WHAT ABOUT LAW?

Most young people considering studying law, or pursuing a career in the law,
have very little idea of what learning law involves and how universities teach
law to their students. This book provides a ‘taster’ for the study of law; a short,
accessible presentation of the study of law as an academic subject, designed to
help 17- and 18-year-old students and others decide whether law as an academic
discipline is the right choice for them as a university subject, or, if they have
already made the choice, what to expect when they start their studies
What About Law? counters the perception that law is a dry, dull subject. On
the contrary, the book shows how the study of law can be fun, intellectually
stimulating, challenging and of direct relevance to students. Using a case study
approach, the book introduces prospective law students to the legal system, as
well as to legal reasoning, critical thinking and argument.
This is a book that should be in the library of every school with a sixth form,
every college and every university, and it is one that any student about to
embark on the study of law should read before they commence their legal
studies.
For more information and full details of the cases see the companion
website www.whataboutlaw.com or www.whataboutlaw.co.uk.
All of the authors have long experience in teaching law. They have also
been involved in advising prospective law students at open days and admissions
conferences at Cambridge and beyond.

2
 What About Law?
Studying Law at University

Catherine Barnard, Janet O’Sullivan and Graham Virgo

With contributions by:

Mark Elliott
Kevin Gray
Tony Weir

3
 Hart Publishing
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Website: www.isbs.com

© in the introduction and conclusion, Catherine Barnard, Janet O’Sullivan and Graham Virgo
2011. © in the individual chapters the contributors severally.

Catherine Barnard, Janet O’Sullivan, Graham Virgo and the contributors have asserted their
right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this
work.

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system,
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British Library Cataloguing in Publication Data

Data Available

ISBN-13: 978-1-84113-632-5

Typeset by Forewords, Oxford

Printed and bound in Great Britain by
TJ International Ltd, Padstow, Cornwall

4
Foreword

The two questions most often asked of a barrister about his or her profession
are, ‘How can you defend someone if you know they are guilty?’ and ‘What
should I (or my son/daughter) read in order to decide whether to study law?’.
This book now provides the answer to the second enquiry, leaving more time
for discussing the first.
You can learn something about legal studies by reading the law reports in
The Times or attending a trial at your local Crown Court or watching classic
films such as Twelve Angry Men. But like a tourist in a foreign country where
you do not speak the language, it can help to have a professional guide. The
authors of this volume expertly identify and communicate the essence of the
subject: its broad scope, covering a wide range of social, political and moral
problems; its intellectually satisfying methods of analysis, based on logic,
precedent and judgment; and, above all, its entertainment value.
The law addresses everyday concerns and its reasoning is often no more
than applied common sense. But we lawyers do not make it easy for others to
understand what we are talking about. Lawyers still have, as Jonathan Swift
observed nearly 300 years ago, ‘a peculiar cant and jargon of their own, that no
other mortal can understand’. This can be confusing, even intimidating, to
others. One of the great merits of this volume is that the authors demystify the
process. They strip away the obscurities and explain what the study of law is
really all about.
I very much hope and expect that the information, and enthusiasm,
contained in these pages will encourage potential law students. Our society may
not need more lawyers. But we certainly need more lawyers who think clearly
about the meaning and the content of the laws that govern all our lives.

Lord Pannick QC
Blackstone Chambers Temple
London EC4Y 9BW

5
Preface

What About Law? is primarily intended to be a ‘taster’ for the study of law as an
academic subject, with a view to helping prospective students decide whether
reading law at university is for them. It also aims to provide an introduction to
the main subjects students will study for a law degree. We hope that many other
sorts of reader will find something in it to interest them too, perhaps school
careers’ advisers or parents wishing to understand what their children are
studying, or planning to study, at university. Indeed, we hope that any
intelligent non-lawyer who has ever wanted to know a bit more about English
law will find this book a valuable tool.
However, this book comes with a health warning: it does not provide a
comprehensive review of the nuts and bolts of the legal system. There are plenty
of such books on the market. Nor is it packed full of useful tips as to how to be
a good student of law (how to write good essays, how to prepare for exams, etc)
or how to become a barrister or solicitor. Rather, it explores what the law is,
how it has developed, how the judges interpret it and why it is that way. It does
so by examining seven cases, each one taken from the subjects forming the
‘core’ of any law syllabus (criminal, contract, tort, land, equity, constitutional
and EU Law). These seven core subjects are the minimum which students must
study, and pass, in order to be able to undertake their professional training to
become practising solicitors or barristers. Sometimes students consider these
subjects dry and technical. The aim of these chapters is to show that they are
anything but.
In analysing the seven cases, the various authors examine the legal issues
raised, the legal reasoning employed by the judges in the different courts, and
the relationship between the particular area of law and some of the broader
social, political, philosophical, ethical and economic debates. But, of course,
each chapter inevitably moves beyond the one chosen case, exploring other
aspects of the relevant legal landscape, such as related decisions of other courts
as well as legislative developments.
Putting it another way, the aim of this book is to use the cases in the same

6
way as newspapers write features on the ‘life in the day’ of a particular
celebrity: each case is used to illustrate issues which have ramifications beyond
the immediate subject in hand. The subjects of many of these cases are not
celebrities, certainly not in the tabloid sense of the word, but ordinary people
suffering the vicissitudes of life. And because each case is known by the name
of the parties (and not by a sterile reference number or date as on the continent)
these individuals acquire a certain celebrity status among law students. If you
like what you see, you can read the actual cases themselves on the companion
website (www.whataboutlaw.com).
As you will discover, the cases studied in the core subjects are the
foundations to understanding any branch of law and for learning that elusive
skill—how to ‘think like a lawyer’ (and this certainly does not mean how to
charge clients a lot of money). Of course the study of law is academically
demanding (this should never be forgotten), but it is also intellectually
stimulating, controversial, of daily relevance and very often highly entertaining.
Each of the authors of the chapters in this book is a leading academic and
we have, cumulatively, over a century of university teaching and research
experience. We hope that we have managed to convey some small part of our
own boundless enthusiasm for our subjects—if so, we will have achieved our
objective.

Catherine Barnard, Janet O’Sullivan and Graham Virgo (editors)

Cambridge, September 2010

7
Acknowledgements

This project has had a long gestation period. The editors are extremely grateful
to Richard Hart and his team for their enthusiasm for this book, for their support
for this rather unusual venture and for all their help in bringing this second
edition to fruition. While many of our friends, colleagues and students have
given us help, advice and inspiration, we should like to express particular thanks
to Albertina Albors-Llorens, Tony Arnull, Caroline Blyth, John Cary, Charles
Cook, Phil Fellows, Daniel Francis, David Feldman, Amy Goymour, Jonathan
Hilliard, Dominic Hockley, Emily Haystead, Angus Johnston, Magnus Jones,
James Lawson, Jake Rowbottom, Jens Scherpe and Rob Veale. We are also
most grateful to the various reviewers of this book for their comments and for
the feedback from students which we have tried to take into account.
The editors would also like to express sincere thanks to their colleagues and
friends, Mark Elliott, Kevin Gray and Tony Weir for writing the constitutional,
land law and tort chapters, respectively, and for their constant encouragement
and support for this project.

