.J. Ogus, M.A., B.C.L.
Professor J.P. Grant, LL.M.
Professor D.E.C. Wedderburn, M.A., D.Litt.
Rt. Hon. The Lord Browne-Wilkinson

From the outset it was decided that the Trust's objects could best
be achieved by means of an annual course of public lectures of
outstanding interest and quality by eminent Lecturers, and by
their subsequent publication and distribution to a wider audience.
Details of these Lectures are given on pages vii-x. In recent years,
however, the Trustees have expanded their activities by setting up
a "small grants" scheme to provide financial support for other
activities designed to further public understanding of the law, and
they will shortly be making a number of special awards under this
scheme to mark the 50th Anniversary of the first series of Hamlyn
Lectures delivered by the Rt. Hon. Lord Justice Denning (as he
then was) in October and November 1949.
The forty-eighth series of Lectures consisted of four lectures
delivered by the Rt. Hon. The Lord Cooke of Thomdon on four
successive Thursdays in November 1996, in the Inner Temple,
De Montfort University, the University of Cambridge and the
University of Oxford respectively.

March 1997 DESMOND GREER

Chairman of the Trustees

xu
 PREFACE

Different kinds of writing on the law call for different techniques.

Judgments must usually be fact-specific and concise; the Judge is
supposed to be cautious about generalisations and self-disciplined
as to obiter. Textbook-writing requires above all comprehensive-
ness and accuracy rather than a parade of personal opinions. On
the other hand, articles allow full scope for the latter and are often
most effective when they argue closely a distinctive point of view
on a limited theme.
A series of public lectures to mixed audiencessome members
already full of learning and wisdom, others merely aspiring to
that conditionprobably needs something different again. At all
events I have assumed licence to be neither narrowly-focused nor
comprehensive nor disciplined. The collection might have been
called A Ramble Round the Classics, but for a hint of plagiarism of
two distinguished Caius scholars, Michael Oakeshott and Guy
Griffith, whose A Guide to the Classics turned out to be about horse-
racing.
The lectures were given in the Michaelmas Term 1996 at four
venues. I am most grateful to the governing bodies of the Inner
Temple, the De Montfort and Cambridge Law Schools, and All
Souls College, Oxford. The Hamlyn Trustees, and particularly the
chairman, Professor Desmond Greer, have been fully supportive,
as have the publishers, Sweet & Maxwell. The typing was begun
in Wellington by my secretary, Dale Densem (who also undertook
the initial proof-reading) but most of it was done in London by
one of the secretaries to the Lords of Appeal, Marilyn Byatt. I have
been the fortunate beneficiary of the outstanding technical and
managerial skills of both of them.
The crossword, the relevance of which is explained at the begin-
ning of the fourth lecture, is reproduced by kind permission of The
Times. For those who prefer not to be troubled to do it, the answers
appear on a separate page, with the questions conveying a
message ringed. Compiling this crossword must have been an

xni
 Preface

effort; I understand that the editor is about to get some energy

back (5).
Last I would thank the audiences. Let Lord Lloyd of Berwick
(Eton and Trinity, Cambridge) be taken as an unduly flattering
representative. He wrote

Omne tulit punctum qui miscuit utile dulci,

Lectorem delectando pariterque monendo

To which the reply had to be

Principibus placuisse viris non ultima laus est

Non cuivis homini contingit adire Corinthum.

Whether Miss Hamlyn would have approved of Horace before

her lectures is doubtful, but she might have been placated by
learning that translations are to be found in the Oxford Dictionary
of Quotations.

Robin Cooke
Wellington
New Zealand
December 1996

xiv
 TABLE OF CASES

Adams v. Cape Industries PLC [1990] Ch. 433, [1990] 2 W.L.R. 657 16
Addie (R.) & Sons (Collieries) Ltd v. Dumbrech [1929] A.C. 358, [116 S.J.
706] 5
Alcock v. Chief Constable of South Yorkshire Police; sub nom. Jones v. Wright
[1992] 1 A.C. 310, [1991] 3 W.L.R. 1057 56
Alphacell Ltd v. Woodward [1972] A.C. 824, [1972] 2 W.L.R. 1320 47
Anisminic Ltd v. Foreign Compensation Commission [1969] 2 A.C. 147,
[1969] 2 W.L.R. 163 63-65,67-77
Anns v. Merton London Borough Council [1978] A.C. 728, [1977] 2 W.L.R.
1024 55
Antoniades v. Villiers [1988] 3 W.L.R. 1205; [1988] 3 All E.R. 1058 15
Atkinson v. Sir Alfred McAlpine & Son Ltd (1974) 16 K.I.R. 695, [1974] Cr.
L.R. 668 46
Attorney-General of Hong Kong v. Lee Kwong-Kut [1993] A.C. 951, [1993]
3 W.L.R. 329 33
Attorney-General of New Zealand v. Ortiz [1984] A.C. 1, [1983] 2 W.L.R. 809 . . . 9
Australian Consolidated Press Ltd v. Uren (Thomas) [1969] 1 A.C. 590;
[1967] 3 W.L.R. 1338 42
Board of Education v. Rice [1911] A.C. 179 65
Bognuda v. Upton & Shearer Ltd [1972] N.Z.L.R. 741, N.Z.C.A 42
Bratty v. Attorney-General for Northern Ireland [1963] A.C. 386, [1961] 3
W.L.R. 965 32
Broderip v. Salomon [1895] 2 Ch. 323 7,8,10,11,13-18,21,22,26
Broom v. Morgan [1953] 1 Q.B. 597, [1953] 2 W.L.R. 737, C.A 19
Brown v. Heathcote County Council [1986] 1 N.Z.L.R. 76, C.A., [1987] 1
N.Z.L.R. 720, PC 51
Buchanans Foundry Ltd v. Department of Labour [1996] 3 N.Z.L.R. 112 44
Cambridge Water Co. v. Eastern Counties Leather pic [1994] 2 A.C. 264,
[1994] 2 W.L.R. 53 4
Caporo Industries pic v. Dickman [1990] 2 A.C. 605, [1990] 2 W.L.R. 358 . . . 54,59
Chan Kau v. The Queen [1955] A.C. 206, [1955] 2 W.L.R. 192 32
Chichester Diocesan Fund v. Simpson [1944] A.C. 341 5
Chief Electoral Officer v. Samoa AH People's Party, unreported, September
1996 10
Civil Aviation Department v. Mackenzie [1983] N.Z.L.R. 78 43
Close v. Maxwell [1945] N.Z.L.R. 688 75
Cooper Brookes (Woollongong) pty Ltd v. Federal Commissioner of Taxation
(1981) 147C.L.R. 297 10
Corbett v. Social Security Commission [1962] N.Z.L.R. 878 42
Craig v. State of South Australia [1995] 131 A.L.R. 595 76,77, 78
Dadoo Ltd v. Krugersdorf Municipal Council 1920 A.D. 530 15

XV
 Table of Cases
Daimler Company Ltd v. Continental Tyre & Rubber Co. (Great Britain)
[1916] 2 A.C. 307 15,17
Dalton v. Angus [1881] 6 App. Cas. 740 42
Don Jayasena (Rajapakse Pathurange) v. The Queen [1970] A.C. 618, [1970]
2W.L.R.448 31
Derbyshire County Council v. Times Newspapers Ltd [1993] A.C. 534, [1993]
1 W.L.R. 449 26
D.P.P. v. Majewski [1977] A.C. 443, [1977] Crim. L.R. 532 29
Donoghue v. Stevenson [1932] A.C. 562,103 S.J. 143 49,52,54-56
Dorset Yacht Co. v. Home Office. See Home Office v. Dorset Yacht Co
Duncan v. Cammell Laird & Co. Ltd [1942] A.C. 624, [22 M.L.R. 187] 42
Dutton v. Bognor Regis U.D.C. [1972] 1 Q.B. 373, [1972] 2 W.L.R. 299 4,50
Edgeworth Construction Ltd v. N.D. Lea & Associates Ltd [1993] 3 S.C.R.
206,66 BLR 56 21
G.J. Mannix Ltd, Re [1984] 1 N.Z.L.R. 309 24
Gammon Ltd v. Attorney-General of Hong Kong [1985] A.C. 1, [1984] 3
W.L.R. 437 40,46
Gartside v. Sheffield, Young & Ellis [1983] N.Z.L.R. 37 58
Gilford Motor Co. Ltd v. Home [1933] Ch. 935, C.A 17
Hastings City Council v. Simmons [1984] 2 N.Z.L.R. 502 43,47
Hedley Bryne & Co. Ltd v. Heller & Partners [1964] A.C. 465, [1963] 3 W.L.R.
101 48,50,53,57-59,62,64
He Kaw Te v. The Queen [1985] 157 C.L.R. 523 43
Henderson v. Merrett Syndicates [1995] 2 A.C. 145, [1994] 3 W.L.R. 761 4,
18,50,53,58
Hill v. Baxter [1958] 1 Q.B. 277, [1958] 2 W.L.R. 76 32
Hilton v. Plustitle Ltd [1989] 1 W.L.R. 149, [1988] 3 All E.R. 1051 15
Home Office v. Dorset Yacht Co. Ltd [1970] A.C. 1004, [1970] 2 W.L.R. 1140... 49,
52-54,60,64
Invercargill City Council v. Hamlin [1996] A.C. 624 57
James v. London & South Western Railway Co. [1872] L.R. 7 Ex. 287 75
Jayasena v. The Queen. See Don Jayasena (Rajapakse Pathurange) v. The
Queen 31
Jones v. Lipman [1962] 1 W.L.R. 832, [1962] 1 All E.R. 442 17
Keech v. Pratt [1994] 1 N.Z.L.R. 65 44
Kuwait Asia Bank E.C. v. National Mutual Life Nominees Ltd [1991] 1 A.C.
187, [1990] 3 W.L.R. 297 .' 25
Lee v. Lee's Air Farming Ltd [1959] N.Z.L.R. 393 14
Le Lievre v. Gould [1893] 1 Q.B. 491 54
Lennard's Carrying Co. Ltd v. Asiatic Petroleum Co. Ltd [1915] A.C. 705 12,
25,26
Lewis v. Daily Telegraph Ltd [1964] A.C. 234, [1963] 2 W.L.R. 1063 26
Lipkin Gorman v. Karpnale Ltd [1991] 2 A.C. 548, [1991] 3 W.L.R. 10 4
Lochner v. New York (1905) 198 U.S. 45 22
London Drugs Ltd v. Kuehne & Nagel International Ltd, [1992] 3 S.C.R. 299,
97 D.L.R. (4th) 261 19,20,21
McLoughlin v. O'Brian [1983] 1 A.C. 410, [1982] 2 W.L.R. 982 55
Magor & St Mellons Rural District Council v. Newport Corporation [1952]
A.C. 189, [1951] 2 All E.R. 839 9
Maher v. Musson (1934) 52 C.L.R. 100 37,39
Mahkutai, The [1996] 3 W.L.R. 1, [1996] 3 All E.R. 502, PC 19

XVI
 Table of Cases

Marc Rich & Co. A.G. v. Bishop Rock Marine Co. Ltd [1996] 1 A.C. 211 58,
59,61
Meridian Global Funds Management Asia Ltd v. Securities Commission
[1995] 2 A.C. 500, [1995] 3 W.L.R. 413 24,25,26
Millar v. Ministry of Transport [1986] 1 N.Z.L.R. 660, Wellington, C.A 43,45
Mills v. Dowdall [1983] N.Z.L.R. 154 16
Ministry of Transport v. Burnetts Motors Ltd [1980] 1 N.Z.L.R. 51 42
Ministry of Transport v. Crawford [1988] 1 N.Z.L.R. 762 43
Murphy v. Brentwood District Council [1991] 1 A.C. 398, [1990] 3 W.L.R. 414: 55
New Zealand Waterside Workers' Federation v. Frazer [1924] N.Z.L.R. 689 71
Nicholas v. Soundcraft Electronics Ltd; sub notn. Soundcraft Magnetics, Re;
ex p. Nicholas [1993] 13 CLC 360, C.A 13
Norton v. Ashburton [1914] A.C. 932 52,53
Northland Milk Vendors Association v. Northern Milk Ltd [1988] 1 N.Z.L.R.
530 10
O'Reilly v. Mackman; Millbanks v. Secretary of State for the Home Depart-
ment [1983] 2 A.C. 237, [1982] 3 W.L.R. 1096 63,70,73,74
Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997,
[1968] 2 W.L.R. 924 64,65
Pearlman v. Keepers and Governors of Harrow School [1979] 1 Q.B. 56,
[1978] 3 W.L.R. 736 68
Pharmaceutical Society v. London & Provincial Supply Association Ltd
(1880) 5 App. Cas. 857 23
Pharmaceutical Society of Great Britain v. Storkwain Ltd [1986] 1 W.L.R.
903, [1986] 2 All E.R. 635 40
Pickin v. British Railways Board [1974] A.C. 765, [1974] 2 W.L.R. 208 78
Police v. Creedon [1976] 1 N.Z.L.R. 571, C.A. Wellington 42,43
v. Starkey [1989] 2 N.Z.L.R. 373 44
Proudman v. Dayman 67 C.L.R. 536 37,39,40
R. v. Bedwellty J.J., ex p. Williams [1996] 3 W.L.R. 361, [1996] 3 All E.R.
737 73,75
v. Bolton (1841) 1 Q.B. 66 68
v. Bowsher [1973] R.T.R. 202, [1973] Crim. L.R. 373 40
v. Carswell [1926] N.Z.L.R. 321 35,36
v. Chancellor of St Edmundsbury and Ipswich Diocese, ex p. White
[1948] 1 K.B. 195 75
v. City of Sault Ste Marie, (1978) 85 D.L.R. (3d) 161 42,45,47
v. Ewart25 N.Z.L.R. 709 41
v. Gill [1963] 1 W.L.R. 841,127J.P. 429 32
v. Gotts [1992] 2 A.C. 412, [1992] 2 W.L.R. 284 28
v. Gough (Robert) [1993] A.C. 646, [1993] 2 W.L.R. 883 32
v. Gould [1968] 2 Q.B. 65, [1968] 2 W.L.R. 643 35,36,39,42
v. Governer of Brixton Prison, ex p. Armah [1968] A.C. 192, [1966] 3
W.L.R. 828 75
v. Hull University Visitor, ex p. Page [1993] A.C. 682, [1993] 3 W.L.R.
1112 74, 75,77
v. Hunt (Richard) [1987] A.C. 352, [1986] 3 W.L.R. 1115 40
v. King [1964] 1 Q.B. 285, [1963] 3 W.L.R. 892 35
v. Laba (1944) 120 D.L.R. (4th) 175 45
v. Lobell [1957] 1 Q.B. 547, [1957] 2 W.L.R. 524 32
v. Martineau [1990] 2 S.C.R. 633 45

XV11
 Table of Cases
R. v. Miller [1975] 1 W.L.R. 1222, [1975] 2 All E.R. 974 40
v. Murray Wright Ltd [1970] N.Z.L.R. 476 23
v. Nat Bell Liquors Ltd [1922] 2 A.C. 128 68
v. Northumberland Compensation Appeal Tribunal, ex p. Shaw [1952]
1 K.B. 338, [1952] 1 All E.R. 122 64,68
v. P & O European Ferries (Dover) Ltd (1991) 93 Cr. App. R. 72, [1991]
Crim. L.R. 695 23
v. Pommell (Fitzroy Derek) [1995] 2 Cr. App. R. 607, [1995] 139 S.J.L.B.
178 28
v. Shoreditch Assessment Committee, ex p. Morgan [1910] 2 K.B. 859 72
v. Sit [1991] 8 C.R.R. (2d) 317 45
v. Steane [1947] K.B. 997, [1947] L.J.R. 969 32
v. Strawbridge [1970] N.Z.L.R. 909 41,42
v. Sussex J.J., ex p. McCarthy [1924] K.B. 256 32
v. Tolson (1889) 23 Q.B.D. 168 34-36,39
v. Wheat [1921] 2 K.B. 119 34,35,39
v. Wholesale Travel Group Inc. 84 D.L.R. (4th) 161 46
Racal Communications, Re [1981] A.C. 374, [1980] 3 W.L.R. 181 64, 71,73,75
Roberts v. Hopwood [1925] A.C. 578 5
Rookes v. Barnard [1964] A.C. 1129, [1964] 2 W.L.R. 269 42
Rowling v. Takaro Properties Ltd [1988] A.C. 473, [1988] 2 W.L.R. 418 60
Rutherford v. Attorney-General [1976] N.Z.L.R. 403 51
Scottish Co-operative Wholesale Society Ltd v. Meyer [1959] A.C. 324, [1958]
3 W.L.R. 404 13
Sealand of the Pacific v. Robert C. McHaffie Ltd, [1974] 51 D.L.R. (3d) 702,
British Columbia C.A 20
Seale v. Perry [1982] V.R. 193 59
Secretary of State for the Home Department, ex p. Fayed, unreported,
October 17,1996 69
Sherras v. De Rutzen [1895] 1 Q.B. 918 36
Smith v. Cooke [1891] A.C. 297 8
Snook v. London and West Riding Investments Ltd [1967] 2 Q.B. 786, [1967]
2 W.L.R. 1020 15
South Pacific Manufacturing Co. Ltd v. New Zealand Security Investigations
Ltd [1992] 2 N.Z.L.R. 282 51,61
Stirland v. Director of Public Prosecutions [1944] A.C. 315,30 Cr. App. R. 4 0 . . . 30
Stovin v. Wise [1996] 3 W.L.R. 388, [1996] 3 All E.R. 801 54,57,61,79
Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 424, (1985) 60 A.L.R.
1 55
Sweet v. Parsley [1970] A.C. 132, [1969] 2 W.L.R. 470 38,40,41
Taylor v. Kenyon [1952] 2 All E.R. 726, [1952] W.N. 478 40,43
Trevor Ivory Ltd v. Anderson [1992] 2 N.Z.L.R. 517 18,19,20
United Scientific Holdings Ltd v. Burnley Borough Council [1978] A.C. 904,
[1977] 2 W.L.R. 806 52
Waaka v. Police [1987] 1 N.Z.L.R. 754 43
Wairarapa Election Petition, Re [1988] 2 N.Z.L.R. 74 44
Warner v. Metropolitan Police Commissioner [1969] 2 A.C. 256, [1968] 2
W.L.R. 1303 38,46
Westminster City Council v. Croyalgrange Ltd [1986] 1 W.L.R. 674, [1986] 2
All E.R. 353 46
White v. Jones [1995] 2 A.C. 207, [1995] 2 W.L.R. 187 3,4,51,53,58,59

XVU1
 Table of Cases
Woolfson v. Strathclyde Regional Council 1978 S.L.J. 159, [1978] P. & C.R.
521, H.L 15,17
Woolmington v. Director of Public Prosecutions [1935] A.C. 462, [92 L.Q.R.
402] 28-30,32,33,36-42,45,47
Woolwich Equitable Building Society v. Inland Revenue Commissioner
[1993] A.C. 70, [1992] 3 W.L.R. 366 4

XIX
 A Real Thing

Salomon v. A. Salomon & Co. Ltd

[1897] A.C. 22,33, per Lord Halsbury L.C.

INTRODUCTION
Almost all English-speaking lawyers know that the first Hamlyn
lectures were given by Lord Justice Denning, as he then was. They
were delivered in his own Inn, Lincoln's Inn, in 1949. I have the
privilege this evening of beginning this season's series with a
message from him. He sends his affectionate good wishes to all
his friends in the Inner Temple (of which, like the Middle Temple
and Gray's Inn, he is an Honorary Bencher) and recalls being
pleased at the general reception which his lectures received. I
understand that this enthusiasm was not shared in all high places.
Perhaps Sir Stephen Sedley will illuminate that point when he
delivers the fiftieth series of the lectures in 1998. Lord Denning
adds that it was these lectures that made him well known to the
general public.
Turning to another great Englishman, as a schoolboy in New
Zealand I was fascinated by Lord Macaulay. The style was the
man. If, even then, I had any subliminal suspicion that sometimes
it verged on claptrap, this was suppressed. For a youth there
was a thrilling panache about his incisive antithetical narrative,
its vigour reflecting the headlong pace of his drafting. As every
schoolboy once knew, his chief work begins "I purpose to write
the history of England from the accession of King James the
Second down to a time which is within the memory of men still
living ... I shall recount the errors ... I shall trace the course ...
I shall relate how ..." and so forth. Miss Hamlyn would
presumably have approved of his superb confidence in the
superiority of British institutions (recounted errors notwith-
standing).
She would have been gratified also that Macaulay was a best-
 A Real Thing

seller addressing the Common People of the United Kingdom. In

these lectures I shall seek to comply with her directions
by not pitching the discourse only to the subclass of the
clerisy who read the Law Quarterly Review, while gratefully
acknowledging the distinguished presence of a number
of them this evening. As to the subject-matter, I shall con-
form to the terms of the Trust up to a point: that is to say by
speaking of some of the circumstances of the growth of
United Kingdom jurisprudence. And I shall conform to that
youthful influence by copying the first two words of Macaulay's
History.
I purpose, then, to focus in turn on four great cases, each
beyond doubt a decisive turning point in the evolution of the
common law. Although in diverse fields of law, they are
all familiar in broad outline to every lawyer. So the subject can
be called trite. Nonetheless, amid the overwhelming mass of
case law, mushrooming daily beyond the manageable compass
of anyone, there is a value in returning from time to time to
truly first principles. The eve of the twenty-first century is a
good time to think about past landmarks and their continu-
ing significance. Of the four cases, one will be a hundred
years old next week, while the youngest of the others is already
approaching thirty. Yet their sway is undiminished, indeed
growing.
Further, I purpose to try to analyse the issues and the
decisions in these great cases from a point of view differing in
two ways from those of many of the legal scholars who have
written about them. First, I shall speak primarily as a still
working Judge interested in learning how leading judicial
craftsmen have solved problems. I believe that in milestone
appellate decisions there is usually one motivating idea which
is found to prevail over all others. To identify this may be useful,
for it may throw light on the utility or proper scope of a
principle.
Secondly, I shall introduce a Commonwealth dimension. The
terms of the Hamlyn Trust ignore the Commonwealth and the
United States. The Trust is Euro-centred. An unremitting
approach of that kind would no longer be feasible, if only
because Commonwealth case law is beginning to have some
impact in the shaping of English common law; to the extent at
least that an English judge, if a Commonwealth decision has
come to attention, will buttress a judgment with it if it proceeds
 A Real Thing

on an attractive line of approach. And sometimes a general trend

in Commonwealth jurisdictions carries weight.1
It is true that a number of earlier Hamlyn lecturers have spoken
about particular non-English jurisdictions or taken a wider per-
spective. Mr M.C. Setalvad spoke for India in 1960, Professor T.B.
Smith for Scotland in 1961, Dean Erwin Griswold for the United
States in 1964, Lord Kilbrandon for "Other People's Law" in 1966,
the Rt. Hon. O.D. Schreiner for South Africa in 1967, and the Hon.
Bora Laskin for Canada in 1969. Lord Mackenzie Stuart (1977)
and Lord Slynn of Hadley (1991) have contributed a European
perspective. But most of my life as a Judge has been spent in small
Commonwealth jurisdictions, mainly New Zealand but more
recently Western Samoa and Fiji also. In these it is the practice of
appellate courts to look very widely for precedents. In the New
Zealand Court of Appeal few significant cases would pass without
consideration of at least Australian and Canadian case law, as
well as United Kingdom decisions. United States cases and texts,
including of course the Restatement, are consulted rather less
frequently but almost invariably on novel problems in such fields
as tort, contract, evidence and the Bill of Rights. In that limited
respect, and only in that respect, that Court may modestly claim
a necessary pre-eminence; and the habit is unlikely to be shaken
off after retirement from New Zealand office.
Paradoxically, the shrinking of the jurisdiction of the Privy
Council can be said to have in truth promoted the development
of the common law. Seen now from a wider perspective, con-
tributions from the various jurisdictions can be weighed according
to their intrinsic merits rather than by mentally allotting them
places in a hierarchy. But this process has some distance yet to go
and may never be complete. An English lawyer will still tend to
find the authentic voice of the common law in Reid (a Scot of
course), Wilberforce or Diplock, with utterances from elsewhere
of more marginal value. Similarly a Canadian lawyer might turn
first to Dickson, an Australian lawyer to Dixon or Mason. (It is the
1
For instance in White v. Jones [1995] 2 A.C. 207, to which I hope to return in the
third lecture.
2
As a result of the coups in 1987, Fiji is not at present a member of the Com-
monwealth, but the 1996 report of the Constitution Review Commission chaired
by Sir Paul Reeves (a former Governor-General of New Zealand) hints at the
prospect of readmission if a less racially-oriented Constitution is adopted. The
British tradition persists in fact. It is not forgotten that Queen Victoria was elected
paramount chief, Tui Viti; Queen Elizabeth II appears on banknotes; the Union
Jack is part of the flag.
 A Real Thing

same with sportasked to name the epitome of a great bowler, an

Englishman might say Trueman, an Australian Lindwall, a New
Zealander Hadlee.) Nevertheless it is in judicial interaction that
may be seen the best prospect of continuing to evolve clear and
just common-law principles for the century ahead.
Macaulay illustrated the potential longevity of the Catholic
Church by imagining it "in undiminished vigour when some trav-
eller from New Zealand shall, in the midst of a vast solitude, take
his stand on a broken arch of London Bridge to sketch the ruins of
St. Paul's". I do not come to sketch the metaphorical ruins of the
southern end of the Palace of Westminster or the Lords of Appeal
corridor within it. On the contrary, although having to own to
some venturesome extra-judicial criticism of their Lordships of
another day during one of the phases endemic in courts of final
appeal,31 now recognise the privilege of taking a small part in the
work of the Appellate Committee of the House and the Judicial
Committee of the Privy Council during what may prove to be
vintage years. Perhaps future legal historians may date an epoch
from the beginning of the year 1991. Since then we have seen, to
take a handful of examples, the major restitution cases of Lipkin
Gorman v. Karpnale Ltd4 and Woolwich Equitable Building Society v.
Inland Revenue Commissioner5 and the equally far-reaching tort
cases of Cambridge Water Co. v. Eastern Counties Leather Pic,6 Hend-
erson v. Merrett Syndicates Ltd7 and White v. Jones? The common
judicial denominator has been Lord Goff of Chieveley, now Senior
Law Lord, although I must not omit to point out that the noble
and learned Lord who has taken the chair this evening9 is entitled
to share in the credit as to three fifths.
The four great cases with which I have chosen to deal all happen
to be ones where the House of Lords set the law of England, and
consequently the law of most of the English-speaking world, on a
new course by reversing decisions of the courts below. Suggested
political reforms of the House usually except and preserve its

