SEARCH

SEARCH BY CITATION

Abstract

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. 1. LORD HOFFMANN, PRAETOR OF LAW'S EMPIRE?
  5. 2. COHERENCE AND DWORKIN'S POSITION
  6. 3. BARLOW CLOWES
  7. 4. BARKER V CORUS
  8. 5. LAW AS A CHAIN NOVEL
  9. 6. ADJUDICATION AND THE INSTITUTIONAL STRUCTURE OF THE HOUSE OF LORDS
  10. CONCLUSIONS

This paper explores Dworkin's ‘law as a chain novel’ analogy and considers the recent work of Dworkin and MacCormick through close scrutiny of two recent judgments of Lord Hoffmann, in Barlow Clowes v Eurotrust International [2005] UKPC 37 and Barker v Corus [2006] UKHL 20. The aim is to examine Dworkin's theory in the context of recent English private law decisions and determine whether Lord Hoffmann's approach to interpretation is consistent with that of Dworkin (as his Lordship has contended in the past). It is argued that Lord Hoffmann's treatment of recent decisions on which he himself sat raises significant questions regarding fidelity, coherence and the institutional structure of the House of Lords.


INTRODUCTION

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. 1. LORD HOFFMANN, PRAETOR OF LAW'S EMPIRE?
  5. 2. COHERENCE AND DWORKIN'S POSITION
  6. 3. BARLOW CLOWES
  7. 4. BARKER V CORUS
  8. 5. LAW AS A CHAIN NOVEL
  9. 6. ADJUDICATION AND THE INSTITUTIONAL STRUCTURE OF THE HOUSE OF LORDS
  10. CONCLUSIONS

‘The crime was of interest in itself, but that interest was as nothing to me compared to the inconceivable sequel, which afforded me the greatest shock and surprise of any event in my adventurous life.’1

In 1893, Sir Arthur Conan Doyle, desiring to spend more time writing his historical novels, apparently killed off Sherlock Holmes in ‘The Adventure of the Final Problem’, as the Great Detective grappled with his nemesis Professor Moriarty on a precarious ledge over the Reichenbach Falls. Ten years later,2 Conan Doyle resurrected Holmes in ‘The Adventure of the Empty House’, with Holmes explaining to Watson how he had performed a miraculous escape. While the fans were delighted to have their hero back, not everyone was convinced at the explanation.

Sometimes our favourite authors try our patience and stretch our credulity with plot twists. Sometimes, so do judges when they ask us to follow them on adventurous interpretations of precedent. In chapter 7 of Law's Empire, Dworkin offers an analogy which will be utilised here. He illustrates his argument that law is an interpretive practice by comparing a judge with a literary critic, but continues:

‘Judges, however are authors as well as critics. A judge deciding McLoughlin or Brown adds to the tradition he interprets; future judges confront a new tradition that includes what he has done . . . We can find an even more fruitful comparison between literature and law . . . by constructing an artificial genre of literature that we might call the chain novel.’3

The gist of this concept is that a novelist is given a set of chapters that have already been written and is tasked with writing a new chapter that makes the best sense of what has gone before. The author must seek to develop the story while remaining true to the preceding chapters. In the same way, the judge must apply this interpretive process to precedents. The questions discussed here constitute variations which Dworkin does not consider on the ‘judge as author-critic’ analogy: broadly, what should happen when the judge has to interpret some of his own decisions? It is argued here that the judge's interpretive attitude should be the same whether or not it is his own decision under consideration, but the inquiry is nevertheless important because it is in this situation that the judge is confronted most acutely with the challenge of interpretation.

A familiar charge against the work of Professor Dworkin is that it is parochial:4 while it may work for, or at least be a viable account of, legal practice in the USA, his theory does not travel well. It is the purpose of this paper to consider a Dworkinian approach to English case-law, in the light of two recent speeches by Lord Hoffmann, who has professed himself to be a Dworkinian.5 It will be argued that these speeches raise an interesting6 question for law as integrity, concerning the attitude that a judge does and should adopt towards his own previous judgments and decisions (as will become clear, there are important differences between judgments and the overall decision). Lord Hoffmann's judicial philosophy will therefore be considered on its own terms, as he suggested that this is the proper way for academics to engage with judges, supporting Dworkin's supposed view that ‘it makes more sense to take what the judges say at face value’.7 What we should demand of our judges is ‘intellectual honesty’.8 For Lord Hoffmann, then, Mackie's objection to Dworkin that ‘there is a distinction – and there may be a divergence – between what judges say they are doing, what they think they are doing, and the most accurate objective description of what they actually are doing’9 ought to be wrong.

One of the main benefits presented to legal philosophy by Dworkin's work is his emphasis on cases, following on from Professor Hart's insistence on the importance of considering the attitude towards the law of the officials in a legal system. Dworkin chooses his own examples but claims that ‘almost any case in a law school casebook would . . . serve as well’.10 Taking up that suggestion, this paper will address recent case-law. Professor Birks sought a theory of unjust enrichment where justice had ‘its nose to the cases, not in the air’,11 and it is to be argued that there is much to gain from a similar approach to the philosophy of law: a jurisprudence that focuses on the iudex.

As well as considering whether the sun sets on Law's Empire when it crosses the Atlantic, this paper also deliberately devotes specific attention to private law cases. As much of Dworkin's work considers the work of the US Supreme Court, it is understandable that there should be a focus on the translation of his theory to English public law. But Dworkin's aim in Law's Empire is to consider what judges do and should do generally, not just in constitutional cases:

‘(C)ivil suits, in which one person asks compensation or protection from another for some past or threatened harm, are sometimes more consequential than all but the most momentous criminal trials. The difference between dignity and ruin may turn on a single argument that might not have struck another judge so forcefully, or even the same judge on another day.’12

The question then is how do judges conceive of their own role? Dworkin claims to pick examples ‘chosen almost at random from English legal history’,13 but, as stated, this discussion shall be very closely targeted on two speeches by Lord Hoffmann, now second senior Law Lord.14 One is from a decision of the House of Lords on causation in tort: Barker v Corus.15 The other is the decision of the Privy Council on dishonest assistance: Barlow Clowes v Eurotrust International.16 Each case called for an interpretation of a relevant decision of the House of Lords that had been decided fewer than 4 years previously.17 Lord Hoffmann sat on every one of the four appeals. It is to be submitted that the judgments raise questions of Lord Hoffmann's judicial philosophy, regardless of the points of substantive law at issue, and demonstrate why, even in private law, a judge's own jurisprudence matters.

In addressing the cases, two key questions of interpretation will be considered: first, the extent to which a judge may claim prerogative over his own speeches; and, secondly, the extent to which a judge may claim prerogative over a decision of the court of which he was a member. These questions concern law as integrity, the relationship of fit and justification in Dworkin's theory of interpretation: how is what has been decided in the past relevant to the case before the court? The ‘institutional history’ is a necessary ingredient of a judgment about the rights of individuals.18

More recently, Dworkin has argued that the essential point is that a political community displays the fundamental principle of legality ‘by keeping faith in certain ways with its past’.19 As MacCormick has recently recognised, ‘the issue is, in what ways faith is to be kept, and with what regard to such values in mutual tension as that of trying to create and sustain law that has a good degree of certainty and predictability and that of insisting that legal processes must listen to all reasonable arguments’.20 Integrity then, as Hershovitz argues,21 requires judges and the court as a whole to engage with history.

