bluuebunny/crossref_metadata_2025 huggingface dataset:
The Assize of Nuisance: Origins of an Action at Common Law
Authors: Loengard Janet
Published: January 2009

In an imperfect world, imperfect men have never lived in harmony; the consequences have been inevitable, regrettable and, often, productive of legal history. Even the neatest householder, the most peaceable citizen, is sometimes a bad neighbour. He chooses to fiddle when I choose to nap; he permits his dog to howl at midnight; he kindles his back-yard fire where its smoke will choke my back-yard guests. More serious, and more relevant in terms of legal consequences, he manufactures strange and noxious odours which he allows to escape from his premises or he throws waste material into the stream which wanders across his property on its way to my own land. Disregard for the convenience, well-being and property rights of others is not unique to the twentieth century; the under-lying problem of the bad neighbour was well enough known to the twelfth. Then, and long thereafter, one man's mill needed more water to grind efficiently and so he diverted the millstream with only passing regret, if that, for what the diversion might mean to his neighbour's mill downstream. His sheep escaped from pasture and so he raised a hedge across an entry, thereby forcing his neighbour's flock to find a new and less convenient path.

Response could always be immediate and forceful; self-help has the virtues of speed, simplicity and cheapness. But unless the creator of the offending mill or hedge was willing to accept his neighbour's response, what was originally an attempt at unilateral solution of a problem could well escalate into a quarrel culminating in violence out of proportion to the issue.
Consideration and the Joint Promisee
Authors: Coote Brian
Published: January 2009

It is one of the best-known axioms of the common law of contract that consideration must move from the promisee. Expanded, this means that no person can in contract enforce a promise for which he has not provided consideration. As a principle, it has on its side the highest authority and a reasonable degree of antiquity.

Ten years ago, however, the High Court of Australia came up with a formula which, while purporting to respect the principle, would, if accepted, have the effect of reducing its impact in a potentially important group of cases. In Coulls v. Bagot's Executor and Trustee Co. Ltd. four of the five High Court judges expressed the view that a joint promisee, if she were party to a contract, could sue to enforce it notwithstanding that she had not herself furnished any part of the consideration. The case concerned a widow whose late husband had contracted to grant a licence to a quarrying company for the extraction of metal from a quarry which the husband owned. Under the contract royalties were to be paid to the husband and wife jointly while they both lived, and there after to the survivor of them. The wife's only part in the proceedings had been to append her signature to the contract document. Barwick C.J. and Windeyer J. (dissenting) held that the plaintiff was a party to the contract and, as a joint promisee, could enforce it notwith-standing that her husband alone had provided the consideration. McTiernan, Taylor and Owen JJ. agreed that if she had been a party the fact that it was her husband who had provided the consideration would not have been an impediment to her.
Unincorporated Associations and Their Dissolution
Authors: Rickett C. E. F.
Published: January 2009

The Bucks. Constabulary Widows' and Orphans' Fund Friendly Society was set up primarily to provide for the relief of the widows and orphans of deceased members of the Bucks. Constabulary. It was financed by voluntary contributions from the members. There was nothing in the rules about the destination of the society's property on its dissolution. In April 1968 the Thames Valley Constabulary came into being, an amalgamation of the Bucks. Constabulary and other forces. An effective instrument of dissolution of the society was signed on 14 October 1969; and Walton J. found himself facing in Re Bucks. Constabulary (No. 2) the question of “the destination of the assets of the friendly society …” Walton J. took the view that most past decisions “in relation to the destination of the funds of unincorporated associations” had “lost sight of” the “quite elementary … question of the property of unincorporated associations in the round.” He therefore proceeded to outline the general law on the holding of property by unincorporated associations as a necessary prelude to his decision on the destination of the funds. This was unquestionably the correct course to follow. It is suggested, however, that Walton J.'s view “in the round” on the holding of property by unincorporated associations is too simple, and that circumstances will arise in which a more complex problem on the destination of funds might arise, and which will surely call for a more complex answer. It must also be noted that Walton J. did not have to deal with the question of funds accruing to a society from outside sources, i.e., other than from the members themselves.
The Vires Defence—“Ultra Vires” as a Defence to Criminal or Civil Proceedings
Authors: Emery Carl
Published: January 2009