3
An Impossible Distinction (1991) 107 L.Q.R. 46. The title was taken from the judg-
ment of Lord Denning M R . in Button v. Bognor Regis U.D.C. [1972] 1 Q.B. 373,
396.
4
[1991]2A.C548
5
[1993] A.C. 70
6
[1994] 2 A.C. 264
7
[1995] 2 A.C. 145
8
[1995] 2 A.C. 207
9
Lord Browne-Wilkinson.
 A Real Thing

judicial functions. The wisdom of doing so10 is brought out by the

four cases. For it is doubtful whether even an augmented English
Court of Appeal would have been as bold at the time. Certainly
the House has given some terrifying decisions over the years.
Popular choices for a black list would include Roberts v. Hopwood,11
Robert Addie & Sons (Collieries) Ltd v. Dumbreck12 and Chichester
Diocesan Fund v. Simpson.13 But I believe that on the whole there is
probably a credit balance.
Yet the judicial functions of the House of Lords and the Privy
Council, residues of ancient constitutional legislative, executive
and advisory roles which did not conform to modern theories of
the separation of powers, came within an ace of extinction. The
Supreme Court of Judicature Act 1873 would have abolished
appeals in England to the House of Lords. Instead there was to be
only a Court of Appeal, consisting of the heads of the various
courts ex officio and Lords Justices of Appeal, with a minimum
quorum of three but a discretion in "the Court" to order reargu-
ment of cases before a greater number of Judges. Provision was
made as well for the Privy Council jurisdiction to be transferred
to this new Court of Appeal. But practising barristers are apt to
favour two tiers of appeal. That professional preference, evidenced
in 1874 by the support of all the benchers of my own Inn, the Inner
Temple, where this lecture is being given, harmonised with the
preference of the peerage in general for the retention of their own
constitutional significance. The combined force of these opinions
led initially to postponements of the coming into force of the 1873
Act and ultimately to the saving of the House of Lords judicial
jurisdiction, albeit with some strengthening.14
The Appellate Jurisdiction Act 1876, which is still in force with
a few amendments, provided for appeals to the House of Lords
from English, Scottish and Irish courts, to be heard by not less than
three "Lords of Appeal". That term covers the Lord Chancellor; the
10
Although this is not directly within the scope of the present lectures, I would
add that a brief experience, as a cross-bencher, of the legislative proceedings of
the House of Lords has left me convinced of both the value of the contribution
of hereditary peers and the indefensibility of the power to bring in "back-
woodsmen". Surely a British compromise is here waiting to be born.
11
[1925] A.C. 578
12
[1929] A.C. 358
13
[1944] A.C. 341
14
As to this paragraph, see for further particulars sections 6, 20, 21 and 53 of the
Act of 1873 and Robert Stevens Law and Politics, The House of Lords as a Judicial
Body, 1800-1976, chap. 2. There are many other scholarly writings in the field.
 A Real Thing

Lords of Appeal in Ordinary, of whom the Act of 1876 authorised

for the first time the appointment of (initially) two onlythe
maximum number is now 12; and Peers of Parliament holding or
having held "high judicial office", being broadly the office of a
member of a superior British court, including a "paid Judge of the
Judicial Committee of the Privy Council". The Appellate Jur-
isdiction Act 1887 made a change, prompted by the merits of Lord
Blackburn, to the effect that a Lord of Appeal in Ordinary would
be a peer for life, not merely until resignation, and another change
in the dropping of "paid" from the reference to the Privy Council.15
The second change met the circumstances of Lord Hobhouse, who
had been granted an hereditary peerage but (largely for reasons
of health) had never been a Judge of a United Kingdom court;
furthermore, it is said that all his assiduous judicial work was
done gratuitously.16 That was a generous gift, for he delivered 200
judgments of the Privy Council, many of them in Indian cases. As
it happened he sat in only three House of Lords cases, in two of
which he dissented. He was noted for the tenacity of his opinions.
There is a Macaulayish nobility about the language of section 4
of the Act of 1876, which remains the foundation of the judicial
responsibilities of the House of Lords, although it is not often
mentioned.

"4. Form of appeal to House of Lords

Every appeal shall be brought by way of petition to the House of Lords,
praying that the matter of the order or judgment appealed against may
be reviewed before Her Majesty the Queen in her Court of Parliament,
in order that the said Court may determine what of right, and according
to the law and custom of this realm, ought to be done in the subject-
matter of such appeal."

15
One practical distinction between Lords of Appeal in Ordinary and other Lords
of Appeal is that the latter (if not holding other salaried office) are piece workers,
whereas the former enjoy salaries. The curious may like to know that the present
lecturer's Peerage of Parliament is by appointment under the Life Peerages Act
1958 rather than the Act of 1876.
16
Supporting evidence is supplied by a note by Lord Davey appearing in L.T.
Hobhouse and J.L. Hammond Lord Hobhouse, A Memoir (Edward Arnold,
London, 1905) 203. Before his appointment to the Judicial Committee of the Privy
Council, Hobhouse served as a member of the Governor-General's Council in
India, so he was a successor of Macaulay.
 A Real Thing

WHAT OF RIGHT WAS DONE FOR ARON

SALOMON
Salomon was a successful leather merchant and boot manu-
facturer. He arranged for a limited liability company to be formed
in scrupulous compliance with the formalities laid down by the
Companies Act 1862, receiving 20,001 shares himself, while his
wife and his five adult children subscribed for one share each. The
company took over his business at a valuation probably on the
high side. In return he took his shares fully paid and debentures
which he mortgaged, thus enabling him to pay off existing credi-
tors. The business was solvent at the time, but after about a year
the company failed, allegedly because of strikes in the boot trade
(trade unionism was becoming a power in the land). In the
winding up there was a deficit in the amount needed to meet the
claims of the company's unsecured creditors. A Court of Appeal
of three Lords Justices, unanimously affirming the result reached
by Vaughan Williams }., ordered that Salomon indemnify the
company against those claims.17
The Court of Appeal were led by Lindley L.J., later to be a
Lord of Appeal in Ordinary, whose professional reputation is thus
described in Professor D.M. Walker's Oxford Companion to Law:
"He had a very acute intellect and was very highly regarded as a
judge; not least of his merits was an ability in every field of law".
He was especially versed in Equity. His treatise on Partnership
remains to this day the standard work.18 Referring to the provision
of the Companies Act 1862 that "Any seven or more persons
associated for any lawful purpose may ... form an incorporated
company with or without limited liability", Lindley said that the
legislature never contemplated an extension of limited liability to
sole traders or a fewer number than seven. Although there were
seven members in the instant case, it was manifest that six of them
were members simply in order to enable the seventh himself to
carry on business with limited liability. "The object of the whole
" Broderip v. Salomon [1895] 2 Ch. 323
18
In an essay entitled "Perception and Policy in Company Law Reform", published
in Corporate and Commercial Law: Modern Developments edited by Feldman and
Meisel (Lloyd's of London Press Ltd, 1996), Professor L.S. Sealy notes at pp.23-
24 that Lindley's Treatise originally included the Application of the Law of
Partnership to Companies, but that the work was later split into two and the
Companies part is extinct. It is obviously tempting to suppose that this approach
coloured Lindley's judgment in Broderip.
 A Real Thing

arrangement is to do the very thing which the legislature intended

not to be done ...". The seven were not associated for a lawful
purpose, but to attain a result not permitted by the Act. Going as
far as to stigmatise it as a device to defraud creditors, Lindley
treated the company as a trustee for Aron Salomon.
By this time Salomon's fortunes had declined to the level of
pauperdom. His appeal to the House of Lords proceeded in forma
pauperis, that is to say with waiving of counsel's fees and court
costs. The Lord Chancellor was the Conservative Lord Halsbury.
Although later he lent his name (for 10,000 guineas) to the incom-
parable encyclopaedia Halsbury's Laws of England, he was not a
learned lawyer. At the Bar, as the late Professor Robert Heuston
puts it in his Lives of the Lord Chancellors, 1885-1940,19 he excelled
in "plain advocacy before plain men about plain matters".
Heuston goes on to classify him as one of the able men who have
sat on the woolsack "who have been lawyers only so far as it was
absolutely necessary". With Equity he seems to have had next to
no familiarity. In Salomon's case itself he was to perpetrate the
howler that cestuis que trust are trustees.20 But he compensated
for this in Salomon by assembling to sit with him some of the
intellectual judicial leaders of the day, Lords Watson, Herschell,
Macnaghten and Davey, all of whom delivered speeches sub-
stantially agreeing with him in reversing the courts below.21
The decision of the Law Lords in Salomon has not had an enthusi-
astic academic press. Modern writers will quote Sir Otto Kahn-
Freund's description of it as "calamitous". When it came out
(November 16, 1896) the mandarin Sir Frederick Pollock, after a
tilt at the Legislature ("its usual oracular style ... leaving to the
Courts the interpretation of mystic utterances"), wrote that no one
who knew anything of the earlier history of the Companies Acts
could doubt that such a decision as had now been given would
have been impossible 30 or even 20 years previously.23 His view
was that the founders of company law legislation in using the
word "associated" meant such an association as, without the help
of the statute, would have made the persons members of an ordi-
nary partnership, with unlimited personal liability.
19
See pages 18 and 74
20
[1897] A.C. at 30; cf. Smith v. Cooke [1891] A.C. 297,299.
21
The Irish Lord of Appeal in Ordinary, Lord Morris, also sat but found it superflu-
ous to add anything.
22
(1944)7M.L.R.54.
23
(1897) 13 L.Q.R. 6.

8
 A Real Thing

Historically Pollock was no doubt right, and ethically Kahn-

Freund's view has a ready appeal, albeit one-sided. But from the
point of view of practical judging I think that Halsbury and his
colleagues have the better of the argument. The Lord Chancellor
was characteristically cutting
"Lopes L.J. says: 'The Act contemplated the incorporation of seven
independent bona fide members, who had a mind and will of their
own, and were not the mere puppets of an individual who, adopting
the machinery of the Act, carried on his old business in the same way
as before, when he was a sole trader'. The words 'seven independent
bona fide members with a mind and a will of their own, and not
the puppets of an individual', are by construction to be read into
the Act. Lopes L.J. also said that the company was a mere nominis
umbra."

Without applauding the sarcasm, one can see the validity of the
point. It is the kind of point that can trouble a working Judge,
however bent on giving the words of the Act a purposive con-
struction (in the current phraseology), "such fair, large, and liberal
construction and interpretation as will best ensure the attainment
of the object of the Act ... according to its true intent, meaning
and spirit" (in the periphrasis of the New Zealand Acts Interpret-
ation Act 192424).
However laudable purposive interpretation may be, a practical
Judge must also recognise its limitations. Lord Simonds will be
legally immortal for his chiselled rebuke that the approach of Lord
Denning (as he was to become) to filling gaps in statutes was "a
naked usurpation of the legislative function under the thin dis-
guise of interpretation".251 prefer, as in substance did Lord Rad-
cliffe in his tactfully-worded dissent in that case, Lord Denning's
determination to find out the intention of Parliament rather than
subjecting an Act to destructive analysis. Nor should any apology
24
Section 5(j). The value of this exhortation, as furnishing the courts with an
additional instrument to achieve justice, was perhaps underrated by the English
Court of Appeal, admittedly under the undue influence of expert evidence from
a New Zealand barrister, in Attorney-General of New Zealand v. Ortiz [1984] A.C.
1, 29. The provision was touched on lightly only in the House of Lords in the
same case, ibid. 49. The actual decision in that case, that to cause an unlawfully
exported historic article to be forfeited to the Crown it had to be seized before
the export, largely nullified the statute providing for forfeiture. It was an instance
of the smuggling of an antiquity and later auction at Sotherby's in London.
25
Magor & St Mellons Rural District Council v. Newport Corporation [1952] A.C. 189,
191.
 A Real Thing

be needed, although I fear that too often in the present era one is
expected, for being guided by the great jurist. But there remains a
part of the Simonds condemnation which has real force. I tried to
express this in a New Zealand case by saying that the courts can
in a sense fill gaps in an Act, but only in order to make the Act
work as Parliament must have intended.26 My friend Sir Anthony
Mason, with whom I have the pleasure of sitting in the Supreme
Court of Fiji, has expressed in fuller language much the same idea
in the High Court of Australia.27 He has held that the justification
for departing from the literal rule is not confined to results that
can be labelled "absurd" or the like. It extends, he says, to any
situation in which for good reason the operation of the statute
on a literal reading does not conform to the legislative intent as
ascertained from the provisions of the statute, including the policy
which may be discerned from those provisions.
My colleagues and I have recently applied these ideas in Western
Samoa. In that small island jurisdiction, the issue was whether a
successful candidate in a parliamentary election, resigning on the
eve of an inevitable decision against him on an election petition
alleging corrupt practice, could ensure that a new electoral roll
was used for the by-election (as normal in by-elections) rather than
the old roll (as required for by-elections resulting from findings
of corrupt practice). It was easy to see that the eleventh hour
resignation could defeat the statutory intent; but the difficulties in
formulating a workable alternative rule were thought by the court
to go too far in the direction of requiring policy-making rather
than interpretation.28 Thus has Lord Simonds been to some extent
vindicated in the South Seas. Thus, too, was Lord Halsbury's
Salomon reasoning reflected in a wholly different context. In terms
of the Salomon context, once an inquiry is admitted into where
lies the beneficial ownership or control of company shares, the
difficulty of inferring workable limits to the statutory right of
incorporation with limited liability becomes practically insuper-
26
Northland Milk Vendors Association v. Northern Milk Ltd [1988] 1 N.Z.L.R. 530. The
court was able there to infer from the scheme and purpose of the Act, rather than
its actual language, that home deliveries of milk had to continue, pending the
promulgation of a new licensing system, notwithstanding an apparent inter-
regnum of no control and alleged common law freedom to trade without control.
An implied contract to that effect was held to arise between the existing vendors
and the new concessionaire.
27
In a joint judgment with Wilson J. in Cooper Brookes (Woollongong) Pty Ltd v.
Federal Commissioner of Taxation (1981) 147 C.L.R. 297,320-323.
28
Chief Electoral Officer v. Samoa All People's Party, September 1996.

10
 A Real Thing

able. Any policy beyond the literal terms of the Act has to be
largely arbitrary, and the legislature has not exercised its right to
make the choice.
So, one hundred years later, one can find irresistible force in
Lord Halsbury's summation

"My Lords, the learned judges appear to me not to have been absolutely
certain in their own minds whether to treat the company as a real thing
or not. If it was a real thing; if it had a legal existence, and if consequently
the law attributed to it certain rights and liabilities in its constitution as
a company, it appears to me to follow as a consequence that it is
impossible to deny the validity of the transactions into which it has
entered".

THE GLOBAL CONSEQUENCES OF SALOMON

It is no exaggeration to put the effects of the House of Lords
speeches in Salomon's case under the above heading. As Professor
L.C.B. Gower says in the leading scholarly general work on
Company Law,29 "Unquestionably the limited liability company
has been a major instrument in making possible the industrial and
commercial developments which have occurred throughout the
world." Essentially this is due to the insistence of Lord Halsbury
and his colleagues that such a company has an identity wholly
separate from that of its members. The resulting potential for
attracting and amassing the contributions of relatively small
investors is obvious. The family or one-man company, as in
Salomon itself, has achieved immense popularity and respect-
ability, even though its advantages are diminished by the practice
of major lenders, such as banks, insisting on personal guarantees
the efficacy of which were much tested in the flood of litiga-
tion following the stock market crash of October 1987, with the
search (commonly fruitless) for technical loopholes to avoid
liability.
Moreover, companies can hold shares in and control other com-
panies, so in dealings not at arm's length it is possible by tech-
niques such as transfer pricing to ensure, subject to legislation to
the contrary, that earnings within a group of companies con-
stituting in reality one economic entity are distributed so as to
minimise tax.
29
Gower, Principles of Modern Company Law (5th ed. 1992) p. 70.

11
 A Real Thing

Avoidance or evasion (terms which do not fall, I think, into

readily distinct categories) of local taxation regimes or legislative
controls must be indeed among the primary reasons for the inter-
national proliferation of companies. There is a vast literature. Pro-
fessor John Prebble of the Victoria University of Wellington
promotes the term ectopia to bring out that concepts used in the
imposition of taxes, such as income and the place and time of its
derivation, are unnatural and dislocated from the facts to which
they relate; he also calls them fictional characteristics.30 He has
persuaded me that there is a good deal in this thesis, but, whether
or not his terminology takes on, it is plain that subsidiary com-
panies and inter-company shareholdings have been key elements
in the rise of the multi-nationals, some of which are now perhaps
better called supra-nationals.
Lord Halsbury's "real thing" is of course often regarded as a
misnomer. Incorporated companies are seen as notional con-
structs, abstractions,31 existing in minds and on paper. They are
easily created. In London, Companies House provides a same-
day incorporation service, taking only a few hours, for 200. For
a normal formation taking a week to ten days the fee is 20.
Companies House is an Executive Agency of the Department of
Trade and Industry, and may be on the way to becoming a
company itself. Its Annual Report for 1995-1996 records that
147,000 new companies were incorporated during the year and
that the average live register stood at 1.05 million companies. A
leading firm of commercial solicitors, such as Linklaters & Paines
of London32 and nine other capitals, will itself form twelve shelf
companies a month to provide a swift and comprehensive service
to clients on demand. Some will be private limited companies
with an authorised share capital of i00 and an issued capital of
one 1 share. For since 1992 it has been possible to register a
single member private company.33 Although driven by a European
30
He will forgive me for noting that one of his best expositions of his thesis is
entitled Philosophical and Design Problems that arise from the Ectopic Nature of Income
Tax Law and their Impact on the Taxation of International Trade and Instruments.
Those of the Common People of the United Kingdom who are able to do so may
find it in (1994-95) 13 Chinese Yearbook of International Law and Affairs 111.
31
Lennard's Carrying Co. Ltd v. Asiatic Petroleum Co. Ltd [1915] A.C. 705,714, per
Viscount Haldane, L.C.
32
1 am grateful to their London Manager, Company Secretarial, for much of the
information in the text.
33
See 7(1) Halsbury's Laws of England, (4th ed.) 1996 Reissue, para.81; Companies
Act 1985, s.l(3A).

12
 A Real Thing

Directive34 (like some other changes in English company law) this

is the logical apogee of the concept that guided Aron Salomon's
more complicated and more expensive steps. The companies that
are not private will be public limited companies with an auth-
orised share capital of 50,000 (all of which must be allotted before
a trading certificate can be obtained) and two issued 1 shares.
The company, the services of other companies which will act as
nominee directors or secretaries, the memorandum of association
and other documentation can be sold to the client virtually
instantly. Less up-market incorporation agents will supply their
customers with blank registers and forms and perhaps a simple
set of post-incorporation outline minutes. The customers are then
left to do the post-incorporation work themselves.

GETTING ROUND SALOMON

In the main the concept that a duly incorporated limited liability
company, if not a real thing, is at least not to be identified with its
shareholders has been faithfully followed by British and other
Commonwealth courts ever since Salomon's case. But there has
been some gnawing away at the edges of doctrine, a process
commonly described as piercing or lifting the corporate veil. I
believe that there is only one broad class of cases where this is
truly consistent with the Salomon reasoning. They are all cases
where, under enactments such as those against fraudulent or
wrongful trading, or on the permissible interpretation of an enact-
ment or contract, or for the purposes of common law or equitable
principles against fraud or oppression or relating to agency, it is
necessary to look at what has happened in fact rather than form.35
34
The Twelfth of the EEC Company Law Directives. The relevant subsection is
inserted into the Companies Act by the Companies (Single Member Private
Limited Companies) Regulations 1992 (S.I. 1992 No.1699) made under the Eur-
opean Communities Act 1972, s.2(2). Thus United Kingdom membership of the
European Community enables a Minister of the Crown to alter an Act of the
United Kingdom Parliament.
35
For a convenient up-to-date summary of the English case law, see Halsbury,
op.cit. paragraphs 93 and 94. A useful recent illustration is Nicholas v. Soundcraft
Electronics Ltd [1993] B.C.L.C. 300, C.A., where it was accepted that a holding
company may conduct the affairs of a subsidiary in a manner unfairly prejudicial
to a member of the subsidiary, thus enabling the latter to apply for statutory
relief. The leading case to the same effect is Scottish Co-operative Wholesale Society
Ltd v. Meyer [1959] A.C. 324. While there was reference in Soundcraft to the reality
of one economic unit, the separate existence of the two companies is fully
consistent with the decision and in a sense its basis.

13
 A Real Thing

Admittedly it is not always easy to determine whether a case falls

within that broad class. But uncertainty in borderline cases is
inherent in the law. It is a large part of the reason why there have
to be Judgesa fact not grappled with by hard right academic
writers who impliedly claim that legitimate Judge-made law
ceased growing at some unspecified date and place.
So, in Lee v. Lee's Air Farming Ltd,36 an aerial top-dressing pilot,
killed in a crash during those hazardous operations, owned effec-
tively a one-man company. By the articles he was governing direc-
tor for life. He had appointed himself the company's only pilot. A
Court of Appeal which would be regarded in New Zealand as
strong (Gresson P., North and Cleary JJ.) held that his widow's
claim to workers' compensation failed because giving orders and
receiving orders were incompatible functions. Therefore the
relationship of master and servant had not been created. The Privy
Council (Viscount Simonds, Lords Reid, Tucker, Denning and
Morris of Borth-y-Gest) reversed this decision on an orthodox
Salomon approach:37 they were separate legal entities so as to
enable the company to give orders to the deceased. Sir
Alfred North wrote in his privately published Reminiscences that
the appeal was allowed "on a very narrow and controversial
point".
Perhaps so. Certainly it was not an easy issue. But, were the
same question to arise today, it might be solved by a more overt
invocation of the policy of the Workers' Compensation Act; in fact
it does not now arise, as New Zealand has a more comprehensive
accident compensation scheme. In substance the old Act provided,
for workers and their dependants, insured compensation for
work-related accidents. Nothing in the scheme or purpose of the
Act justified excluding the deceased and his family from the statu-
tory protection. On this view the case did not fall within the broad
class of exceptions to Salomon which I have mentioned. The point
is that a company duly incorporated under the Companies Act
must always be treated, in accordance with Salomon, as a legal
person separate and distinct from its shareholders. Only when
some other statute, contract or doctrine is wide enough to embrace
that separate and distinct legal person may the consequences of
Salomon become unimportant in fact. In the eye of the law,

36
[1959] N.Z.L.R. 393.
37
[1961] A.C. 12.