This paper will examine the two decisions and then consider how Lord Hoffmann's approach in each squares with his supposed adherence to a Dworkinian theory of adjudication. If integrity is a question of keeping the faith, then it is to be submitted here that the judgments suggest that Lord Hoffmann has heretical tendencies.

1. LORD HOFFMANN, PRAETOR OF LAW'S EMPIRE?

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. 1. LORD HOFFMANN, PRAETOR OF LAW'S EMPIRE?
  5. 2. COHERENCE AND DWORKIN'S POSITION
  6. 3. BARLOW CLOWES
  7. 4. BARKER V CORUS
  8. 5. LAW AS A CHAIN NOVEL
  9. 6. ADJUDICATION AND THE INSTITUTIONAL STRUCTURE OF THE HOUSE OF LORDS
  10. CONCLUSIONS

In Law's Empire, Dworkin's choice of an English civil case in the House of Lords is McLoughlin v O'Brian,22 where he dwells on the speech of Lord Scarman. Lord Scarman insisted in this speech that:

‘Policy considerations will have to be weighed: but the objective of judges is the formulation of principle. And, if principle inexorably requires a decision which entails a degree of policy risk, the court's function is to adjudicate according to principle leaving policy curtailment to the judgment of Parliament.’23

This passage has a distinct flavour of Dworkin about it, albeit that Lord Scarman does not explicitly cite him, and that the ‘policy’ in the context of liability in the tort of negligence and ‘policy’ as Dworkin uses it may have slightly different definitions. It is therefore unsurprising that it should prove worthwhile material for Dworkin.24

As stated at the outset, this paper seeks to update Dworkin's approach and apply it to recent civil cases in English law. For that, we shall choose a successor to Lord Scarman as a Dworkinian in the House of Lords. Fortunately, Lord Hoffmann has already declared an interest. In Jones v Ministry of Interior of the Kingdom of Saudi Arabia,25 Lord Hoffmann professed himself to be a Dworkinian at heart: ‘As Professor Dworkin demonstrated in Law's Empire (1986), the ordering of competing principles according to the importance of the values which they embody is a basic technique of adjudication’.26

Another reason for the selection of Lord Hoffmann is that, in a recent dictum, his Lordship has propounded a view similar to that which this paper will advocate. In Deutsche Morgan Grenfell Group v Her Majesty's Commissioners of Inland Revenue,27 Lord Hoffmann was called upon to consider the Court of Appeal's treatment of the Lords' decision in Kleinwort Benson v Lincoln City Council,28 a case in which his Lordship had joined Lord Goff of Chieveley and Lord Hope of Craighead in the majority:

‘[14] . . . It is, I think, neither here nor there for me to say that, as one who (in the end) gave wholehearted concurrence to Lord Goff's speech [in Kleinwort Benson], I never thought that it had the meaning attributed to it by the Court of Appeal. Once a judgment has been published, its interpretation belongs to posterity and its author and those who agreed with him at the time have no better claim to be able to declare its meaning than anyone else. But to my mind the context in which Lord Goff made the remarks which I have quoted demonstrates conclusively that he could not have meant what the Court of Appeal thought.’29

This paper will put Lord Hoffmann's claim to the test by examining two of his own recent decisions. It will be argued below that his Lordship's judicial philosophy as applied in the cases under consideration indicates that, if it is indeed indebted to Dworkin, it is not one which Dworkin would himself endorse, but an unreconstructed version open to the familiar objections to Dworkin's theory. In the two cases, the approach to the dimensions of fit and justification is skewed. Justification, as Dworkin has it, shows the law in its best light. But that judgment must be consistent with the institutional history, the past practice of the court. It is a common criticism of Dworkin that he provides no guidance as to the ‘threshold’ of fit. But in his later work he has clarified that the question is one of keeping the faith with past political decisions.30 As noted, Professor MacCormick has recently aligned himself with Dworkin in this respect, arguing that the question is one of coherence. In our two cases, Lord Hoffmann's treatment of precedent seems to view interpretation as a teleological process: reasoning backwards from the desired result (the justificatory principle) and making the cases fit the instant decision. While Dworkin's detractors may argue that this is Dworkin's method as well, it is submitted that Dworkin has it the other way round.

2. COHERENCE AND DWORKIN'S POSITION

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. 1. LORD HOFFMANN, PRAETOR OF LAW'S EMPIRE?
  5. 2. COHERENCE AND DWORKIN'S POSITION
  6. 3. BARLOW CLOWES
  7. 4. BARKER V CORUS
  8. 5. LAW AS A CHAIN NOVEL
  9. 6. ADJUDICATION AND THE INSTITUTIONAL STRUCTURE OF THE HOUSE OF LORDS
  10. CONCLUSIONS

It is important at the outset to distinguish consistency from coherence. For the sake of discussion, MacCormick's use of those terms will be adopted:

‘A set of propositions is mutually consistent if each can without contradiction be asserted in conjunction with every other and with their conjunction. By contrast coherence . . . is the property of a set of propositions which, taken together, makes sense in its entirety.’31

Is Dworkin's theory coherence-based? Professor Hurley32 argues that it is, but Professor Raz33 has doubted whether Dworkin's theory is necessarily based on coherence and offers Dworkin's own apparent ambivalence34 as justification. Indeed, in his response to a recent and important collection35 of essays, Dworkin forewent the opportunity to accept or deny explicitly the coherence analysis of law as integrity. However, his endorsement36 of Hurley's defence of his theory suggests that he is willing at least to tolerate this interpretation of his work, and that interpretation will be adopted here.

The argument here will proceed on the basis that, to make the best sense of Dworkin's dimension of fit, one should recognise the reflective relationship between fit and justification: justification cannot be divorced from fit, as the question is whether the prospective principle casts the previous decisions in their best light. Courts exhibit integrity by being faithful to their past. Two reservations may be lodged, which concern Dworkin's clarifications about this requirement. First, in his reply to critics,37 Dworkin seems to diminish the significance of fit,38 in response to Mackie's criticism, construing it as only a threshold before the choice of political morality must be made. I doubt whether this is a wise course and it would seem that Dworkin's later analysis, as followed here, moves away from this suggestion.

Secondly, at one stage, Dworkin recasts the dimensions of fit and justification as questions of, respectively, ‘procedural fairness’ and ‘substantive justice’.39 I wonder whether he does himself a disservice here. If he means that fit as an element of legal reasoning is merely a question of protecting reasonable expectations and treating like cases alike, then it reduces fit to a bland observation regarding precedent. The argument here grants fit more normative force as a feature of the law's coherence.40

3. BARLOW CLOWES

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. 1. LORD HOFFMANN, PRAETOR OF LAW'S EMPIRE?
  5. 2. COHERENCE AND DWORKIN'S POSITION
  6. 3. BARLOW CLOWES
  7. 4. BARKER V CORUS
  8. 5. LAW AS A CHAIN NOVEL
  9. 6. ADJUDICATION AND THE INSTITUTIONAL STRUCTURE OF THE HOUSE OF LORDS
  10. CONCLUSIONS

Barlow Clowes was an appeal to the Privy Council from the High Court of the Isle of Man regarding a claim of dishonest assistance. The case concerned the notorious Barlow Clowes investment scheme into gilt-edged securities which was a massive fraud. The Barlow Clowes company, in liquidation, brought claims against a financial services company and its directors, based on the Isle of Man, arguing that they had dishonestly assisted the breach of trust. Before the Privy Council, there was only one defendant. Counsel for the director argued that the judge had misdirected herself in failing to make a judgment on the defendant's knowledge of whether ordinary people would have considered his conduct dishonest. The Privy Council was therefore called upon to consider the decision of the House of Lords in Twinsectra v Yardley.41 Lord Hoffmann gave the judgment of the Board.42 Lord Hoffmann and Lord Steyn had also sat in Twinsectra, with Lord Hutton giving the lead speech, and Lord Millett dissented. The question was what the ‘dishonest’ in ‘dishonest assistance’ means. The common reading of Twinsectra, which Barlow Clowes addresses, was that there was a combined subjective/objective test for dishonesty. The relevant passage comes from paragraphs [35]–[36] of Lord Hutton's judgment:

‘[35] . . . Notwithstanding that the issue arises in equity law and not in a criminal context, I think that it would be less than just for the law to permit a finding that a defendant had been “dishonest” in assisting in a breach of trust where he knew of the facts which created the trust and its breach but had not been aware that what he was doing would be regarded by honest men as being dishonest.