Defendants to criminal or civil proceedings will often seek to escape liability by showing that a public authority has acted ultra vires. For example, a person prosecuted for infringing a byelaw or breaking a licence condition may seek to advance the defence that the byelaw or condition is ultra vires the public authority which made or imposed it. Again, a person sued in debt by a public authority may seek to raise the defence that no money is due because the authority acted ultra vires in imposing the charge which it is now suing to recover. Nowadays, too, the European Court of Justice may hold in effect that an Act of Parliament is contrary to Community law and so should not be applied by UK courts. A person prosecuted, say in a magistrates' court, for a criminal offence created by a statute which is or may be contrary to Community law may seek to persuade the justices to “disapply” the statute—virtually, in the case of a post-Accession statute, to treat it as ultra vires the UK Parliament—and so to acquit him.
The Role of the Ombudsman in Relation to the Protection of Citizens' Rights
Authors: Bradley A. W.
Published: January 2009

In his book, Taking Rights Seriously, Professor Ronald Dworkin has argued that the institution of rights against the state is justified “because it represents the majority's promise to the minorities that their dignity and equality will be respected.” But he also stressed the difficulty of ensuring that these rights are respected:

The institution of rights against the Government is not a gift of God, or an ancient ritual, or a national sport. It is a complex and troublesome practice that makes the Government's job of securing the general benefit more difficult and more expensive, and it would be a frivolous and wrongful practice unless it served some point.

Now Dworkin's book is concerned with the problems presented in a democratic system of law and government by a serious commitment to fundamental political rights, such as freedom of speech and the disputed right of civil disobedience; and Dworkin does not directly consider the interest which the individual may have in the maintenance of good government in matters that affect him. One object of this article is to consider whether it is worthwhile seeking to relate the debate about citizen's rights to an assessment of the Ombudsman system. Another aim, since no-one would claim that the Ombudsman should be the sole protector of citizen's rights, is to examine the relationship between the Ombudsman and other agencies for the protection of the citizen in his dealings with the administration. The material to be discussed is drawn from the experience in the U.K. of the Parliamentary Commissioner for Administration, the Parliamentary Ombudsman: but aspects of the discussion may be relevant to the experience of ombudsmen in other countries.
Invalidity of The Indictment Post R. V. Newland
Authors: Porter Nigel
Published: January 2009

It is uncontroversial to state that the Court of Appeal (Criminal Division) has never been sympathetic to unmeritorious appeals. Numerous cases may be cited where the appellant, having made out a valid ground of appeal based purely upon a technical defect in the trial, is met with the rejoinder that the appeal is wholly without merit and that the conviction will be upheld by the application of the proviso to section 2(1) of the Criminal Appeal Act 1968. Serious defects in the trial including the failure of the trial judge to give a direction on the standard of proof, wrongful admission of the defendant&s previous bad character, and even conviction for an offence which technically did not exist, have all been amenable to the application of the proviso on the ground that, despite the defect, no injustice has been done.
Protecting The Interests of Bidders for Public Contracts; The Role of the Common Law
Authors: Arrowsmith Sue
Published: January 2009

In the United Kingdom there has traditionally been little litigation over the award of public contracts. This is largely due to the absence, in the past, of formal rules regulating contract procedures, which might have founded a basis for legal actions. It is also to some extent a product of the reluctance of contractors to “bite the hand that feeds” and jeopardise their chances of future contracts; this factor may have discouraged contractors from taking advantage of the potentiality of common law doctrines for providing protection for bidders in the tendering process.
Expectation Losses, Negligent Omissions and the Tortious Duty of Care
Authors: Murphy John
Published: January 2009

In English law, the recovery of pure economic loss falls mainly within the province of the law of contract. Only in very limited circumstances does the law of tort provide for the recovery of such losses. As Cardozo C.J. explained inUltramares Corporation v. Touched, tort is concerned not to permit “liability in an indeterminate amount, for an indeterminate time to an indeterminate class”. Notwithstanding this reticence, their Lordships' speeches, though not the final decision, in the seminal case ofHedley Byrne & Co. Ltd. v. Heller and Partners Ltd.provided a notable inroad into the rigidity of this stance. SinceHedley Byrne, the question has become, instead, how far, not if, pure economic loss is and should be recoverable in the law of negligence.
Getting the Rabbit out of the Hat: A Critique of Anthony Kronman's Theory of Contracts
Authors: Kramer Matthew H. , Simmonds Nigel E.
Published: January 2009

More than a decade-and-a-half ago, Anthony Kronman published an article on contract law and distributive justice that has “become something of a classic in the philosophy of private law.” Kronman's article has received a great deal of attention on both sides of the Atlantic, and it has helped to sharpen the debate between libertarianism and other forms of liberalism. In the present essay, we shall seek to expose two major weaknesses in Kronman's arguments (after we briefly summarise them).
Negligence After Murphy: Time to Re-Think
Authors: Howarth David
Published: January 2009

After a decade of adventure, Anns v. Merton Borough Council has been killed off. The case that seemed to many to be the most important statement of the law of negligence in England since Donoghue v. Stevenson has been finally done to death by a specially augmented House of Lords in Murphy v. Brentwood District Council?

