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The Road Ahead for the Common Law

Published online by Cambridge University Press:  17 January 2008


In the 1996 Hamlyn Lectures, under the title Turning Points of the Common Law, I examined four great cases 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. They were Salomon v Salomon & Co Ltd1 (insistence on separate identities of company and controlling shareholder); Woolmington v Director of Public Prosecutions2 (discovery of a golden thread about onus of proof in English criminal law); Hedley Byrne & Co Ltd v Heller3 (qualified acceptance of duty of care in tort to safeguard against economic damage); and Anisminic Ltd v Foreign Compensation Commission4 (affirmation that material errors of law by administrative bodies are alwaysredressible by courts).

Special Article
Copyright © British Institute of International and Comparative Law 2004

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1 [1897] AC 22.Google Scholar

2 [1935] AC 462.Google Scholar

3 [1964] 2 AC 465.Google Scholar

4 [1969] 2 AC 147.Google Scholar

5 See Reg v Secretary of State for Transport, Exp Factortame Ltd (No 5) [2000] 1 AC 524.Google Scholar

6 The European Constitution and what it means for Britain, Centre for Policy Studies, June 2003, 6. The author has served for 15 months and more on the Convention on the Future of Europe, representing the House of Commons.Google Scholar

7 8th edn (2000) 37.Google Scholar

8 4th edn (1999) ch 1 passim. Professor Paul Craig has contributed many other significant writings to the general field. In the present lecture I can make no attempt at comprehensiveness in citing relevant discourse. For a recent helpful survey of the field, conveying a more-or-less standard current judicial view in England, one may cite a lecture by Sir Roger Toulson, chairman of the Law Commission, Democratic Values and the Judicial Process, published in Issue 4 of Amicus Curiae, Journal of the Society for Advanced Legal Studies, July/Aug 2003, 3–14.

9 Among other leading proponents of this concept is Professor Jeffrey Jowell QC. See for instance ‘Beyond the Rule of Law: Towards Constitutional Judicial Review’ [2000] PL 671. He is co-author of the major textbook Judicial Review of Administrative Action 6th edn wherein there is reference to ‘terminological problems of excruciating complexity.’Google Scholar

10 Fundamentals’ [1988] New Zealand Law Journal 158, 164Google Scholarcited by Joseph, in ‘The Demise of Ultra Vires—A Reply to Christopher Forsyth and Linda Whittle’ (2002) 8 Canterbury Law Review 463, 472.Google Scholar

11 8th edn (2000) 20.Google Scholar

12 Ibid 29.

13 Ibid 28 n 38, 40.

14 Judges and Decision-Makers: The Theory and Practice of Wednesbury Review’ [1996] PL 59, 77. Lord Irvine acknowledged the assistance of Jason Coppel in the preparation of this lecture.Google Scholar

15 For instance, as to any assault by Parliament on the basic tenets of democracy, ‘Certainly, if sucha tide in our affairs were ever to come, it would be for the judges of that time, and not of today, to decide how they should properly respond. The South African experience does show that the judges may have a role [citing Harris v Ministry of the Interior [1952] 2 SA 428]; and I am ready to suppose that the judges of tomorrow might gain some comfort in their endeavours from the extra-judicial writings of distinguished judges of today.’Google Scholar

16 R (Daly) v Home Secretary [2001] 2 AC 532, 537–8.Google Scholar

17 The lecture is entitled ‘Dynamic Interpretation Amidst an Orgy of Statutes’.Google Scholar

18 Reg v Home Secretary, Ex p Simms [2002] 2 AC 115, 131.Google Scholar

19 R (Anufrijeva) v Home Secretary [2003] 3 WLR 252.Google Scholar

20 Other suspects include Lord Woolf and Lords Justices Laws and Sedley: Wade and Forsyth, op cit 28, n 38. And only this week a copy has reached me of an article by the Chief Justice of New Zealand, Dame Sian Elias, which confirms that she is a notable recruit: ‘Sovereignty in the 21st century: another spin on the merry-go-round’ 14 Public Law Review (Sept 2003) 148. A judicial prelude is her judgment (with Tipping J) in R v Pora [2001] 2 NZLR 37. For some of Laws LJ's views judicially expressed, see Thoburn v Sunderland City Council [2003] QB 151.Google Scholar

21 Above n 14.Google Scholar

22 In personal self-defence there may be given, merely as two examples of many decisions generous to administrators to which I have been party, Reg v Chief Constable of Sussex, Ex p International Trader's Ferry Ltd [1999] 2 AC 418 and New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries ]1988] 1 NZLR 544.Google Scholar