[36] It would be open to your Lordships to depart from the principle stated by Lord Nicholls [in Royal Brunei Airlines Sdn Bhd v Tan43] that dishonesty is a necessary ingredient of accessory liability and to hold that knowledge is a sufficient ingredient. But the statement of that principle by Lord Nicholls has been widely regarded as clarifying this area of the law and, as he observed, the tide of authority in England has flowed strongly in favour of the test of dishonesty. Therefore I consider that the courts should continue to apply that test and that your Lordships should state that dishonesty requires knowledge by the defendant that what he was doing would be regarded as dishonest by honest people, although he should not escape a finding of dishonesty because he sets his own standards of honesty and does not regard as dishonest what he knows would offend the normally accepted standards of honest conduct.’ (emphasis added)

It is the highlighted passage that had in particular led to the assumption of a combined test: a balance is struck between allowing the defendant to live by his own standards and holding him to a purely objective standard. He is only dishonest if he is (subjectively) aware that what he was doing is dishonest by ordinary standards (the objective element).

The Privy Council considered this passage and concluded that the general view of Twinsectra was wrong. It was not what their Lordships had meant. Immediately after quoting the above passage from Lord Hutton, Lord Hoffmann explains:

‘[15] Their Lordships accept that there is an element of ambiguity in these remarks which may have encouraged a belief, expressed in some academic writing, that Twinsectra had departed from the law as previously understood and invited inquiry not merely into the defendant's mental state about the nature of the transaction in which he was participating but also into his views about generally acceptable standards of honesty. But they do not consider that this is what Lord Hutton meant. The reference to “what he knows would offend normally accepted standards of honest conduct” meant only that his knowledge of the transaction had to be such as to render his participation contrary to normally acceptable standards of honest conduct. It did not require that he should have had reflections about what those normally acceptable standards were.

[16] Similarly in the speech of Lord Hoffmann, the statement (in para 20) that a dishonest state of mind meant “consciousness that one is transgressing ordinary standards of honest behaviour” was in their Lordships' view intended to require consciousness of those elements of the transaction which make participation transgress ordinary standards of honest behaviour. It did not also require him to have thought about what those standards were.’

A significant clarification is necessary at this point. Owing to the peculiar relationship between the Privy Council and the House of Lords, it is sometimes the case that an appeal to the Privy Council may be used to qualify or revise English law. A recent example is the decision in Attorney General for Jersey v Holley,44 when the Board considered the defence of provocation and in particular the decision of the House of Lords in R v Smith (Morgan).45 The appeal was chosen to provide a resolution of the controversy over the objective assessment of the expected degree of self-control. For that reason, an exceptionally large Board of nine members, all of whom were at the time current Lords of Appeal in Ordinary, heard the appeal. The decision was intended ‘to clarify definitively the present state of English law, and hence Jersey law, on this important subject’.46 The majority disapproved Smith (Morgan). In such circumstances, recognised as wholly exceptional by the Court of Appeal in R v James,47 the Privy Council may be taken to have clarified English law. The objection to Barlow Clowes here is that the Privy Council purported to be applying Twinsectra in a faithful way when it was demonstrably not doing so.

This revisionism is alarming if Barlow Clowes is to be taken as restating the English law on the subject. Again, it is important that the substantive decision is not necessarily to be criticised.48 Indeed, Twinsectra had itself proved controversial, even if, as the Board now purports to tell us, any controversy was born of a misunderstanding. The question is whether it is possible to adopt this ‘interpretation’ of an authority, or whether, with Virgo, we should view Barlow Clowes as taking ‘the notion of judicial reinterpretation to new heights’.49

It is submitted that it is difficult to accept that Barlow Clowes presents a tenable construction of Twinsectra. The natural reading of Lord Hutton's speech is precisely what it had been taken to mean. Likewise, Lord Hoffmann's statement that ‘consciousness that one is transgressing ordinary standards of honest behaviour’ is required is very different from saying ‘consciousness of those elements of the transaction which make participation transgress ordinary standards of honest behaviour’. In his speech in Twinsectra, Lord Hoffmann had summarised Lord Millett's dissenting view that it should be ‘sufficient that the defendant knew all the facts which made it wrongful for him to participate in the way in which he did’,50 and then expressly disagreed with that purely objective test, on the basis that it was inconsistent with Tan.51

There would seem to have been little sense in the House of Lords referring to a ‘combined test’52 unless there was something to be combined: a subjective and objective standard. Furthermore, it is hard to reconcile the Lord Hoffmann in Barlow Clowes at [16] with the Lord Hoffmann in Twinsectra at [19]–[20] where he disagrees with Lord Millett's objective test. It is, of course, open to a Law Lord to change his mind or to recognise a mistake: Lord Bridge of Harwich famously admitted that the House of Lords' 1966 Practice Statement was ‘an effective abandonment of our pretention to infallibility. If a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better’.53 As Hershovitz has importantly argued: ‘Overruling and distinguishing are as much ways of engaging with the past as following is. They are ways of saying “we recognise that our prior decision is relevant in deciding what we ought to do now, but for these reasons we are not following it here”.’54 Indeed, the incorporation of a theory of mistakes55 within Dworkin's thesis implicitly accepts this aspect of law as integrity.

But to pretend that a contradictory reinterpretation of a previous decision (especially one's own) is consistent with that decision is at least disingenuous and at worst dishonest. To deny the past is to refuse to engage with it. But it is not meant here to charge Lord Hoffmann with arrogance: his Lordship has in other cases been commendably forthright. For example, he admitted to having changed his mind between the close of argument and the time of judgment in Kleinwort Benson.56

Furthermore, contrary to the Privy Council's suggestion at [15], it was not only academics who had interpreted Twinsectra as a combined test: between Twinsectra and Barlow Clowes a wealth of case-law had interpreted the House of Lords' decision in such a way, notably the Court of Appeal in Bultitude v The Law Society57 (in the context of dishonesty) and Harrison v Teton Valley Trading Co Ltd58 (in the context of good faith). Several first instance decisions had done likewise.59 Robert Walker (Lord Walker of Gestingthorpe), who sat on the Board in Barlow Clowes, had himself appreciated that the decision offered more than a straightforwardly objective test.60 The absence of fidelity to the past law therefore not only applies to Twinsectra, but also to the intervening decisions.

Decisions such as Barlow Clowes are inclined to lead theorists, lawyers and students to adopt a sceptical view of their Lordships' decision making. A House of Lords' decision may be taken at face value, and widely interpreted and applied, only for a revelatory ‘gloss’ to be put on it. We thus see a Humpty-Dumptyist approach to interpretation: ‘When I use a [precedent], it means just what I choose it to mean – neither more nor less’.61 Rather than seeing a previous authority through the lens of a clarificatory subsequent decision, therefore, we have instead travelled through the Looking Glass.