CSB
JAO
GJV

8
Contents

Foreword
Preface
Acknowledgements
List of Contributors

1 Introduction to Law
Catherine Barnard, Graham Virgo and Janet O’Sullivan
STARTING TO THINK ABOUT LAW
THE TOOLS
LEGAL METHOD
INTERPRETATION
IMAGINATION
GENERALISATION
POLICY UNDERPINNING THE RULE
ONE FINAL EXAMPLE
CONCLUSIONS

2 Criminal Law
Graham Virgo
THE ELEMENTS OF A CRIME
THE REASONS FOR PUNISHMENT
REASONS FOR CHARACTERISING CONDUCT AS CRIMINAL
FACTS OF BROWN
THE KEY OFFENCES
THE ISSUE IN BROWN

9
 APPLICATION OF THE DECISION
THE DISSENTING JUDGES
THEORY: AUTONOMY VERSUS WELFARE
SUBSEQUENT EVENTS: MOTIVE AND RISK
HUMAN RIGHTS
LAW REFORM
CONCLUSIONS

3 Law of Contract
Janet O’Sullivan
INTRODUCTION
SOME CRUCIAL IDEAS ABOUT CONTRACTUAL REMEDIES
THE CASE
THE HOUSE OF LORDS DECISION IN MORE DETAIL
WHAT HAS HAPPENED SINCE RUXLEY?
WHAT IF THE BUILDER HAD SAVED MONEY BY BREACHING THE
CONTRACT?
CONCLUSION

4 Tort
Tony Weir
THE MOST FAMOUS TORT CASE
THE ‘DUTY’ QUESTION
THE KIND OF HARM
DAMAGE AND LOSS
RECOVERY FOR PURE FINANCIAL HARM
APPLICATION IN McFARLANE
FAIR, JUST AND REASONABLE
THE REASONS GIVEN IN McFARLANE
THE SPEECH OF LORD STEYN
DISTRIBUTIVE JUSTICE

10
 PSYCHIATRIC HARM
EFFECT ON THIRD PARTIES
TORT AS DETERRENCE
DETERRENCE AND COMPENSATION
TWO RECENT CASES
STATUTES AND JUDGE-MADE LAW
THE EFFECT OF McFARLANE
DAMAGE AND THE INVASION OF RIGHTS
THE UNWANTED BABY ABROAD
CONCLUSION

5 Land Law
Kevin Gray
INTRODUCTION
THE PROBLEM OF PROPERTY
THE CASE (CHHOKAR v CHHOKAR)
CONCLUSION

6 Equity
Graham Virgo
WHAT IS EQUITY?
THE CONTRIBUTION OF EQUITY
TYPES OF TRUST
THE FACTS OF FOSKETT v McKEOWN
THE POSSIBLE SOLUTIONS
IDENTIFICATION AND APPLICATION OF RULES AND PRINCIPLES
CONCLUSIONS

7 Constitutional Law
Mark Elliott
INTRODUCTION

11
 CONSTITUTIONS
BRITAIN’S CONSTITUTIONAL ARCHITECTURE
THE ROLE OF THE COURTS
THE COURTS’ ROLE: BROADER CONSIDERATIONS
SOME CONCLUSIONS

8 European Union Law

Catherine Barnard
INTRODUCTION
THE DISPUTE
INTRODUCTION TO KEY PRINCIPLES OF EUROPEAN UNION LAW
THE COURT OF JUSTICE’S DECISION
THE IMMEDIATE CONSEQUENCES OF THE BOSMAN RULING
THE LONGER-TERM CONSEQUENCES OF BOSMAN: THE
DEVELOPMENT OF UNION CITIZENSHIP
CONCLUSIONS

9 Conclusions: Drawing Some Threads Together

Janet O’Sullivan, Catherine Barnard and Graham Virgo

Epilogue

Index

12
List of Contributors

Catherine Barnard—Professor of European Union Law and Employment

Law, Fellow of Trinity College, Cambridge. Author of EC Employment Law 3rd
edn (Oxford, Oxford University Press, 2006) and The Substantive Law of the
EU: The Four Freedoms 3rd edn (Oxford, Oxford University Press, 2010).

Mark Elliott—Senior Lecturer in Law, Fellow of St Catharine’s College,

Cambridge, winner of Cambridge University Pilkington Teaching prize. Author
of Elliott and Thomas, Public Law (Oxford, Oxford University Press, 2011
forthcoming) and Beatson, Matthews and Elliott’s Text and Materials on
Administrative Law 4th edn (Oxford, Oxford University Press, 2011
forthcoming).

Kevin Gray—Professor of Law, FBA, Fellow of Trinity College, Cambridge.

Co-author of Gray and Gray, Elements of Land Law 5th edn (Oxford, Oxford
University Press, 2008) and Land Law 6th edn (Oxford, Oxford University
Press, 2009).

Janet O’Sullivan—Senior Lecturer in Law, Fellow of Selwyn College,

Cambridge, winner of Cambridge University Pilkington Teaching prize;
previously solicitor at Slaughter and May. Author of O’Sullivan and Hilliard,
The Law of Contract (Oxford, Oxford University Press, 2010).

Graham Virgo—Professor of English Private Law, Fellow of Downing

College, Cambridge, winner of Cambridge University Pilkington teaching prize;
barrister. Author of Principles of the Law of Restitution 2nd edn (Oxford,
Oxford University Press, 2006); Maudsley and Burn’s Trusts and Trustees
Cases and Materials 7th edn (Oxford, Oxford University Press, 2008) and
contributor to Simester and Sullivan’s Criminal Law Theory and Doctrine 4th
edn (Oxford, Hart Publishing, 2010).

13
Tony Weir—Emeritus Reader in Law, Fellow of Trinity College, Cambridge.
Author of A Casebook on Tort 10th edn (London, Sweet & Maxwell, 2004); An
Introduction to Tort Law 2nd edn (Oxford, Oxford University Press, 2006) and
Economic Torts (Oxford, Oxford University Press, 1997).

14
1

Introduction to Law

Catherine Barnard, Graham Virgo and Janet O’Sullivan

STARTING TO THINK ABOUT LAW

Picture this. Laura, who is 17, organises a party at the family home while her
parents are away for the weekend. It gets out of hand. For Laura and her
parents, it is a nightmare. But for a lawyer, there are as many questions as there
are empty bottles strewn the next morning across the prized living-room carpet.
What if the party was very noisy? It might have caused a nuisance to
neighbours living nearby and those neighbours might have contacted the local
authority, whose noise-prevention officers have powers to close the party down
or reduce the noise in some other way. If the party was large enough—and loud
enough—to cause a serious nuisance across a wide area, Laura and her guests
might even be prosecuted for the crime of public nuisance and eventually
punished.
What if the partygoers damaged the house or stole some of the family’s
possessions? These are obviously criminal offences, but what happens if the
perpetrators can’t be identified? Can guests be forced to give evidence of what
happened? Can they get into trouble if they don’t name names? If the
perpetrators are easily identified and have lots of money, Laura’s parents might
even consider suing them for compensation to cover the cost of all the damage.
If the parents choose not to bother, but claim instead on their household
insurance policy, can the insurance company recoup some of the money it pays
out from those responsible for the damage?
What if one of the invited guests, Mark, was seriously injured when he
tripped over a loose paving-stone on the patio—a stone that Laura’s parents