14
 A Real Thing

however, the difference between the company and its shareholders

remains absolute.38

THE SHAM DOCTRINE

It is received doctrine that there is a second broad class of cases in
which the Salomon principle is displaced, namely cases where the
corporate veil is "a mere facade concealing the true facts". In a
Scottish case in 197839 the House of Lords paid lip-service to the
existence of such a doctrine, applicable in special circumstances,
but only to reject it on the facts of that case. I doubt very much
whether it really does exist. It is a version of the concept of sham,
which has an insidious appeal to Judges and other lawyers but is
often itself a spurious concept. As Diplock L.J. (as he then was)
once said "... for acts or documents to be a 'sham', with whatever
legal consequences follow from this, all the parties thereto must
have a common intention that the acts or documents are not to
create the legal rights and obligations which they give the appear-
ance of creating."40 Not uncommonly parties enter deliberately
into transactions knowing that the efficacy in law of the form
adopted is essential to achieve their purposes, yet later one party
38
This proposition does not derogate from the principle, touched on later in this
lecture, that some acts of shareholders will be attributed to the company. Similarly
the nationality of the directors and shareholders may give a company the character
of an alien enemy: Daimler Company Ltd v. Continental Tyre & Rubber Co. (Great
Britain) Ltdll916]2A.C. 307. The Earl of Halsbury's vigorous language at316 need
not be seen as inconsistent with what he said in Salomon. Public policy may require
that a company in alien ownership and control be itself treated as an alien. Contrast
the South African case of Dadoo Ltd v. Krugersdorf Municipal Council 1920 A.D. 530,
from which an extract appears in Professor Harry Rajak's Sourcebook of Company
Law (2nd ed. Jordans, Bristol) 1995, pp. 98-100.
39
Woolfson v. Strathclyde Regional Council 1978 S.L.T. 159, 161, per Lord Keith of
Kinkel.
40
Snook v. London and West Riding Investments Ltd [1967] 2 Q.B. 786,802. An impec-
cable application of this analysis appears to be Hilton v. Plustitle Ltd [1989] 1
W.L.R. 149. A landlord's advertised policy was to let flats only to limited com-
panies; he wished thereby to avoid the Rent Acts. To comply with his policy a
would-be occupant bought a shelf company for 150, signing the tenancy agree-
ment as managing director of the company. She occupied the flat as nominee of
her company. Her brother guaranteed the rent. After the expiration of the tenancy
the landlord was held entitled to an order for possession: the company was in
truth the intended tenant and did not enjoy statutory protection. Gower, op.cit.,
133, n.60, suggests that the decision is inconsistent with Antoniades v. Villiers
[1990] 1 A.C. 417, but in the latter case it was never intended by the parties that
the agreement should operate in accordance with its terms.

15
 A Real Thing

or both may claim, spuriously, that the legal form was a facade.41
To let in the concept of sham then would be loose thinking, but it
can be a temptation, unless recognised for what it is.
In the leading modern English case, Adams v. Cape Industries
PLC,42 Cape, an English company was the parent of an inter-
national group concerned with the mining of asbestos in South
Africa and its sale in various countries. Asbestos mined by one of
the subsidiary companies was sold by another subsidiary
company for use in a Texas factory. Workers sued in Texas for
damages for disease alleged to have been caused by the factory
dust. Cape was named as first defendant, and a default judgment
was obtained against it. Whether the judgment would be enforced
in England was held to turn (apart from an issue of natural justice,
outside the present discussion) on whether Cape was present in
the United States. Presence was held to turn on whether one
or other of two successive Illinois companies, which acted as
marketing agents for the group but did not make contracts on
behalf of Cape, were at least in part carrying on the business of
Cape. In judgments of extraordinary length43 (the report occupies
some 150 pages) Scott J. and the Court of Appeal (Slade, Mustill
and Ralph Gibson L.JJ.) held not.
So far the case may be seen as a straightforward application of
Salomon. Save in an unacceptably loose sense, even the first Illinois
company, although a wholly-owned subsidiary, was not carrying
on the business of Cape. There was nothing in the principles of
English private international law governing the question which
national courts have jurisdiction over a tort case of this kind to
require the business of a subsidiary to be treated as partly the
business of its parent. But the two English Courts had to grapple
also with an argument of facade or sham. This they likewise
41
For instance, in Mills v. Dawdall [1983] N.Z.L.R. 154, to avoid estate and gift
duties a property was transferred from mother to son at full value, but it was
planned that the debt for the price would be written off progressively. It was of
course held that this was not a gift of the property.
42
[1990] Ch. 433.
43
Some idea of the practical impossibility that the courts would face if they set
out to cover everything which textbook or academic writers would like to see
discussed may be gained by noting that, while describing the Cape judgment as
mammoth, Professor Gower would have it even longer: op.cit. 130. This is a
tribute to both his modesty and the Court of Appeal's authority. It has been
suggested that the Appeal Committee of the House of Lords was wrong to refuse
leave to appeal, as it did, in Cape (see [1990] Ch. at 572); but there were probably
too many hurdles in the way of a successful appeal.

16
 A Real Thing

rejected.44 Cape was in law entitled to organise the group's affairs

so as to have the practical benefit of the group's asbestos trade in
the United States without the risks of tortious liability there. Any
argument to the contrary could only be based on public policy,
and English private international law does not go so far.
The dictum in Woolfson v. Strathclyde Regional Council already
quoted led the Court of Appeal in Cape to describe the "mere
facade" exception as well-recognised.45 But they admitted to
finding rather sparse guidance as to when the exception would
apply. For an example they virtually fell back on a first instance
judgment of Russell J. in the Chancery Division, Jones v. Lipman.*6
There a vendor, in order to avoid being compelled to complete a
contract for the sale of land, formed a company, his solicitor's
clerk being the only other shareholder, and transferred the land to
it. Since the company was in the vendor's control, there was no
difficulty in granting a decree of specific performance against him.
Describing the company as a creation of the vendor, a device, sham
and mask, the Judge also decreed specific performance directly
against it. Those epithets, however, do not appear to have been
needed to justify the remedy. No particular difficulty should arise
in holding that a company or any other purchaser acquiring prop-
erty with actual notice that the transaction is a fraud on a prior
purchaser takes subject to the latter's equity. In truth the very
granting of the remedy against the company brings out that it was
not a sham.
In sum I respectfully submit to the Common People of the
United Kingdom and their Judges that, on a true analysis, the so-
called "sham" or "facade" exception to Salomon is unneeded and
unsound. After a century the principle of Salomon has and should
have a vigour as undiminished as Macaulay's Catholic Church. It
rightly remains the key principle of company law. Its limits are
marked not by the doctrine of sham, but by the proper scope of
other principles, such as the public policy exemplified by the
Daimler case.47

44
Apart from an immaterial exception. The Court of Appeal were prepared to treat
a Liechtenstein subsidiary as a facade, but as that subsidiary carried on no
business in the United States the issue was seen as irrelevant.
45
[1990] Ch. at 539
46
[1962] 1 W.L.R. 832; [1962] 1 All E.R. 442. Russell J. Followed Gilford Motor Co.
Ltd v. Home [1933] Ch. 935, C.A., to which the comments in the text must also
apply.
47
Supra, n.38.

17
 A Real Thing

TAKING SALOMON FURTHER

Contrary to what is sometimes seen as the tendency, the Salomon
principle may wax rather than wane. It is convenient to repeat
here something that I put before an Oxford audience in 1993, not
for its own sake but to introduce its aftermath. In Trevor Ivory Ltd
v. Anderson*9 the New Zealand Court of Appeal was concerned
with negligent advice about spraying, given by a one-man
company to a commercial fruit grower, the spray having killed the
plaintiff's raspberry crop as well as the weeds. The company was
held liable in contract and tort.50 The issue of present relevance
was whether the owner of the company was personally liable in
tort as well. The Court held not. Although it was his reputed
expertise as an agricultural consultant that had led the plaintiff to
contract with his company, he had made it clear, by forming the
company and trading as the company, that the business was being
carried on with limited liability. He had assumed no extra personal
duty.51
That decision has no attraction at first sight for lawyers brought
up on the premise that the liability of a company or other employer
for acts of its or his principal or other employee is vicarious in the
sense of being liability for a tort committed by a servant or agent
in the course of employment. The decision was duly assailed on
that ground by a lecturer at the University of Canterbury (New
Zealand), Mr D. A. Wishart, in an article entitled Anthropomorphism
Rampant.52 He thought that the Court had not considered the issue
in sufficient depth. It is agreeable to record that, after crossing the
Tasman to La Trobe University and reading the Oxford paper,
Mr Wishart wrote to me apologising in some measure. He now
accepted that there had been "profound thought" in the Court
of Appeal, while admitting to doubts about the com-

48
In The Frontiers of Liability, Vol.2,1994, papers presented at a series of seminars
of the Society of Public Teachers of Law, edited by Professor Peter Birks. This
paper was on The Condition of the Law of Tort and the relevant passage is at p.57.
4
'[1992]2N.Z.L.R.517
50
This was before the House of Lords also came to accept concurrent sources of
duty in Henderson v. Merrett Syndicates Ltd [1995] 2 A.C. 145, a subject to which I
hope to return in the third lecture of the present series.
51
If the plaintiff had reasonably thought that it was dealing with an individual,
the result might have been different, as pointed out in Ford and Austin, Principles
of Corporation Law, (7th ed., Sydney 1995), 588
52
[1993] N.Z.L.J. 175.

18
 A Real Thing

partmentalisation of lawdoubts which we lawyers all share.

Such is the generosity of scholarship.
I shall attempt similar generosity by saying that at the time of
the Trevor Ivory judgment I was unaware that less than two months
previously the Supreme Court of Canada had instructively adjudi-
cated on a wider issue in London Drugs Ltd v. Kuehne & Nagel
International Ltd.53 In that case employees of a corporate defendant,
a warehouseman, had negligently damaged the plaintiff's trans-
former. The company was held liable in bailment, contract and
negligence, but its liability was limited to $40 by a clause in the
contract. The issue was the liability or otherwise of the individual
employees. Five members of the Supreme Court of Canada held
that they were personally liable but to the extent of $40 only, four
of these Judges taking the ground that the employees were third-
party beneficiaries of the limitation clause, the other using the tort
principle of acceptance of risk. Their judgments are of value on
the question of limitation of third-party liability.54 What is of more
present interest, however, is the far-ranging and brilliant judgment
of La Forest ]., who held that the employees were not liable to the
plaintiff at all.
One cannot do justice to that judgment in a few minutes in a
lecture. The best that one can do is to stand back and record some
outstanding impressions. La Forest's theme is that tort liability
related to the performance of a contract must be determined with
an eye to the contractual context. The question becomes whether
in that setting the plaintiff has reasonably relied on the answer-
ability of individual employees. An employer, including a
company, may be vicariously liable for the negligence of the
employees, even though they are immune from s u i t ^ y the plain-
tiffs. In this instance any such reliance would not have been reason-
able. It was a planned transaction in which the plaintiff had chosen
to deal with a company: the plaintiff and the company could
allocate risks between them and take out appropriate insurance,
whereas in practice the individual employees did not have the
same opportunity: the case concerned property damage and
53
[1992] 3 S.C.R.299; 97 D.L.R. (4th) 261
54
The latest authoritative English judgment on this subject is The Mahkutai [1996]
3 W.L.R. 1; [1996] 3 All E.R. 502, P.C.
55
This is reminiscent of Broom v. Morgan [1953] 1 Q.B. 597, C.A., where, in the days
when spouses could not sue each other in tort, a wife was held nevertheless
entitled to recover from the employer of the husband for the latter's negligence
in the course of employment.

19
 A Real Thing

economic loss only, there being no overriding considerations relat-

ing to personal safety: it was not a case of reliance on the specialised
skills of an individual employee: the natural hope of customers that
"employees of their co-contractant will do the job right" is not
enough to fasten liability on them for non-intentional torts.
London Drugs is the subject of much academic debate. But the
writers have concentrated mainly on its bearing on general issues
of vicarious liability or privity of contract, rather than the specifi-
cally corporate law aspect. For our more limited purpose,
however, La Forest J. has made a particularly constructive con-
tribution. Declining to express an opinion on whether a British
Columbia case57 on which the New Zealand Court had partly
relied in Trevor Ivory is of general application, he notes that, both
with one-man companies and with companies providing for their
clients the services of professional or other skilled employees,
there arise issues as to the tort liability of the individuals which
can be distinguished from the general run of vicarious liability
cases. But I understand him to lean towards his solution of no
individual liability in property or economic loss cases in those
special categories also; provided in the first category that the
principal employee has at least drawn the attention of the client
to the fact that he desires to take advantage of the corporate vehicle
to limit his personal liability.58 In Trevor Ivory the New Zealand
Court held that impliedly that had been done. In London Drugs
itself, La Forest J. said59

"The question of reliance on a particular individual in such cases may

give rise to difficulties because it may be the reputation of one person
that attracts work to a firm while others may end up doing the work. It
is particularly important in cases involving professionals to distinguish
between mere reliance in fact and reasonable reliance on the employee's
pocketbook. Unlike this case, in which it clearly makes no sense to
impose upon the employee an obligation to insure against property
56
To mention only a handful of discussions, Professor George Curtis anticipated
some of La Forest J.'s ideas fifty years ago in an article in (1936) 14 C.B.R. 725.
Marvin G. Baer has written an extensive case note in (1993) 72 C.B.R. 385 in
which he disagrees in one way or another with all the judgments in London Drugs
but criticises La Forest J. less than the other members of the Supreme Court. In
(1993) 109 L.Q.R. 349, Professor Stephen Waddams sees the significance of the
case in terms of the relaxation of the privity of contract rule.
57
Sealand of the Pacific v. Robert C McHaffie Ltd (1974) 51 D.L.R. (3d) 702.
58
[1992] 3 S.C.R. at 386.
59
Ibid. 387.

20
 A Real Thing

loss, such cases raise with particular acuity the question of whether in
effect requiring double insurance by both the firm and the employee
makes sense in that context. Ultimately the question of reasonableness
of the plaintiff's reliance may depend essentially on the answer to that
question. Such an approach would avoid difficult definitional questions
concerning whether a particular employee is 'skilled' or a 'pro-
fessional'."

More recently he returned to the theme in Edgeworth Con-

struction Ltd v.ND Lea & Associates Ltd.60 The successful bidder for
a road building contract with a province had allegedly lost money
because of errors in the specifications and drawings prepared for
the province by an engineering company. The Supreme Court held
that the contractor had a prima facie cause of action against the
engineering company for negligent misrepresentation.61 As
against the individual engineers, though, all the Judges considered
that by affixing their professional seals to the drawings they did
not assume a duty of care to the contractor. Concurring in a judg-
ment delivered by McLachlin ]., La Forest J. said62

'The situation of the individual engineers is quite different. While they

may, in one sense, have expected that persons in the position of the
appellant would rely on their work, they would expect that the appel-
lant would place reliance on their firm's pocketbook and not theirs for
indemnification; see London Drugs, supra, at pp.386-87. Looked at the
other way, the appellant could not reasonably rely for indemnification
on the individual engineers. It would have to show that it was relying
on the particular expertise of an individual engineer without regard to
the corporate character of the engineering firm. It would seem quite
unrealistic, as my colleague observes, to hold that the mere presence
of an individual engineer's seal was sufficient indication of personal
reliance (or for that matter voluntary assumption of risk). In considering
the matter, other more general policy issues should be considered. As
I noted in London Drugs, supra, at p.387, the case raises with particular
acuity the question of whether in effect requiring double insurance by
both the firm and the employee makes sense in that context."

Not motivated by Salomon, these observations from the rich field

of modern Canadian jurisprudence are nevertheless in complete
harmony with Salomon. As to property damage or other economic
60
[1993] 3 S.C.R. 206.
61
An application of the Hedley Byrne principle, to be discussed in the third of these
lectures.
62
[1993] 3 S.C.R. at 212.

21
 A Real Thing

loss caused by the activities of a limited liability company, those

who have sufficiently manifested an intention to carry on business
with limited liability should not have to insure themselves per-
sonally as well. I do not profess to be an economist and believe that
Judges are usually well advised to steer clear of the clashes of econ-
omic dogmas.63 But it seems conceivable that in this field Salomon
makes good economics as well as good sense and good law.

ATTRIBUTION
The argument so far has been that, as a corollary of Salomon, a
duly incorporated company can never be a sham. Moreover the
general effect of the Companies Act 1985, section 13, is that an
unrevoked certificate of registration is conclusive evidence of due
incorporation. Section 13(4) declares that from the certified date
of incorporation the body corporate is capable of exercising all the
functions of an incorporated company. What these are is not
specified in the Companies Act apart from a reference in section
1(1) to "a lawful purpose". The field is wide open.
Many of us were brought up in the law in an era when the ultra
vires doctrine, derived from limitations on a company's objects
inferred from its memorandum of association, was of quite con-
siderable moment as regards at least matters of property and
contract; but now, except in internal issues as to the duties of
directors, ultra vires has largely lost its sting in company law. Thus,
by sections 3A, 35A and 35B of the 1985 Act, the validity of an act
done by a company shall not be called into question on the ground
of lack of capacity by reason of anything in the company's mem-
orandum: in favour of a person dealing with a company in good
faith, the powers of the board of directors to bind the company, or
63
Judge Richard Posner, a most distinguished representative in the law of the
Chicago school of economists, has described the dissenting judgment of Holmes
J. in Lochner v. New York 198 U.S. 45 (1905) as the greatest judicial opinion of the
last hundred years. The judgment occupies less than two pages. It holds that
the United States constitution does not embody a particular economic theory,
whether of paternalism or of laissez-faire, and that a limitation of working hours
in bakeries to 60 a week and 10 a day could be regarded by a reasonable man as
proper on the score of health. I am indebted to Professor Basil Markesinis in his
most recent inaugural lecture for this reference to Posner. See "The Comparative
(or a plea for broader legal education)" in Presiding Problems in the Law P.B.H.
Birks ed. (Oxford 1996) 116, n. 77.
64
In the case of a public company a further certificate is required regarding share
capital requirements.

22
 A Real Thing

authorise others to do so, shall be deemed to be free of any limi-

tation under the company's constitution: parties to transactions
with the company are not bound to enquire as to whether it is
permitted by the memorandum or as to any limitation on the
power of the directors: where the memorandum states that the
object of the company is to carry on business as a general com-
mercial company, the object is to carry on any trade or business
whatsoever and all things incidental or conducive thereto. Cau-
tious solicitors still include, though, clauses going beyond com-
merce in a narrow sense and clearly allowing philanthropy.
Neither the statutory limitation to "a lawful purpose" nor the
ultra vires doctrine is held to prevent a company from committing
a crime or a tort. For these purposes the concepts of vicarious
liability and identification are used. I shall turn to them shortly.
First a few words should be said about the received proposition
that an artificial person such as a company incorporated under
the Companies Act cannot do everything that a natural person
can do. One can perhaps safely say, for instance, that at present it
cannot marry, have children, vote at a parliamentary election,
become a Member of Parliament or a peer, commit murder or rape,
be appointed a Judge or a professor, or be called as a barrister.
There is no inherent reason, however, why the identification
concept cannot be extended to at least some of these cases also.
After all, only in recent years the carefully considered ruling of
Turner J. in R. v. P & O European Ferries (Dover) Ltd65 held for
virtually the first time that by the common law of England a
company could be guilty of manslaughter.66 The basic reason why
the concept has not been carried further is that corporate liability
has been perceived to be incongruous in the light of the public
policy reflected in the relevant substantive rules of common or
statute law. The law aims to approximate to reality as generally
understood. As Lord Blackburn put it in Pharmaceutical Society v.
London & Provincial Supply Association Ltd,67 "Nobody in common
talk if he were asked, Who is the richest person in London, would
65
(1990) 93 Cr. App. R. 72.
66
The Judge was able to cite dicta in favour of his ruling, which somewhat sur-
prisingly is described in Archbold 1995, para. 1-83, as of persuasive authority
only. He did not follow the New Zealand Court of Appeal in R. v. Murray Wright
Ltd [1970] N.Z.L.R. 476, who had based their decision to the contrary on the
statutory definition of homicide as the killing of one human being by another.
Both the concept of identification and the concept of vicarious liability do seem
capable of overcoming this point.
67
(1880) 5 App. Cas. 857,869

23
 A Real Thing

answer, The London and North-Western Railway Company. The

thing is absurd." A subsidiary reason advanced is that some crimes
can only be punished corporeally, but this does not explain why
the company cannot be convicted of murder.
It will not do to underestimate the strength of some of these
public policy considerations. Even Professor Gower seems to fall
into a Homeric nod when he says of the rule that a company
cannot conduct a court action in person that it "appears to serve
no purpose other than to protect the monopoly of the legal pro-
fession" .68 That view is echoed even more trenchantly by Professor
Sealy in an instructive essay which I have already cited.69 But what
led the New Zealand Court of Appeal in recent times to reject that
view and reaffirm the rule as generally applicable (subject to the
inherent discretion of the court to hear any representative in par-
ticular cases) was not any desire to protect the Bar but the all-too-
real risk of allowing scope for irresponsible advocacy.70
Delivering the judgment of the Privy Council in Meridian Global
Funds Management Asia Ltd v. Securities Commission?1 Lord
Hoffmann has said:
"'It is worth pausing at this stage to make what may seem an obvious
point. Any statement about what a company has or has not done, or
can or cannot do, is necessarily a reference to the rules of attribution
(primary and general) as they apply to that company. Judges sometimes
say that a company "as such" cannot do anything; it must act by
servants or agents. This may seem an unexceptionable, even banal
remark. And of course the meaning is usually perfectly clear. But a
reference to a company "as such" might suggest that there is something
out there called the company of which one can meaningfully say that
it can or cannot do something. There is in fact no such thing as the
company as such, no Ding an sich, only the applicable rules. To say
that a company cannot do something means only that there is no one
whose doing of that act would, under the applicable rules of attribution,
count as an act of the company."
Decisions of the board of directors or by unanimous or sufficient
assent of the shareholders are prime examples of what will nor-
mally be attributed to a company. In going further the courts
have commonly used one or other of the two concepts already
mentioned, namely vicarious liability and identification. True
68
Op.cit.n. 27 supra, at 195.
69
Supra n.16, at 18-19
70
ReGJMannix Ltd [1984] 1 N.Z.L.R. 309
71
[1995] 2 A.C. 500,506-507.

24
 A Real Thing

vicarious liability has in the main presented no particular problem.

The actions of an employee in the course of his or her employment,
or of an agent within the scope of his or her authority, are attributed
to the company as to any other principal. One curious problem has
been thrown up, however, by the judgment of the Privy Council in
Kuwait Asia Bank E.C. v. National Mutual Life Nominees Ltd.72 It
appears to have been held that two full-time employees of a bank
who were appointed by their employer to act as directors of a
company in which it held shares were not acting in the course of
their employment while they acted as directors. It may be said,
albeit contrary to commercial reality, that in their capacity as direc-
tors they were bound to ignore the interests and wishes of their
employer; but conflicts of interest, and even fraud, are not usually
thought to exclude vicarious liability in questions with third
parties. The law requires an employed driver to ignore the
employer's instructions to drive at a speed dangerous to other
road users; nevertheless by complying with the law he will not
take himself outside the course of his employment. And the judg-
ment does expose the wider problem that, insofar as they insist
that nominee directors must refrain from protecting and furthering
the interests of the appointors, they fly in the face of the very
raison d'etre of the power to appoint.
Identification is a different concept, classically based on Vis-
count Haldane Lord Chancellor's description in the Lennard's
case73 "... really the directing mind and will of the corporation,
the very ego and centre of the personality of the corporation." In
the Meridian case the New Zealand Court of Appeal applied this
concept to hold that the company knew that it had acquired a
substantial interest in a public issuer (and therefore became bound
by securities legislation to give certain notices) when its chief
investment officer improperly bought in the name of the company
certain shares for $21 million.74 Hardie Boys J., who delivered the
judgment, carefully explained, citing a collection of authorities
from various jurisdictions, that the doctrine had been held to
extend to a directing mind and will in a particular area of responsi-
bility: there need not be a delegation of all the company's powers. The
account of the Court of Appeal judgment given in the Privy
Council judgment says simply75 that the Court decided that the
72
[1991] 1 A.C. 187.
73
[1915] A.C. 705, 713.
74
[1994] 2 N.Z.L.R. 291,302.
75
[1995] 2 A.C. at 505.

25
 A Real Thing

chief investment officer's knowledge should be attributed to Mer-

idian because he was the "directing mind and will of the com-
pany", omitting the qualifications which I have just stressed and
so conveying the impression that the judgment was more foolish
than it might otherwise have seemed. But is not to be thought that
there was any mens rea in this omission. Undoubtedly it will have
arisen from an aim at economy in a summary.
Their Lordships went on to explain that there has been some mis-
understanding of the true principle on which Lennard's case was
decided. They held that in every case the rule of attribution to be
applied depends on the particular statutory context. They guarded
themselves against being understood to mean that whenever a
servant of a company has authority to do an act on its behalf, know-
ledge of that act will be for all purposes attributed to the company.
In the case of a corporate security holder that which should count
as the knowledge of the company was the knowledge of the person
who, with the authority of the company, acquired the relevant inter-
est, "the person who had authority to do the deal".76 But they did
not expressly say that an investment manager with authority to
spend $21 million or more in buying shares at his discretion was
not, in that sector of the company's activities, its directing mind and
will. The value of the Privy Council's refinement of the concept of
identification may well be considerable but remains to be dem-
onstrated by future cases.
The actual decision in the Meridian case was never very difficult.
The same result was reached at all three curial levels. What drove
the company to go as far as the Privy Council was the concern of
its parent company that a finding of breach of securities legislation
was standing on the record against the subsidiary. This underlines
that a company, once it has left any shelf, may acquire a character
and a reputation. Although Lord Reid said "A company cannot
be injured in its feelings, it can only be injured in its pocket",77
nineteenth century dicta restricting the kinds of cases in which it
can sue in defamation78 have now to be viewed with caution.
That a company, as distinct from a local authority,79 can sue in
defamation in at least some cases seems to be well settled.
For, on balance, legislatures and courts have carried the Salomon
principle of separate identity to ever greater lengths. Logical
76
Ibid, at 511
77
Lewis v. Daily Telegraph Ltd [1964] A.C. 234,262.
78
See 28 Halsbury's Laws of England, 4th ed. para.25.
79
Derbyshire County Council v. Times Newspapers Ltd [1993] A.C. 534.