When considering the reasoning in Barlow Clowes, we can see the force in Mackie's criticism of Dworkin's early work: ‘I am tempted to speak of Professor Dworkin playing fast and loose with the law . . .  (because) the third theory of law is . . . a plea for a more speculative and enterprising handling by judges of their traditional materials and data’.62 As Mackie alludes in a footnote, ‘the game of fast and loose’ is a particularly fertile metaphor as it is always open to the trickster to pull the string or belt in such a way as to get the result he wants. By contrast, an approach that displays integrity through fidelity to what has been decided in the past cannot be accused of playing fast and loose.

4. BARKER V CORUS

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. 1. LORD HOFFMANN, PRAETOR OF LAW'S EMPIRE?
  5. 2. COHERENCE AND DWORKIN'S POSITION
  6. 3. BARLOW CLOWES
  7. 4. BARKER V CORUS
  8. 5. LAW AS A CHAIN NOVEL
  9. 6. ADJUDICATION AND THE INSTITUTIONAL STRUCTURE OF THE HOUSE OF LORDS
  10. CONCLUSIONS

It was submitted in the preceding section that the Privy Council in Barlow Clowes adopted a contrary reinterpretation of Twinsectra, a decision of the House of Lords which included a concurring speech by Lord Hoffmann. We may infer from the absence of a dissent that the five members of the Board agreed on the approach to Twinsectra. As noted, two of the members of the Panel in Barlow Clowes, Lords Steyn and Hoffmann, had been in the majority in Twinsectra.

The next case, Barker, is interesting because it contains a fierce disagreement in the House of Lords over the treatment of a recent precedent, Fairchild v Glenhaven Funeral Services.63Barker required the House to consider one of its own recent decisions, but the case demands that the argument here be taken to another level of sophistication. Unlike in Barlow Clowes, in Barker, the only two Law Lords who had also sat in Fairchild, Lords Hoffmann and Rodger of Earlsferry, vehemently and fundamentally disagreed over what had actually been decided in Fairchild.

To examine Barker, it is necessary briefly to begin with the decision in Fairchild. The claimants had contracted mesothelioma through exposure to asbestos in the course of their working lives. Scientific knowledge was such that it was not possible to determine how the mesothelioma was caused:

‘The condition may be caused by a single fibre, or a few fibres, or many fibres: medical opinion holds none of these possibilities to be more probable than any other, and the condition once caused is not aggravated by further exposure . . . There is no way of identifying, even on a balance of probabilities, the source of the fibre or fibres which initiated the genetic process which culminated in the malignant tumour.’64

Where therefore, as in Fairchild, the claimant had contracted mesothelioma but had worked for more than one employer there was a difficulty. To make out their claim in negligence, they had to establish that the defendant had breached a duty of care, and that that breach had caused them damage. To satisfy the element of causation, the causa sine qua non test is applied: ‘But for the defendant's breach, would the claimant have suffered this injury?’65 The claimants in Fairchild could not prove on the balance of probabilities that any one employer had exposed them to the asbestos fibre which had caused their mesothelioma, as it could have been one of their other employers. The question for the House of Lords was whether, in the special circumstances of the case, an exception to the ordinary rules of causation should be recognised. The House was unanimous in answering that question in the affirmative.

In Fairchild, the House of Lords was not invited to consider whether liability should be proportionate. In Barker, that question did fall for decision. The Court of Appeal66 had held that, if causation was satisfied under Fairchild, then the defendant was liable for the full extent of the damage. Lord Hoffmann gave the leading judgment. His Lordship viewed the Fairchild test as holding that the defendant was liable for the contribution to the risk that the cancer would result: the damage was the creation of the risk to which the claimant was exposed. He said that this was the approach of a majority in Fairchild, putting Lord Rodger and Lord Hutton in a minority. On this view of Fairchild, Lord Hoffmann thought, given that the risk was the damage, and that it was possible to apportion the contribution of each defendant to risk, that the fairest way was to apportion damages accordingly. Fairchild was, after all, predicated on fairness, and this result smoothes the roughness of the justice of holding a defendant liable when they may not have caused the harm: the law is ‘fair’ to both the parties.

Lord Hoffmann admitted to having been wrong on one point in his speech in Fairchild, on the question whether the Fairchild principle applied to where there were two different potential causative agents.67 But other than that, his Lordship was faithful to his own analysis in Fairchild. His Lordship's approach in Barker may therefore be contrasted with the approach in Barlow Clowes examined above.

Lord Rodger vigorously dissented. He noted, with respect, that Lord Hoffmann mainly agreed with himself:

‘[71] My Lords, I accept, of course, that the problem in Fairchild can be analysed as Lord Hoffmann now proposes and, indeed, had already suggested in Gregg v Scott[2005] 2 AC 176. But that is quite different from saying that the House actually chose to analyse it in that way. By adopting the proposed analysis your Lordships are not so much reinterpreting as rewriting the key decisions in McGhee[1973] 1 WLR 1 and Fairchild[2003] 1 AC 32.’

The difficulty is readily apparent. Although the House of Lords in Fairchild was unanimous in bending (or creating an exception to) the normal requirements of causation, they were far from univocal. Lord Hoffmann seems to have succeeded in imposing his own view as the authoritative interpretation of Fairchild. Indeed, it was a construction of Fairchild that was consciously disavowed by counsel for the appellants.68 It may be that the other members of the majority in Barker were moved by the desire to allow proportionate liability.

But Lord Rodger's approach seems to sit more happily with the speeches in Fairchild, as the damage was the mesothelioma, not the risk of the mesothelioma. Baroness Hale of Richmond concurred with the majority in the result but expressly endorsed the analysis of Lord Rodger over that of Lord Hoffmann: ‘the damage which is the “gist” of these actions is the mesothelioma and its physical and financial consequences. It is not the risk of contracting mesothelioma’.69 To do so seems to confuse the separate requirements of causation and damage in a claim of negligence. Lord Rodger suggests that the decision in Barker undermines the justice of the Fairchild decision in allowing the claimants to recover even though not all the potential defendants were before the courts. On the Barker interpretation, one is left to wonder what the point of Fairchild was. The rough justice of liability under Fairchild is not so much smoothed as undercut.

There is another possible approach, following an interpretation of Barker suggested by Stapleton.70 The majority in Barker ruled that ‘the damage which the defendant should be regarded as having caused is the creation of such a risk or chance’.71 This reformulates the claim, so that there is no problem of causation at all: the risk created by the defendant is provable by the claimant and, as Stapleton says, requires no departure from orthodox rules of causation, for there is no evidentiary gap. But we have now journeyed a very long way from the original basis of Fairchild and instead we would face difficult questions of actionability rather than causation.72

The target of this paper is very much the coherence of the common law reasoning in the decisions under consideration, but it is right to observe in passing that in response to Barker, legislation was swiftly introduced (s 3 of the Compensation Act 2006) to reverse the effect of the decision in asbestos-related mesothelioma claims. The irony here is that the law has now been rendered even more incoherent than it was in Barker, as the general approach to liability, of risk as damage, is untouched by the Act. We have a statutory exception to a common law exception. The section invites future consideration because it raises a point about legislative, rather than adjudicative, integrity.73

It may be further observed that the issue before the House in Fairchild and Barker is related to, but distinct from, the issue in the hypothetical case of Mrs Sorenson posed by Dworkin in his Hart Memorial Lecture.74 Indeed, Lord Hoffmann cites the American market share liability cases in his judgment.75 However, it is arguable that the outcome in Barker, with its focus on risk as damage, makes a leap from the general analogy with problems of proving causation to the adoption of the same rationale.