15
knew was dangerous and had been meaning to get fixed? He might want to sue
the parents for compensation, but would it make any difference to his chances
of success if the parents had expressly banned their daughter from inviting
anyone to their home while they were away? And what if Mark was drunk or
messing about when he tripped, but the paving stone was sufficiently dangerous
that he would, more likely than not, have tripped and suffered the same injury
even if he had been perfectly sober? Do people nowadays resort too readily to
litigation when injured, unwilling to accept that they have no one to blame but
themselves for what happened?
How would the arrival of gate-crashers affect the position? What was their
legal status while in the house—were they trespassers? If so, what does that
mean? They might be guilty of a crime, such as burglary, if they intended to
steal property. Could they be forcibly ejected by the hostess’s friends, even if
this requires physical violence? What if the hostess turned a blind eye to their
arrival or appeared to welcome them, but later wanted to throw them out? And
what if a gatecrasher is injured tripping on that same dodgy paving-stone?
The internet adds a new dimension to the problem. Perhaps Laura publicised
the party on an internet chatroom, or maybe some of her so-called friends
hacked into her account and publicised the party without her permission. Would
this generate any legal liability in itself? What about any responsibility of the
company supposed to monitor the chatroom? Is it asking too much to expect a
traditional, national legal system to cope with the challenges of an online world?
Did Laura buy alcohol for the party, even though there are supposed to be
laws preventing that happening? Or did she raid the parental drinks cabinet? Are
there any laws that penalise serving drinks to under-age people at private
parties, or any licensing requirements that apply to such private gatherings? We
all know about the problem of binge drinking, but some countries have laws
imposing ‘social host liability’—this means that if a host has served alcohol and
then allows an obviously drunk guest to drive home, the host might be liable to
pay compensation if the drunk driver later injures or kills someone on the road.
Should the same laws be introduced in the UK and, if so, should they apply just
to commercial premises, like pubs, or should they apply to private parties too?
And should they apply if the person killed or injured is not an innocent third
party but the drunk driver himself?
Meanwhile, back at the party, what if some guests did things they deeply
regretted next morning? If a woman consented to sex when drunk, but the man

16
knew that she wouldn’t have consented if she had been sober, is he guilty of
rape? And can a drunken consent to sex really be considered consent? What if a
man believes a woman is consenting, but only because he is too drunk to realise
that she isn’t? The legal age of consent to sex is 16, so what are the criminal law
consequences of a 19-year-old man having sex with a 15-year-old girl who said
she was 17, or of a 15-year-old boy having consensual sex with a girl his own
age? Is it right for the law to attach such overwhelming significance to the age
‘16’ in this context? Is it practicable to have laws that are so difficult to enforce?
As the party descended into chaos, there was a fight and a man was hurt.
Can he sue for damages, even though he was a willing participant in the fight?
If the fighting spilled out onto the street, can the police arrest the perpetrators
for causing a breach of the peace or for drunk and disorderly conduct? Are there
any additional protections for under-age suspects?
Finally, the police raided the party and found that illegal drugs were being
taken. Is it illegal to take drugs, to share them, or just to supply them? Is it
economically and politically sensible to tackle drug-taking using the criminal
law?
Laura is clearly going to be in trouble with her parents, but can she be held
legally responsible for any of these disastrous events, even if she spent all night
cowering in her bedroom, terrified and unable to do anything to bring the party
to an end? And should her parents be regarded as legally responsible, even
though they were not there and were horrified to discover the chaos when they
got home?

* * *

One party, but so many diverse and fascinating legal issues. Some are about
what the law is, others about why it is that way. Lawyers have to think in those
terms all the time. For many of the questions, there is no obvious ‘right’ answer,
because the law is surprisingly open to more than one interpretation and because
considerations of policy and fairness do not always point in the same direction.
Lawyers and law students need to think about all these issues, and this book will
give you a taste of the opinions and arguments that result.
We have taken seven cases—one from each of the core subjects that you
must study if you wish to start out on the career path of becoming a lawyer.
These subjects are essential building blocks for a proper understanding of law,
regardless of whether you go on to pursue a legal career. First, however, we

17
need to provide you with some of the basic tools of the trade to help make sense
of the cases that follow. Why not start with a fundamental (and very difficult)
question: what is law?

THE TOOLS

What Is Law?

The Oxford English Dictionary describes law as:

The body of rules, whether formally enacted or customary, which a
particular State or community recognises as governing the action of its
subjects or its members and which it may enforce by imposing penalties.

This definition is perfectly satisfactory as far as it goes, but it does not tell us
much about what law really is, either as an academic subject or in the way it
works for lawyers and members of the public. So let’s think in detail about
where law comes from and the role it plays in different sorts of disputes. (Don’t
forget that although this book focuses on court cases, knowing and
understanding the law allows lawyers to settle disputes without them ever
reaching court or, better still, preventing them from arising in the first place.)
We will return to the essential question of what we really mean by ‘law’ in the
final chapter, once you have read the rest of the book. It seems simple, but it is
actually one of the most difficult and controversial questions raised by the
philosophy of law (known as jurisprudence).

The Sources of Law

English law comes from a number of sources. First, because we do not have a
written constitution in the United Kingdom, the laws with the highest authority
in this country are statutes, passed by Parliament and given ‘royal assent’ by the
monarch. Statutes, also known as Acts of Parliament, are referred to as primary
sources of law. These primary laws may be supplemented by secondary sources,
known as secondary or delegated legislation, usually in the form of Statutory
Instruments (SIs). These are the nitty-gritty, detailed, technical rules fleshing
out in more detail a provision laid down in a particular Act of Parliament. SIs

18
are subject to less detailed parliamentary scrutiny. To give you an example, the
right for parents with children and those with caring responsibilities to request
flexible working hours is laid down in general terms in the Employment Rights
Act 1996. But you will find all the details in various SIs such as SI 3236/2002
The Flexible Working (Eligibility, Complaints and Remedies) Regulations
2002. However, when adopting Acts of Parliament and SIs, Parliament no
longer enjoys the total freedom it once had: it must ensure that the rules do not
contravene either European Union law (considered further in chapter 8) or the
European Convention on Human Rights.
The statutory rules may also be accompanied by other documents which are
not always legally binding but offer guidance to judges and other officials
striving to apply these rules. These include planning guidance and codes of
practice such as the Advisory and Conciliation Service’s (ACAS) Code of
Practice on Disciplinary and Grievance Procedures at Work.
The second source of law is the common law, much of it made a long time
ago by judges. It continues to develop as judges have to decide new and
different cases. It is all rather mysterious, because strictly speaking judges don’t
make new law, they merely declare and apply the existing law when deciding a
case (although this is a bit of a chicken-and-egg puzzle because every common
law rule must at some point in ancient legal history have been invented for the
first time). This declaratory theory is certainly accurate insofar as it relates to
judges in the ordinary or lower courts (we will return to the structure of the
courts later). These are judges who decide initially which party wins a civil
dispute, or who preside over criminal trials. However, when the losing side is
unhappy with the result and takes the case further, to the higher or appellate
courts, the senior judges who decide the appeal often do things that look very
much like making new law, such as deciding to expand a rule to cover a new
area or reverse an earlier rule because it is now out of date or didn’t work very
well. The appellate judges are adept at being creative with the existing law,
managing to respect the declaratory theory while, in reality, changing the law
slightly.
The basics of many important areas of law, such as contract, tort and equity
(which are considered later in this book), are governed by judge-made law,
although even these traditionally common law areas are increasingly being
altered by statutory developments. Sometimes this happens when Parliament
thinks that the common law is going in the wrong direction. At other times,