For the House of Lords openly to overrule one of its own previous decisions is itself an event rare enough to deserve comment. But when the Law Lords, by 7–0, declare unsound a case that has been cited in 189 English cases in only 13 years (and until recently mostly with approval), we know that something extraordinary has happened.
Legal Limits on the Structured Settlement of Damages
Authors: lewis Richard
Published: January 2009

A structured settlement is a new way of paying common law damages for personal injury or death. It has received strong support from the judiciary and a very favourable response from the Law Commission in its recent consultation paper. The defendant's insurer, usually after having informally agreed a lump sum figure with the plaintiff, will agree to convert part of the damages into a series of periodic payments. To fund the arrangement the insurer purchases an annuity from a life office. The payments are “structured” to meet the individual's needs and are free of tax in the plaintiffs hands. This is because the Revenue have accepted that they may be considered instalments of capital rather than income. In return for making this arrangement the insurer will bargain for a discount on the conventional lump sum figure. Although the first structure was put in place as long ago as 1981, they were not used in other than a few isolated cases until 1991. Now there are almost two hundred of them, and the annuity market, worth £30 million last year, is expected to grow rapidly. Their increasing use constitutes the most radical reform of our damages system effected in recent years.
Cause and the Contemporaneity of Actus Reus and Mens Rea
Authors: Sullivan G. R.
Published: January 2009

A court may be confronted by a lack of temporal coincidence between actus reus and mens rea but nonetheless impose liability because on analysis the coincidence requirement is held to be satisfied in form or in substance. The situation may arise in two ways. There may, as in R. v. Miller,1 be initial blameless causal responsibility followed by a culpable failure to avert or mitigate the consequences of the initial conduct. Or, as in R. v. Le Brun,2 there may be conduct with the mens rea required for the offence charged, but to no relevant causal effect, followed by a non-culpable causing of the actus reus of the offence. It will be contended that in these two categories of case blameless causal agency is apt to play too prominent a role in the imposition of liability for what may be very serious offences.
The Paradox of Equity
Authors: Tasioulas John
Published: January 2009

Martha Nussbaum's recent article “Equity and Mercy” eloquently advocates the continued relevance of a tradition of ethical and legal thought—the “equity tradition”—that has been neglected by legal philosophers in recent times. That neglect is partly due to the fact that contemporary legal philosophy (as in the debate between H.L.A. Hart and Ronald Dworkin) has concerned itself with the prior question of whether judges should or need to exercise discretion. The equity tradition presupposes an affirmative answer to that question where the rigorous application of a law yields a sufficiently grave injustice in the circumstances of a particular case or where such an injustice would arise because of a “gap” in the law. Yet it might have been thought prudent for those who assert the ineradicability and value of adjudicative discretion to have embraced and developed the idea of equity.
Remoteness of Damage in Contract and Tort: A Reconsideration
Authors: Cartwright John
Published: January 2009

The starting point for any rule of remoteness of damage is the familiar notion that a line must be drawn somewhere: it would be unacceptably harsh for every tortfeasor or contract breaker to be responsible for all the consequences which he has caused. We could, of course, just abandon any attempt to formulate rules for this area, and look to the judge's pragmatic discretion as to what is “fair” in the circumstances of the particular case: let it be simply a question of fact. Certainly, the question of where to draw the line on recoverability of consequential losses cannot be answered by a mathematically precise formula, and occasionally the judges are quite explicit that they are drawing the line on the facts of a case because they regard that as a “fair” solution.
The Judicial Commonwealth
Authors: Jackson David
Published: January 2009

The theory that the common law is one and indivisible does not now, one would have hoped, attract a great deal of support. But the practice of the English Bar and the decisions of the English Bench continue to raise suspicions that the theory is not entirely outdated. There seems still a tendency to equate common law with English law.
F. W. Maitland
Authors: Buckland W. W.
Published: January 2009

At the beginning of the '70s there were two Maitlands at Trinity. One of them took a first class in Law—the other took a first class in Moral Sciences. The latter was our Maitland, and thereby hangs a tale. It was natural, when in later years he became a distinguished man, for people to look up the academic records, and equally natural for them to fall into the error of supposing that the Maitland who was the distinguished legal historian was the Maitland who “went out” in Law. Even the then editors of the University Calendar fell into the trap, and in the Calendars from 1898 to 1901 there is a note to the name Maitland in the Law Tripos, 1873, describing him as Downing Professor of Law. Other people were misled. Whittaker, of Trinity, whom many of us know to have been an old pupil and intimate friend of Maitland, told me that not long ago he met one of the men who were classed above the Maitland of the Law Tripos. Both being Cambridge men and lawyers they talked, of course, of Cambridge and Law and Maitland. The other man observed, “After all, it will always be a feather in my cap that I once beat Maitland in examination”; and Whittaker had not the heart to undeceive him.
Solicitors' Work and Environment
Authors: Garrett S.
Published: January 2009