26
 A Real Thing

analysis may justify a denial that there is something out there

called the company of which one can meaningfully say that it can
or cannot do something; but we have long been told what the life
of the law is, and Lord Halsbury's simple words about a real thing
have a ring of practical truth. To think of a company as a set of
rules is helpful up to a point and does shed some light on the
subject of company responsibility. Yet it also seems to miss some-
thing. The Common People whom the Hamlyn Lectures are sup-
posed to serve might sense that there is more to many companies
than that. The McDonald's Corporation has spent more than 300
days in the High Court in The Strand, in the longest trial in British
history, demonstrating its own reality. A kind of anthropo-
morphism would be very hard to eradicate from this branch of
the law. Perhaps it is not over-bold to predict that one day a
company will be found guilty of murder and that on another
day. a company will be credited with performing a life-saving
operation.

First Hamlyn Lecture

November 7,1996
Inner Temple

3
For contemporary detailed and scholarly discussions of the issues, see Professor
C. M. V. Clarkson Kicking Corporate Bodies and Damning Their Souls (1996) 59
M.L.R. 557 and G. R. Sullivan The Attribution of Culpability to Limited Companies
[1996] C.L.J. 515.

27
 One Golden Thread?

"Throughout the web of the English Criminal Law one golden thread
is always to be seen, that it is the duty of the prosecution to prove the
prisoner's guilt subject to what I have already said as to the defence of
insanity and subject also to any statutory exception."

Woolmington v. Director of Public Prosecutions [1935] A.C. 462, 581, per

Viscount Sankey L.C.

A kind of Parkinson's law applies to murder trials arising from

shooting by firearms. The incidence of a defence of accident
increases in proportion to the strength of the Crown's evidence
of identity. Every Judge who sits much in Crime becomes aware
of this phenomenon. Self-defence is often run and has the
advantage if successful of bringing about complete acquittal, but
it is naturally of limited scope. Provocation is usually more
realistic, but it has the disadvantages of a partly objective test
(the self-control of a reasonable person with the accused's
characteristics) and of doing no more than reducing the crime
to manslaughter. Insanity requires medical evidence and the
onus is on the accused; moreover juries can be reluctant to
accept even the strongest medical opinion. The modern statutory
defence of diminished responsibility can be a more promising
runner, but again carries a defence onus and at best a man-
slaughter verdict. Duress of circumstances is not available for
murder, attempted murder or some forms of treason, and
fits only most exceptional facts.1 Automatism and voluntary
drunkenness so complete that the accused literally did not
know what he or she was doing are desperate defences,
and in England the latter again only reduces murder to

1
R. v. Pommell [1995] 2 Cr.App.R.607; R. v. Gotts [1992] 2 A.C. 412.

28
 One Golden Thread?

manslaughter.2 On the whole accident is probably more popular

with defence counsel.
Consider now the string of misfortunes which befell the
appellant in Woolmington v. Director of Public Prosecutions. His
evidence was that his young wife had left him and gone back
to her mother. To persuade her to return he wished to frighten
her into thinking that otherwise he would commit suicide. He
sawed off the barrels of a rook gun, and threw away into a
brook the sawn-off pieces and the hacksaw. He loaded the gun
with the only two available cartridges. He attached some wire
flex to the gun so that he could suspend it from his shoulder.
Wearing his coat over the gun, he bicycled to the house where
she was living. She said she was not coming back, but going
into service. So he threatened to shoot himself, and to show her
the gun brought it across his waist, when it somehow went off
by pure accident. He left the house and rode away. His wife's
aunt, who was living next door, testified to hearing him say
something to the effect "are you coming home?": there was then
the slamming of a door, his voice in the kitchen, his going out
and getting on his bicycle: she called out to him, but he only
looked at her hard and rode away. She found her niece shot
through the heart.
When charged that night with murder the appellant unfor-
tunately did not mention that the shooting was accidental. "I want
to say nothing, except I done it... It was jealousy I suppose . . . "
So too, earlier he had separately told his mother and his employer
simply that he had shot his wife. Unluckily again, a note was
found in his coat pocket. It included "They have ruined me and
I'll have my revenge ... Her mother is no good on this earth but
have no more cartridges only two; one for her and one for me ..."
He explained in evidence that this was written after his wife's
death.
He was tried first at Taunton before (Viscount) Finlay J. and a
jury. That Judge summed up on the lines that the onus was on the
Crown throughout. After a retirement of only an hour and 25
minutes the jury were allowed to disagree. History does not relate
why a disagreement was accepted so soon. The second trial was
2
Director of Public Prosecutions v. Majewski [1977] A.C. 443. In other Commonwealth
countries extreme intoxication is generally regarded as negativing mens rea in all
crimes: see Smith and Hogan, Criminal Law, (8th ed. 1996) p. 237; but evidence
of that degree of intoxication is very rare. Yet in a high proportion of crimes
alcohol does play some part.

29
 One Golden Thread?

before Swift J. and a jury at Bristol. This time the jury brought in
a guilty verdict after only an hour and nine minutes. The Judge's
summing up may have contributed to the result, for he told them
in effect that in the circumstances the accused was guilty unless
he could satisfy them that his wife's death was due to an accident.
He said:3
'The killing of a human being is homicide, however he may be killed,
and all homicide is presumed to be malicious and murder, unless the
contrary appears from circumstances of alleviation, excuse, or jus-
tification. 'In every charge of murder, the fact of killing being first
proved, all the circumstances of accident, necessity, or infirmity are to
be satisfactorily proved by the prisoner, unless they arise out of the
evidence produced against him; for the law presumeth the fact to have
been founded in malice, unless the contrary appeareth.' Foster's Crown
Law (1762), p.255. That has been the law of this country for all time
since we had law. Once it is shown to a jury that somebody has died
through the act of another, that is presumed to be murder, unless the
person who has been guilty of the act which causes the death can satisfy
a jury that what happened was something less, something which might
be alleviated, something which might be reduced to a charge of man-
slaughter, or was something which was accidental, or was something
which could be justified."

The appellant's ill-luck continued. The Court of Criminal

Appeal (Avory, Lawrence and Graves-Lord JJ., the judgment being
given by Avory J.) dismissed his appeal. They said "it may be that
it would have been better"4 if the Judge had told the jury that if
they entertained reasonable doubt whether they should accept the
accused's explanation they should either acquit him altogether or
convict him of manslaughter only; but the Court relied on the
statutory proviso allowing the dismissal of an appeal if they [the
Court] consider that no substantial miscarriage of justice has actu-
ally occurred.5
3
[1935] A.C. at 465.
4
25 Cr. App. R.72, 75. Lord Sankey rendered the Court of Appeal's "would" as
"might"see [1935] A.C. at 470which was not an improvement.
5
The test commonly applied, built on Woolmington, is whether a reasonable jury,
after being properly directed, would, on the evidence properly admissible
without doubt convict: Stirland v. Director of Public Prosecutions [1944] A.C. 315,
321, per Viscount Simon L.C. Perhaps this represents a shelving of responsibility
by the courts, the more significant in the days when the Court of Criminal Appeal
in England had no power to order a new trial. In Woolmington itself the House of
Lords differed from the Court of Criminal Appeal by declining to apply the
proviso. Viscount Sankey gave only brief and general reasons for this, whereas

30
 One Golden Thread?

Thirty five years later, in delivering the judgment of the Privy

Council in Jayasena v. The Queen,6 Lord Devlin quoted the phrase
that I have quoted as evidence that for some considerable time
before 1935 many English Judges had in practice been applying
the law with less strictness towards the defence than the terms
warranted. A further possibility is that Avory J. wished to avoid
expressing an opinion on a difficult point, for he accepted
that there was ample old authority for Swift J.'s statement of the
law.
The appellant's case was then allowed to go to the House of
Lords, where at last his misfortunes ended. Some personalia are
not without interest. The Lord Chancellor of the day, Viscount
Sankey, presided. A convert politically to the Labour Party after
the experience of chairing in 1919 a Commission on the Coal-
Mining Industry (he recommended nationalisation), he was
appointed Lord Chancellor in 1929 by Ramsay MacDonald. He is
described7 as the author of judgments "clear, careful and correct,
but they do not entitle him to a place among the great English
judges" although he had "the ability to rise to the heights when
necessary". The most senior of the Lords of Appeal who sat with
the Lord Chancellor was Lord Hewart, the Lord Chief Justice. No
doubt this relatively rare instance of a Lord Chief Justice par-
ticipating in the judicial work of the House of Lords is to be
put down to the nature of the issue, an important one in the
administration of the criminal law. The invitation seems less likely
to have reflected personal admiration, for a few months previously
Hewart in his maiden speech in the House had departed from
convention (maiden speeches are supposed to be non-
controversial) by launching a violent attack on Sankey.8 "Almost
incoherent with rage" and in "spluttering and menacing words",
he complained of a provision in a Bill which authorised the Master
of the Rolls to appoint one of the Lords Justices to preside over
the second Appeal Court, instead of this being a matter of seniority.
Another sidelight is that Rigby Swift, whose summing up was in

Avory J.'s analysis of the evidence was fairly devastating. Contrast [1935] A.C. at
482-3 with 25 Cr. App. R. at 76-9. In the result the appellant was acquitted
because of what was held to be Swift J.'s mistake.
6
[1970] A.C. 618.625.
7
R.F.V. Heuston, lives of the Lord Chancellors 1885-1940, 525. Apart from Wool-
mington, Heuston refers to Canadian constitutional cases in the Privy Council.
8
Heuston op.cit. 519-20.

31
 One Golden Thread?

question, had been Hewart's frequent opponent at the Bar when

they were leaders of the Northern Circuit.
A less obviously qualified participant in the Woolmington
hearing was Lord Tomlin, a Chancery Judge especially experi-
enced in patent work; but then there were two common lawyers
almost universally regarded as in the first judicial rank, Lord Atkin
and Lord Wright. Atkin had a famous gift for a memorable phrase.
It is tempting to speculate that the golden thread figure of speech
was his. It is more colourful than Sankey's usual style. But I have
no solid evidence for this suggestion.
It was a rather misleading figure of speech. A gaze at the web
of the English Criminal Law would certainly not have revealed
any such golden thread. Since at least 1762 it had been generally
understood by lawyers, as indeed Viscount Sankey accepted, that
on a murder charge the onus was on the accused, once it was
proved that he or she had killed the deceased, to satisfy the jury
of defences such as accident. Presumably there were countless
summings up to that effect, and consequent executions. It was a
harsh rule before the Act of 1898 enabling the prisoner to give
evidence. Yet perhaps, at least since that Act, it is not incapable of
justification by reason of the very gravity of homicide. So Sir
Michael Foster thought in 1762.10 It was "very right" that "the law
presumeth the fact [of murder] to have been founded in malice."
And, as Sir John Smith has drawn to attention," after Woolmington
9
See the entry for Swift in the Dictionary of National Biography 1931-1940, con-
tributed by John E. Singleton (Singleton L.J.). Opinions of Hewart as a Judge vary
a little. In his D.N.B. entry, 1941-1950, H.G. Hanbury mentions that he regarded
law as "a mighty engine for the vindication of the fundamental rights of man"
and speaks of his courtesy to counsel and his faith in the jury system. But the
verdict in D.M. Walker's Oxford Companion'to Law is that he was "perhaps the
worst Chief Justice since the seventeenth century . . . lacking dignity, fairness,
and a sense of justice." His most famous dictum was in R. v. Sussex Justices ex p.
McCarthy [1924] K.B. 256,259: " . . . it is not merely of some importance but is of
fundamental importance that justice should not only be done, but should mani-
festly and undoubtedly be seen to be done." It is no longer totally reliable: R. v.
Gough [1993] A.C. 646.
10
Quoted in [1935] A.C. at 474.
" The Presumption of Innocence (1987) 38 N.I.L.Q. 223, 225-6. For Lord Goddard's
views that the defences of duress and non-insane automatism involved a burden
of proof on the defendant, Sir John cites R. v. Steane [1947] K.B. 997, rejected in
R. v. Gill [1963] 1 W.L.R. 841; [1963] 2 All E.R. 688, and Hill v. Baxter ]1958] 1 Q.B.
277, overruled in Bratty v. Attorney-General for Northern Ireland [1963] A.C. 386.
He also points out that old authority that the accused bore the onus of proving
self-defence prevailed in England until R. v. Chan Kau [1955] A.C. 206 and R. v.
Lobell [1957] 1 Q.B. 547.

32
 One Golden Thread?

a Judge as steeped in the traditions of the common law as Lord

Goddard C.J. was not prepared to accept literally the proposition
that in trials for common law crimes, subject to statutory excep-
tions, the onus lies on the Crown to rebut all defences for which
there is some evidential foundation, save only insanity. It now
appears to be generally accepted, however, not only that this is
the modern rule but that it extends to cases of homicide.12 The
closest precedent, indeed the only precedent, which the Lord
Chancellor was able to cite for the decision in Woolmington was
the decision of the Court of Criminal Appeal in Davies, when it
was held to be a misdirection to tell the jury that it was for the
prisoner to satisfy the jury that his gun had gone off accidentally.
That was not a murder charge, to which Foster's observations
were directed, but a charge of shooting with intent to resist lawful
apprehension.
So, in relation to murder at least, Woolmington made a great
change in the law, a change that has had an incalculable flow-on
effect. Sir John Smith hails the decision. "Never, in my opinion,
has the House of Lords done a more noble deed in the field of
criminal law than on that day."14 It would be temerarious now to
criticise Woolmington so far as it applies to grave crime. One must
bear in mind also that the International Covenant on Civil and
Political Rights, Article 14(2), declares that everyone charged with
a criminal offence shall have the right to be presumed innocent
until proved guilty according to law, and national Bills of Rights
commonly have the same provision.15 Yet the qualification
"according to law" does allow some flexibility as regards the onus
of proof when a particular defence is raised.16 And I must now own
to misgivings about some of the consequences of Woolmington. To
introduce this part of the discussion it should be pointed out that
on one potentially important subject, not mentioned in Viscount
Sankey's speech, Woolmington evidently does not or may not
prevail.

12
See for instance Archbold 1996, vol.2, chapter 17 passim.
13
(1913) 8 Cr. App. R. 211.
14
38 N.I.L.Q. at 224.
15
e.g. Canadian Charter of Rights and Freedoms, s.ll(d);
New Zealand Bill of Rights Act 1990, s.25(c). So, too, the European Convention on
Human Rights, Article 6(2)
16
Attorney-General of Hong Kong v. Lee Kwong-kut [1993] A.C. 951.

33
 One Golden Thread?

BIGAMY
Bigamy is rarely prosecuted today, a fact doubtless partly attribu-
table to the increasing popularity and even acceptability of de facto
unions, but the law relating to it is important in principle. It is a
statutory crime, created by the Offences against the Person Act
1861, s.57, committed according to the words of the section by any
person who, being married, marries any other person during the
life of the former husband or wife. The statutory description "for-
mer" seems illogical in a country where monogamy prevails (as
is the position in the United Kingdom) but it has apparently never
been successfully argued that it is a good defence that the lawful
marriage is still subsisting. A proviso to the section does afford,
however, certain defences. In particular nothing in the section
shall extend to any person marrying a second time whose husband
or wife shall have been continually absent from such person for
the space of seven years last past, and shall not have been known
by such person to be living within that time.
In R. v. Tolson17 the accused had gone through a ceremony of
marriage within seven years after she had been deserted by her
husband. So she did not come within the proviso. But the jury
found that at the time of the second ceremony she in good faith
and on reasonable grounds believed her husband to be dead. On
a case reserved, no less than 14 Judges satwhich would be
regarded today as a highly extravagant use of judicial resources.
By a majority of nine to five it was held that the jury's finding
established a defence to the indictment. The importance of the
decision lies in its application to the statutory offence of what was
accepted to be the common law principle that "an honest and
reasonable belief in circumstances, which, if true, would make the
act for which the prisoner is indicted an innocent act has always
been treated to be a good defence."18 The judgments contain no
suggestion that the onus of proof as to this defence falls otherwise
than on the defendant. Their unmistakable tenor is that it is for
the defendant to establish the defence affirmatively.
In R. v. Wheat19 the jury found that at the time of the alleged
bigamous marriage the prisoner believed in good faith on reason-
able grounds that he had been divorced. The Court of Criminal
17
(1889) 23 Q.B.D. 168
18
Per Cave J. at 181
19
[1921]2K.B. 119.

34
 One Golden Thread?

Appeal, in a judgment of five judges delivered by Avory J., held

that belief in divorce was materially different from belief in a
spouse's death, and that Cave J. in Tolson had stated the law too
widely. They also held that there was no evidence on which the
jury could find belief on reasonable grounds. For both reasons the
prisoner stood convicted.
In R. v. Carswell20 the jury made the same finding as the jury
had made in R v. Wheat. A Court of Appeal of nine Judges was
convened, a very rare occurrence in New Zealand. It was a close
run thing, but by a majority of five to four the Court declined to
follow Wheat and applied the wider Tolson principle. The majority
did contrive to discern some difference in the statutory language,
but a reading of their judgment brings out clearly enough that it
was impelled by the simple proposition that "it is not a wrong act
for a man who believes he has obtained a divorce to get married
again."21 That was followed by a reference to reasonable belief.
Carswell was a courageous decision in its day, for in that era
there was much more heel-clicking deference to English authority.
The next stage in the story is that in 1937 a similar question
divided the High Court of Australia. On this occasion there was
the immaterial refinement that the accused was found by the jury
to have reasonably believed at the time of the "former" marriage
that it was invalid because he understood that the wife's decree
nisi of divorce had not been made absolute. By a majority of three
to two the same result was reached as had been reached in New
Zealand in Carswell and for essentially the same reasons. Of the
various judgments, however, only that of Dixon J. made any ref-
erence to Carswell and even he incorrectly described it22 as a
decision of the Supreme Court of New Zealand (equivalent then
to the English High Court or the Supreme Courts of the Australian
States).
In R. v. Gould23 the matter was reconsidered in England. The
question was whether it was a good defence that the defendant at
the time of the "second" marriage honestly and reasonably held
the mistaken belief that a decree absolute dissolving his previous
marriage had been granted. The Court of Appeal now repudiated
Wheat. In delivering the judgment Diplock L.J. made much of the
20
[1926]N.Z.L.R.321.
11
11926] N.Z.L.R. at 339, per Sim J.
22
59 C.L.R. at 308.
23
[1968] 2 Q.B. 65. There was an intervening English case of R. v. King [1964] 1 Q.B.
285 not calling for further notice in the present context.

35
 One Golden Thread?

Australian case of Thomas, being especially laudatory of Sir Owen

Dixon, but did not mention the more pioneering New Zealand case
of Carswell, doubtless because it had not been cited in argument. It
is to be noted that although Gould was post-Woolmington, Diplock
L.J. said nothing about that case. Nor had the Australian Court
done so in Thomas. At this point in the history one can scarcely
doubt that, as Dixon J. put it in the course of his elaborate judg-
ment,24 it was open to the accused in answer to the bigamy charge
to exculpate himself by showing that on reasonable grounds he
mistakenly believed in facts which, if true, would make his earlier
marriage void; and that this was an instance, as Dixon J. also put
it, of the "reasonable doctrine that when a statute introduced into
our criminal law a new offence it should be understood prima
facie to intend the offence to take its place in a coherent general
system and to be governed by the established principles of crimi-
nal responsibility."25 Nor was there any ground for thinking that
the common law of England, Australia or New Zealand differed
on this matter. A prima facie case of bigamy being proved, the
onus of proving honest and reasonable mistake was on the defend-
ant, this being an application of a general common law principle
regarding mistake.

A GENERAL PRINCIPLE AND ITS EROSION

While it was not easy to reconcile all the cases26 and Judges may
be said to have had a choice of interpretations, it was once widely
accepted that prima facie the general principle was applicable to
statutory offences. Thus in Sherras v. De Rutzen27 a publican who
served liquor to a police constable at a time when the latter was
not wearing his armlet was held to have a good defence to a charge
of supplying a constable on duty. Day J. said that the only inference
that he drew from the omission of the word "knowingly" in the
relevant subsection was that the defendant had to prove that he
did not know: it would be straining the law to say that a publican
acting in the bona fide belief that the constable was off duty, and
having reasonable grounds for that belief, was nevertheless guilty
of an offence. And that approach was followed in Australia and
24
59 C.L.R. at 309.
25
Ibid. 304.
26
Sherras v. De Rutzen [1895] 1 Q.B. 918,921, per R. S. Wright J.
27
Cit. supra.

36
 One Golden Thread?

New Zealand. In the broadly similar case of Maher v. Musson,28

pre-Woolmington, Dixon J. himself pronounced, in an echo of Cave
J. in Tolson,
"... in the case alike of an offence at common law and, unless expressly
or impliedly excluded by the enactment, of a statutory offence, it is a
good defence that the accused held an honest and reasonable belief in
the existence of circumstances, which, if true, would make innocent the
act for which he is charged."

Dixon J. went on to say that the absolute language of the statute

there in question should be treated as doing no more than throw-
ing upon the defendant chemist the burden of exculpating himself
by showing that he reasonably thought the spirits which he had
bought were not illicit.29 In fact they had been stolen, but he
claimed unsuccessfully not to have suspected this. It was a variant
of the kind of case so common in criminal courts of purchase of
hot property from an unknown stranger in a public house or
coming upon it after it has fallen from a lorry.
I will turn to the New Zealand struggle shortly. But first it has
to be said that Sir Owen Dixon, seldom one to stray far from what
he perceived to be the orthodox path, became hesitant and cryptic.
There is a suspicion that he did so under the influence of Wool-
mington, although if so he did not disclose it. The case was in 1941,
Proudman v. Dayman,30 when Dixon J. joined in a decision that, on
a charge of permitting an unlicensed person to drive a motor
vehicle on a road, proof that the defendant knew that the driver
was unlicensed was unnecessary. In a studiously non-committal
judgment he distinguished between statutes whose purpose is "to
add a new crime to the general criminal law" and those where "in
matters of police, of health, of safety or the like the legislature
adopts penal provisions in order to cast on the individual the
responsibility of so ordering his affairs that the general welfare
will not be prejudiced." The general rule about the availability of
honest and reasonable mistake as a defence he still saw as possibly
applying prima facie to summary offences created by modern
statutes, but the presumption was only a weak one and the marked
and growing tendency was to treat the prima facie rule as
excluded. If it was not excluded, the defendant bore the burden in
28
(1934) 52 C.L.R. 100,104.
29
Ibid. 105.
30
67 C.L.R. 536.

37
 One Golden Thread?

the first place. "The burden may not finally rest upon him of
satisfying the tribunal in case of doubt."31 Justly, Smith and Hogan
describe these observations as equivocal.32
The same authors say,33 and likewise justly, that in the case
where ambiguity set in at the highest judicial level in England
also, "The five speeches ... differ so greatly, and it is so difficult
to make sense of parts of them that courts in later cases have found
it impossible to extract a ratio decidendi." They regard it as "another
calamitous decision by the House". This is Warner v. Metropolitan
Police Commissioner.34 A majority (Lord Reid dissenting) held that
a statutory offence of possessing certain scheduled drugs was
absolute: whether the accused possessed them with an innocent
or a guilty mind was immaterial. A number of opinions were
expressed on what amounts to possession. Only Lord Pearce
referred to Woolmington, saying that unfortunately he did not find
a half-way house reconcilable with Viscount Sankey's speech, but
that it would be an improvement if Parliament were to enact that
when a person has ownership or physical possession of drugs he
should be guilty unless he proves on a balance of probabilities
that he was unaware of their nature or had reasonable excuse for
their possession.35 Parliament did soon pass ameliorating legis-
lation on these lines,36 so providing evidence that a defence of
proved total absence of faulta phrase to which I will returnis
acceptable even in the serious criminal field of hard drugs.
Whereas Lord Reid had been the only champion of mens rea in
the speeches in Warner, his approach was shared all five Law Lords
who sat 18 months later in Sweet v. Parsley.37 On a charge against
the occupier of permitting premises to be used for the smoking of
cannabis resin, their Lordships held unanimously that it was the
purposes of the occupier (not temporary users) to which the
section referred: there must be knowledge or acquiescence on her
part: the court ought not to class an offence as absolute unless that
must have been the intention of Parliament. After speaking of the
extremes of full mens rea (difficult to prove) on the one hand and

31
Bid. 541.
32
8th ed. 122.
33
Ibid. 113.
34
[1969] 2 A.C. 256.
35
ttid. 303 and 307.
36
Misuse of Drugs Act 1971, s.28. For details of the legislation and the case law on
it, see 11(1) Halsbury's Laws of England, (4th ed. 1990) Reissue para. 404.
37
[1970] A.C. 132.