23 These considerations seem to be given insufficient weight by those who approach the common law along traditional paths, such as the authors of the excellent textbook The Law of Torts in New Zealand by Professor Todd, Stephen and others (3rd edn Wellington Brookers 2001) 20–1, 978–87. As Lord Diplock said in Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979[ AC 385, 399, constitutional redress against the State by way of compensation ‘is not a liability in tort at all; it is a liability in the public law of the state …’. If the authors of works on tort do not like it, their remedy is to leave it out oftheir books.Google Scholar

24 Simpson v Attorney-General [Baigent Case] [1994] 3 NZLR 667. This case was decided on a strike-out application before trial and was subsequently settled before trial. The plaintiffs alleged that police officers had insisted on searching a home, rifling through drawers etc, in execution of a search warrant for drugs, although they had been advised that the warrant specified a wrong address. An officer was alleged to have said ‘We oftenget it wrong, but while we are here we will have a look round anyway.’ Statute may have excluded tort liability, but the later Bill of Rights Act gave everyone the right to be secure against unreasonable search.Google Scholar

25 Cullen v Chief Constable of the Royal Ulster Constabulary [2003] 1 WLR 1763.Google Scholar

26 See [2003] 1 WLR at 1779–80.Google Scholar

27 See Johnson v Gore Wood & Co [2002] 2 AC 1 and P v Liverpool Daily Post and Echo Newspapers plc [1991] 2 AC 370, 420 per Lord Bridge of Harwich. In the latter case damages for breach of statutory duty were said to be only for personal injury, injury to property or economic loss. In Cullen Lord Hutton has expressly widened this, at least in relation to the kind of duty there considered. Indeed what he has said appears to have an even wider application, to actionable breaches of statutory duties generally.Google Scholar

28 Above n 23. See [1944] 3 NZLR at 678, 692, and 703.Google Scholar

29 Cf Rees v Darlington Memorial Hospital NHS Trust [2003] 4 All ER 987.Google Scholar

30 [2001] 2 AC 550. On the occasion of this lecture it is appropriate to mention the value placed by Lord Slynn of Hadley, at 570, on the work of Andenas and Fairgrieve in support of the proposition that while the courts should restrain within reasonable bounds claims against public authorities exercising statutory powers in a social welfare context, it is equally important to set reasonable bounds to their immunity. This might seem a platitude, but is a corrective to the familiar type of observations that emphasize a need for judicial restraint as paramount over everything else. Consider Rowling v Takaro Properties Ltd [1988] AC 473, 501–3, on the question of duties of care falling on Ministers of the Crown. Dr Andenas has indeed suggested that English law is now catching up with the N ew Zealand approach overruled in that case. It would not be fitting for me to comment on that suggestion. I merely note that the Privy Council acted on a view as to the Minister's state of mind apparently contrary to the trial judge's finding of fact and to the understanding of counsel on both sides: see [1988] AC 473, at 483 B to C and 489 B and compare 510 A to C and 511 B to E. The case seems to belong to a bygone era and must be of limited help as a precedent.Google Scholar

31 [2001] 2 AC 619, a unanimous decision of seven Law Lords.Google Scholar

32 Lord Nicholls of Birkenhead.Google Scholar

33 [1996] AC 923.Google Scholar

34 Theatre De Luxe (Halifax) Ltd v Gledhill [1915] 2 KB 49, 59–60.Google Scholar

35 See Daly, above n 16.Google Scholar

36 Citing, Jowell ‘Judicial Deference and Human Rights: A Question of Competence’ in Essays in Law and Administration in Europe ed Craig, and Rawlings, (OxfordOUP 2003).Google Scholar

37 [1993] AC 593. For developments in other jurisdictions, see the argument reported at 601–3.Google Scholar

38 R v Secretary of State for the Environment, Ex p Spath Holme Ltd [2001] 2 AC 349.Google Scholar

39 See [2002] 2 AC at 398. Contra, however, Lord Hope of Craighead at 407–8 and Lord Hutton at 473–4.Google Scholar

40 Wilson v First County Trust Ltd (No 2) [2003] 3 WLR 568.Google Scholar

41 Ibid 584–8.

42 (2001) 21 OJLS 59.Google Scholar

43 See [2003] 1 WLR, at 17681769; 1771; 1779–80.Google Scholar

44 The Principle of Proportionality in the Laws of Europe edited by Evelyn Ellis (OxfordHart Publishing 1999) 164.Google Scholar

45 Privy Council Appeal No 77 of 2002.Google Scholar

46 [2002] 3 NZLR 433.Google Scholar

47 [2001] 2 NZLR 670.Google Scholar

48 There are a few citations on other issues, including money extracted colore officii.Google Scholar

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