The Committee of the Cambridge University Law Society, when they honoured me with the invitation to address the society, had doubtless the expectation that a solicitor who had been in practice for between forty and fifty years might from his experience be able to explain the work and environment of the profession in a way which might be useful to those members of the society who, having determined to follow the legal profession, had not yet decided to which branch of that profession they should devote their lives. I will endeavour to fulfil that expectation. I will draw for you the picture of a solicitor's professional life and work and surroundings with such accuracy as my powers and the time at my disposal permit, not concealing its blemishes or exaggerating its merits. I hope that I shall be able to make you see the picture right. If so, you will, when I have finished, agree with me that though the highest honours and emoluments of the legal profession are not at present open to solicitors, yet theirs is a calling which renders to the community an important–indeed, an essential–service, and one to which a man of ability, and still more of character, may devote himself with confidence as affording ample scope for his energy and ambition. I claim for the profession that, properly practised, it can and does do nothing but good. Unless I were prepared to make that claim after forty-seven years' experience in the profession, I should not be here. I resent the representations by popular novelists and dramatists of the solicitor as a costs-pursuing pettifogger, if nothing worse. Dickens heads the tribe of libellers with representations which, even as caricatures, are grossly overdrawn. In his celebrated preface and first chapter of “ Bleak House ” he discloses his motive, which was the laudable one of the correction of abuses of legal procedure. At the time he was writing (the middle of the nineteenth century) those abuses no doubt prevailed. But I hope I need not assure my present audience that Messrs. Kenge and Carboy, Mr. Tulkingherne, Messrs. Spenlow and Jorkins, Messrs.
The Work for the Empire of the Judicial Committee of the Privy Council
Authors: Haldane
Published: January 2009

Mr. President and Gentlemen,—You make me feel a little shy. When I somewhat incontinently accepted your kind invitation I wholly forgot that I was a Judge of the Privy Council. Thank heaven, I have no written address to deliver, and I am informed that there are no reporters present. But even that does not free me from embarrassment. I have under-taken to speak to you tonight of the position of the Judicial Committee in the Constitution of the Empire, and I have to remember that we who sit on the Judicial Committee have taken a tremendous oath not to disclose any of the secrets that come to the fore there; and I have also to consider that it was only this very morning that at half-past ten, in the absence of the Lord Chancellor, who is frequently called away at this moment on other business, I was sitting to dispose of the list in that Court, presiding as the senior remaining ex-Lord Chancellor. Well, we finished the list at eleven, and I went over to sit on the Woolsack at the House of Lords, which I occupied till a ' quarter to four, when public business made it necessary that I should adjourn the tribunal a little early. I did not say why, and my unsuspecting colleagues acquiesced. Now, gentlemen, you will see why I have something of the sense of the boy who comes to tell tales out of school. However, let us begin.
The Book of Assizes
Authors: Bolland W. C.
Published: January 2009

The Book of Assizes, as we call it shortly, has two more formal and descriptive names. In the earliest printed edition it is called Liber Asssisarum et Placitorum Corone. On the title pages of later editions this is turned into French and expanded into Le Liver des Assises et Plees del Corone Moues et dependauntz deuaunt les Justices sibien en lour circuits come aylour en temps le Roy Edwarde le tierce. Why reports of Assizes and of Pleas of the Crown, two quite different things with no apparent connection, should be mixed up together may be considered later on. It will be best to begin with a word or two of definition. We still to-day talk somewhat loosely of Assizes, though in fact there have been no assizes, in the original sense of the word at any rate, since the last day of 1834, full ninety years ago, when they were abolished by the statute 3 & 4 William IV, c. 27. What were Assizes when the book which we are considering was compiled? Up to some time in Henry II's reign, the only way of settling which of two claimants to a landed estate, large or small, was actually entitled to hold it was a duel with cudgels between them, or, as more' usually happened, between “champions,” as they were called, representing them. The victor in these duels established, by the mere fact of his victory, his principal's absolute right to hold the land in dispute. There was no sort of appeal from a decision so obtained.
The Imperial Conference and the Constitution
Authors: Jenks Edward
Published: January 2009