19
politicians want to introduce a wholly new law in a particular area. Judges
(however creative they are) cannot make major reversals or big changes to the
common law—this requires legislation.
A good example of statutory intervention is the Unfair Contract Terms Act,
passed by Parliament in 1977, which provided that certain very unreasonable
contract terms and notices were no longer to be legally effective. Included
among these clauses and notices were those which say that one person is exempt
from any liability for negligently causing death or personal injury to another
person. The courts had struggled for years to find common law solutions to
protect people from onerous exclusion clauses and notices of this kind, but
parliamentary intervention was able to do the trick in an instant. From the
moment this statute was passed, it replaced all the old common law on the
question of the validity of such notices and clauses. When passing the Unfair
Contract Terms Act, Parliament had the benefit of guidance from the Law
Commission. This body, consisting of judges, barristers, solicitors and academic
lawyers, considers whether particular areas of law need reform, puts proposals
for change out to consultation with lawyers and other interested parties, and
produces reports detailing its final conclusions. Parliament is not obliged to
implement the Law Commission’s recommendations, but sometimes does so.
Today, many statutes are also passed to give effect to the UK’s
commitments to the European Union. So, for example, in July 1985 the
European Community (which is what the European Union used to be called)
adopted a Directive on Product Liability requiring Member States to implement
domestic legislation providing that manufacturers would be liable, even if not at
fault in the traditional sense, for any personal injury or damage to property
caused by their defective products. This Directive means the 27 Member States
of the European Union all have compatible, harmonised product-liability
regimes. The UK government implemented the Directive by passing the
Consumer Protection Act 1987.
Most statutes, even those introducing completely new rules, assume and
build on the existing common law in some way—they rarely arrive out of a
clear blue sky. For example, statutory provisions protect employees from being
unfairly dismissed, but the question ‘who is an employee?’ is answered by
reference to the common law’s understanding of a contract of employment. In
addition, the common law often still has a role to play when a statute is enacted
in a particular area. Judges may need to interpret what a particular statutory

20
provision means and, having decided what it means, this interpretation will then
become law in its own right and be applied in future cases.
By now, you will have worked out that existing common law cases, and the
rules set down in them, are important in deciding new cases. They not only
influence the result in the new case, but also dictate what that result will be,
because the fundamental basis of the common law system is the doctrine of
precedent. To grasp fully the importance of this doctrine, we must first
understand the structure of the courts in England.
At its simplest, the structure of the courts (see the diagram on page 10,
below) consists of trial judges at the lowest level, then the Court of Appeal and
finally the Supreme Court. The doctrine of precedent requires the lower level
courts to be bound by the decisions of superior courts on matters of law—they
have no choice but to follow the rule set down in those superior decisions. Don’t
ignore the words ‘of law’ in the previous sentence—trial judges often have to
decide between conflicting pieces of evidence and work out the facts of the
case, and in this aspect of their decision-making the doctrine of precedent has
no role to play. But where issues of law are concerned, a trial judge is bound by
decisions of the Court of Appeal and the Supreme Court, and the Court of
Appeal is bound by the decisions of the Supreme Court. In October 2009 the
Supreme Court replaced the House of Lords as the highest court. However,
decisions of the House of Lords retain their superior status as precedent, a
concept that we shall explain later.
In addition, courts of a particular level are generally bound by decisions of
other courts at the same level. So, for example, the Court of Appeal is bound by
other, earlier, decisions of the Court of Appeal, although on very rare occasions
it is possible for the Court of Appeal to overrule one of its own earlier decisions.
Likewise, the Supreme Court can in theory overrule its own, earlier decisions,
but like the Court of Appeal, it does so only on very rare occasions and for
exceptional reasons. On the other hand, higher courts are not bound by
decisions of lower courts. So, for example, the Supreme Court can, and
frequently does, overrule decisions of the Court of Appeal in earlier cases, just
as it can reverse the result in the particular case being appealed to it and allow
the appeal.
This book focuses on the law of England, which includes the law of Wales.
This system is primarily common law based. Scottish law is different. It is
derived from Roman law, which is the tradition which also applies in

21
continental Europe. The Scottish system, also sometimes called the civilian
system (not to be confused with the more common meaning of the phrase ‘civil’
law as the opposite of criminal law, which is discussed below), is based on
formal written Codes prescribing the detail of the law. In contrast to the
common law, civilian judges have no law-making function at all, other than in
interpreting and applying the Code. However, the law of England and Wales, on
the one hand, and Scotland, on the other hand, is not as different as would first
appear. In areas which have not been devolved to the Scottish Parliament or the
Welsh Assembly, statutes passed by the Westminster Parliament in London
apply to all three jurisdictions and the interpretation of those statutes by the
Scottish courts has persuasive effect on the English courts. Further, and
somewhat surprisingly, decisions of the Supreme Court bind the courts
throughout the United Kingdom, including Scotland, and (as we shall see in
chapter 4) the Supreme Court is the highest appeal court for Scottish cases as
well as those from England and Wales.
At present, Northern Ireland’s legal system is very similar to that of England
and Wales, applying the common law in an identical judicial structure (with
final appeals to the Supreme Court), though with some differences in dealing
with criminal offences involving terrorism. The Northern Ireland Assembly,
which was reactivated in 2007, has legislative power and so in future there may
well be significant changes in the legal system and procedure operating in
Northern Ireland.
All this discussion of domestic law should not blind you to the variety of
other sources of law which have a significant impact on domestic law. We have
already mentioned the important influence of European Union law on the
United Kingdom (this is considered further in chapter 8). In addition, the
European Convention on Human Rights, incorporated into domestic law by the
Human Rights Act 1998, provides litigants with an important way of
challenging the validity of acts and decisions taken by the government. Other
international law rules are also important. International law concerns treaties
binding on states, such as the Law of the Sea Convention and the UN
Convention on the Rights of the Child. Occasionally, English courts may refer
to international law to assist in the interpretation of ambiguous provisions of
national law.

Classification

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We have already seen some of the classifications lawyers use, such as
statute/common law and national/EU law. Another important distinction is
between the civil and criminal systems, which is reflected in the structure of the
court system itself. Criminal law is the power of the state to punish people for
causing harm or for being involved in other forms of unacceptable conduct.
Most minor crimes are dealt with in Magistrates’ Courts; more serious cases are
heard in the Crown Court by a judge and jury (see figure 1.1 above). Appeals in
Crown Court cases can go to the Court of Appeal (Criminal Division) and then
to the Supreme Court. In criminal cases the accused, referred to as the
defendant, is prosecuted by the state in the name of the monarch (currently the
Queen, referred to as Regina; in older cases you may see reference to Rex for
King). In practice, the prosecution is dealt with by the Crown Prosecution
Service, a body of professional prosecutors acting in the name of the Queen.
The cases are therefore referred to as Regina (abbreviated as R) versus
(abbreviated as v) [the name of the defendant]. So, if John Smith is being
prosecuted, his case would be called R v Smith. It would be written this way too,
but when talking about a case lawyers generally say ‘and’ instead of ‘v’, so the
case would be called ‘R and Smith’ but, more usually, simply by the name of
the defendant (‘Smith’). If the prosecutor is successful the defendant is found
guilty.

23
Figure 1.1 Hierarchy of the courts in England and Wales. (Diagram taken from
HM Courts Service’s website and reproduced with kind permission of HM
Courts Service (HMCS).)

Civil cases are all those cases which are not criminal, such as cases
involving contract, tort, employment, commercial, trusts or property law. Civil
cases start in either the County Court, for cases involving smaller sums of
money, or the High Court, for cases involving larger sums. The vast majority of
civil cases are heard by a judge without a jury (defamation cases being a notable
exception). Appeals on the law go to the Court of Appeal (Civil Division) and
then, with permission, to the Supreme Court. In civil cases the claimant (who
used to be known as the plaintiff) sues the defendant. If the claimant is
successful, then the defendant is held liable. For this reason, lawyers often talk