As a result of this analysis of Barlow Clowes and Barker, interesting questions of ownership arise: to what extent is Lord Hoffmann (or any judge) entitled to interpret his own judgments howsoever he likes, as the author of them? Further, to what extent is Lord Hoffmann (or any judge) entitled to interpret a decision of the court as whole, on which he sat, howsoever he likes? Finally, is the answer to either question different from the approach of a judge to any precedent? To answer these three questions, it will be useful to reconsider the chain novel analogy proposed by Dworkin in Law's Empire.

5. LAW AS A CHAIN NOVEL

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. 1. LORD HOFFMANN, PRAETOR OF LAW'S EMPIRE?
  5. 2. COHERENCE AND DWORKIN'S POSITION
  6. 3. BARLOW CLOWES
  7. 4. BARKER V CORUS
  8. 5. LAW AS A CHAIN NOVEL
  9. 6. ADJUDICATION AND THE INSTITUTIONAL STRUCTURE OF THE HOUSE OF LORDS
  10. CONCLUSIONS

We may continue Dworkin's literary analogy using a recent decision of the French Cour de Cassation.76 Francois Ceresa, a journalist and author, wrote two books which were published as sequels to Victor Hugo's Les Misérables. Hugo's heir, Pierre Hugo, together with the Société des gens de lettres, brought a claim against the author and the publisher for damaging the moral rights of his ancestor. The Cour de Cassation allowed an appeal from the Cour d'Appel's decision awarding symbolic damages of one euro. It was open to the author to write a sequel, even to the point, as M. Ceresa did, of bringing back to life Inspector Javert, whom Hugo had drowned in the Seine. The Cour de Cassation held that it had not been established that any damage had been done to Les Misérables by the works and that Hugo had left his works to literary posterity. In a similar way, it is submitted, once a judge has handed down a decision, his judgment becomes part of the law, rather than his own literary work. It is open to the interpretation of subsequent judges (author-critics). We may return again to Lord Hoffmann's dictum in Deutsche Morgan Grenfell: ‘Once a judgment has been published, its interpretation belongs to posterity and its author and those who agreed with him at the time have no better claim to be able to declare its meaning than anyone else’.77

The cases considered above cast Lord Hoffmann as author. When one compares his speeches in Twinsectra and Barlow Clowes, the volte-face is reminiscent of the Return of Holmes. Dr Watson, who had been unaware of Holmes' survival, describes the tale as both an ‘inconceivable sequel’78 and ‘a remarkable narrative’.79 Conan Doyle tested his readership, because the suspension of disbelief can only carry the reader so far. Furthermore, Holmes was more than one of Conan Doyle's own characters, for he had become part of the literary heritage, and the readership therefore felt as though it too had a share in the ownership of the character.80 In the same way, again, a judge does not retain prerogative rights of ownership of his own judgments as Lord Hoffmann's treatment suggests. What is more, Lord Hoffmann cannot, as Conan Doyle might, plead artistic licence in his defence. In June 1927, after a competition run by the Strand, Conan Doyle selected his 12 favourite Holmes stories and placed ‘The Empty House’ in the top six, because it ‘essays the difficult task of explaining away the alleged death of Holmes’.81 It was a difficult task indeed: readers welcomed Holmes back, but found it hard to reconcile the account of his demise with his miraculous return. Similarly, we might welcome the decision in Barlow Clowes for putting the law of dishonest assistance on a more sensible footing, but the process of getting there is distinctly awkward.

Had M. Hugo's claim succeeded, the author (and his heirs) would have been recognised as having a better claim over the text than anyone else. The effect of such an approach to judgments constitutes a refusal to engage in interpretation. A conspicuous example of such a tendency has been seen recently in the law of restitution, with the treatment of Lord Goff's speech in Lipkin Gorman v Karpnale Ltd.82 In the first authoritative recognition of the defence of change of position to a claim for restitution of an unjust enrichment, Lord Goff formulated the principle broadly, rightly avoiding the use of overly restrictive or prescriptive terms, in anticipation of further development through subsequent cases. The Court of Appeal has adopted a rather dogmatic approach which treats the speech as gospel, or as though it were a statute.83 Of course, the doctrine of precedent dictates that the Court of Appeal must show due reverence and deference to binding decisions of the House of Lords. But Lord Goff was advocating the incremental development of principle, not an approach which decides each case solely on its own facts at the expense of coherence. This is true not least because to adopt the latter approach is to grant Lord Goff too much deference as the author. It is true that Lord Goff and Professor Jones did write a book entitled The Law of Restitution,84 and have been rightly recognised for their tremendous achievement, and Lord Goff, as a judge in the House of Lords, blazed a trail for the law of unjust enrichment, but they are not the authors of the law of restitution.

While it is argued that a judge does not in principle have a prerogative over his previous decisions, this question matters because of the practical effects. A judge's explanation of his own reasoning may well carry particular force, as where he resolves a genuine ambiguity, or indeed when he changes his mind having been persuaded that his previous position was wrong, as Lord Bridge did in R v Shivpuri.85 As we expect honesty of our judges, we may well be more likely to accept a judge's own clarification of his reasoning than that of a later judge. To return to the literature, although pleased to read both stories, readers will be more willing to accept the resurrection of a main character when it is Conan Doyle himself who brings back Holmes than when it is Ceresa, a subsequent author, bringing back Hugo's Javert.

6. ADJUDICATION AND THE INSTITUTIONAL STRUCTURE OF THE HOUSE OF LORDS

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. 1. LORD HOFFMANN, PRAETOR OF LAW'S EMPIRE?
  5. 2. COHERENCE AND DWORKIN'S POSITION
  6. 3. BARLOW CLOWES
  7. 4. BARKER V CORUS
  8. 5. LAW AS A CHAIN NOVEL
  9. 6. ADJUDICATION AND THE INSTITUTIONAL STRUCTURE OF THE HOUSE OF LORDS
  10. CONCLUSIONS

Professors Kornhauser and Sager have recognised the significance of institutional structures to general theories of adjudication.86 What emerges from this discussion is that the idiosyncratic structure and practice of the Appellate Committee of the House of Lords87 pose particular difficulties for adjudication.88 In general, five out of twelve of the Law Lords sit on a regular appeal. Such a structure necessarily entails that a differently constituted Committee, each of whom may give a reasoned speech, may hear an appeal on a similar point to that of a recent decision of another Committee, each of whom may also have given a reasoned speech. As we have seen in Barker and Barlow Clowes, sometimes there will be an overlap of the judges on both Committees.

In Barlow Clowes, the relatively straightforward question was what test for dishonesty their Lordships had agreed upon. As in Twinsectra and Tan, there were three options: objective, subjective or objective with a subjective element. ‘Robin Hood’ dishonesty, which leaves the rogue to live up to his own standards, is rejected out of hand, and so the choice was essentially between two: an entirely objective test or a combined one. Both tests have some judicial and academic support. It has been argued above that the House of Lords chose the combined test in Twinsectra, while the Privy Council chose the objective test in Barlow Clowes, and yet, through an alchemistic sleight of hand, the Privy Council purported to be merely interpreting Twinsectra.