I Would like to preface what I have to say this evening by one deprecatory remark. I should not venture to tax your patience or reveal my own ignorance by attempting to speak of the Imperial Conference of 1926 as a whole. It was, probably, the most important of the striking series of Colonial and Imperial Conferences which have been held; and it covered an enormous area. It may be that the aspect of it with which alone I propose to deal is not the most important side of its many-sided labours, which included such matters as Inter-Imperial Trade. Defence, Air Communications, Nationality, Overseas Settlement, and Economic Resources. But it is the only one on which I am even moderately competent to speak; and therefore I beg to draw your attention to the fact that I am going to speak of the Imperial Conference only on its constitutional side.
The Personality of an Idol
Authors: Duff P. W.
Published: January 2009

In the spring of 1925, the public fancy was caught for a moment by a Privy Council case involving the legal position of Hindu idols. The Times newspaper discussed it in a leading article. The case was fully reported in India and attracted some attention there; but, though it was also reported here, it does not seem to have interested English lawyers. Few readers of this Journal are particularly concerned with the technicalities of Hindu law, but the case seems to have for students of jurisprudence a much more general interest.
Dangerous things and the Non-Natural User of Land
Authors: Stallybrass W. T. S.
Published: January 2009

It is perhaps true that one of the most important moral qualities of a man, especially an undergraduate, is a knowledge of where to ‘draw the line’; it is certainly true that one of the most essential parts of a lawyer's equipment is the capacity for drawing distinctions correctly. The whole framework of the law is based upon distinctions, and the drawing of false distinctions is as disastrous as is the failure to draw those that are based upon sound reasoning. It is the object of this article to consider, very tentatively, two distinctions which have been introduced into the common law relating to injury done to others by the property of the defendant: in the first place, the distinction between those things which are dangerousper seand those things which are dangeroussub modo, and in the second place, the distinction between the natural and the non-natural user of land. I shall then endeavour to consider the relation of these two problems to each other. But there will be no attempt to state the nature or extent of the liability that arises; for example, I shall not consider the true nature of the rule inRylandsv.Fletcheror the extent of the duty owed by him who deals with dangerous chattels, though some light may incidentally be thrown upon such matters.
Taking Rights Cynically: A Review of Critical Legal Studies
Authors: Price David Andrew
Published: January 2009

TheCritical Legal Studies movement has been described by one of its leading proponents as having “undermined the central ideas of modern legal thought and put another conception of law in their place.” Whether or not the movement has actually succeeded in doing so, this is a fair description of its ambition. The scholarship of the CLS movement disputes the idea that the power of judges and other government officials either can or should be constrained by sources of law such as constitutions, statutes, and precedent. It is marked by a rejection of the belief that “legal argument” can or should be an enterprise distinct from political argument. It is also marked by a rejection of “legal rights” as a desirable or even possible means of protecting individuals from government power.
Restitution for Wrongs
Authors: Jackman I. M.
Published: January 2009

In what circumstances can a person be liable to a pecuniary remedy for conduct which has not caused the plaintiff any harm? This question lies at the heart of the present topic, in which the plaintiff seeks to disgorge a benefit acquired by the defendant through the latter's wrongful act, even though the wrong has not actually caused him loss or injury. Consider, for example, a trespasser who has benefited by using a track across the plaintiff's land without reducing the value of the land; the plaintiff, who might never have been willing to consent to such use of his land, now seeks payment as if his permission for that user had been sought at a price. In terms of “unjust enrichment,“ the plaintiff's claim is that the defendant's enrichment is “ “unjust” by virtue of the wrong committed, without showing that the enrichment is at his expense.
English Private Law, 1870—1920
Authors: Pollock Frederick
Published: January 2009

The foundation of the Société de Législation Comparée, whose jubilee we are now celebrating, preceded by a few years, as it happened, the opening of a new epoch in' the history of English law.
The Writs of Dower and Chapter 49 of Westminster I
Authors: Biancalana Joseph
Published: January 2009

The growth of royal justice in England consisted in part in the development of writs to begin proceedings in royal, county, or seignorial court. In the late twelfth and thirteenth centuries the King's court seldom created entirely new substantive rules and entitlements. Rather, the growth of royal justice consisted in the reinstitutionalisation of customary norms and entitlements in the legal mechanism of royal government. The available writs and the rules governing their use—especially writs which began proceedings directly in the King's court—constituted the structure of royal justice in that they determined which norms and entitlements would be shaped in the King's court and would have the power and authority of royal government behind them. Bracton's ideal that there ought to be a writ for every case requiring a remedy motivated the proliferation of royal writs—both the creation of new writs and the division of existing writs into two or more variants—from the forty-five writs found in Glanvill (1187–9) to the 886 writs found in an early fourteenth-century register of writs. Each new writ brought a new social situation within the ken of royal government or changed the terms in which royal government recognised and enforced social norms. The division of a single writ into two or more variants meant a refinement of the legal structure. Changes in the rules governing the use of a writ also changed the interaction between royal government and social life. The reinstitutionalisation of customary norms and entitlements created additional subjects for argument. In addition to the customary norms as recognised in the King's court, persons could also argue about the writs and rules of the King's court itself. Substantive issues could thus be suppressed and transposed into procedural issues that deter-mined the boundaries to the royal judicial power to affirm and to effectuate customary norms. In 1176, the King asserted royal jurisdiction over the customary entitlement known as dower. This essay traces the development of the writs of dower from their creation to Chapter 49 of the Statute of Westminster I (1275), which changed the rule for using thepraecipe writ of dower.
Recklessness Redefined
Authors: Williams Glanville
Published: January 2009