24
about liability, saying things like ‘these facts give rise to negligence liability’ or
‘if contractual liability is established, the defendant must pay damages’—
remember that this simply relates back to the notion of the defendant being
legally responsible.
Civil cases are usually referred to by the names of the parties (eg Smith v
Jones). On appeal, parties are then called the appellant and the respondent.
When writing the name of a case it is usual to underline or italicise the names.
As we saw above, when speaking about a case or reading out the case name,
Smith v Jones will be referred to as ‘Smith and Jones’.
Apart from the different courts which hear the cases and the different
terminology used, another major distinction between civil and criminal cases is
the burden of proof. In criminal cases, the prosecutor must prove that the
defendant is guilty beyond all reasonable doubt: if there is any remaining flicker
of reasonable doubt about the defendant’s guilt, then the magistrate or jury must
not convict. In civil cases, the claimant has to prove a case only to the lower
standard of ‘balance of probabilities’, meaning that the defendant’s liability is
more probable than not. The higher standard in criminal cases reflects the fact
that, if convicted, defendants can lose their liberty and be sent to prison.
The other distinction which is commonly drawn by commentators who write
about law is between public and private law. Public law deals with the powers
of the state and, in particular the relationships between the different arms of the
state, namely the legislature (law-makers), the executive (government, and the
arms of the executive such as the police) and the judiciary. In some countries,
such as the USA and Germany, these relationships are laid down in a written
constitution. In the UK we do not have such a document but the equivalent
principles and conventions have developed over the years and form our
unwritten constitution, which is considered in chapter 7. Public law includes
administrative law, which regulates the relationship between the individual
citizen and the state. In this context, the ‘state’ can take a number of forms
(central government, local authorities and agencies).
Private law deals with the rights and duties of individuals towards one
another, such as the duty to carry out a contract or to avoid injuring another
person by negligent acts or omissions, as well as the remedies which the courts
can order when rights are infringed or duties breached, such as ordering the
defendant to pay money to the claimant to compensate for loss suffered
(damages) or, much less commonly, to stop committing some ongoing harm (an

25
injunction).

Case Law

Citing a Case

When you are studying law, you need to be able to find cases easily. Not all
cases are reported in law reports, but those which are have a citation. The first
case which forms the subject matter of a chapter in this book is the criminal case
of R v Brown and others. This was a decision of the House of Lords and is
reported at [1994] 1 AC 212. [1994] refers to the year of publication of the
report (the case was actually decided in 1993). AC is an abbreviation of one set
of law reports called ‘Appeal Cases’ and the numbers mean that Brown is
reported in the first volume from 1994 on page 212. There are many series of
law reports but the Appeal Cases form part of the official law reports, the most
prestigious series.
Since 2001 a new, official mode of citation has been developed, called the
system of neutral citation. This is a universal system: it does not refer to a
particular set of published law reports, but rather is a citation which tells you the
year in which judgment was given and also which court gave the judgment. This
is then followed by a number which is unique to that case. So, for example, a
case may have a reference [2010] UKSC 36, meaning that the judgment was
given in 2010, in the United Kingdom Supreme Court and was the 36th
judgment of that court in that year. The neutral citation is an especially useful
way of finding cases online.
The internet has revolutionised the way that the common law system works.
For students, life is now much easier, because they can search for a case and
find the text of it online, even if they can only remember the name of one of the
parties, without having to venture into a law library. There are also online
journals and sets of specialist law reports that are never published in paper form.
The internet has been helpful in a substantive sense too. The doctrine of
precedent means that a new case becomes part of the common law as soon as
the court gives its judgment. However, before the internet, the text of a new case
was hard to find at first and often wasn’t published in a law report for several
months, even years, after being decided. Now, the texts of many new cases are

26
available on the internet within hours of being decided. It is also much easier for
practising lawyers to find every precedent that might have some relevance to
their client’s case. However, this aspect of the internet is not viewed by
everyone as an advantage. For example, judges were not happy when barristers
in court began to cite hundreds of cases of very minor relevance to the issue
they were dealing with, simply because the barristers had found them online.
Eventually a new rule of civil procedure was introduced to limit the number of
precedents that either side in a dispute is allowed to cite in court.

Reading a Case

When you have found a case, you need to be able to read it carefully. That
means not simply getting from beginning to end but understanding the different
elements included.
Most law reports start with a head-note, a summary of the facts and the
decision, prepared by a law reporter. It does not constitute any part of the
judgment and is not a source of law in its own right. However, the head-note has
a use in enabling you to work out what the case is actually about and whether it
is going to be relevant to your inquiry. You must never fall into the trap of
believing that reading the head-note means that you do not need to read the
whole case, although its summary of the facts may be beneficial, helping you to
focus your energy on reading, thinking about and maybe even criticising the
legal reasoning in the judgments that follow.
Studying law in a system based on precedent involves being able to work
out precisely what a case decided. This is known as the ratio decidendi, or
sometimes simply the ratio—the ‘nugget of law’ that the court used to reach its
decision on the particular result. Discovering the ratio of a case requires you to
work out what the key facts were and what rules were applied to those facts. It
may surprise you, but this can be a difficult and controversial task, one that
lawyers may struggle with long after a case is reported, sometimes for decades.
Indeed, the skill of discerning what exactly a difficult case decided and stands
for is one which lawyers can spend entire careers perfecting.
Where more than one judge delivers an opinion it is particularly hard to
work out the actual legal ruling. These areas of disagreement give lawyers room
for manoeuvre later when arguing a subsequent case for their client. They might
seek to persuade the judge that the ratio of a case was X and not Y.

27
Alternatively, they might argue that the facts of the present case are so different
from the earlier case that the earlier case should be distinguished.
If you are dealing with a decision of the Supreme Court you may have to
read as many as five speeches, and occasionally more. Even a decision of the
Court of Appeal may contain up to three judgments. So, although it is common
for one or more of the appellate judges simply to agree with the detailed
reasoning of one of the others and add nothing more of detail, sometimes all the
judges want to give us the benefit of their detailed views.
It gets particularly interesting where there is disagreement among the panel
of judges, so that, for example, three or four Supreme Court Justices want to
allow the defendant’s appeal but one or two would prefer to refuse it. That
leaves you trying to work out which judges form the majority and which are in
the minority. It is only the judgments of the majority which constitute the law
that derives from the case, but a speech given by a judge in the minority
(usually known as a dissenting speech or a dissent) can nonetheless be well
worth reading in detail. Not only does it help you to understand the
controversies behind the majority decision and decide whether you agree with
it, but it may also turn out to be more important in the future.
For example, the Court of Appeal had to decide in the 1950s whether a
negligent accountant could ever be liable to a claimant who suffered financial
loss because the claimant relied on incorrect statements made by the accountant,
where that claimant was not the accountant’s own client (so that there was no
contract between them). The majority said that no claim was possible, but Lord
Denning dissented and explained in his speech why he thought there should be
liability in this case and in others like it. More than ten years later, the House of
Lords overruled the 1950s decision and said in strident terms that Lord Denning
had been right all along.
You may also read part of a judgment which is not strictly relevant to the
decision on the facts, but involves the judge expressing his or her opinion on a
related legal issue. This is known as an obiter dictum (or obiter dicta if there is
more than one such expression of opinion). An obiter dictum does not form part
of the ratio of the case and does not bind other judges, but it might persuade
other judges to adopt that approach in a future case where the particular issue
arises.