38
 One Golden Thread?

absolute offences (leading to some manifestly unjust convictions

and bringing the administration of justice into public scandal) on
the other, Lord Reid said that Parliament had not infrequently
transferred the onus as regards mens rea to the accused, so that,
once the necessary facts were proved, he had to convince the jury
that on the balance of probabilities he was innocent of any criminal
intention. "I find it a little surprising that more use has not been
made of this method; but one of the bad effects of the decision of
this House in Woolmington ... may have been to discourage its
use."38 There followed in Lord Reid's speech favourable mention
of what Cave J. had said in Tolson and of part of what Dixon J. had
said in Proudman. Lord Pearce similarly spoke39 of the half-way
house as attractive, while alluding to the obstacle created by Wool-
mington. He noted that the.half-way house had not been argued
for. Lord Diplock40cited Maker, Thomas, Tolson, Gould, and Wheat;
only to stop short of hinting that his own judgment in Gould had
not treated Woolmington as relevant and would give the impression
that the onus as to the defence of honest and reasonable mistake
fell on the defendant. He continued:

"Woolmington's case affirmed the principle that the onus lies upon the
prosecution in a criminal trial to prove all the elements of the offence
with which the accused is charged. It does not purport to lay down
how that onus can be discharged as respects any particular elements of
the offence. This, under our system of criminal procedure, is left to the
common sense of the jury. Woolmington's case did not decide anything
so irrational as that the prosecution must call evidence to prove the
absence of any mistaken belief by the accused in the existence of facts
which, if true, would make the act innocent, any more than it decided
that the prosecution must call evidence to prove the absence of any
claim of right in a charge of larceny. The jury is entitled to presume that
the accused acted with knowledge of the facts, unless there is some
evidence to the contrary originating from the accused who alone can
know on what belief he acted and on what ground the belief, if mis-
taken, was held. What Woolmington's case did decide is that where there
is any such evidence the jury after considering it and also any relevant
evidence called by the prosecution on the issue of the existence of the
alleged mistaken belief should acquit the accused unless they feel sure
that he did not hold the belief or that there were no reasonable grounds
upon which he could have done so.
38
Ibid. 150.
39
Ibid. 157-8.
40
Ibid. 164.

39
 One Golden Thread?

This, as I understand it, is the approach of Dixon J. to the onus of proof

of honest and reasonable mistaken belief as he expressed it in Proudman
v. Dayman (1941) 67 C.L.R. 536,541. Unlike the position where a statute
expressly places the onus of proving lack of guilty knowledge on the
accused, the accused does not have to prove the existence of mistaken
belief on the balance of probabilities; he has to raise a reasonable doubt
as to its non-existence."
As we have seen, Dixon J. did not in truth commit himself to that
approach in Proudman: rather he drew back guardedly from his
pre-Woolmington commitment apparent in Maher.
At best, then, Sweet v. Parsley left the prospect of a half-way
house solution in England hazy. Later authorities have not
improved the prospect. They have concentrated rather on the stark
alternatives of full mens rea and absolute liability as to at least
some elements of the offence.41 The golden thread has not pre-
vented some severe instances of liability being held absolute. For
example in England it is apparently an offence, punishable up to
a maximum of six months' imprisonment, to drive a motor vehicle
on a road while disqualified, even if one neither knows nor ought
to know of the disqualification.42 A reader of the textbooks will
not take long to learn that which way the court will go is something
of a lottery. A range of considerations has emerged, prominent
among which are whether absolute (or "strict") liability will be
more effective to achieve the objects of the statute, as by promoting
greater vigilance in matters of social concern, including public
safety;43 and the ease or difficulty for the respective parties of
discharging the burden of proof.44 But such considerations clash,
as in Pharmaceutical Society of Great Britain v. Storkwain Ltd*5 where
41
See, for this refinement, Gammon Ltd v. Attorney-General of Hong Kong [1985] A.C.
1,17, per Lord Scarman delivering the judgment of the Privy Council.
42
Taylor v. Kenyon [1952] 2 All E.R. 726; R v. Miller [1975] 1 W.L.R. 1222; [1975] 2 All
E.R. 974; R. v. Bowsher [1973] R.T.R. 202; [1973] Crim. L.R. 373; Archbold, 1996
Reissue, vol.2, paras 32-83 and 17-166.
43
Gammon, cit.supra.
44
R. v. Hunt [1987] A.C. 352.
45
[1986] 1 W.L.R. 903; [1986] 2 All E.R. 635. Smith and Hogan, strong supporters
of mens rea, do not like this decision: see Sir John Smith's eighth edition at 101
and 110. Insofar as the decision imposed on the seller absolute liability for acting
on a forged prescription, the opinion of Smith and Hogan appears to have much
force. The decision was based on the ground that the Act or Orders under it
required a form of mens rea for certain other offences, or provided for defences if
the defendant could prove that he had exercised due diligence and that the
contravention was due to the act or default of another. But none of those pro-
visions seems to have been intended to cover the case of forgery by a person

40
 One Golden Thread?

it was held that a retail pharmacist was guilty of selling a pre-

scription-only medicine even if the prescription presented to him
was forged and there was nothing more that he could reasonably
have done to check its authenticity. Moreover the greater vigilance
consideration is open-ended. Deterrence is a principal goal of all
criminal liability; and usually the more severe the law, the greater
the deterrence. As regards very many offences it will not be diffi-
cult for a court to say that absolute liability will be more effective
to achieve the objects of the statute.

TOTAL ABSENCE OF FAULT

I must now reveal that New Zealand law has been developing in
a different direction. Largely because this is not known in England,
I must run over the history.
It began in 1905 with R. v. Ewart46 when the Court of Appeal
held by a majority of three to two that it was a defence to a charge
of the statutory crime of selling a newspaper containing matter of
an indecent, immoral and obscene nature (some evidence in a
divorce case had been published) that the defendant did not know
that the contents were of that nature. Three classes of case were
identified: in short, (i) full metis rea; (ii) absolute offence; (iii) cases
where the defendant may discharge himself by proving to the
satisfaction of the tribunal which tries him that he did not have a
guilty mind. The English authorities as they stood at that time
were fullyand, I think, fairlyreviewed and, as the majority of
the Court thought, followed. Ewart was understood to govern this
tract of the law of New Zealand for some 65 years. Then in R. v.
Strawbridge*7 in dealing with a charge of cultivating cannabis the
Court of Appeal was faced with (inter alia) Woolmington, Sweet v.
Parsley, and some of the other cases that I have mentioned. In the
result the Court said that it was clear that Ewart had gone too far
in holding that in the third class of case the burden passed to the
accused. It was still true, however, that the onus lay on the accused
to point to some evidence creating a reasonable doubt that "he did
unknown, which the drafter evidently did not have in mind. On the other hand,
in the generality of their argument, and in seeking to place the burden of proof
on the prosecution, counsel for the seller may have gone too far. The House of
Lords were apparently not asked to consider the question of a defence of total
absence of fault as developed in Canada and New Zealand.
46
25 N.Z.L.R. 709.
47
[1970] N.Z.L.R. 909.

41
 One Golden Thread?

not have a guilty mind." Finding the insertion of sic in brackets

distastefully patronising, I omit it. The meaning of North P. is clear
enough.
Sir Alfred North was a strong and much admired Judge. Poss-
ibly no admiration for him exceeds my own, as I suspect that he
well knew, despite our occasional tussles when at the Bar I argued
cases before his court. Nor was he always unduly disposed to
follow English authority.48 In this instance, though, he may have
been over-influenced by Lord Diplock.
At all events the New Zealand Courts have since moved away
from Strawbridge on onus, reverting rather to the English approach
before Woolmington and to a position corresponding to that which
Diplock L.J. had appeared to adopt in Gould. Whether or not the
movement has any attraction beyond New Zealand, it has been a
considered one, accompanied by no little discussion of authorities
in other jurisdictions, and I can outline it only briefly in a lecture.
The first seed was perhaps sown in Police v. Creedon.49 One of
the Court of Appeal Judges confessed that the more one looked at
the reported cases and academic writings, the more confused the
picture became; and he indicated that, on a charge against a motor-
ist of failing to yield a right of way, he would have favoured a
defence of honest and reasonable mistake, with the burden of
proof on the defendant. By 1980 there had become available the
notable decision of a court of nine Judges in the Supreme Court of
Canada,50 delivered by Dickson J., that to the "public welfare"
offence of causing or permitting the pollution of a creek it was a
defence to prove that the defendant took all reasonable care. In
Ministry of Transport v. Burnetts Motors Ltd," a case of spillage of
48
He was a member of the Judicial Committee of the Privy Council who, in
Australian Consolidated Press Ltd v. Uren [1969] 1 A.C. 590, declined for Australia
to impose the restriction on the categories of cases in which exemplary damages
can be awarded which had been introduced in England by the House of Lords
in Rookes v. Barnard [1964] A.C. 1129. He gave the principal judgment in Corbett
v. Social Security Commission [1967] N.Z.L.R. 878 to the effect that, not-
withstanding the decision of the House of Lords in Duncan v. Cammell Laird &
Co. Ltd [1942] A.C. 624, the New Zealand Court could overrule a Ministerial
objection to the production of documents for which public interest immunity
was claimed. He presided over the Court of Appeal which, in Bognuda v. Upton &
Shearer Ltd [1972] N.Z.L.R. 741, declined to follow Dalton v. Angus (1881) 6
App.Cas. 740 and held that a defendant excavating on his own property owed a
duty of care for the protection of his neighbour's wall.
49
[1976] 1 N.Z.L.R. 571,584 et seq.
50
R. v. City of Sault Ste Marie [1978] 85 D.L.R. (3d) 161.
51
[1980] 1 N.Z.L.R. 51.

42
 One Golden Thread?
offensive matter on a highway, it was accordingly suggested that
the same solution might be appropriate in New Zealand, although
on the evidence there the defence could not succeed.
Then in Civil Aviation Department v. MacKenzie52 the break-
through came, a majority in the Court of Appeal of three Judges
to one holding that, to a charge of the regulatory offence of opera-
ting an aircraft in a manner causing unnecessary danger to persons
or property, total absence of fault was a defence. The defendant
aviator had not seen some telephone wires which he struck. Next,
in Hastings City Council v. Simmons?3 the Court of Appeal gave a
local authority prosecuted for discharging waste (through a
rubbish tip) into natural water an opportunity of establishing total
absence of fault.
Quite a gruelling effort at scrutinising the overall position as to
mens rea in statutory offences was undertaken in Millar v. Ministry
of Transport.54 The charge was driving while disqualified. Unani-
mously a court of five applied the ordinary presumption that mens
rea was an ingredient: to raise the issue the defendant would have
to point, however, to some evidence that he did not know of
the disqualification. Taylor v. Kenyon and the other English cases
treating this as an absolute offence were not followed. It was
noted that in the decade since Creedon authorities in the various
jurisdictions had become, if anything, even more confusing. The
Court identified at least seven categories into which a statutory
offences might be held to fall. In a struggle for simplicity, however,
it was suggested that the three basic alternatives are (i) full mens
rea; (ii) absolute or "strict" liability; (iii) a defence of total absence
of fault.
This approach seems to have proved reasonably workable and
not to have caused injustice. I list a few High Court decisions
applying it. In Ministry of Transport v. Crawford^5 a defence of total
absence of fault was held to be available, not indeed to a motorist
who had taken alcoholic drink not realising that it was of abnormal
strength, but to a motorist who had taken drink which he reason-
52
[1983] N.Z.L.R. 78.
53
[1984] 2 N.Z.L.R. 502.
54
[1986] 1 N.Z.L.R. 660. See also Waaka v. Police [1987] 1 N.Z.L.R. 754 as to what
the prosecution must prove to make out a charge of assaulting a police constable
in the execution of his duty. Full mens rea was held to be required. I add the
Australian authority of the He Kaw Teh v. R. (1985) 157 C.L.R. 523, a case relating
to prohibited imports, which goes on essentially similar lines.
55
[1988] 1 N.ZX.R. 762, Tipping J.

43
 One Golden Thread?

ably thought contained no alcohol. In Re Wairarapa Election Pet-

ition56 the defence was held to be available to a parliamentary
candidate charged with the corrupt practice of paying more than
$5000 for election expenses; but it was found that the defence was
not established on the facts. In Police v. Starkey57 it was held that
the defence was available to a charge of publishing untrue state-
ments defamatory of a rival local authority election candi-
date: the defendant had to show on the balance of probabilities
that reasonable care had been taken to ensure the truth of the
statements.
In Keech v. Pratt58 a defendant, having sensibly decided not to
ride his motor cycle after drinking at a nightclub, had the mis-
fortune to be assaulted and suffer concussion while he was
walking home. He then rode the motor cycle and was appre-
hended by a constable. He was over the limit, but the defence was
held to be sustainable if he could prove that he was acting as
an automaton. This decision, although obviously debatable as
to onus, perhaps suggests a more realistic approach to alleged
automatism than that hitherto conventional. As has been men-
tioned,59 Lord Goddard favoured the same approach whenever
automatism was raised as a criminal defence.
Last I note a recent decision60 concerning a charge against an
employer of failing to take all reasonably practicable steps to
ensure the safety of its employees. The employer had provided
clothing protecting, as far as reasonably practicable, against the
hazard of direct harm from a furnace explosion. The question was
whether better protection should have been provided against the
risk of the overalls themselves igniting. Alternative uniforms with
various advantages and disadvantages were available. It was
found that, in balancing the risk and making the selection, the
defendant had acted as a diligent and reasonably responsible
employer. Absence of fault was established and the defendant
acquitted. The case required and received a thorough investigation
of the facts, after full disclosure by the employer. It appears to be
an admirable example of the defence of total absence of fault in
practice.

56
[1988] 2 N.Z.L.R. 74, Full Court of High Court, Davison C.J., Greig and Wylie JJ.
57
[1989] 2 N.Z.L.R. 373, Barker J.
58
[1994] 1 N.Z.L.R. 65, Greig J.
59
Supra, n.ll.
60
Buchanans Foundry Ltd v. Department of Labour [1996] 3 N.Z.L.R. 112, Hansen J.

44
 One Golden Thread?

ADVANTAGES OF A VIA MEDIA

I must remove two possible misconceptions. First, it should not
be thought that the New Zealand Courts are shying away from
the ordinary Woolmington rule that the onus is on the prosecution
of proving guilt. Indeed, in Millar itself the presumption that tnens
rea has to be proved was held not to be displaced. Rejecting, as
we have seen, the English solution of absolute liability, the Court of
Appeal held that to sheet home a charge of driving while disqua-
lified the prosecutor had to prove beyond reasonable doubt that the
defendant knew of the disqualification or was wilfully blind to it.
When, however, a disqualification order had been pronounced in
the usual way in open court, the evidential onus would fall on the
defendant of pointing to something in the evidence raising doubt
about his knowledge. In fact in Millar there was room for confusion
as to the term of the relevant disqualification, a District Court
Judge having made orders on a number of charges at the same sit-
ting. The proceedings had dragged on, and the Court of Appeal
decided in all the circumstances that justice required an acquittal.
The Canadian case law is instructive. The Canadian Charter of
Rights and Freedoms guarantees fundamental justice (section 7)
and the presumption of innocence (section ll(d)) but these rights
are subject to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society (section 1).
As to grave crimes, the Supreme Court has declined to allow the
presumption of innocence to be overridden in any respect. For
murder, an accused must be proved beyond reasonable doubt to
have intended or foreseen the likelihood of death; it is not enough,
for instance, that he has caused the death in the course of a bur-
glary.61 The statutory offence of selling or buying stolen rock con-
taining precious metals has also been seen as a truly criminal
offence involving activity bereft of social utility and repugnant in
the eyes of society. A reverse onus clause casting on the accused the
burden of proving that he was the owner or the agent of the owner
is accordingly unconstitutional; but is to be read down (that is to
say, in effect amended by the Court) to cast on the accused merely
an evidential onus of raising a reasonable doubt on the matter.
By contrast, reverse onus in public welfare offences63 has sur-
61
R. v. Martineau [1990] 2 S.C.R. 633; R. v. Sit (1991) 8 C.R.R. (2d) 317.
62
R. v. Laba (1944) 120 D.L.R. (4th) 175.
63
See the City of Sault Ste Marie case, n.50 supra.

45
 One Golden Thread?

vived the Charter. R. v. Wholesale Travel Group Inc.64' was concerned

with a charge of false or misleading advertising contrary to a Com-
petition Act. A maximum of five years imprisonment could be
imposed. By a majority decision of the Supreme Court, a reverse
onus clause was held constitutional to the extent that it required the
accused to prove error and due diligence. Further requirements of
the statutory defence as to corrective advertising were, however,
held unconstitutional. The latter refinement aside, the interesting
feature of the decision is the distinction drawn between truly crimi-
nal conduct and conduct prohibited in the public interest by the
regulation of certain activities ("regulatory offences")- As Cory J.
said,65 "It is absolutely essential that governments have the ability
to enforce a standard of reasonable care in activities affecting public
welfare... the standard of reasonable care has been accepted by the
regulated actor upon entering the regulated sphere."
Like many lines, the line between true crimes and regulatory
offences will not always be easy to draw. Still, we can sense a solid
distinction. And in the second category, if to impose the full burden
of proving mens rea on the prosecution would tend to frustrate the
purpose of the statute, the developments in Canada and New
Zealand which I have attempted to explain offer the possibility of
a via media short of absolute liability. It should not be thought,
either, that the defence of total absence of fault represents a soft
option. The word "total", perhaps unnecessary, has been used for
emphasis. Although no case has yet sharply raised the point, a
defendant company invoking the defence will have to prove, for
instance, that on the balance of probabilities all its employees
taking part in the relevant operation exercised reasonable care.
Thus, while the Storkwain defendant would almost certainly have
had a good defence, and conceivably also the defendant in Warner,
it seems less likely that the defence would have been made out in
the building plans deviation case of Gammon (the facts had not
been fully determined at the stage of the Privy Council appeal) or
in the sex establishment licensing case of Westminster City Council
v. Croyalgrange Ltd.66 The defendant company in the river pollution

64
84 D.L.R. (4th) 161.
65
Ibid. 220-1.
66
[1986] 1 W.L.R. 674; [1986] 2 All E.R. 353. Similarly the defendant might not have
been able to establish all reasonable care in the crocidolite case of Atkinson v. Sir
Alfred McAlpine & Son Ltd (1974) 16 K.I.R. 695; [1974] Cr.L.R. 668, discussed in
Smith and Hogan, 8th ed. 115-6.

46
 One Golden Thread?

case of Alphacell Ltd v. Woodward67 might have had a prospect of

establishing the defence: compare that case with Hastings City
Council v. Simmons and Sault Ste Marie.
Sir John Smith ended his 1987 MacDermott Lecture on The
Presumption of Innocence68 with the indisputable proposition that
in England the golden thread has always been broken at some
points, adding "It would be a great day for our law if the golden
thread could be made to run truly throughout the tangled web." I
am, with full respect, not so sure. But it does seem odd that in the
home of Woolmington absolute (or "strict") liability is so exten-
sively accepted by the courts, and with some equanimity. It is as
if the great case has created a judicial mindset which recoils at a
shifting of the onus, yet tolerates a harsher solution. The New
Zealand via media cannot be claimed to solve all the problems
and awaits further working out. Perhaps, though, it would at least
be worth looking at in England.
Ultimately the issue is one of relative values. In the eyes of
common lawyers and probably in the eyes of the Common People
of the Hamlyn Trust, absolute liability for alleged criminal conduct
goes against the grain. Nevertheless, for lesser offences, the
English courts accept it from time to time, usually in the name of
legislative intenteven although in truth the legislature may have
been content to leave a practical solution to the courts. A practical
solution must allow for the dictates of public expediency in the
matter of regulatory offences. The creation of such offences may
be the most efficient method of controlling conduct in an industry,
but because of the limitations of the prosecution's knowledge the
difficulty of proof may be excessively demanding. Then the public
interest may well be sufficiently served by casting a burden of
proof, or the balance of probabilities, on the defendant. Justice is
not denied to the individual if, in the typical case where the defence
of total absence of fault can be allowed, it is recognised that he
enters a field of activity having a public impact, knowing that in
cases of doubt it will be for him to prove that he runs a tight ship.

Second Hamlyn Lecture

November 14,1996
DP Montford University
67
11972] A.C. 824.
68
38 N.I.L.Q. 223.

47
 The Temptation of Elegance Resisted

"Mr Gardiner ... has not been able to cite a single case in which a
defendant has been held liable for a careless statement leading, other-
wise than through the channel of physical damage, to financial loss."
Hedley Byrne & Co. Ltd v. Heller & Partners Ltd [1964] A.C. 465, 515, per
Lord Devlin.

This is the third lecture in a series of four arranged to be delivered

in different venues. The audiences are therefore different, and it is
safe to say that few, if any, persons will hear more than one of the
lectures, nor assuredly will any suffer more than two, apart from
the lecturer himself and (I believe) one exceptionally resolute
scholar. There are other differences. This evening's audience is
essentially learned. That alone may not be enough to distinguish
it from the audiences in the Inner Temple, De Montfort and Oxford,
as they would quickly point out, but there is the added factor that
this is something of a homecoming. According to Garter King of
Arms, I am of Cambridge in the County of Cambridgeshire. To
mark this privilege I propose to treat the audience with a degree
of familiarity by taking the liberty of asking it questionsalthough
only mental answers are expected. I would ask you to answer
mutely who are the respective authors of the following quotations,
each of which has a bearing on the content of the lecture.

1. "... the temptation of elegance... can attract us all, simply because

a solution, if elegant, automatically carries a degree of credibility;
and yet the law has to reflect life in all its untidy complexity ..."

2. "Change need not be, and often is not, as devastating as the fall of
Constantinople."

3. "If I were asked what is the most potent influence upon a court in
formulating a statement of legal principle, I would answer that in
the generality of instances it is the desired result in the particular
case before the court."

48
 The Temptation of Elegance Resisted

4. " . . . a judge is entitled to take into account that simple fairness

ought to be the basis of every legal rule."

5. "There was a fine cellar. When Lord Goddard, an exacting guest,

came to dinner he exclaimed 'What is this?' with totally uncon-
cealed astonishment after the first sip of the first wine."

6. " . . . an opinion [of a Judge] should not invoke public policy unless
it can cite a source for it."

7. "By definition an increment is bound to take matters further than they

are already."

8. "The basing of the decision on the notion of assumption of responsi-

bility may ... prove the Achilles heel of the majority judgments."

9. "The subject of compensation for personal injuries and death is ...

too important... to be left to the courts. Sooner or later Parliament,
instead of tinkering with the tort system, as in the recent limited
reforms relating to damages and the procedural changes proposed
by the Woolf Report, will have to return to the question of com-
munity responsibility for the disabled, including victims of acci-
dents."

10. "The limitations on the doctrine of consideration led to the elab-

orate yet ultimately unsatisfactory doctrine of assumption of
responsibility in Hedley Byrne. The way to create liability in situ-
ations 'equivalent to contract' was surely to broaden the conception
of contract."

11. " . . . the present case is not clearly covered by authority. When such
a situation is encountered in the field of negligence law, it seems to
me that the proper approach, as indicated by all the leading modern
authorities from Donoghue v. Stevenson1 onwards, is to look at all
the material facts in combination, in order to decide as a question
of mixed law and fact whether or not liability should be imposed.
Ultimately it may be simply what Lord Morris of Borth-y-Gest was
content to call a decision as to whether it is fair and reasonable that
a duty of care should arise (Dorset Yacht Co. Ltd v. Home Office2); or
it may be described as a question of the policy of the common law,
which is the way in which Lord Denning and Sachs LJ looked on
1
[1932] A.C. 562.
2
[1970] A.C. 1004,1039.

49
 The Temptation of Elegance Resisted

the Bognor Regis case.3 Lord Pearson said in the Dorset Yacht case
that to some extent the decision in that case must be 'a matter of4
impression and instinctive judgment as to what is fair and just'.
That applies equally to the present case. But it is more than Chan-
cellor's-foot justice. The courts have evolved signposts or guide-
lines or relevant considerationsinvolving such notions as
neighbours, control, foresight, proximity, opportunity for inter-
mediate examination, deeds or words, the degree and kind of risk
to be guarded againstand these are all available to be used as
aids to the end result."