The decisions of the House of Lords in Caldwell and Stephen Lawrence can be read in widely differing ways. Taken at their face they are a slap-happy repudiation of the concept of recklessness that has been carefully developed in the last few years, going back to the notion that recklessness includes inadvertent negligence and working a profoundly regrettable change in the criminal law. If, on the other hand, each decision is interpreted in the light of its facts, with a sentence from one of the less conspicuous parts of Caldwell transferred to one that is thrust more prominently upon our attention, and if, as the result of this, the expressed ratio decidendi in each case is materially rewritten, they can be seen as imposing acceptable restrictions upon the requirement of a mental element in crime.
Nuisance—Prevention or Payment?
Authors: Tromans Stephen
Published: January 2009

Nuisances come in many and varied forms: factories and playgrounds, boats and roots, bells and smells, to name but a few. By contrast, remedies for nuisance come in basically two forms; the injunction and damages. Despite this a person complaining of nuisance is far better off than a plaintiff in many other tort actions. This is because what is frequently complained of in nuisance actions is a continuing activity rather than a bygone act and therefore in addition to an award of damages there is the option of a remedy by way of an injunction forbidding continuance of the nuisance. In the past, judges have seized upon the injunction as the most effective way of protecting the plaintiff's property rights. However, in recent years there have been suggestions that the injunction may not always be the best remedy, when looked at from other than exclusively the plaintiff's perspective. Much of the criticism has come from American academics and has been founded largely upon economic analysis of the efficiency of the alternative remedies. There has been relatively little discussion of the problem by economists and lawyers in this country, with the notable exceptions of the excellent article by Ogus and Richardson, “Economics and the environment-a study of private nuisance ”
Public Interest Immunity and Statutory Privilege
Authors: Eagles Ian
Published: January 2009

The rules governing the exclusion of evidence in the public interest are usually discussed as if they were wholly the creation of the common law. Nothing could be further from the truth. There is a submerged statutory underside to Crown privilege, an underside which is no less important for being hitherto largely invisible to the judicial eye. More than 100 Acts and statutory instruments restrict the use which government departments and other public bodies may make of the information they acquire. Each such Act or instrument is a potential barrier to the use of the information in the courtroom. Just why this vast mass of legislation should have remained for so long forensically invisible is not immediately apparent. It is true that most of it was drafted to regulate disclosure outside the courtroom and its evidentiary provisions are often tucked away in obscure subsections whose import may be unclear to those administering the Acts.
Law as Practical Reason
Authors: Detmold M. J.
Published: January 2009

Law is practical. Legal reasoning is practical reasoning. We could make nothing of a judge who having listened to counsel's arguments and reflected about the law governing his case thought that the state of knowledge that he had achieved was the natural termination of his enterprise and submitted his conclusions to the editors of Halsbury's Laws of England rather than performed the action of giving judgment. The parties would be outraged, and rightly. And if the judge continued to do such a thing he would be dismissed. Legal reasoning is practical in the sense that its natural conclusion is an action (in the judge's case the action of giving judgment) rather than a state of knowledge. This is taking “practical” in a strong sense. By this definition thought is practical whose natural conclusion is an action (or decision against action): its strongest contrast is with theoretical thought whose natural conclusion is knowledge. But it also contrasts with hypothetical thought about action (say, my thinking it would be good to play cricket again). I do not call this practical because it does not conclude in an action or decision against action (others do; for example John Finnis in Fundamentals of Ethics; my reasons for differing in this matter will emerge). A judge's practical reasoning towards the action of giving judgment has priority for our understanding of law over that vast range of practically idle things that lawyers do, from the construction of digests like Halsbury to casual reflection about the rule in Shelley's case (of course there is one sort of doing involved in both these, but not legal doing). It is important here to be clear about this priority. It is a priority of practicality, not a priority of judges or lawyers.
Prosecution and Defence
Authors: Darling
Published: January 2009