In Barker, it has been seen that the question was more complicated, because the issue was the broader justification of the decision in Fairchild of their Lordships, who all agreed in the result but each of whom delivered an independently reasoned speech. The majority in Barker adopted the analysis of one of those judges, Lord Hoffmann, who had proposed a particular analysis of Fairchild.

Given that all their Lordships in Fairchild agreed with the result, would the task have been easier in Barker if there had only been one speech? The ratio and rationale of the decision may well have been clearer. The Court of Appeal has recently adopted a similar practice, because it ‘reduces the material that has to be read, avoids the opportunity for differences of opinion and provides greater clarity’.89 But there is reason to doubt whether it would be a good thing. Writing extra judicially, Lord Mance90 has extolled the virtue of multiple speeches in English law over the consensus judgments in the European Court of Justice. Lord Reid recognised the value of the current practice in a classic passage in Cassell & Co Ltd v Broome:91

‘With the passage of time I have come more and more firmly to the conclusion that it is never wise to have only one speech in this House dealing with an important question of law. My main reason is that experience has shown that those who have to apply the decision to other cases and still more those who wish to criticise it seem to find it difficult to avoid treating sentences and phrases in a single speech as if they were provisions in an Act of Parliament. They do not seem to realise that it is not the function of noble and learned Lords or indeed of any judges to frame definitions or to lay down hard and fast rules. It is their function to enunciate principles and much that they say is intended to be illustrative or explanatory and not to be definitive. When there are two or more speeches they must be read together and then it is generally much easier to see what are the principles involved and what are merely illustrations of it.’92

But, as perhaps Barker illustrates, the principles may not always be elucidated by the combination of concurring speeches. Adopting the practice of the US Supreme Court of a principal majority judgment, with other judges explicitly concurring in part and dissenting in part as regards certain sections, might aid coherence,93 as Baroness Hale has recently suggested:94‘There would be less grist to the advocates' and academics' mills, but future litigants might thank us for that’.95 But there's the rub: as this paper has suggested, the mere expression of concurrence by the author is not necessarily determinative. It is for subsequent judges, advocates and academics to interpret the judgments.96

To return to the institutional structure of the House, the concern is that consistency is undermined if the judges do not seek coherence. In Rees v Darlington Memorial Hospital,97 Lord Bingham observed:

‘[7] (It) would be wholly contrary to the practice of the House to disturb its unanimous decision in McFarlane given as recently as four years ago, even if a differently constituted committee were to conclude that a different solution should have been adopted. It would reflect no credit on the administration of the law if a line of English authority were to be disapproved in 1999 and reinstated in 2003 with no reason for the change beyond a change in the balance of judicial opinion.’98

Although this statement was in the context of considering whether to use the Practice Statement to depart from a recent decision, it is submitted that both Barlow Clowes and Barker demonstrate the dangers of revisionism masquerading as consistent interpretation. As remarked above, it is a feature of the structure of the organisation of appeals to the House of Lords that a differently constituted Committee of five Law Lords may hear a related appeal shortly after another Committee has decided a case. Lord Bingham's point is that it is insufficient that some or all of the Law Lords take a different view. In the cases under consideration, Lord Hoffmann sat on the panel in both the precedent and instant decisions, but it has been suggested that the presence of Lords Nicholls and Walker on the panel in Barlow Clowes goes some way to explaining the result of the decision.99 Litigants should not be able to pull the common trick of the toddler wanting a bar of chocolate who, on being told ‘No’ by one parent, runs to the other in search of a more favourable answer.

Perhaps, then, our problem stems from the fact that, although never empty, the House of Lords is never quite full. This point is not intended to lead necessarily to the conclusion that all 12 Law Lords should sit on every case,100 as is the general practice in the US Supreme Court, as the volume of appeals to both the Lords and the Privy Council would render such an arrangement unwieldy and impractical. But it is right to observe that with the institutional structure of the House comes a special responsibility on their Lordships to strive for coherence. Kornhauser and Sager suggest two necessary conditions for such a panel as the House of Lords:

‘To achieve coherence a panel must satisfy additional conditions: Each judge must offer a decision she believes coherent with the prior decisions of the court (as opposed to her own view in prior cases), and the panel must have a common conception of coherence.’101

With this formulation, it may be suggested that Lord Hoffmann's quasi-Dworkinian reasoning relies too much on an individual conception of coherence.102

CONCLUSIONS

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. 1. LORD HOFFMANN, PRAETOR OF LAW'S EMPIRE?
  5. 2. COHERENCE AND DWORKIN'S POSITION
  6. 3. BARLOW CLOWES
  7. 4. BARKER V CORUS
  8. 5. LAW AS A CHAIN NOVEL
  9. 6. ADJUDICATION AND THE INSTITUTIONAL STRUCTURE OF THE HOUSE OF LORDS
  10. CONCLUSIONS

By way of a postscript, it is fitting to note that Conan Doyle had his own opinion on the chain novel as a literary device. In the early 1890s, the English journalist WT Stead wanted to produce for his daily paper just such a chain novel as envisaged by Dworkin in Law's Empire:

‘These “novelist-journalists”, drawn from the best literary talent in England, were to be the creators of a “serialized cooperative novel” which would “vivify the whole record of contemporary history . . . to [the] . . . vast masses of inert and apathetic citizenship in England”.’103

Stead invited Conan Doyle to contribute. Conan Doyle responded in uncompromising fashion:

‘Your plan would spoil the Novelist, and the Novelist would spoil your plan . . . In writing a long story by many hands, all possibility of character drawing must be abandoned, that is absolutely certain . . . from a literary point of view[,] it must be uneven, disjointed and superficial.’104

It has been illustrated here that, although we need not adopt quite as sceptical an attitude to the interpretive enterprise of judging, we must confront the very significant challenges raised by the law being ‘a long story written by many hands’.

In his Memoirs, Sir Arthur Conan Doyle reflected on his resurrection of Holmes:

‘Some have thought there was a falling off in the stories and the criticism was neatly expressed by a Cornish boatman who said to me, “I think, sir, when Holmes fell over that cliff, he may not have killed himself, but all the same he was never quite the same man afterwards.” I think, however, that if the reader began the series backwards so that he brought fresh mind to the last stories, he would agree with me that, though the general average may not be conspicuously high, still the last one is as good as the first.’105

Equally, the law was never quite the same after the decisions in Barlow and Barker. We do not know what the Cornish boatman thought of Conan Doyle's defence, but, whatever a judge thinks of his own decisions, it matters more that the result is coherent with what has gone before. As Conan Doyle suggests, a Sherlock Holmes adventure can be enjoyed alone as its own story independent of its prequel or sequel. But here our analogy ends: we cannot read the law backwards and we cannot understand a decision by considering it in isolation from previous cases. A judicial attitude to interpretation that faithfully engages with past decisions is imperative if we are to fight off damaging scepticism and suspicion. Such an approach will, in turn, allow us to keep faith with our judges.

Footnotes
  • * 

    I am grateful to Professor Richard Buckley, Professor Adrian Briggs, Professor Brice Dickson, Mr Stuart Lakin and the editors for their comments and guidance. Drafts of this paper were presented to the Oxford Jurisprudence Discussion Group and at the Society of Legal Scholars (SLS) Annual Conference at Durham University, and I appreciated the helpful insights of those who attended both presentations. I thank the University of Reading Research Travel Fund for supporting my attendance at the SLS Conference. Any errors are my own.

  • 1

    A Conan Doyle The Adventure of the Empty House’ in The Return of Sherlock Holmes (Oxford: Oxford University Press, 1993) p 3.