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Courts and Other Means of Resolving Disputes
It is important to be aware that the different levels of courts have different types
of judge. The lower courts typically have just one judge presiding (referred to as
‘judge’ and whose name would be written: Bloggs J). The Court of Appeal sits
in chambers of three and the judges are referred to as Lord Justices (so: Bloggs
LJ). The two most senior of the Lords Justice are the Master of the Rolls (MR)
for civil cases and the Lord Chief Justice (LCJ) for criminal cases. The Supreme
Court is the superior court in the UK and is presided over by Supreme Court
Justices. The Supreme Court replaced the House of Lords in 2009. (In this
context, the ‘House of Lords’ did not mean all the hereditary and life peers who
still make up one part of the Houses of Parliament but only very senior judges
appointed to be ‘Lords of Appeal in Ordinary’, formerly known as Law Lords).
The Supreme Court hears appeals only on questions of law.
It is important to be aware that there are other methods of resolving legal
disputes. There are other courts throughout the system, like the Small Claims
Court which provides a quicker and more informal method of dispute resolution
for relatively minor civil disputes. There are also other state tribunals which
deal with specialised disputes, such as tax appeals and employment disputes;
cases decided in these tribunals can be appealed to the High Court if the losing
party wishes to challenge the decision. Another important option in practice,
particularly for commercial disputes, is for the dispute to be decided by
arbitration rather than in the courts. Arbitration will take place where the parties
have agreed in their contract that, if there is a dispute between them, then an
independent, qualified and often highly specialist arbitrator will be appointed
who will decide the dispute and that the arbitrator’s decision will bind them.
This is particularly useful in resolving complex commercial disputes and it may
be cheaper and quicker than having a protracted trial in the High Court.
Some organisations also have their own tribunals to consider disciplinary
matters, such as sports tribunals, which deal, for example, with doping
allegations involving competitors, and professional bodies, such as the
Solicitors’ Disciplinary Tribunal which deals with complaints about solicitors.
Certain industries and public bodies (such as local government, insurance and
pensions) have what is called an ombudsman: an independent and qualified
official whose job it is to resolve, if possible, complaints from members of the
public without the need for litigation. At the other end of the spectrum, there are

29
also two key courts in Europe, namely the Court of Justice of the European
Union based in Luxembourg and the European Court of Human Rights based in
Strasbourg. They are often confused with each other but it is vitally important to
remember that these are two completely different bodies with entirely different
functions. The European Court of Human Rights gives authoritative
interpretations of the European Convention on Human Rights, to which the
United Kingdom is a party. The Court of Justice, on the other hand, has less to
do with human rights; rather (as we shall see in chapter 8) it hears references
from the national courts, which are questions as to the meaning and validity of
European Union law on, for example, free trade issues.

LEGAL METHOD
The discussion so far might make you think that studying law as an academic
subject will only involve looking up rules and regulations in dusty old books,
but there is an awful lot more to it than that. This perception of law as an
academic subject is based on the popular misconception that there must be a
‘right’ answer to any legal question if only you look hard enough and read
enough books. As you will soon discover, while some aspects of the law are
clear, others are far from certain, particularly when dealing with questions of
precedent. Lawyers and law students frequently need to tackle some very
complex and subtle questions when working out what the law is, or should be,
in a given situation. In this section we consider various skills you will need to
do this.

Description

The most straightforward aspect of studying law is when you are simply asked
to describe the law in one particular area. If you need to consider what the law
says on a particular point you will have to look at various books, law reports
and statutes to find the current state of the law. So, for example, you may need
to describe the law defining the crime of murder, what counts as a valid
contract, or when squatters acquire rights over the land they are occupying. It
goes without saying that any description you produce needs to be expressed in
elegant, often simple, but grammatically correct English.

30
 Sometimes the description of a particular area of the law is straightforward,
because it has been accepted and settled for many years. Here it might be
sufficient to rely on a reputable textbook for a concise statement of the law.
However, the law is never entirely static: legislation is repealed and replaced;
old cases are overruled or applied to surprising new areas; new cases are
decided in unexpected ways. This is one of the fascinating things about the law
—you will be studying a dynamic, developing organism not a fossilised and
unchanging text—and means that what once might have been accepted as
straightforward law may now be much more controversial. It also means that
you can never entirely rely on a textbook, even one that was published relatively
recently, for the correct state of the law. Moreover, sometimes there simply is
no consensus about what the state of the law is on a particular point, so even the
usually straightforward task of describing the law may be in fact prove very
complicated.

Applying the Law

Identifying the Nature of the Problem

Although it is of some interest to be able to describe the state of the law, law is
never studied in a vacuum. Law is meant to be applied, so when you study law
you spend a lot of time applying the law to real or hypothetical problems. This
requires, first of all, careful identification of the nature of the problem with
which you are dealing. You then need to work out what law applies to the
problem and then apply that law to determine the result. This is how lawyers in
practice have to approach problems, since they need to advise clients who want
their disputes resolved by the law or who want to be able to structure their
business or personal affairs to avoid legal difficulties in the future.
The process of applying the law varies, depending on the field of law. For
example, a number of the private law core subjects, such as contract, tort and
equity, involve, as central issues, the commission of some form of wrongdoing
by the defendant, for which the claimant seeks a legal remedy. In such
circumstances it is vital to know what the nature of the wrong is, to determine
what area of the law you are concerned with. This will require you to identify
what is called the cause of action. This is the basic set of elements which need
to be in place before the claimant can establish that the defendant is liable. For
example, let’s go back to where we began—to Laura’s party and the guest

31
tripping on an uneven patio slab. He suffered a serious injury and now wishes to
sue the owner/occupier of the house for damages. He may be able to bring a
claim under the Occupiers’ Liability Act 1957, but only if he can establish all
the elements required by the statute for that cause of action. In this example, the
injured claimant would have to show that:

1. he was a lawful visitor on the premises (a more recent, stricter statutory

regime applies to claims by trespassers);
2. the occupier failed to take reasonable care to ensure that visitors would be
reasonably safe on the premises; and
3. the claimant suffered personal injury as a result of that failure by the
occupier.

If the claimant can establish all these things, he will have a cause of action for
damages in tort.
However, establishing the cause of action is not necessarily the end of the
story, because the defendant might be able to respond by establishing a defence
to the claim, meaning an excuse recognised by law which would enable the
defendant to escape liability. You are probably familiar with some of the
defences in criminal law, such as loss of self-control and self-defence, but there
are equivalents in civil cases. For example, the defendant may try to prove that
the party guest expressly consented to run the risk of tripping on the patio stone,
though that is not very likely to succeed. Much more plausible is the defence of
contributory negligence, in which the defendant argues that his liability should
be reduced in some way to reflect the fact that the claimant was partly to blame
for his injuries.
Finally, you will need to consider what type of remedy will be available to
the claimant if he or she can prove all the elements of the cause of action and
fend off the defendant’s defences. The most common remedy is financial,
awarding damages to compensate the claimant for the loss suffered by the
wrong. But for other causes of action different remedies may be available, such
as a court order to make the defendant do (or not do) something (an injunction).
There are also remedies which enable the claimant to recover money or property
from the defendant.
This analysis of the law as involving causes of action, defences and
remedies only works for private law subjects involving obligations and

32
property. In this book, these are the foundation subjects of contract, tort, land
law and equity. For the other foundation subjects different approaches may need
to be adopted, but it is still necessary to identify the nature of the problem
carefully and break the law down into its key elements to be able to apply the
relevant legal rules to resolve the problem.

Drawing Distinctions

A system based on precedent is not always wholly straightforward, despite the

simplicity of its basic premise that like cases must be treated alike. In practice,
cases often arise that are very similar to an existing case but not absolutely
identical. A lawyer then has to decide whether and to what extent the
(sometimes subtle) differences matter: is this case nonetheless sufficiently
similar to the existing precedent that we should apply the same rule, or are the
differences significant enough that we should distinguish the existing rule and
not apply it, maybe recognising a new exception to the existing rule at the same
time? This process of drawing distinctions is one of the most important skills for
a lawyer, one sufficiently fundamental that we will return to it in more detail in
chapter 9. For now, one simple example will give the flavour.
If you promise in a contract not to do something but then do that very thing,
the court will normally order you to stop doing what you promised not to do by
granting an injunction. However, if the agreement is a contract of work and you
promised not to work for anybody other than the employer, then the court will
be reluctant to grant an injunction to make you work for the employer, because
this would have the effect of making you work for somebody when you do not
want to do so; this would be tantamount to slavery. Consequently, in Warren v
Mendy, the court distinguished the general rule and refused to grant an
injunction to make the defendant work for the employer. Instead, the employer
was granted a monetary remedy for the breach of contract in the form of
damages to compensate him for the loss he had suffered.