Do not be dismayed if you have recognised only one or two,

or even none. It would be only an extremely odd person who
recognised them all, as he or she would happen to have been
reading exactly the same materials as I have recently. Let it be
added that two, namely the second (about change) and the seventh
(about increment), have been included simply to illustrate how
blindingly obvious some of the apparently momentous prop-
ositions of learned, and even beguiling, Judges and scholars can
be. I will not specify those two writers beyond saying that other,
less evident, propositions of theirs are in the list also. The first and
third quotations (about elegance and the desired result) are taken
from Robert Goff's Maccabaean Lecture in Jurisprudence, 1983,
The Search for Principle.5 The fourth (about fairness) would in New
Zealand arouse instantly the suspicion that I had said it; but in
fact it is from the respectable source of Lord Steyn's Sultan Azlan
Shah Lecture, Contract Law: Fulfilling the Reasonable Expectations of
Honest Men, delivered in Kuala Lumpur last month.
The fifth (wine) is from Robert Heuston's 1993 study of Lord
Devlin (Heuston's last prosopography?) to be found in the Pro-
ceedings of the British Academy, vol.84, 247. Its relevance is that the
speech of Lord Devlin in Hedley Byrne6 has probably emerged as
the most influential in that highly influential case,7 and I am going
to suggest that it is indeed a vintage speech. On that point I will
venture to disagree with the opinions separately expressed in two
of the other quotations. The sixth (insisting that Judges depart
from their proper sphere if they create public policy) comes from
3
[1972] 1 Q.B. 373,390,400.
4
[1970] A.C. 1004,1054.
5
Proceedings of British Academy, vol.69,169.
6
Hedley Byrne & Co. Ltd v. Heller & Partners Ltd [1964] A.C. 465.
7
See for instance Henderson v. Merrett Syndicates Ltd [1995] 2 A.C. 145,178-81, per
Lord Goff of Chieveley.

50
 The Temptation of Elegance Resisted

a Monsanto Lecture, published as this audience will expect in the

Valparaiso University Law Review,8 by Hans A. Linde, a former
Judge of the Oregon Supreme Court. The eighth is one of the fruits
of the experience of Professor Basil Markesinis in the House of
Lords in White v. Jones?
The ninth and tenth (community responsibility and enlarging
contract) are from a courageous and stimulating lecture, Neg-
ligence: The Search for Coherence, delivered in London in recent
weeks, in the Current Legal Problems Series, by Professor Bob
Hepple.
The eleventh, the longer one, I must admit that I did write10
21 years ago, as a young Judge wrestling with the issue whether a
purchaser of a truck could recover damages from a Government
Department whose employee had issued a certificate of fitness for
the vehicle after a carelessly inadequate test. The answer given
was Yes, so it was a fairly early instance of negligence liability in
tort for economic loss. The stock criticism of the sort of thing there
said is on the lines that it means uncertainty: it is not so much a
principle, more a list of rather vague relevant considerations: it
leaves too much to the particular Judge and the particular facts. A
purpose of the present lecture is to see whether the 21 years have
led to any significant tightening up or clarification. During that
period my colleagues and I in New Zealand have repeated from
time to time, possibly ad nauseam and certainly once with the
endorsement of Lord Templeman for the Privy Council, essentially
the same approach as was taken in that case decided in 1975, with
a few attempted embellishments of the language.11
8
Vol.28 (1994) at 821, Courts and Torts: "Public Policy" Without Public Politics?
9
[1995] 2 A.C. 207; Five Days in the House of Lords (1995) 3 T.L.J. 169.
10
Rutherford v. Attorney-General [1976] N.Z.L.R. 403,411.
11
See for example Brown v. Heathcote County Council [1986] 1 N.Z.L.R. 76, 79-80,
C.A., [1987] 1 N.Z.L.R. 720, P.C. South Pacific Manufacturing Co. Ltd v. New Zealand
Security Investigations Ltd [1992] 2 N.Z.L.R. 282, 293^, 305-6, 312, 316-7, 324-5.
The passage in Brown which the Privy Council described as useful is as follows
" . . . we have considered first the degree of proximity and foreseeability of harm
as between the parties. I would put it as whether these factors are strong enough
to point prima facie to a duty of care. Second, if necessary, we have considered
whether there are other particular factors pointing against a duty. It is also con-
ceivable that other factors could strengthen the case for a duty.... we have found
this kind of analysis helpful in determining whether it is just and reasonable that
a duty of care of a particular scope was incumbent upon the defendant.
We have also recognised that, if the loss in question is merely economic, that
may tell against a duty... [although] the economic loss point [is not] automatically
fatal to a duty of care."

51
 The Temptation of Elegance Resisted

THE SIGNIFICANCE OF HEDLEY BYRNE

At Oxford in 1993, at the behest of Professor Peter Birks and for
one of the Society of Public Teachers of Law seminars on The
Frontiers of Liability,121 essayed an account of the condition of the
law of tort. It was stretchingly extensive as to the subject-matter,
although Tony Weir, in the course of letting off his concluding
fireworks, complained13 inter alia that it (like the other papers at
the session) did not deal with defamation, a subject in which in
fact I have had a number of immersions both at the bar and on the
bench, but which can hardly be covered sensibly in a paragraph
or two of a general discussion of tort law. When he has a day or
two to spare, however, we could go through my defamation cases
together.
On that occasion I thought tentatively to identify four major
breakthrough cases in the development of civil liability law in
England during the twentieth century. They were Nocton v. Ash-
burton14, Donoghue v. Stevenson,15 Home Office v. Dorset Yacht Co.
Ltd,16 and United Scientific Holdings Ltd v. Burnley Borough Council}7
The latter case was included because of the authoritative rec-
ognition of the intermingling or fusion of law and equity by Lords
Diplock and Simon of Glaisdale, whose speeches were in sub-
stance agreed with on this matter by the other three members of
the House. On further reflection Dorset Yacht should be replaced
on the list by Hedley Byrne. It is true that in its impact on the case
in hand the actual decision of the House of Lords in Hedley Byrne
was less important, for after all the lower courts were affirmed;
but the ratio decidendi of all the Law Lords who satthat there
would have been a duty of care but for the disclaimerrep-
resented a major advance in the law of England. As Lord Devlin's
superbly constructed speech brought out, the decision was
incremental (although he did not use that word and might have
found it unhelpful), but it enunciated expressly for the first time
that there may be a duty of care in tort to avoid causing purely
economic damage.

12
Vol.2,49.
13
Ibid. 103.
14
[1914] A.C. 932.
15
[1932] A.C. 562.
16
[1970] A.C. 1004.
17
[1978] A.C. 904.

52
 The Temptation of Elegance Resisted

That can indeed be seen as implicit in Nocton v. Ashburton,

especially the speech of Lord Haldane L.C. The cardinal point of
Hedley Byrne, however, is the explicit rejection of the argument for
the respondent that, for negligence liability in tort, financial loss
must flow from physical damage to the person or the property
of the plaintiff. By comparison Dorset Yacht, although certainly
important in extending duties of care somewhat into the field of
public authority discretions, was rather easier. The damage to the
yachts was physical. One may readily agree that nevertheless
damage to chattels (or realty) is essentially economic loss to the
plaintiff owners. Yet it can be said to be not "pure" economic loss.
For the latter Hedley Byrne is the key authority. That breakthrough
made it much easier for the House of Lords to move, "incremen-
tally" if you like, to such decisions as Henderson v. Merrett Syn-
dicates Ltd19 and White & Jones20 recognising that duties of care not
to cause such loss are naturally perfectly acceptable even if not
based on particular statements made by the defendant or par-
ticular reliance by the plaintiff.
In these three cases the untidy complexity of life has indeed led
the House of Lords to resist the temptation of elegance. Yielding
to it would have been easy enough. To many legal minds of the
past, and no doubt to some of the present, it is attractive to lay
down that when two parties are in a contractual relationship there
is no room for tort liability, and that purely economic loss
occasioned by negligence is the exclusive business of the law of
18
In the sea of writings on the significance of Hedley Byrne one of the outstanding
landmarks remains the early article about the case by Robert Stevens in (1964)
27 M.L.R. 121. At 130, n.4, he mentions that the first House of Lords hearing began
before an entirely differently constituted Appellate Committee, dominated by
Chancery lawyers, but had to be abandoned because of Viscount Radcliffe's
appointment to preside at the Vassal Tribunal. See also Blom-Cooper and Drewry
Final Appeal (Clarendon Press, Oxford, 1972) 153, 293. I have been told that
Gerald Gardiner Q.C., having encountered an apparently unsympathetic hearing
on the first day, seized the opportunity of representing to the Lord Chancellor,
Lord Dilhorne, that the fresh hearing should be before an Appellate Committee
with more common lawyers. In the event Gardiner (who in the following year
was to replace Dilhorne as Lord Chancellor) can thus be said to have achieved a
victory for the progress of the common law, although not victory for his side in
the particular case. He had not appeared in the courts below and it has been
suggested that the disclaimer on which the claim foundered was always destined
to be an awkward point for the appellants. But they had initially made a charge
of fraud and despite abandoning this (see [1962] 1 Q.B. at 399) may well have
felt strongly about the conduct of the respondents.
19
[1995] 2 A.C. 145 (duties of insurance syndicate managing agents to members).
20
[1995] 2 A.C. 207 (duties of solicitor to prospective beneficiaries of client's will).

53
 The Temptation of Elegance Resisted

contractual obligations. Simply, it has come to be perceived that

these solutions are neither just, nor fair nor reasonable, which
terms are of course overlapping and perhaps interchangeable.

PSEUDO CRITERIA
In the 21 years already mentioned there has been a deluge of
relevant case law and academic writing in jurisdictions round the
world. Has all this led to clearer criteria for negligence liability,
tests more conducive to certainty? As to that, unfortunately, at
least three negative factors have been at work.
First, I was wrong to include proximity in the guidelines. In a
number of judgments and writings over the years I have in effect
admitted this by pointing out that the term, which may have been
first used in this field by A.L. Smith L.J. in Le Lievre v. Gould,21 is
only a label, a convenient way of announcing that the court has
concluded that there is a sufficient connection between the defend-
ant and the plaintiff to justify recognition of a duty of care. It is of
course the closeness of their relations, not necessarily in the physi-
cal sense, which is referred to, as Lord Atkin himself pointed
out in Donoghue v. Stevenson.22 The term itself is currently much
employed but gives no help at all in ascertaining whether the
courts will regard the relationship as close enough. There is no
need to labour the point by a multiplicity of citations. I can now
cite simply Lord Nicholls of Birkenhead, who this year, in Stovin
v. Wise, has put it, after mentioning Caparo Industries pic v
Dickman,24

"The Caparo tripartite test elevates proximity to the dignity of a separate

heading. This formulation tends to suggest that proximity is a separate
ingredient, distinct from fairness and reasonableness, and capable of
being identified by some other criteria. This is not so. Proximity is a
slippery word. Proximity is not legal shorthand for a concept with its
own, objectively identifiable characteristics. Proximity is convenient
shorthand for a relationship between two parties which makes it fair
21
[1893] 1 Q.B. 491,504.
22
[1932] A.C. at 581.
23
[1996] A.C. at 923; [1996] 3 W.L.R. 388,395; [1996] 3 All E.R. 801,808. In the same
case at 241 Lord Steyn says that he is willing to assume that there was a sufficient
degree of proximity and that the crucial question therefore becomes whether it
would be fair, just and reasonable to impose a duty of care. I am respectfully
querying whether anything worthwhile is achieved by separating the questions.
24
[1990] 2 A.C. 605,617-8.

54
 The Temptation of Elegance Resisted
and reasonable that one should owe the other a duty of care. This is
only another way of saying that when assessing the requirements of
fairness and reasonableness regard must be had to the relationship of
the parties."
In the sense, then, that it is of no value as a guide, proximity is a
pseudo-criterion. The same is true, and almost as obviously, of
another judicially "in" word, incremental. You may remember that
one of my opening list of quotations pointed out the meaning of
this word. It has been popular in legal usage in England since a
use of it by Brennan J. in the High Court of Australia struck a
chord in Murphy v. Brentwood District Council.25
In Murphy and like contexts there may be a tacit suggestion that
an increment is only a very little addition; but, if so, this is as
unsound etymologically as it would be if intended to reflect the
way in which the common law has been developed. For instance,
the precedents cited in the majority speeches in Donoghue v. Stev-
enson and Dorset Yacht, and in all the speeches in Hedley Byrne,
provided solid logical justification for the major extensions of the
common law made in those three cases. They were truly turning
points of the common law. But at the same time they each had an
impeccable pedigree; each was an addition to a well-established
corpus. Lord Atkin, Lord Macmillan, Lord Reid, Lord Devlin and
the others were making law incrementally.
That, too, was the function in which Lord Wilberforce saw
himself engaged in his famous judgments in Anns v. Merton London
Borough Council26 and McLoughlin v. O'Brian.27 The unconstructive
attack on the first of these in particular might seem to be based on
some failure of comprehension were it not for the undoubted
usual acumen of the critics. In Anns Lord Wilberforce specifically
founded on the earlier trilogy of cases in the House, saying before
his two-stage proposition "... the position has now been reached
.. .".28 In McLoughlin he regarded the immediate aftermath
25
[1991] 1 A.C. 398,461, per Lord Keith of Kinkel, citing Sutherland Shire Council v.
Heyman (1985) 157 C.L.R. 424,481.
26
[1975] A.C. 728.
27
[1983] 1 A.C. 410.
28 [1978] A.C. at 751.1 have never believed that Lord Wilberforce was asserting that

reasonable foresight alone is prima facie a ground for a duty of care. It is of course
plain both from that speech and from what he said in McLoughlin v. O'Brian
[1983] 1 A.C. 410,420-1, that he was far from regarding foresight as automatically
leading to a duty; but even as to the prima facie stage his wording in Anns need
not be so read. In the end the point should not matter if one accepts that he had
no intention whatever of a massive extension of duties of care. A weighing

55
 The Temptation of Elegance Resisted

psychiatric damage decisions as a logical extension of existing

authority, demanded by justice.29
Clearly some Judges and other lawyers would not themselves
have favoured the developments in the last five cases that I have
cited. There may be some who would not have favoured any of
them, some who would join Lord Buckmaster and Lord Tomlin in
seeing the majority decision in Donoghue v. Stevenson as just as
out of place in robust and commonsense England as the laws of
Babylon.30 Be that as it may, the additions made to the common
law in the five cases were plainly intended by their architects to
be incremental. Propounded as if it were a guide rather than a
label, incremental should likewise be discarded as an unhelpful
concept.
Thirdly, an unhappy degradation has occurred with foresight. In
expositions of the law a habit has set in of categorising as not
reasonably foreseeable occurrences which clearly are in fact so
foreseeable, but which the court, desiring this result in the sense
of the third of my listed quotations (from Lord Goff), decides to
exclude from the scope of a duty of care. The Hillsborough disaster
case, Alcock v. Chief Constable of South Yorkshire Police, furnishes
examples. Clearly it is reasonably foreseeable that in a large crowd
at a sporting event there may be some, outside the categories of
husband and wife and parent and child, who could well suffer
psychiatric injury from seeing or fearing the death in any disaster
of a loved one also present. Most of the speeches in that case
appear to indicate, however, that the defendant will not be taken
to have reasonably foreseen psychiatric injury to such claimants
unless as regards each there is evidence, ex post facto, of a par-
ticularly close tie.32
Yet the defendant will know nothing of the actual circumstances
and relationships of the vast majority of the crowd. Apart from a
few cases of personal knowledge, the defendant's actual reason-
able foresight will be no more than that spectators with varying
relationships are at risk of (inter alia) psychiatric injury. To dif-
ferentiate the defendant's duties of care according to the particular

process is of the essence of his approach, however his Anns proposition be

interpreted. And be warned that I am about to plagiarise Horace. Annsam expelles
furca, tamen usque recurret.
29
[1983] 1 A.C. at 418-9 and 422-3.
30
See [1932] A.C. at 578.
31
[1992] 1 A.C. 310.
32
See [1992] 1 A.C. at 397,404,422.

56
 The Temptation of Elegance Resisted

relationship that turns out in fact to have existed is to distort the

notion of reasonable foresight. This is indeed brought out in
several passages in the speech of Lord Oliver of Aylmerton.33 So,
too, it is in fact reasonably foreseeable that people watching a
live television broadcast of a disaster may suffer trauma from
knowledge that loved ones are at the place. The reasons for exclud-
ing television viewers from the ambit of the defendant's duty may
or may not be good policy reasons. On analysis they are no more
and no less than the floodgates argument. They have nothing to
do with reasonable foresight.

RELIANCE AND ASSUMPTION OF

RESPONSIBILITY
Happily the changes in the 21 years have not all been regressive.
The law has moved forwards in identifying more clearly the twin
notions of reliance (by the plaintiff) and assumption of responsibility
(by the defendant) as aids in determining whether or not there is
tort liability in negligence. From a slightly different perspective,
both may be seen as results of the control of activities in a particular
field, such as new housing certification, which at least the Can-
adian and New Zealand courts have regarded as important. The
Privy Council has now sanctioned this for New Zealand, in
relation to the housing cases, in Invercargill City Council v. Hamlin.H
I do not propose to say anything here about the law of England in
the field of housing. That field is one in which control and conse-
quent assumption of responsibility by the certifying local auth-
ority is of a general social kind. The same applies to the implied
assumption of responsibility of a developer who puts up houses
for people to live in for many years. The local authority and the
developer alike, by statute or choice respectively, each take on a
role in the community naturally carrying with it a responsibility
of exercising reasonable care.
That is different from and based on wider considerations than
Hedley Byrne liability.35 The latter is more case-specific. It derives
from a voluntary assumption of responsibility more equivalent to
33
e.g. at 410 and 418.
34
[1996] A.C. 624,638-9, per Lord Lloyd of Berwick.
35
A point made more fully by Lord Hoffmann in Stovin v. Wise [1996] A.C. at 923.

57
 The Temptation of Elegance Resisted

contract, as Lord Devlin said.36 It was more naturally applied by

Lord Goff of Chieveley in Henderson v. Merrett Syndicates Ltd,37 a
case which, because it marked the final acceptance in England that
a duty may arise, between the same parties and in the same
circumstances, from both tort and contract, rivalled Hedley Byrne
when I was vacillating over which English tort case to take as one
of the Turning Points for this series of lectures.
It seems to me strange that some scholars of high repute have
criticised the theoretical basis of Hedley Byrne. We know that the
origins of the "modern" law of informal contracts lay in the old
tort action of assumpsit. And Lord Lloyd is surely right in saying,
after referring to Henderson v. Merrett Syndicates Ltd, "The House
rejected an approach which treated the law of tort as sup-
plementary to the law of contract, i.e. as providing for a tortious
remedy only where there is no contract. On the contrary: the law
of tort is the general law, out of which the parties may, if they can,
contract."38 When there arises a new category of case involving
assumption of responsibility, once it is accepted that the justice of
the case and any other relevant considerations require a remedy,
why try to force the case into a contractual mould instead of the
more flexible general law? No doubt the concept of consideration
could be extended, albeit not altogether easily; but to do so would
be to add unnecessary technicality to what should be a straight-
forward subject.
I must own to slightly more sympathy, however, for the sugges-
tion that there is also something artificial about the way in which
the more specific kind of assumption of responsibility was
stretched in the House of Lords in White v. Jones.39 This is not to
associate myself with a comparison with the heel of Achilles. I
think that a solution by way of extending contract law would have
been equally artificial. The contract made by the solicitor when he
took instructions to prepare a will for his client was not to confer
a benefit on a third party, but to enable the client to do so. In
Gartside v. Sheffield, Young & Ellis,40 decided in New Zealand 12

36
[1964] A.C. at 525-30. Robert Stevens argued in the article cited in n.18 supra that
the historical concept of warranty should have been utilised. An unconscious
echo of that approach may be found in an article entitled An Impossible Distinction
in(1991)107L.Q.R.46.
37
[1995] 2 A.C. 145.
38
Marc Rich & Co. A.G. v. Bishop Rock Marine Co. ltd [1996] 1 A.C. 211,223.
39
[1995] 2 A.C. 207.
40
[1983] N.Z.L.R. 37.

58
 The Temptation of Elegance Resisted

years before White v. Jones and on facts assumed at the pre-trial

stage to be materially identical with those on which that case came
to be decided, we reached the same result with no more than a
passing reference in one of the judgments to Hedley Byrne.*1 The
case was seen rather as one of the general responsibility of sol-
icitors carrying on their profession in the community. It is grati-
fying that Lord Goff was prepared to accept that this is at least
among the reasons why to allow an intended beneficiary a remedy
for the solicitor's dilatoriness gives effect to what his Lordship
calls "... the strong impulse for practical justice".42 After all, prac-
tical justice is what the law of negligence is for. It needs no other
justification.
Practical justice of course may not be high on the list of priorities
of insurance companies. In his survey of Commonwealth case
law in White v. Jones Lord Goff mentions the varying Australian
decisions, including that of the Supreme Court of Victoria in Seale
v. Perry*3 which, reversing Anderson ]., was against a duty of
care to intended beneficiaries. I understand that an appeal by the
plaintiff to the High Court of Australia was stopped by payment
to the plaintiff of the full amount of the first instance judgment.
The precedent of the decision at State appellate level was thus
preserved, at least for the time being.

THE POSITION TODAY

In Marc Rich & Co. v. Bishop Rock Marine Co. Ltd** Lord Steyn, with
the concurrence of three other Law Lords, has said:

"Counsel for the cargo owners submitted that in cases of physical

damage to property in which the plaintiff has a proprietary or pos-
sessory interest the only requirement is proof of reasonable fore-
seeability. For this proposition he relied on observations of Lord Oliver
of Aylmerton in Caparo Industries Pic. v. Dickman.45 Those observations,
seen in context, do not support his argument. They merely underline
the qualitative difference between cases of direct physical damage and
41
Ibid. 46, where Richardson J. made it clear that he was not applying the "separate
Hedley Byrne duty approach."
"11995J 2 A.C. at 260.
43
[1982] V.R. 193.
44
[1996] 1 A.C. 211,235-6.
45
[1990] 2 A.C. 605,632C-633D.

59
 The Temptation of Elegance Resisted

indirect economic loss. The materiality of that distinction is plain. But

since the decision in Dorset Yacht Co. Ltd v. Home Office*6 it has been
settled law that the elements of foreseeability and proximity as well as
considerations of fairness, justice and reasonableness are relevant to all
cases whatever the nature of the harm sustained by the plaintiff. Saville
L.J. explained:47
'... whatever the nature of the harm sustained by the plaintiff, it is
necessary to consider the matter not only by inquiring about fore-
seeability but also by considering the nature of the relationship
between the parties; and to be satisfied that in all the circumstances
it is fair, just and reasonable to impose a duty of care. Of course,...,
these three matters overlap with each other and are really facets of
the same thing. For example, the relationship between the parties
may be such that it is obvious that a lack of care will create a risk of
harm and that as a matter of common sense and justice a duty should
be imposed ... Again in most cases of the direct infliction of physical
loss or injury through carelessness, it is self-evident that a civilised
system of law should hold that a duty of care has been broken,
whereas the infliction of financial harm may well pose a more difficult
problem. Thus the three so-called requirements for a duty of care are
not to be treated as wholly separate and distinct requirements but
rather as convenient and helpful approaches to the pragmatic ques-
tion whether a duty should be imposed in any given case. In the end
whether the law does impose a duty in any particular circumstances
depends upon those circumstances,...'

That seems to me a correct summary of the law as it now stands. It

follows that I would reject the first argument of counsel for the cargo
owners."

Plus ca change . . . Although rather fuller and incomparably

more authoritative, that passage seems to be to much the same
effect as my own rough shot at a generalisation when sitting at
first instance 21 years ago. This branch of the law remains, as Lord
Keith of Kinkel has said, intensely pragmatic.48 Of course there is
some uncertainty. The common law is always uncertain at the
edges. As far as I know, it has never been demonstrated that there
is less litigation in judicial climates where certainty is held up as
a priceless asset, a god, than in those where a more liberal approach
prevails for the time being. Bad law makes not only hard cases,
46
[1970] A.C. 1004.
47
At 1077D-E.
48
Rowling v. Takaro Properties Ltd [1988] A.C. 473,501.

60
 The Temptation of Elegance Resisted

but at least as many cases as law which does better justice.