  • 2

    It should be noted, for the sake of accuracy, that ‘The Hound of the Baskervilles’ was published in 1901, but its setting preceded ‘The Final Problem’. ‘The Adventure of the Empty House’ was first published in Collier's in September 1903. ‘The Empty House’ is itself legally notable for posing an archetypal criminal law problem, when Colonel Moran shoots a wax dummy of Holmes, believing it to be the man himself; see, eg, W Cook Act, intention and motive in criminal law’ (19161917) 26 Yale LJ 645.

  • 3

    R Dworkin Law's Empire (London: Fontana Press, 1986) p 229.

  • 4

    Dworkin himself acknowledges, but disputes, this point in his Hart Memorial Lecture: Hart's postscript and the character of political philosophy’ (2004) 24 OJLS 1 at 36, reprinted as (‘Hart Lecture’ postea, with references to the OJLS version).

  • 5

    See section 1 below.

  • 6

    Dworkin, rightly in this author's view, believes that legal philosophy should try to be ‘interesting’: Hart Lecture, above n 4, at 36–37.

  • 7

    Lord Hoffmann Book review’ (1989) 105 LQR 140 at 142.

  • 8

    Ibid.

  • 9

    JL Mackie The third theory of law’ (1977) 7 Philosophy and Public Affairs 3 at 7.

  • 10

    R Dworkin Taking Rights Seriously (London: Duckworth, 1977) p 23.

  • 11

    P Birks Restitution and wrongs’ (1982) CLP 53 at 61.

  • 12

    Dworkin, above n 3, p 1.

  • 13

    Ibid., p 2.

  • 14

    Since the retirement of Lord Nicholls of Birkenhead on 10 January 2007.

  • 15

    [2006] UKHL 20, [2006] 2 AC 572.

  • 16

    [2005] UKPC 37, [2006] 1 All ER 333.

  • 17

    Barker considered Fairchild v Glenhaven Funeral Services [2002] UKHL 22, [2003] 1 AC 32. Barlow Clowes considered Twinsectra v Yardley [2002] 2 AC 164.

  • 18

    R Dworkin ‘Hard cases’ in Taking Rights Seriously, above n 10, at p 87.

  • 19

    Hart Lecture, above n 4, at 35.

  • 20

    N MacCormick Rhetoric and the Rule of Law (Oxford: Oxford University Press, 2006) at p 30.

  • 21

    S Hershovitz Integrity and Stare Decisis’ in SHershovitz (ed) Exploring Law's Empire (Oxford University Press, 2006).

  • 22

    [1983] 1 AC 410.

  • 23

    Ibid, at 430.

  • 24

    For further criticism of Dworkin's use of McLoughlin, see S Lee Law's British Empire?’ (1988) 8 OJLS 278.

  • 25

    Jones v Ministry of Interior of the Kingdom of Saudi Arabia and Another (Secretary of State for Constitutional Affairs and Others Intervening); Mitchell and Others v Al-Dali and Others [2006] UKHL 26, [2007] 1 All ER 113.

  • 26

    Ibid, at [63]. See also Lord Hoffmann, above n 7, at 143–145. This paper is concerned with the issue of fidelity, but other reasons to doubt Lord Hoffmann's true philosophical allegiance to Dworkin may be found in his speech in White v Chief Constable of South Yorkshire[1999] 1 All ER 1. In White, Lords Steyn and Hoffmann, for the majority, reoriented the law of psychiatric harm onto the basis of distributive justice. Lord Hoffmann claimed that ‘the search for principle was called off’ (at 47) in Alcock v Chief Constable of South Yorkshire[1991] 4 All ER 907, and decided the case expressly on policy grounds. It may or may not be a coincidence that one of the vigorous dissentients in that case was Lord Goff, whose 1983 Maccabaean Lecture was entitled The search for principle’ (1983) 69 Proceedings of the British Academy 169, as was the Festschrift published in his honour:

  • 27

    [2006] UKHL 49, [2007] 1 AC 558.

  • 28

    [1999] 2 AC 349.

  • 29

    Deutsche Morgan Grenfell, above n 27, at [14] (emphasis added).

  • 30

    See above n 18.

  • 31

    MacCormick, above n 20, p 190.

  • 32

    S Hurley ‘Coherence, hypothetical cases, and precedent’ in Hershovitz, above n 21, p 69.

  • 33

    J Raz The relevance of coherence’ and ‘Appendix: speaking with one voice on Dworkinian integrity and coherence’ in his >Ethics in the Public Domain (Oxford: Clarendon, 1994).

  • 34

    Ibid, p 277, fn 3, and Appendix.

  • 35

    Above n 21.

  • 36

    R Dworkin ‘Response’ in ibid, p 295.

  • 37

    R Dworkin A reply to critics’ in Taking Rights Seriously (New Impression with Appendix, London: Duckworth, 1978).

  • 38

    Ibid, p 360.

  • 39

    Hart Lecture, above n 4, at 25.

  • 40

    It may be that Dworkin's recasting of fit as procedural fairness should not be taken at face value: ‘Conceptions of legality differ . . . about what kinds of standards are sufficient to satisfy legality and in what way these standards must be established in advance; claims of law are claims about which standards of the right sort have in fact been established in the right way’: ibid, at 24.

  • 41

    [2002] 2 AC 164.

  • 42

    The other members of the Panel were Lords Nicholls, Steyn, Walker and Carswell. It is, of course, accepted that Lord Hoffmann's speech does not necessarily represent his views alone, but that is in part the point: see section 6 below.

  • 43

    [1995] 2 AC 378.

  • 44

    [2005] UKPC 23, [2005] 2 AC 580.

  • 45

    [2001] 1 AC 146.

  • 46

    Holley, above n 44, per Lord Nicholls for the majority at [1]. This effect on English law of the appeal was also accepted by Lords Bingham and Hoffmann in their minority opinion, at [68].

  • 47

    [2006] EWCA Crim 14, [2006] QB 588.

  • 48

    See, eg, D Ryan ‘Royal Brunei dishonesty: clarity at last?’ [2006] Conv 188.

  • 49

    G Virgo The role of fault in the law of restitution’ in ABurrows and A Rodger (eds) Mapping the Law (Oxford: Oxford University Press, 2006) at p 86.

  • 50

    Twinsectra, above n 41, at [19].

  • 51

    Ibid, at [20].

  • 52

    Ibid, per Lord Steyn at [7] and Lord Hutton at [27]

  • 53

    R v Shivpuri [1987] AC 1 at 23. The decision in Shivpuri departed from Anderton v Ryan [1985] AC 560 on the question of whether it was a defence to charge of a criminal attempt that it would in fact have been impossible to commit the crime, which is itself related to the question posed in ‘The Adventure of the Empty House’, above n 1.

  • 54

    Hershovitz, above n 21, p 116.

  • 55

    Dworking, above n 18, pp 118–123.

  • 56

    Kleinwort Benson, above n 28, at 398.

  • 57

    [2004] EWCA Civ 1853 at [32] per Kennedy LJ.

  • 58

    [2004] EWCA Civ 1028, [2004] 1 WLR 2577 per Sir William Aldous at [26]–[27] and per Pill LJ at [44]–[45].

  • 59

    For example, Payne v Pensions Ombudsman [2003] All ER (D) 164 (Dec) and Morris and Others v Bank of India [2004] All ER (D) 378 (Mar).

  • 60

    ‘I must confess that I am doubtful whether the law as stated in Royal Brunei is clearer after Twinsectra’: R Walker Dishonesty and unconscionable conduct in commercial life – some reflections on accessory liability and knowing receipt’ (2005) 27 Sydney Law Review 187 at 197.