Making Predictions

As the previous paragraph showed, there are times when you might be faced
with a particular problem and find that there appears to be no statute or case
which covers that particular area or, if there is some law in the area, that it is

33
contradictory or confused. Now you need to work out what judges would say if
they were faced with the problem. This requires you to put yourself in the
position of the judge and survey the existing law to try to find clues as to how
the problem would be resolved. Finding the solution requires looking at any
rules that do exist, working out the purpose and policy behind those rules, and
then, if necessary, drawing analogies from other areas of law to see if they
support a plausible conclusion.
The following example will give a taste of this process. It has long been an
established part of the law that it is straightforward to sue for damages if the
defendant’s negligence caused the claimant to suffer personal injury. So if a
doctor negligently failed to diagnose the claimant’s medical condition correctly,
with the result that the claimant is left with a permanent injury instead of being
totally cured, the doctor is liable. It was, in contrast, traditionally very difficult,
if not impossible, for a claimant to sue a public authority for damages if he or
she ‘lost out’ because that authority negligently failed to perform one of its
public responsibilities properly (such as running hospitals, highways, social
services, etc). Then in the 1990s the courts were faced with two wholly new
sorts of negligence case, dealing with issues that simply did not exist when the
precedents were decided. These were claims for damages brought by children in
two situations. The first were claims by children who had been subjected to
abuse by a parent, step-parent or carer at home, brought against the local
authority social workers who, the children alleged, negligently failed to spot or
prevent the abuse. The second situation concerned children who were dyslexic
but whose dyslexia was not diagnosed during their school days as a result of the
negligence of the council’s educational psychologists. There were no English
precedents covering either of these areas, or even analogous areas, so the
lawyers advising the parties had to engage in a lot of (educated) prediction
about what the courts would decide.
Interestingly, very few lawyers successfully predicted the eventual House of
Lords’ decisions on either issue. Even specialist negligence practitioners and
academics found the decisions startling and surprising. In 1995, their Lordships
decided that children whose future prospects were adversely affected because
educational psychologists negligently failed to diagnose their dyslexia were
owed a duty of care in negligence and were thus entitled to damages. However,
in contrast, the House of Lords decided at the same time that no duty of care
was owed to children who suffered ongoing child-abuse when social workers

34
negligently failed to spot what was happening and take them into care. This was
mainly because the Law Lords thought that if social workers were to have
potential negligence liability hanging over them, this would unduly hamper their
independence and decisiveness when dealing with child-protection cases
although, as many commentators pointed out, their Lordships had not actually
had the benefit of any concrete evidence to back up this view.
Many lawyers believed these results were the wrong way round, and that the
law of negligence had got into a position of having, or appearing to have, its
values and priorities muddled up. Happily, the European Court of Human
Rights has since decided that the abused children did not obtain an adequate
remedy from the UK courts when the House of Lords rejected their negligence
claims, so the law is now that both sorts of claimant can in theory claim
damages (although, of course, to get such damages they must also be able to
prove that the defendants were actually negligent—no easy task and one that the
tabloid newspapers virtually always overlook when complaining about the
‘compensation culture’).

INTERPRETATION
Sometimes the meaning of the rules in an area of the law is not clear. As a
lawyer, you need to be able to interpret the law before you can describe it and
then apply it. Different approaches apply when you are interpreting the meaning
of cases and the meaning of statutes.
As we have already seen, when you read a case there may be a variety of
questions which arise involving interpretation. It may not be obvious what a
case decides because, perhaps, a variety of issues were considered in the case or
there was disagreement among the judges and it is necessary to determine which
judges were in the majority. The judges’ words may also be ambiguous or be
context-specific, and so you are required to interpret them very carefully.
Reading a statute may also bring problems of interpretation. The wording of
the statute may not be clear, leaving you to work out what the words mean. One
of the big questions of statutory interpretation concerns whether the words
should be interpreted literally or whether the ambiguity can be resolved by
considering the purpose of the provision. A similar dilemma applies when
interpreting the meaning of complex written contracts.

35
 A good example of a case turning on statutory interpretation is one which
you may remember from the news in 2009, called Office of Fair Trading v
Abbey National plc and others. It involved a legal challenge to the hefty fees
which high street banks charge a customer if the customer’s account goes into
unauthorised overdraft. There is a statutory instrument called the Unfair Terms
in Consumer Contracts Regulations 1999, which was passed to give effect to an
EU Directive designed to protect consumers from unfair ‘small-print’. This
means terms in contracts between consumers and sellers or suppliers that
operate unfairly for the consumer, such as a term enabling the seller or supplier
to terminate a contract without reasonable notice or retain the consumer’s
deposit, without good reason. This was the legislation on which the challenge to
bank charges was based (interestingly, the Regulations give enforcement
powers to a public body, the Office of Fair Trading, so individual aggrieved
consumers don’t have to take legal action themselves).
The difficulty was that the Regulations contain an exception. Regulation
6(2) says that assessment of the unfair nature of terms:
shall not relate (a) to the definition of the main subject matter of the
contract, or (b) to the adequacy of the price or remuneration as against the
goods or services supplied in exchange.
This is not a model of perfect English drafting! But in layman’s language, it is
supposed to mean that a consumer is not allowed to allege that the ‘core’ terms
of the contract, the main subject matter and the price, are unfair because these
are issues that consumers are well equipped to evaluate before making the
contract; they are not tucked away in the small-print. Of course, the banks
argued that the fees they charge for overdrawn current accounts form part of the
remuneration they receive for providing a banking service and thus fall within
Regulation 6(2)(b). So this question was litigated as a preliminary issue, to see
whether the Office of Fair Trading could mount a fairness challenge. The first
instance judge and the Court of Appeal decided that the bank charges did not
fall within the exception in Regulation 6(2)(b) and thus a fairness challenge was
possible, on the basis that the exception should be restrictively interpreted to
cover just the ‘main’ or ‘essential’ price, to maximise consumer protection.
However, to the surprise of many commentators, the Supreme Court took
the opposite view and agreed with the banks that the bank charges were part of
the package of remuneration they received for providing a current account
(which is generally free to any customer who remains in credit) and thus fell

36
within the exception. In other words it was not permissible to read the words
‘main’ or ‘essential’ into Regulation 6(2) (b). The Supreme Court expressed
sympathy with the customers and suggested that Parliament might like to
consider passing legislation to prohibit unfair bank charges, but they were not
prepared to stretch the statutory wording of the 1999 Regulations to allow a
fairness challenge to proceed.
Another example of statutory interpretation is found in Serco v Redfearn
concerning the interpretation of the then Race Relations Act 1976 (now Equality
Act 2010) in the workplace context. This Act prohibits discrimination on ‘racial
grounds’, a phrase which the courts have previously interpreted broadly to cover
not just obvious cases in which employees from ethnic minorities are given less
favourable treatment, but also to protect white employees who are instructed by
their employers to discriminate against fellow employees from ethnic
minorities. Redfearn was dismissed from his job as a bus driver when it was
discovered that he was a local councillor for the British National Party (BNP).
The BNP’s constitution stated that it was wholly opposed to any form of
integration between British and non-European peoples. The bus company
justified dismissing Redfearn on health and safety grounds (a lawful reason for
dismissal), arguing that its staff and passengers, many of whom were Asian,
would be anxious in Redfearn’s presence and that he might be attacked at work.
Redfearn argued that his dismissal was really on racial grounds, and therefore in
breach of the Race Relations Act 1976, but the Employment Tribunal disagreed
and found that the ‘health and safety’ grounds were genuine. However, on
appeal, the Employment Appeal Tribunal (EAT) overturned this decision
because the Employment Tribunal had not explored whether those health and
safety grounds were themselves influenced by racial considerations.
The EAT’s reasoning raised the spectre of a provision, which had been
interpreted to protect white employees from having to do racist things, being
invoked by a racist to protect himself. The Court of Appeal was horrified by this
possible outcome. Looking at the objectives of the then Race Relations Act
1976 (now Equality Act 2010), Mummery LJ said that Redfearn’s ‘sweeping
proposition is wrong in principle, is inconsistent with the purposes of the
legislation and is unsupported by authority’. He said that it produced the absurd
consequence that an employer who, in trying to improve race relations,
dismissed an employee whom he discovered had been guilty of racist abuse,
would be liable for race discrimination. Redfearn therefore lost his case.