It is a very difficult matter for me to deliver any remarks whatever to so learned an audience. I had not myself the advantage of a University education, and most of the people whom I had to address during my judicial career were at the same disadvantage as myself. But I did, somehow or another, pass a considerable time either in prosecuting people, all of whom were guilty, or in defending people, nearly all of whom were guilty—I say that as one who really knew. So when I was asked if I would speak to you this evening I thought I would not speak in Greek or Latin, to which you are so thoroughly accustomed, but that I would speak to you about something which if I do not understand better than all of you do, it is, at all events, my own fault. So I thought I would speak on criminal cases, on how to prosecute and how to defend.
Formalities for Trusts of Land, and the Doctrine inRochefoucauldv.Boustead
Authors: Youdan T. G.
Published: January 2009

In 1677 the Statute of Frauds1 introduced2 formalities for the creation of trusts of land. Section 7 required that,

… all declarations or creations of trusts or confidences of any lands, tenements or hereditaments, shall be manifested and proved by some writing signed by the party who is by law entitled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none effect.

This requirement (or something like it) has been adopted in most common law jurisdictions and remains applicable today in England in the form of section 53(1) of the Law of Property Act 1925. Despite the provision's apparently comprehensive and drastic effect, judicial decisions have reduced its impact. Of most importance is the doctrine which I shall name after the case,Rochefoucauld v. Boustead, in which it was authoritatively described by Lindley L.J. He said this:
Reflections on the Criminal Evidence Act 1898
Authors: Munday R. J. C.
Published: January 2009

“The law is no stranger to the philosophy of ‘As if’. It has built up many of its doctrines by a make-believe that things are other than they are.” In writing these words, Benjamin Cardozo could easily have had in mind the English law of evidence. For a number of its rules can be seen to proceed upon postulates about human nature and about the structure of the world which are unverified and, one has reason to suspect, all too seldom accurate. This paper will examine one of the more arresting examples of this phenomenon, section 1(f) of the Criminal Evidence Act 1898, where English law adheres to a doctrine which, it is feared, derives from a blend of misconceptions and wishful thinking.
Hohfeld's Conceptions: From Eight to Two
Authors: Halpin A. K. W.
Published: January 2009

If Jurisprudence strikes the law student as a miry bog, the analysis of a legal right ought, at least, to provide a path through the marshland. The disparate rumours of such a path may have a greater tendency to lead him into the middle of the bog than bring him safely to the other side.
The Legal Effect of Illegal Contracts
Authors: Williams Glanville L.
Published: January 2009

The term ‘illegal contract’ is sanctioned by usage and is adopted in the title of this article for the sake of brevity; but it is not a very satisfactory expression. If a contract is a legal obligation, ‘illegal contract’ is a contradiction in terms. To say that a contract is illegal seems, on the face of it, to be no more than a clumsy way of saying that an agreement is void of legal consequences. There is, however, another possible interpretation of the term ‘illegal contract,’ namely, that it is an agreement the entry into which or the performance of which (on one or both sides) involves a breach of legal duty, or runs counter to morality or public policy. The illegality is not in the obligation, but in the making of the agreement or in the performance of it. It is in this sense that the term is used in the present article, and, so understood, there is no paradox in asking whether an illegal contract can have a legal effect.
The Unborn Child
Authors: Winfield P. H.
Published: January 2009

Some years ago the position of the unborn child in the English law of tort attracted my attention and it is chiefly in connection with that branch of the law that I wish to discuss the topic. But, as almost invariably happens in legal research, I soon found that there were other aspects of the subject which at least deserved passing notice, and at most might be useful for analogy with or distinction from the aspect in tort. It is the old tale of going out to catch a whale and landing several other fish in the process. The three other branches of the law with which I made contact were the law of property, criminal law and the law of contract. I shall touch upon these, but I have no intention of investigating them in detail. There are plenty of books which cover the topic in Property Law and Criminal Law respectively. In the law of contract there is a significant blank. The order of discussion in this article will be:—

I—The law of property.

II—Criminal law.

III—The law of contract.