  • 61

    ‘ “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean – neither more nor less.”“The question is,” said Alice, “whether you can make words mean so many different things.”“The question is,” said Humpty Dumpty, “which is to be master – that is all.” ’: L Carroll Through the Looking Glass’ in Alice's Adventures in Wonderland and Through the Looking Glass (Oxford: Oxford World's Classics, 1985) p 190 (original emphasis).

  • 62

    Mackie, above n 9, at 15–16.

  • 63

    Above n 15.

  • 64

    Fairchild, above n 17, at [7] per Lord Bingham.

  • 65

    Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428.

  • 66

    Barker v Saint-Gobain Pipelines plc [2004] EWCA Civ 545, [2005] 3 All ER 661.

  • 67

    Barker v Corus, above n 15, at [23].

  • 68

    Ibid, per Lord Rodger at [68] and per Baroness Hale at [120]; see also Counsel for the defendants' argument [2006] 2 AC 572 at 575–577.

  • 69

    Barker, above n 15, at [120].

  • 70

    J Stapleton Occam's Razor reveals an orthodox basis for Chester v Afshar’ (2006) 122 LQR 426 at 448, fn 77.

  • 71

    Barker, above n 15, per Lord Hoffmann at [35].

  • 72

    For a forensic assessment of Lord Hoffmann's approach to causation in tort in the cases of Fairchild, Barker and Chester v Afshar[2004] UKHL 41, [2005] 1 AC 134, see J Steele “Breach of duty causing harm?” Recent encounters between negligence and risk’ (2007) 60 Current Legal Problems 296.

  • 73

    The topic can only be adumbrated here, but may be considered in a subsequent project. To be clear, I do not intend to suggest that Lord Hoffmann should bear direct responsibility for this unhappy legislative intervention.

  • 74

    Dworkin, above n 4, at 3ff. See also the real case of Sindell v Abbott Laboratories 607 P 2d 924 (1980).

  • 75

    Barker, above n 15, at [44], citing the Supreme Court of California in Brown v Superior Court 751 P 2d 470 (1988); and at [45], citing the Court of Appeals of New York in Hymowitz v Eli Lilly & Co (1989) 539 NE 2d 1069.

  • 76

    Arrêt No 125 du 30 janvier 2007: société Plon SA c. M. Pierre Hugo (Hugo). See N Haynes ‘Les Misérables 2: how doubly depressing’ The Times 3 February 2007.

  • 77

    Above n 27.

  • 78

    Above n 1.

  • 79

    Ibid, p 12.

  • 80

    The characters of Holmes and Watson have themselves been the subject of litigation: Conan Doyle v London Mystery Magazine (1949) 66 RPC 312 and Tyburn Productions Ltd v Conan Doyle [1991] Ch 75, although the latter case concerned the justiciability of foreign intellectual property rights in English courts.

  • 81

    A Conan Doyle ‘How I made my List’ Strand 73 (June 1927) 611–612. Conan Doyle concluded by reflecting on the invidious role of a judge: ‘(It) is proverbially a mistake for a judge to give his reasons, but I have analysed mine if only to show any competitors that I really have taken some trouble in the matter’.

  • 82

    [1991] 2 AC 548 at 580.

  • 83

    For example, the judgment of Munby J in Commerzbank AG v Price-Jones [2003] EWCA Civ 1663 at [48].

  • 84

    R Goff and G Jones The Law of Restitution (London: Sweet & Maxwell, 1st edn, 1966).

  • 85

    Above n 53.

  • 86

    LA Kornhauser and LG Sager Unpacking the court’ (1986) 96 Yale LJ 82. See also at 67–68.

  • 87

    For ease of discussion here, this section will refer in general to the structure of the House of Lords, whilst noting that the Privy Council's structure has related but distinct problems owing to a larger pool of judges and the general practice of issuing univocal judgments.

  • 88

    Professor Dickson has recently published a valuable appraisal of the practical aspects of the House's institutional structure, in anticipation of the transition to the Supreme Court for the United Kingdom: B Dickson The processing of appeals in the House of Lords’ (2007) 123 LQR 571, especially 589–593.

  • 89

    Master of the Rolls, Review of the Legal Year 2001–2002, available at http://www.hmcourts-service.gov.uk/cms/files/review_legal_year_2002.pdf.

  • 90

    J Mance Exclusive jurisdiction agreements and European ideals’ (2004) 120 LQR 357.

  • 91

    [1972] AC 1027.

  • 92

    Ibid, at 1084–1085. See also Lord Reid The judge as law-maker’ (1972) 12 Journal of the Society of Public Teachers of Law (NS) 22 at 29.

  • 93

    Likewise, coherence might be aided by the customary practice of the Privy Council of providing single majority judgments, with rare dissents if necessary.

  • 94

    OBG Ltd and Another v Allan and Others, Douglas and Others v Hello! Ltd and Others (No 3), Mainstream Properties Ltd v Young (Conjoined Appeals) [2007] UKHL 21, [2007] 4 All ER 545 at [303]. Continuing the theme of this paper, it should be observed that one of the protagonists in the Mainstream appeal was a Mr Moriarty.

  • 95

    Ibid.

  • 96

    I am grateful to Professor Briggs for this clarification. See also Mackie, above n 9.

  • 97

    [2003] UKHL 52, [2004] 1 AC 309.

  • 98

    Although further consideration of Rees is beyond the scope of this article, it should be noted in passing that the majority decision, in which Lord Bingham joined, itself placed a revelatory gloss on a previous decision of the House of Lords, McFarlane v Tayside Health Board [2000] 2 AC 59.

  • 99

    TM Yeo Dishonest assistance: restatement from the Privy Council’ (2006) 122 LQR 171 at 172: Lord Walker also agreed with Lord Hoffmann in Barker.

  • 100

    Under s 42(1) of the Constitutional Reform Act 2005, the new Supreme Court is to adopt the existing practice in the House of Lords in this respect: any composition of judges will be permissible for a panel, subject to a quorum of three members and that there must be an odd number of judges. Conservatism on this point was favoured by a majority of responses to the government's consultation paper: see text to question 19 in the Summary of Responses to the Consultation Paper Constitutional Reform: A Supreme Court for the United Kingdom (January 2004), available at http://www.dca.gov.uk/consult/supremecourt/scresp.htm#part3. The Society of Legal Scholars (SLS) had advocated a shift to en banc, so as to avoid ‘speculation about what the outcome might have been had different judges sat’; see SLS Response to the Consultation Paper CP11/03, available at http://www.legalscholars.ac.uk/documents/cp.11.03.pdf. Of course, if the House were to sit en banc, it would be necessary to change the number of judges on the Appellate Committee to an odd number, to avoid the risk of an evenly split decision. The Supreme Court is to continue with 12 permanent members: s 23(2) of the Constitutional Reform Act 2005.

  • 101

    Kornhauser and Sager, above n 86, at 117. It should be noted that Kornhauser and Sager do not direct these conditions specifically at the House of Lords per se, but it is submitted that their conclusion is applicable.

  • 102

    For an account of different uses of ‘coherence’, see generally Raz, above n 33.

  • 103

    JO Baylen A letter from Conan Doyle on the “novelist-journalist”’ (1958) 12 Nineteenth-Century Fiction 321 at 321–322.

  • 104

    Ibid, at 322–323 (original emphasis).

  • 105

    Sir Arthur Conan Doyle Memoirs and Adventures (London: John Murray, 2nd edn, 1930) p 116.