The legitimate differences of opinion that can arise are perfectly
illustrated, to take English examples, by the recent House of Lords
cases of Marc Richi9 and Stovin v. Wise.50 In the first (no duty of
care owed by classification society to cargo owners) Judges with
the commercial law experience of Hirst J. and Lord Lloyd differed
from a total of seven others. In the second (no duty of care on
highway authority to expedite a road safety project) the respon-
dent in the House had the galling experience of commanding
preponderant judicial support by six to three but losing because
the three constituted a majority of the House of Lords. Nothing
would be gained by my entering the lists as to the actual decision
in either case. But, having sinned myself in the South Pacific Manu-
facturing case51 by failing to comply with the duty to avoid prolixity
which falls on anyone discussing negligence in abstract terms, I
will take the liberty of making two comments on Stovin v. Wise.
The length of the discussion is aggravated by an inevitable guard-
edness that diminishes its impact, yet basically the issue may have
been simply whether the council's employees were actionably
negligent in allowing a project to go to sleep. And the way in
which the House divided is a reminder of how much power can
be exercised by those who select the Judges to sit in a particular
case.
In evolving negligence law, as with the common law as a whole,
courts can be much influenced by and seek to march with the
general policy of Parliament.52 Subject to that, the concepts, criteria
and signposts have to be worked out by the Judges. Hans Linde's
insistence on some identifiable external source goes, I think, too
far. Remorselessly applied, it could mean that there would be
hardly any common law at all. Notwithstanding the powerful
arguments for state compensation for personal injuries, the New
Zealand experience has been that, because of the cost to public
funds, the scope of the scheme has to be restricted. In that field,
although expelled by a pitchfork, the common law creeps back. In
the field of economic injuries cautious evolution continues. By no
means do these developments imply that the common law is
automatically expansive. Progress does not consist simply in
49
[1996] 1 A.C.211.
50
[1996] A.C. at 923; [1996] 3 W.L.R. 388; [1996] 3 All E.R. 801.
51
[1992] 2 N.Z.L.R. 282.
52
See the authorities collected in the South Pacific Manufacturing case, cit.supra, at
298.

61
 The Temptation of Elegance Resisted

giving judgment for the plaintiff. What is true is that the Judges
have always had a creative roleindeed a duty. Some of the
constitutional implications will be for Oxford next week. In the
area of civil liability, as Hedley Byrne demonstrates, the Judges
cannot discharge that duty without from time to time modifying
and even jettisoning tenets that had seemed hallowed. The untidi-
ness of life is forever overruling elegance.

Third Hamlyn Lecture

November 21,1996
University of Cambridge

62
 The Liberation of English Public Law

"... the landmark decision of this House in Anisminic Ltd v. Foreign

Compensation Commission [1969] 2 A.C. 147, and particularly the leading
speech of Lord Reid, ... has liberated English public law from the
fetters that the courts had theretofore imposed upon themselves so
far as determinations of inferior courts and statutory tribunals were
concerned, by drawing esoteric distinctions between errors of law com-
mitted by such tribunals that went to their jurisdiction, and errors of
law committed by them within their jurisdiction. The breakthrough
that the Anisminic case made was the recognition by the majority of this
House that if a tribunal whose jurisdiction was limited by statute or
subordinate legislation mistook the law applicable to the facts as it had
found them, it must have asked itself the wrong question, i.e., one into
which it was not empowered to inquire and so had no jurisdiction to
determine. Its purported "determination," not being a "determination"
within the meaning of the empowering legislation, was accordingly a
nullity."
O'Reilly v. Mackman [1983] 2 A.C. 237,278, per Lord Diplock.
Before beginning this lecture mention should perhaps be made of
the fact that in one respect it is unusual, in that advance notice of
it appears to have been given in The Times crossword. On Nov-
ember 26, 1996 a number of clues yielded answers revealing the
identity of the lecturer, the place and the subject. Inquiries into
this matter are being pursued.
Last I come to the most important of all the four cases which I
have selected as Turning Points of the Common Law. The most
important because it has a constitutional dimension of the pro-
foundest kind. It is unnecessary to know what has been said in
any of the preceding three lectures. The Cambridge philosopher
Wittgenstein in one of the few of his propositions intelligible to
most of us without explanation laid down that "What can be said
at all can be said clearly; and whereof one cannot speak thereof
one must be silent." Few in this audience will have been at any of
the first three lectures, none (I am confident) at all of them, so at
the reception due to begin a short hour ahead most of those present

63
 The Liberation of English Public Law

will be easily able to comply with the second limb of Wittgenstein's

injunction. On the other hand, in a field with an overlay of the
esoteric I may be hard put to it to observe the first.
The text for the lecture has been taken from Lord Diplock, who
as Diplock L.J. had given the longest of three judgments delivered
in the Court of Appeal in Anisminic1 in a unanimous decision that
was reversed by the House of Lords. That was not the only major
administrative law case in which a judgment of Diplock L.J. suf-
fered such a fate. Another was Padfield v. Minister of Agriculture?
where the House of Lords held that a Minister must reconsider a
complaint which he had rejected apparently for reasons of political
expediency rather than reasons promoting the policy of the Act
conferring his discretion. Diplock's Padfield and Anisminic judg-
ments were in the years 1966 and 1967 when he was a senior Lord
Justice of Appeal and shortly before his appointment (in 1968) as
a Lord of Appeal in Ordinary. After some 12 years service in the
Lords, and by now occupying the chair in the Appellate Com-
mittee, he made a generous and skilful judicial volte-face, embrac-
ing and ultimately even extending Anisminic, first hailing it as a
legal landmark in 1980.3 Two years later, in the case from which
my text is taken, he described Padfield as "another case in which

1
Anisminic Ltd v. Foreign Compensation Commission [1968] 2 Q.B. 862.
2
[1968] A.C. 997, a report including the Court of Appeal judgments. Diplock and
Russell L.JJ. constituted a majority. The result reached by Denning MR., in a
dissenting judgment, and at first instance by a Divisional Court headed by Lord
Parker C.J., was preferred by a majority of four Law Lords (Lords Reid, Hodson,
Pearce and Upjohn) to one (Lord Morris of Borth-y-Gest). It is noteworthy as
illustrative of judicial approaches to administrative law that in both that case and
Anisminic Lord Reid and Lord Pearce were in the "interventionist" majority,
whereas in both Lord Morris dissented. Morris'was a developer of the law of tort
(Hedley Byrne and Dorset Yacht) but more cautious in public law, although he was
a party to the Court of Appeal decision in R. v. Northumberland Compensation
Appeal Tribunal, ex p. Shaw [1952] 1 K.B. 338 that the old remedy of certiorari for
error of law on the face of the record applied to statutory tribunals. In Anisminic
[1969] 2 A.C. at 183 he was, not surprisingly, impressed with the point that the
Northumberland judgments would have been unnecessary if it could have been
asserted that error of construction was tantamount to excess of jurisdiction. This
did not trouble any of the other Law Lords or Lords Justices in Anisminic, none
of whom had been in Northumberland. The latter was seen as a landmark case in
its day. Listening to the arguments in the Court of Appeal was a highlight of
my time as a research student at Cambridge. I recollect how effectively Gerald
Gardiner K.C. made the point that judicial review on questions of law was
appropriate, by beginning his argument by simply reading to the Court the
Regulations which the Tribunal had to apply.
3
Re a Company [1981] A.C. 374,382, a case otherwise known as Racal.

64
 The Liberation of English Public Law

a too timid judgment of my own in the Court of Appeal was

(fortunately) overruled."4

LORD DIPLOCK AND HIS POSSIBLE FORMER

FALLACY
A purist might say that all Judges are strictly unique, but Diplock's
judicial writing has an unremittingly cerebral quality which makes
it at times the very quintessence of uniqueness. The clarity rec-
ommended by Wittgenstein is generally thought to entail sim-
plicity. For most purposes of comprehension it is preferable to be
told that a transistor is an electronic switch rather than to be
overwhelmed by precise analysis. That was not typically Diplock's
way, more Denning's, but it happens that the elaboration in
Diplock's reversed judgment in Anisminic, as well as being a prime
example of his style, does expose its own weak point as a more
superficial treatment of the subject would not. And this becomes
highly relevant to an understanding of the true implications of
Anisminic as later decided by the House of Lords. To preserve
some show of clarity and simplicity, I will, however, relegate the
central part of his expositionand it is only the central part, there
is much more in the same veinto a very long footnote in the
printed text of this lecture.5 The length of the footnote can be
4
[1983] 2 A.C. at 280.
5
"The authority or 'jurisdiction' to determine whether a situation of a kind
described in a statute exists is limited in a number of respects:
(1) The person or persons by whom it is exercised must possess the qualifications
laid down in the statute. In addition, unless it is otherwise provided in the
statute either expressly or by necessary implication, the presumed intention
of Parliament is that one of the qualifications is absence of bias.
(2) The determination must be preceded by inquiry. The nature of the inquiry,
any conditions precedent to the inquiry, and the procedure to be adopted in
the inquiry, may be laid down expressly in the statute. In the absence of
express provision to the contrary, the presumed intention of Parliament is
that the inquiry shall be conducted in accordance with the rules of natural
justice. A convenient summary of the relevant rules is to be found in the
speech of Lord Loreburn L.C. in Board of Education v. Rice. [1911] A.C. 179.
(3) The case in which the determination is made must be one of the kind
described in the statute. The statute may define the kind of cases which it
confers authority upon a person to determine in a number of different ways.
The description will necessarily include words identifying the person or
class of persons who are entitled to initiate the inquiry leading to the deter-

65
 The Liberation of English Public Law

defended only on the ground that the labyrinth into which

Diplock's matchless analytical skills drove him shows that critics
of the House of Lords decision do not necessarily have all the logic
on their side, as they sometimes allege. A rough paraphrase of
Diplock's reasoning in the Court of Appeal will have to do for this
audience for the time being.
It was said by an Emeritus Fellow of this College about the
definitive edition of Evelyn's Diary that the commentary "illumi-
nated the dark places while refusing to lavish superfluous enlight-
enment on the obvious."6 Diplock's analysis does illuminate dark
places, but not, I suggest, in quite the way he intended. Roughly,
what he appears to be saying is that, as to the reviewability on
jurisdictional grounds of a decision of an inferior tribunal, the acid

mination, and probably the other person or class of persons (if any) who are
entitled to be parties to the inquiry. It will also necessarily contain a descrip-
tion of the subject-matter of the determination, that is, of the kind of dispute
or claim to be determined.
(4) The determination must state whether a situation of the kind described in
the Act exists or not in the case of the individual to whom the determination
relates.
If any of these conditions is not complied with, the statement is not a
'determination' within the authority conferred by the statute, and effect will
not be given to it by the executive branch of Government.
The person authorised to make the determination must necessarily form an
opinion as to whether each of those conditions is complied with, in order to
embark upon and to proceed with the inquiry and to make the determination;
but his opinion as to whether they are or not is not one to which effect will
be given by the executive branch of Government. If it is 'wrong' in the
opinion of a person to whose opinion as to whether or not any of the
conditions are complied with effect will be given by the executive branch of
Government, the error is an 'error going to the jurisdiction' of the inferior
tribunal, and the purported determination is a nullity. This is not the sub-
stitution of the opinion of one person to whose opinion effect will be given
for that of another to whose opinion effect would have been given but for
such substitution. It is the first statement of any opinion to which effect will
be given by the executive branch of Government. This is what distinguishes
it from the case of a determination made where all these conditions are
complied with, and to which effect would be given by the executive branch
of Government but for the fact that the determination contains a statement
as to the legal consequences of particular facts which in the opinion of the
maker exist, and such statement is 'wrong' in the opinion of some other
person to whose substituted opinion as to the legal consequences of par-
ticular facts effect will be given by the executive branch of Government. The
error is then an 'error within jurisdiction'." [1968] 2 Q.B. at 890-1.
6
J S G Simmons, Obituary of Esmond de Beer, The Times October 15,1990.

66
 The Liberation of English Public Law

test is whether the opinion of that tribunal, in the absence of any

appeal, would be given effect by the Executive.,And that there are
four categories of cases, and only four, in which the Executive will
not or should not give effect to the tribunal's opinions. These
exceptional categories include opinions as to whether a given case
is of a kind with which the legislation intends the tribunal to deal.
Penetrating though the analysis may seem, it reveals itself as
based on assertions. Usually the Executive will enforce a decision
of a tribunal unless a higher court or tribunal rules otherwise:
surely this can be no test of jurisdiction. Then, more fundamentally,
an opinion of a tribunal that a case is of the kind committed to it
is not intrinsically different from any other opinion of the tribunal.
It is just as necessary, for instance, for a tribunal to decide (a)
whether a claimant qualifies for any benefit and (b) which of a
range of benefits applies to the case. If the legislation can be held
to authorise the tribunal to determine (b) conclusively, including
any incidental questions of law, there is no inherent reason why it
cannot be held to do the same as to (a). Again, if the governing
legislation requires a claimant to be a British national, this may
entail in some cases decisions of questions of law no less difficult
and no less important than the question whether the legislation
requires any successor in title to the claimant to be a British
national as well. Of course these various questions are different;
but there is no natural distinction putting some of them within the
tribunal's jurisdiction, field or area, for the purposes of judicial
review, and some outside it.

TEMPS PERDU
Forty years and more ago I undertook research for a Ph.D degree
at another university. Against all advice, the subject chosen was
Jurisdiction. The theme of the present series of lectures may suggest
that the weakness of an inclination to plunge unnecessarily into a
huge sea of troubles has never been shaken off. The dissertation,
for such they are called there, was to be published by the university
press, but required conversion. I have been busy since and have
not got round to it. Also Anisminic has solved a number of the
problems with which the young researcher struggled, by selecting
for the law of England a path that was certainly among those open
in the early nineteen fifties but could just as easily not have been

67
 The Liberation of English Public Law

preferred.7 Also one had a suspicion that the truth was such as it
would have been presumptuous for a very junior academic of
those days to state openly. Nowadays there appear to be no such
inhibitions among academics at any level. It was perhaps not until
1978 that complete candour in this particular matter was thought
judicially appropriate, and then Lord Denning indulged in a little
irony. He said that so fine is the distinction that in truth the High
Court has a choice before it whether to interfere with an inferior
court on a point of law. "Softly be it stated, but that is the reason
for the difference between the decision of the Court of Appeal in
Anisminic ... and the House of Lords."8
Softly be it added that those observations are also a little exag-
gerated. The subject does lend itself to alternative approaches, but
they are alternatives of logic or principle, not a mere discretionary
morass. This may conveniently be brought out by taking the facts
of Anisminic itself.
One preliminary point has to be mentioned. Sometimes the issue
is intertwined with statutory provisions of varying wording but
generally in the nature of privative, ouster, no certiorari or finality
clauses. I shall call them all simply privative clauses. They are
much less common in England today, because in relation to tri-
bunals which are not courts of law they are effectively excluded
from Acts passed before August 1,1958 by provisions now appear-
ing in section 12 of the Tribunals and Inquiries Act 1992. Because
of the manner in which privative clauses are habitually inter-
preted, the notes to section 12 in 10 Halsbury's Statutes (4th
edition, 1995 Reissue, 483), express a common understanding in
the legal profession by saying that at least in England and Wales
the section is "not of much practical importance." There was a
privative clause in Anisminic, as the tribunals and Inquiries Act
1958, s.ll, corresponding to the current s.12, expressly exempted
the Foreign Compensation Commission. There was also a priva-
tive clause in the current somewhat controversial case of JR. v.

7
Leading cases that could be seen to point another way included R. v. Bolton (1841)
1 Q.B. 66, R. v. Nat Bell Liquors Ltd [1922] 2 A.C. 128, and R. v. Northumberland
Compensation Appeal Tribunal, cit. supraall indicating that jurisdiction was fixed
at the inception of a hearing or an inquiry and not lost by an error of law in the
course of it (provided, presumably, that the ultimate order was one which the
supervising court considered that the tribunal had power to make): all treating
as crucial the face of the record, an illogical concept yet abundantly supported by
authority.
8
Pearlman v. Keepers and Governors of Harrow School [1979] 1 Q.B. 56, 70.

68
 The Liberation of English Public Law

Secretary of State for the Home Department, ex p. Fayed9 on which, as

it may still be in a sense sub judice, it will not be prudent for me
to comment. In neither case did the clause affect the result,
although as to Fayed one must add "so far".
Turning, then, to Anisminic, the real issue was whether a claim
to participate in a compensation fund received after Suez by the
United Kingdom Government from the Egyptian Government
was barred by the fact that the claimant company, whose Egyptian
property had been sequestrated, had thereafter sold the property
to an Egyptian organisation for the best price it could get in the
circumstances, albeit much less than its actual value. The settle-
ment expressly excluded any claim that the company might have
against any governmental authority other than the Egyptian
Government. The Foreign Compensation Commission had the
function of determining claims on the fund in accordance with a
complex Order in Council. They found that the company did
not qualify as a claimant. I have said "the real issue"; but the
importance of another issue, that of ensuring in the interests of
justice that tribunals give reasons for their decisions, is underlined
by the course of the case. Originally no reasons were available to
the company. By a skilled use of correspondence and the process
of discovery in an action for a declaration, the company's pro-
fessional advisers elicited the reasons.10
The key point in the reasons was that, in the Commission's view,
to qualify for compensation the company would have had to show
that, not only was it a British national (which happened to be
clear), but also that any successor in title to it was a British national
(which equally clearly the transferee Egyptian organisation was
not). Whether this was the "true" interpretation of the Order in
Council was the crux of the argument, "true" being an adjective

' [1997] 1 All E.R. 228.

' The names of Roger Parker Q.C. and Patrick Neill Q.C., who represented the
company throughout the court proceedings, should be recorded here. It was a
case with distinguished counsel. The Commission were represented in the Court
of Appeal (where they won without difficulty) by Sydney Templeman Q.C.,
Nigel Bridge and Christopher Cochrane. In the House of Lords, Gordon Slynn
was their second counsel (Bridge ]., as he then was, having been appointed to
the bench). I have authority to record the following generous verdict. Lord
Templeman's opinion is that in rejecting his arguments the House of Lords, and
especially Lord Reid, "got it right": that they made a policy decision open
to them on the previous authorities and in the best interests of the future of
administrative law.

69
 The Liberation of English Public Law

customarily used by Judges to denote the interpretation which

they prefer.
For the purposes of judicial review, including an action for a
declaration as in Anisminic,11 four possible solutions for the Anis-
minic type problem compete.

ALTERNATIVE PATHS
(i) It can be said that the jurisdiction of the tribunal is to be
ascertained at (or perhaps about) the commencement of its inquiry
and by the kind of order which it ultimately makes. The tribunal
must also comply with the rules of natural justice regarding a fair
hearing and freedom from bias. Provided that it complies with
these limitations, questions of interpretation and other questions
of law arising in the course of its proceedings and decision are
conclusively the function of the tribunal itself, and beyond attack
in the superior courts. This is what in Anisminic Lord Reid called
the narrow and original sense of "jurisdiction".12 Looked at from
another angle, it is the sense of that term giving the tribunal
probably the widest practicable immunity from judicial review.
Privative clauses fall neatly into place, even if largely unnecessary.
Such clauses would not be expected to cover a purported deter-
mination reached quite outside the tribunal's field or by a pro-
cedure contrary to natural justice.
Though logical enough, the foregoing approach does leave some
grey areas. For instance, Who has the last word on whether a given
party comes within the tribunal's jurisdiction? And, if there is an
error of law on the face of the record, can that error be corrected
by a reviewing court and does it make any difference whether or
not there is a privative clause?
Note that in Anisminic Lord Morris adopted the foregoing
approach, accepting however that the error-on-the-face jur-
isdiction would still apply but only if there was no privative
clause.13 It is an approach with very respectable antecedents,
although the face-of-the-record exception weakens it. For, if evi-
11
The procedural tangle in which English administrative law became enmeshed,
after amendments to R.S.C. O.53 and Lord Diplock's exposition in O'Reilly v.
Mackman of a dichotomy dividing public law and private law, is outside the
scope of this lecture. Public Law has been adopted in the present era as a con-
venient rubric, but perhaps is no more than that.
12
[1969] 2 A.C. at 171.
13
Ibid. 183.

70
 The Liberation of English Public Law

dence shows beyond a peradventure that the tribunal has made

what the court regards as a mistake of law, why in this day and
age should it matter whether technically the error is or is not
disclosed by the record? The best argument for the approach is
that developed by Lord Morris. In the course of a tribunal's delib-
erations a host of questions of law can arise: it can be most difficult
to distinguish some kinds of questions from others: therefore only
questions beyond very wide boundaries should be treated as
outside the tribunal's field.

(ii) Nevertheless the first approach does recognise some bound-

aries. It should not be overlooked, though, that this is not logically
inevitable. There is no logical reason (but I shall suggest later that
there is a constitutional one) why the legislature, while intending
a tribunal to operate in a limited field, should not nevertheless
allow the tribunal itself to determine conclusively whether cases
fall within that field. Indeed that is the position of superior courts
of general jurisdiction, such as in England the High Court of
Justice. In national domestic law such courts determine con-
clusively the limits of their own jurisdiction, subject only to any
right of appeal that may exist. A decision of such a court, express
or implied, is never a nullity, as Salmond J. pointed out long ago.14
Distinguished Judges have sometimes overlooked this, or at least
have used language suggesting that they have done so, but now
it is well accepted.
Parliament might conceivably, probably unthinkingly, try to put
a limited tribunal in the same position. As Lord Wilberforce said
in Anisminic,u "Although in theory perhaps it may be possible for
Parliament to set up a tribunal which has full and autonomous
powers to fix its own area of operation, that has, so far, not been
done in this country." We will do well to note the caution with
which this proposition is worded. Later in his speech his Lordship
cites a passage from Farwell L.J., calling it "language which,
though perhaps vulnerable to logical analysis, has proved its value
as guidance to the courts".17 The passage includes "... it is a
contradiction in terms to create a tribunal with limited jurisdiction
and unlimited power to determine such limit at its own will and
14
New Zealand Waterside Workers' Federation v. Frazer [1924] N.Z.L.R. 689, 706-7.
See Venire de Novo (1955) 71 L.Q.R. 100,117, n.28.
15
Re a Company [1981] A.C. 374,384, per Lord Diplock.
16
[1969] 2 A.C. at 207.
17
Ibid. 208.

71
 The Liberation of English Public Law

pleasuresuch a tribunal would be autocratic, not limited .. .".18

These are deep-rooted sentiments. The extreme hands-off
approach is never likely to be accepted by any English court or
any court in the former Dominions.

(iii) The solution adopted by the majority Law Lords in Anis-

minic, including Lord Pearson who dissented only on the "true"
interpretation of the successor-in-title provisions, might be under-
stood to be, if one looked only at what they themselves actually
said in their speeches, that there are some questions of law arising
in the course of a tribunal decision on which its decision will not
be vulnerable (unless perhaps the alleged error is apparent on the
face of the record) but others so arising which are open to review
on jurisdictional grounds.
As regards the latter the tribunal is held to go outside its field
or area, or exceed or fail to exercise its jurisdiction, if it asks itself
the wrong question; as, for example, by failing to take into account
something which, on the reviewing court's interpretation, it was
required to take into account, or basing its decision on some matter
which, again on the reviewing court's interpretation, it had no
right to take into account. This is a summary more particularly of
the speech of Lord Reid. On this approachor the approach in (i)
abovethe privative clause does not apply, for the determination
is not the kind of determination which the legislation set out to
protect. It was into the category of asking the wrong question that
the tribunal's decision in Anisminic was held by the House of
Lords to fall. On the "true" interpretation the Order in Council
required the Commission to be satisfied that the claimant company
was a British national and was at the time of the seizure the owner
of the relevant property in Egypt. The Commission, through what
three of their Lordships thought a misinterpretation, had imposed
a further condition precedent: namely that the successor in title
(the Egyptian organisation), although not a claimant, must also be
a British national. That "went to jurisdiction."
Lord Reid's speech has become the classic exposition of this
kind of solution. It was in its own way as Saul-like a transformation
as that of Lord Diplock when he became converted to the liberation
of administrative law quite late in his judicial career. Observers of
Lord Reid from more angles than one could not fail to see that
during the argument in the House of Lords, spread over 12 days,
18
R. v. Shoreditch Assessment Committee, ex p. Morgan [1910] 2 K.B. 859,880.

72
 The Liberation of English Public Law

at some stage he changed his mind. Starting from what one

observer has unkindly called a strict Scottish approach (which
would have led him down the same path as his eminent Welsh
colleague), he moved perceptibly to a more liberal position. He
made no secret of this, and is known to have given Anistninic as
an instance of the value of oral argument.
I have to point out that the majority Law Lords in Anistninic did
appear to accept plainly enough that there would still be some
questions of law, or involving law, on which in any given case the
Tribunal would have a power of conclusive ruling. Thus Lord Reid
said "If the commission were entitled to enter on the inquiry
whether the applicants had a successor in title, then their decision
as to whether T.E.D.O. was their successor in title would I think
be unassailable whether it was right or wrong.. .".19 Lords Pearce,
Wilberforce and Pearson spoke to the same effect.20 That is not to
say, however, that these opinions represented unalterable pos-
itions on an issue which, strictly, they did not have to decide. The
history of modern English administrative law has been one of
evolution.21 We must not assume that under prompting from Lord
Diplock the majority in Anistninic would not, in due course, have
been prepared to go further.