IV—The law of tort.
Overreaching, Trustees' Powers and the Reform of the 1925 Legislation
Authors: Harpum Charles
Published: January 2009

Overreaching, as the doctrine is now understood, is the process whereby a purchaser of property takes it free from any interests or powers, which attach instead to the proceeds of sale. Dispositions of trust property and conveyances by mortgagees, by personal representatives and under an order of the court may all overreach equitable interests. A lease granted by a mortgagor may overreach the rights of the mortgagee. This article is concerned primarily with dispositions of trust property and in particular those by trustees for sale of land. It seeks to demonstrate that the concept of overreaching is wider than is supposed. Two principal arguments are advanced. The first is that overreaching is a necessary concomitant of a power of disposition. A transaction made by a person within the dispositive powers conferred upon him will overreach equitable interests in that property, butultra viresdispositions will not, and the transferee with notice will take the property subject to those interests. The second argument is that the draftsman of the 1925 property legislation fully appreciated the true nature of overreaching, and attempted to employ it as an essential part of his scheme for the facilitation of conveyancing. His intentions have not been appreciated in practice, and his carefully constructed scheme has been misapplied. The article considers critically recent proposals for reform from the Law Commission, and in particular the emphasis which those proposals give to the protection of the rights of persons in actual occupation. It will be suggested that reform might be more effectively achieved by employing the essentials of the scheme constructed by the draftsman of the 1925 legislation.
Pre-Natal Injury, Homicide And The Draft Criminal Code
Authors: Temkin Jennifer
Published: January 2009

If a baby is born alive only to die some time afterwards from pre-natal injury, for what crime is the perpetrator liable? Coke considered that if the injury was caused after quickening by an attempted abortion or by a violent assault upon a pregnant woman, the answer to this question was murder, even if the defendant did not intend or foresee death or serious injury to a fully-born child. The purpose of this article is to evaluate Coke's rule together with the authority in support of it and to consider whether, if it still exists today, it ought to be incorporated in the proposed Criminal Code.
The Interpretation of the British North America Act
Authors: Kennedy W. P. M.
Published: January 2009

In accepting the honour of writing an article for The Cambridge Law Journal, and in deciding to review some aspects of Canadian constitutional law, I realize that I must assume a good deal of knowledge on the part of my readers, otherwise it would be difficult to know where to begin, where to end, what to say, what to omit. For my immediate purposes it will be sufficient to point out that Canada is a federation of nine provinces created under the British North America Act, 1867, carrying on its executive, legislative, administrative and judicial activities in public and private law under that Act and its amendments and under the great landmarks of English constitutional law in so far as not modified or changed by validly enacted federal or provincial legislation. Legislative powers are divided between the federal and provincial legislatures in such a way as to exhaust the whole field, which is not fenced, as in the constitutional law of the United States, with any constitutional limitations. Granted the legislative power, the manner of its exercise cannot be questioned in the Courts by any arguments drawn from a Bill of Rights, or by the many refinements, moral, political or legal, which flow from ‘the privileges and immunities’ or ‘due process’ clauses of the American constitution. In Canada the doctrine of legislative supremacy prevails. Canadian legislative powers are distributed under the creating Act of 1867. To the provincial legislatures belong certain exclusive enumerated powers under section 92, while, under section 91, the undefined residue belongs to the parliament of the Dominion. For the moment detail is unnecessary. I purpose to view (a) the immediate historical evolution of these legislative powers in order to appreciate (b) the judicial process in relation to them. I shall not concern myself with the minutice of this process, fascinating as they are, but confine myself to certain aspects of it which have become fundamental. I shall conclude (c) with a short view of the treaty-making power, as already it is under further discussion in Canada in the hope of peace ahead. I have specially selected these points of view for a law journal, because federalism and federal law and the judicial process in relation to them are matters of perennial interest and are already in prominence in connexion with the proposed reconstructions of the world. In addition, the judicial process in relation to the British North America Act, 1867, provides an important chapter in the study of stautory interpretation—a subject of equal perennial interest. I refrain from adding anything of a comparative nature, for I have neither the space nor the qualifications to go beyond legal analysis and reach the economic and social life of other federations, without an expert knowledge of which comparative law is of little worth.
Strikes and the Individual Worker—Reforming the Law
Authors: Napier B. W.
Published: January 2009

The government's recent Green Paper “Trade Unions and Their Members” contains several radical proposals for the reform of labour law, among them the suggestion that no union member should be subject to penalties by his trade union for disobedience to the union's call to take strike action. This proposal is based partly on a philosophy of committed individualism—everyone has a right to decide to work whatever a trade union has to say about the taking of industrial action—and partly on the government's concern over the well-publicised sanctions which unions such as the N. U. M. and the N. U. J. have recently imposed on members who have rejected official calls to participate in industrial action. The suggestion is made at a time when the actual impact of strikes (measured in terms of working days lost) is at its lowest point for twenty years and at a stage when, as one commentator has observed, “[t]he trend in this area of law, as developed in the courts and by Parliament, is towards strengthening the position of the union member who refuses to participate in industrial action”. Given its conviction that the taking of industrial action should be a matter left to individual choice (para. 2.22), it is hardly surprising that the government appears to view sympathetically the possibility of extending to members disciplined by their union (by expulsion or some lesser sanction) the right of complaint to an industrial tribunal.