(iv) There remains the fourth solution, which is almost at the

end of the spectrum furthest from the second, and which belongs
to Lord Diplock. He was not a member of the Appellate Committee
in Anistninic, but, as I have heard a Law Lord who was a member
put it, he ran away with the case. This appropriation began in
Racal and was finally accomplished in O'Reilly v. Mackman in the
passage taken as the text for this lecture. It will be apparent that,
possibly with a degree of daring and certainly with a coup de
maitre, he extended Anistninic by treating the reasoning there as
having abolished, as regards inferior courts and statutory tri-
bunals, what he justly called the esoteric distinctions between
errors of law going to jurisdiction and errors of law within jur-
isdiction. One is driven into French for emphasis. It is important
to bear in mind that the other four members of the Appellate

19
[1969] 2 A.C. at 174.
20
Ibid. 195,205,207,209 et seq., 215.
21
See R. v. Bedwellty Justices, ex p. Williams [1996] 3 W.L.R. 361,367-8; [1996] 3 All
E.R. 737,743-5, and the citations there, including references to the standard text
books Wade and Forsyth, and De Smith, Woolf and Jowell.

73
 The Liberation of English Public Law

Committee in O'Reilly v. Mackman agreed with Lord Diplock's

speech without qualification.
And, subject only to two qualifications, the Diplock principle as
to this matter has become an orthodoxy. Thus in R. v. Hull Uni-
versity Visitor, ex p. Page22 the five members of the House of Lords
were unanimous as to the general principle. Lord Griffiths:23

"It is in my opinion important to keep the purpose of judicial review

clearly in mind. The purpose is to ensure that those bodies that are
susceptible to judicial review have carried out their public duties in the
way it was intended they should. In the case of bodies other than courts,
in so far as they are required to apply the law they are required to
apply the law correctly. If they apply the law incorrectly they have not
performed their duty correctly and judicial review is available to correct
their error of law so that they may make their decision upon a proper
understanding of the law.
In the case of inferior courts, that is, courts of a lower status than the
High Court, such as the justices of the peace, it was recognised that
their learning and understanding of the law might sometimes be imper-
fect and require correction by the High Court and so the rule evolved
that certiorari was available to correct an error of law of an inferior
court. At first it was confined to an error on the face of the record but it
is now available to correct any error of law made by an inferior court."

Lord Browne-Wilkinson with the concurrence of Lord Keith of

Kinkel:24

"In my judgment the decision in Anisminic Ltd v. Foreign Compensation

Commission [1969] 2 A.C. 147 rendered obsolete the distinction between
errors of law on the face of the record and other errors of law by
extending the doctrine of ultra vires. Thenceforward it was to be taken
that Parliament had only conferred the decision-making power on the
basis that it was to be exercised on the correct legal basis: a misdirection
in law in making the decision therefore rendered the decision ultra
vires. Professor Wade considers that the true effect of Anisminic is still
in doubt: Administrative Law, 6th ed., pp. 299 et seq. But in my judgment
the decision of this House in O'Reilly v. Mackman [1983] 2 A.C. 237
establishes the law in the sense that I have stated."
22
[1993] A.C. 682.
23
Ibid. 693.
24
Ibid. 701.

74
 The Liberation of English Public Law

Lord Slynn of Hadley with the concurrence of Lord Mustill,

simply:
"I accordingly accept that certiorari is now available to quash errors of
law in a decision."

As to the two qualifications, one relates to the 'peculiar or dom-

estic law' which is said to be within the exclusive jurisdiction of a
university visitor, and possibly also, to some extent, wholly dis-
tinct areas of law such as the systems administered by ecclesiastical
courts and military courts.26 At first sight, looking at Page's case
itself, it might be thought that the English courts would be pre-
pared to review decisions relating to staff contracts and non-arcane
university statutes; but philosophobia has proved a powerful
deterrent. As Lord Griffiths observed in Page, "The learning and
ingenuity of those members of the foundation who are likely to
be in dispute with the foundation should not be lightly under-
estimated .. ,"27
The second qualification relates to privative clauses. In the Racal
case28 Lord Diplock recognised a difference between admin-
istrative tribunals and authorities on the one hand and inferior
courts of law on the other. He treated Anisminic in its full force as
applicable only to the administrative bodies. I doubt whether Lord
Reid had intended to make any material distinction,29 but that
25
Ibid. 706.
26
Nonetheless these courts are undoubtedly amenable to some degree of judicial
review: R. v. Chancellor of St Edmundsbury and Ipswich Diocese, ex p. White [1948]
1 K.B. 195, 207,219 (prohibition but not certiorari lies to an ecclesiastical court);
Close v. Maxwell [1945] N.Z.L.R. 688 (certiorari and prohibition against court
martial: desertion not established by mere refusal to attend embarkation parade).
See also James v. London & South Western Railway Co. (1872) L.R. 7 Ex. 287
(prohibition to Court of Admiralty). Although jurisdiction in admiralty was later
transferred to the High Court, the James case has some continuing importance,
because it recognises that a court can be entitled to be designated a superior
court, yet be of limited jurisdiction and therefore amenable to prohibition. It was
only superior courts of general jurisdiction that were outside control by the
prerogative writs.
27
[1993]A.C.at694.
28
Re a Company [1981] A.C. 374,382-3.
29
See his reference in [1969] 2 A.C. at 171 to R. v. Governor of Brixton Prison, ex p.
Armah [1968] A.C. 192,234, where he had spoken in an undifferentiating way of
"a magistrate or any other tribunal". Armah's case was about an order made by
a metropolitan magistrate. Lord Reid's observations therein on jurisdiction have
been thought to be of limited scope: R. v. Bedwellty Justices, ex p. Williams [1996]
3 W.L.R. 361,369; [1996] 3 All E.R. 737,744-5.

75
 The Liberation of English Public Law

may not matter greatly, as Lord Diplock's exposition is in the

ascendant. Diplock recognised that with a court of law there is not
the same reason for leaning towards the view that Parliament
would not have meant to confer a power to decide [sc. con-
clusively] questions of law. This part of his speech in Racal has an
uncharacteristic ambiguity, but it may be understood to indicate
that it is only where there is a privative clause ("where the decision
of the court is made final and conclusive by the statute") that the
former subtle and confusing distinctions survive. On that under-
standing, his remarks are in harmony with the policy of Parliament
embodied in the Tribunals and Inquiries Act 1992, section 12(2)(a).
Further and importantly, that is the understanding of Lord
Browne-Wilkinson in ex p. Page?0
I must freely acknowledge that by this stage of the present dis-
cussion any more-or-less ordinary representatives of the Common
People of England would have abandoned any attempt at com-
prehension. Miss Hamlyn's wishes would be frustrated in that
respect. Whether any Fellow of All Souls has or would have
remained in better touch can only be a matter for speculation. Yet in
the end a simple proposition does emerge. It is that a reviewing
court can always correct what it regards as errors of law by an
administrative tribunal or authority, or by an inferior court
expected to apply the general law of the land, provided only in the
case of the latter that there is no privative clause. If there is a priva-
tive clause, the power to review the inferior court's decision is still
limited in ways which it remains as difficult as ever to define. I
believe that on the whole the Common People would expect some
such position as this. It would be generally understood that the
higher courts are there partly to settle the law in doubtful cases.31

AN AUSTRALIAN DEVIATION
Sadly I have to mention that the waters have become rather
muddied again in Australia. In Craig v. State of South Australia312
the High Court were concerned with a fairly simple situation. A
District Court Judge had stayed the hearing of criminal infor-
mations on the ground that the prisoner, through no fault on his
30
[1993] A.C. at 703.
31
As was in effect recognised by the subsequent legislative history of a Government
proposal to override Anisminic; see Blom-Cooper and Drewry Final Appeal
(Clarendon Press, Oxford, 1972) 265.
32
(1995) 131 A.L.R. 595.

76
 The Liberation of English Public Law

own part, had been unable so far to obtain legal representation.

Controversy about the scope of the legal aid scheme seems to have
been in the background. The Supreme Court of the State, by a
majority decision, quashed the stay by certiorari. On appeal to the
High Court that result was reversed and the stay restored. From
the account of the facts contained in the unanimous judgment of
the High Court it would seem to have been a straightforward
instance of a finding by a District Court Judge not shown to have
misapprehended the law in any way and supported by evidence.
But, instead of disposing of the case on that basis, the High Court
chose to undertake a general survey of the law of jurisdiction,
almost but not quite reinventing the wheel. Not quite, because
they treated Lord Reid's speech in Anisminic as confined to admin-
istrative tribunals and not extending to inferior courts of law. And,
of more concern, as to inferior courts of law they did not merely
say that in Australia the esoteric distinctions survive (the High
Court's own words were that in some cases the line between
jurisdictional error and mere error "may be particularly difficult
to discern"). They also made no reference at all to privative clauses,
thus apparently leaving the Australian law regarding inferior
curial jurisdiction with all the old difficulties, even when there is
no privative clause. Moreover they adopted an exceedingly
narrow concept of the record, holding that references in a court's
formal order such as "for the reasons given" do not incorporate
the reasons.
The whole subject bristles with difficulties, of course, and any
suggestion by me about the law of Australia must be gratuitous
and intrusive. I am nevertheless fortified by being able to add that
the former Chief Justice of Australia, Sir Anthony Mason, joined
with me in a recent decision of the Supreme Court of Fiji33 in which
we were able to support our conclusion by either ex p. Page or
Craig v. South Australia. An election was unnecessary, but some
readers of our judgment may discern a preference for Page. It is as
well that the High Court of Australia judgment is delivered in a
form veiling the identity of the member of the Court who was the
principal author. All that can be said is that it was a joint enterprise
of five; and their names can be suppressed here, which is desirable
as your lecturer hopes to retain all his very good friends in Can-
berra. It may do no harm, although it may also do little good, to
add that the difficulties can often be resolved by the discretion
33
Ponsami v. Reddy (September 1996)

77
 The Liberation of English Public Law

invariably associated with modern judicial review. A reviewing

court can hold its hand if there is or was provision for appeal. If
not (which was Craig's case) a privative clause may be allowed to
protect the inferior court's decision except for more blatant forms
of error. If neither privative clause nor right of appeal, judicial
review for material error of law should be available.

CONSTITUTIONAL BEDROCK
We have seen that, in England, the rule of administrative law is
now settled that questions of law are always ultimately for the
courts. The refinement that an error of law by an inferior court, at
least if not sufficiently apparent, may be shielded by a privative
clause does not derogate from the rule. To join good company in
stating the blindingly obvious (see the third lecture), an inferior
court is a court. The reason why the rule is of profound importance
is that is a manifestation of a fundamental constitutional prin-
cipleperhaps the only truly fundamental principle of the British
constitution. Often that description is reserved for the sovereignty
of Parliament.34 But, almost as often as the question is carefully
examined, it is demonstrated that the sovereignty of Parliament is
a doctrine evolved by the courts, based on their judgment of pol-
itical reality. That so-called ultimate legal principle or grundnorm
is, in the United Kingdom, a creation of the Judges. And it is for
the Judges to modify it if they deem this essential, as Sir William
Wade has just underlined in his article SovereigntyRevolution or
Evolution? dealing with European Community membership.

In Pickin v. British Railways Board36 Lord Reid said "The function of

the court is to construe and apply the enactments of Parliament." I
am not here concerned to debate his more debatable and probably
unprovable suggestion37 in the same speech that the courts would
never disregard an Act of Parliament insofar as it was contrary to
the law of nature. Subject to that debate, the proposition quoted
might seem trite. But, seen from an aspect different from that
34
Most recently last evening, when it found a place in Lord Steyn's lecture to the
Administrative Law Bar Association advocating radical changes in the con-
stitutional roles of the Lord Chancellor, the Home Secretary, and the Attorney-
General.
35
(1996) 112 L.Q.R. 568.
36
[1974] A.C. 765,787.
37
Ibid. 782.

78
 The Liberation of English Public Law

with which Lord Reid was concerned, the proposition contains a

fundamental truth that may be less obvious. Adjudication on law
is ultimately for the courts. Certainly the courts can be re-organ-
ised or reformed, as when the judicial functions of the House of
Lords were reconstituted in the manner sketched in my first
lecture, or when the Supreme Court of Judicature was created out
of a number of separate courts. Changes may be made in detail.
But the total abolition of an independent judiciary is unthinkable;
its existence is the basic rock of the constitution. An Act wholly
replacing the independent judiciary by a congeries of admin-
istrative tribunals with members holding office at the pleasure of
the government of the day can scarcely be imagined; and I believe
that the courts would not uphold it.38

Of course this does not imply that the courts have anything like
autocratic or arbitrary authority. It is of the essence of their role
that they defer to the political institutions in matters of broad
policy, confining themselves to what are commonly called jus-
ticiable issues. No less clearly, their role must have creative
elements. It always has had and always will. The exercise has to
be accompanied by restraint and is a matter for judgment. In
each of the first three lectures salient instances of such activity,
amounting to Turning Points of the Common Law, have been
considered. Among the factors to which weight has to be given
can be any consequences for the public purse, as well illustrated
by both the majority and the minority speeches in Stovin v. Wise,39
discussed in the third lecture.
The Judges have to be and are acutely sensitive to the fact that
they operate in a democracy: "a state of society characterised by
recognition of equality of rights and privileges" to take one of the
dictionary definitions.40 They are non-elected, but that is part of
the very point of their office. To preserve democracy, to ensure
that the equality of rights and privileges is maintained as far as
reasonably practicable, it is necessary to have independent Judges.
38
If willing to uphold it, the Judges would be acquiescing in a revolution. If
unwilling but clearly faced with a situation in which a powerful government
would ignore their ruling their alternative would be resignation. Some such
situations arose in Belarus in December 1996 and juridical resignations did occur;
but the seizure of power by the President may have been to some extent sanc-
tioned by a power referendum.
39
[1996] A.C. at 923; [1996] 3 W.L.R. 388; [1996] 3 All E.R. 801.
40
From Chambers Dictionary.

79
 The Liberation of English Public Law

That is the context in which and the postulate on which the

Common People of the United Kingdom vote.
Fourth Hamlyn Lecture
November 28,1996
All Souls College, Oxford

80
 Appendix - The Times Crossword

ACROSS DOWN
I Favour ending with clue that's different (10) 1 Island appearing to make slow progress (4)
6 Inspect second prison (4) 2 Parts of England once, and most
9 Repentance of offender in tort of Wales! Wrong (7)
I mishandled (10) 3 Sort of old apparel for a judge (4,2,6)
10 On TV, spots English novelist (4) 4 Legal principle about street people revised (8)
12 Item included by typical solicitor (4) 5 Vessel used by explorer with hesitation (6)
13 Jude involved in charge of intolerance (9) 7 One sent down-under, once (7)
15 A hard case is a bad one for houseman? (8) 8 Fresh enthusiasm also found in
16 Lodge is home - last resort (6) these islands (3,7)
18 A mouthpiece in church for religious ruler (6) I { Bend the head for a crucial moment (7,5)
20 Scot endlessly making noise 14 Jet woman provided as transport
ON
about partners (8) for prisoners (5,5)
23 Skilled workers applied mathematics (9) 17 Nobody's, do we hear, in this college' (3,5)
24 Settles first parts of policy, as you see (4) 19 Talk from the French priest about
26 Don Juan making love in the French way? (4) theology, initially (7) r*
27 Notice old German holding back drug, 21 Just under a month to provide this piece

28
29
so act as judge (10)
Murder victim, unmarried woman (4)
Totally confused as you try TV broadcast
without extra information (5-5)
of capital (7)
22 Asian using old-fashioned spell in celebration
inside house (6)
25 Light and jolly (4)
I
81
 Appendix - The Times Crossword

Aims m A N

ACROSS DOWN
I Favour ending with clue that's different (10) 1 Island appearing to make slow progress (4)
6 Inspect second prison (4) 2 Parts of England once, and most
9 Repentance of offender in t o r t of Wales'Wrong (7)
I mishandled (10) 3 Sort of old apparel for a judge (4,2,6)
10 O n TV, spots English novelist (4) 4 Legal principle about street people revised (8)
12 Item included by typical solicitor (4) 5 Vessel used by explorer with hesitation (6)
13 Jude involved in charge of intolerance (9) 7 One sent down-under, once (7)
5S A hard case is a bad one for houseman? (8) 8 Fresh enthusiasm also found in
16 Lodge is home - last resort (6) these islands (3.7)
18 A mouthpiece in church for religious ruler (6) 11 Bend the head for a crucial moment (7,5)
20 Scot endlessly making noise 14 Jet woman provided as transport
about partners (8) for prisoners (5.5)
23 Skilled workers applied mathematics (9) 17 Nobody's, do we hear, in this college? (3,5)
24 Settles first parts of policy, as you see (4) 19 Talk from the French priest about
26 Don Juan making love in the French way? (4) theology, initially (7)
27 Notice old German holding back drug, 21 Just under a month to provide this piece
so act as judge (10) of capital (7)
28 Murder victim, unmarried woman (4) 22 Asian using old-fashioned spell in celebration
29 Totally confused as you t r y TV broadcast inside house (6)
without extra information (5-5) 25 Light and jolly (4)

82
 INDEX

Absolute liability Compensation

mens rea, and, 40-41 community responsibility, 49
Administrative law Consideration
questions of law for courts, 78 limitations on doctrine, 49
Anisminic decision, 63-79 Contract
Appeals economic loss, and, 53-54
House of Lords, to, 5-6 Contract law
Assumption of responsibility extension of, 58-59
negligence, and, 57-59 Courts
Australia determination of own jurisdiction,
certiorari, 76-77 71-72
judicial review, 76-78 role of, 79
Automatism Criminal conduct
New Zealand, 44 absolute liability, 47
Bigamy, 34-36 Defamation
burden of proof, 34-36 action by company, 26
defence, 34-36 Denning, Lord
definition, 34 first Hamlyn lectures, 1
mistake, and, 34-36 Diplock, Lord
reasonable belief in divorce, 35- judgment in Anisminic, 64
36 privative clauses, on, 75-76
Burden of proof purpose of judicial review, on, 74
mens rea, 28-47 quality of writing, 65
Canada Directors
Charter of Rights and Freedoms, 45- acts attributed to company, 24
46 Drugs, possession of
mens rea, 45-46 mens rea, 38-40
public welfare offences, 45-46 Duty of care
total absence of fault, 45-46 fair and reasonable, 49-50
Certiorari nature of harm done, and, 59-60
Australia, 76-77 Elegance, temptation of, 48-62
availability, 74 Employer, liability of
Civil liability New Zealand, 44
development in twentieth century, English public law
52-54 liberation of, 63-79
Common law Evelyn's Diary, 66
policy of Parliament, and, 61-62 Executive
uncertainty, 60-61 jurisdiction of tribunal, and, 66-
Commonwealth dimension, 2-3 67
Companies House Foreign Compensation Commission,
functions of, 12 69

83
 Index
Foresight Mistake
negligence, and, 56-57 bigamy, and, 34-36
Golden thread, 28-47 statutory offences, and, 36-37
Gower, Professor L.C.B. Murder
limited liability, on, 11 company, by, 24
Halsbury, Lord defences, 28
Salomon v. Salomon, on, 10-11 burden of proof, 32-33
Hamlyn Trust Negligence
terms of, 2-3 assumption of responsibility, and,
Hedley Byrne, 52-54 57-59
criticism of theoretical basis, 58 financial loss, and, 53-54
significance of, 52-54 foresight, and, 56-57
Hewart, Lord housing, and, 57
attack on Viscount Sankey, 31 nature of harm done, 59-60
Homicide policy of Parliament, and, 61-62
meaning, 30 proximity, and, 54-55
House of Lords reliance, and, 57-59
appeals to, 5-6 Negligent misrepresentation
judicial functions, 4-5 Salomon v. Salomon, and, 21
Housing New Zealand
negligence, and, 57 accident compensation scheme, 14
Insurance companies automatism, 44
priorities, 59 employer, liability of, 44
International Covenant on Civil and mens rea, 41-44
Political Rights mens rea in statutory offences, 43
Article 14(2), 33 "public welfare" defence, 42-43
Judicial review, 70-76 total absence of fault, 41-44
Australia, 76-78 North, Sir Alfred
jurisdiction, and, 70-71 influence of Lord Diplock on, 42
purpose of, 74 Parliamentary Sovereignty, 78
Jurisdiction, 63-79 Pollock, Sir Frederick
error-on-the-face, 70-71 Salomon v. Salomon, on, 8-9
judicial review, and, 70-71 Privative clauses, 68
Kahn-Freund, Sir Otto Privity of contract
Salomon v. Salomon, on, 8-9 Salomon v. Salomon, and, 20
Legislative controls Privy Council
avoidance, 12 shrinking of jurisdiction, 3-4
Limited liability Proof of guilt, 28^7
importance of, 11 Proximity
Lindley, Lord negligence, and, 54-55
professional reputation, 7-8 Public policy
Macaulay, Lord source, 49
style, 1-2 Public welfare defence
Manslaughter New Zealand, 42-43
company, by, 23 Public welfare offences
Mens rea Canada, 45-46
absolute liability, and, 40-41 Reliance
burden of proof, 28-47 negligence, and, 57-59
Canada, 45-16 Salomon v. Salomon, 1-27
New Zealand, 41-44 acts of shareholders attributed to
possession of drugs, 38-40 company, 15

84
 Index
appeal to House of Lords, 8 Sankey, Viscount
attribution, 22-27 appointment as Lord Chancellor, 31
avoiding, 13-15 Shareholders
employers, and, 19-20 acts attributed to company, 24
extension of principle, 26-27 Smith, Sir John
fact rather than form, 13-14 golden thread, on, 47
facts, 7 Statutory offences
global consequences, 11-13 defence, 36-37
identification, and, 24-26 mistake, and, 36-37
indentification concept, and, Taxation
23-24 avoidance, 12
lawful purpose, and, 22-23 Total absence of fault, 41^44
negligent misrepresentation, and, Tribunals
21 jurisdiction, 63
privity of contract, 20 Ultra vires doctrine, 22-23
purchaser with actual notice, and, University visitor
17 jurisdiction, 75
sham doctrine, 15-17 Vicarious liability
sibsidiary company, 16-17 Salomon v. Salomon, and, 18-20
third-party liability, 19 Western Samoa
ultra vires doctrine, and, 22-23 electoral law, 10
vicarious liability, and, 18,19,20 Wittgenstein, 63

85
ISBN

9 780421 598607 >

From the Test Tube to the Coffin
Choice and Regulation
in Private Life
By
The Hon. Mrs Justice Hale, D.B.E.
Formerly Professor Brenda Hoggett,
Law Commissioner
High Court Judge, Visiting Professor,
King's College London

From the Test tube to the Coffin is the forty-seventh in

the series of Hamlyn Lectures and is the first one in
this outstanding series to concentrate on the field of
family and private life.
Mrs Justice Hale discusses the choices the law allows
us in managing our private and family lives - having
a child, making relationships, and at the end of life
- "hatchings, matchings and dispatchings."
She argues that the law is usually in favour of
freedom of choice, as long as we do not do wrong to
other people in the process. In the past it has not
allowed people the same freedom in their private
lives. However, in the last 30 years it has moved in
that direction, but many of us are worried about the
effects of this. She concludes that there should not be
such great concern if these developments bring with
them appropriate responsibilities towards the other
people involved, and in particular the children.
Mrs Justice Hale is better known by some as Brenda
Hoggett, formerly a Professor of Law in the
University of Manchester, where she wrote
extensively on social welfare issues. She was then a
Law Commissioner for nearly 10 years and a major
contributor to both the Children Act 1989 and the
Family Law Act 1996.
Published under the auspices of ISBN 0-421-58270-7
THE HAMLYN TRUST
1996 Also available in paperback

Sweet & Maxwell

 Other Hamlyn Lectures
The purpose of the Trust Lectures is to further the knowledge among the
people of this country of our system of law "so they may realise the
privileges they enjoy and recognise the responsibilities attaching to
them." Indeed the awakening of the responsibilities resting upon each
one of us in preserving the priceless heritage of Common Law is clearly
the purpose and message of this particular series, and there can be none
amongst us, however eminent and erudite, who would not benefit by a
study of them. - Law Journal

36. The Development of Consumer Law and Policy-

Bold Spirits and Timorous Souls
By Sir Gordon Borrie 1984
37. Law and Order
By Professor Ralf Dahrendorf 1985
38. The Fabric of English Civil Justice
By Sir Jack I.H. Jacob 1986
39. Pragmatism and Theory in English Law
By P.S. Atiyah 1987
40. Justification and Excuse in the Criminal Law
By J.C. Smith 1989
41. Protection of the Public - A New Challenge
By the Rt. Hon. Sir Harry Woolf 1989
42. The United Kingdom and Human Rights
By Claire Palley 1990
43. Introducing a European Legal Order
By Gordon Slynn 1991
44. Speech and Respect
By Richard Abel 1992
45. The Administration of Justice
By Rt. Hon. The Lord Mackay of Clashfern 1993
46. Blackstone's Tower: The English Law School
By William Twining 1994
47. From the Test Tube to the Coffin:
Choice and Regulation in Private Life
By Rt. Hon. Mrs Justice Hale

ISBN D-

780421 598607