37
 Serco v Redfearn shows how different judges at different levels in the
judicial hierarchy can reach very different conclusions on the same set of facts
and applying the same legal provisions. It also demonstrates how a simple
examination of the dictionary meaning of words may not be sufficient to decide
the outcome of a particular case. Mummery LJ recognised this and, when
interpreting the statute, called upon the values behind the legislation as well as
considering the absurd consequences of ruling in favour of Redfearn. This
purposive approach to interpretation is also characteristic of European Union
law. Whether the flexibility this brings is invariably an entirely good thing, or
whether it sometimes comes at the expense of clarity and certainty in working
out the legal rules, is an open question.

IMAGINATION
When asked to list the skills needed to make a good lawyer, few people would
think of putting ‘imagination’ on their list—the law seems far too technical to
need such a creative skill. But in fact lawyers need to use their imagination all
the time. For example, when a claimant sues a defendant for damages for
negligence, one of the relevant issues for the court to decide is whether the
defendant breached the standard of care expected when doing whatever the
defendant was doing when the claimant was harmed. This is an objective test—
the question is not whether the defendant was careless by his or her own
standards, but rather whether he or she came up to the standard of a reasonable
person engaged in that particular activity. Traditionally this hypothetical,
reasonable person was labelled ‘the man on the Clapham omnibus’, but today
this phrase is considered outdated, so tends to be avoided.
In any event, the lawyer acting for the claimant has a lot more work to do
than simply reminding the court of the law and convincing the court that the
claimant’s version of the facts is the correct one. As well as proving what the
defendant actually did, the claimant’s lawyer must also show what the
hypothetical reasonable person would have done in the same situation, which in
turn means (because of the objective standard of care) that this is what the
defendant should have done. The claimant must also prove that if the defendant
had followed this hypothetical path instead, the claimant would not have been
harmed. This hypothetical version of events is sometimes called the

38
counterfactual. Very often this counterfactual enquiry about the standard of care
is too obvious even to be noticed: if the defendant failed to stop at a red light
and smashed into the claimant on a pedestrian crossing as a result, it is obvious
that the hypothetical reasonable driver would have stopped and the accident
would have been avoided. But sometimes it is not so obvious. This is where
imagination comes in, on the defendant’s side as well as the claimant’s. After
all, this sort of argument is not about the facts (what actually happened), but nor
is it really a legal argument either—precedents can only help us so far in
working out what the reasonable person would have done in a given situation.
For example, in Surtees v Kingston Upon Thames Borough Council and
another a foster mother was caring for a two-year-old child; at bath time she left
the child sitting on the laundry basket in the bathroom for a moment while
going to fetch a towel from just outside. The child managed to knock the hot tap
on the basin and badly scalded her foot, so sued her foster mother (and the local
authority) for damages in negligence (this may sound bizarre, but if successful
the child’s damages would come from an insurance policy, not the foster
mother’s own pocket). The court had to decide whether the foster mother had
come up to the standard of the reasonable foster mother in that situation, or
whether she had taken an unreasonable risk.
The claimant’s lawyer had a relatively easy task, detailing why it was
dangerous to leave a two-year-old child in the vicinity of the hot tap, as it only
takes a moment to turn it on. But the defendant’s lawyer retorted with lots of
very imaginative arguments as to why the foster mother had not acted
unreasonably. These included the fact that she was looking after lots of other
children, so if she carried the claimant around everywhere she would have
neglected the others; that it is not necessarily a good idea to cushion children
from all risks, because that way they grow up with no idea of how to assess
risks and therefore might end up more seriously injured in the future; that
carrying the child out of the bathroom might itself have been more dangerous;
and that demanding too high a standard from foster parents might put people off
volunteering for the role, which would be detrimental to more children in the
long term. These imaginative factual and policy arguments convinced both the
trial judge and the Court of Appeal, so the child’s claim failed.

GENERALISATION

39
If your study of the law was confined simply to describing, applying and
interpreting the law, with a bit of imagination thrown in, you would soon be
faced by a very confusing mass of seemingly unconnected legal rules derived
from a lot of legal sources. So there is a further dimension to the study of law,
which is usefully called generalisation or, sometimes, the search for principle.
Lawyers spend a lot of time examining a mass of rules and then try to identify a
principle which explains those rules and which links similar cases at a higher
level of generalisation. The identification of these principles makes the law
much more manageable, but also gives a much better idea of the real point of
the particular area of law, allowing both patterns and inconsistencies to appear.
This process of generalisation is a bit like looking at a television screen or
an Impressionist painting. If you get very close to the screen you can see lots of
individual pixels or dots, but you cannot make out a picture. For that, you need
to step back, to put the pixels or dots together to see the big picture. In the same
way, the process of generalisation of the law requires you to step back to see the
bigger picture. Once you have identified some principles, you can then step
back even further to link the different pictures together to produce an even
bigger picture. This is a bit like looking at an aerial photograph on a website.
You could focus on your house in your road, but that will not enable you to see
how that road fits in with the neighbourhood. So you can draw back to see the
whole town and then back further to see the county, and further to see the
country, and further to see the continent and further to see the world.
This sort of generalisation process goes on throughout the law, at all sorts of
different level. For example, parliamentary draftsmen, when preparing the
wording of new statutes, invariably have to think in general terms, so as to draft
statutory wording that deals with problems at a high level of generality: far
better than having to include exhaustive lists of every possible example that will
be covered by the legislation. Likewise appellate judges, especially in the
Supreme Court, often have to generalise in the sense of examining lots of
earlier, seemingly disparate, cases and pointing out that they are in fact linked
by a principle that had not been recognised before, so as to assist in deciding the
particular case that has been appealed to them at the time and to make the law
clearer in future cases.
One of the best examples, as we will see in more detail in chapter 4, is the
development of the modern law of negligence. In the nineteenth century there
were a number of unrelated situations (eg those involving ‘occupiers and their

40
guests’ and ‘horse-drawn carriages and pedestrians’) in which the defendant
was liable to compensate the claimant for harm suffered as a result of his
negligence, but nobody had yet spotted that these different cases might be better
regarded as examples of one more general principle. It was not until 1932, in
perhaps the most famous case in the English law reports, Donoghue v Stevenson
(about a snail in a bottle of ginger beer), that the House of Lords examined all of
these different cases and synthesised the law, recognising for the first time the
general principles that underpin the law of negligence today.
Academic lawyers and law students are frequently better placed to recognise
general principles than judges and lawyers who concentrate on dealing with the
specifics of the case in front of them. Indeed, judges come in for criticism if
they focus too much on the implications of their decisions for other areas of the
law. Academic lawyers and students, however, have the freedom to compare
one area of the law with another, which often enables them to spot patterns and
inconsistencies, connections and general principles that have gone unrecognised
by practitioners and judges. A good example is the area of law now known as
restitution for unjust enrichment (not a core subject in undergraduate law
courses, but very important nonetheless). For over two centuries the law
recognised a lot of different situations where the defendant was liable to pay
something back or return something to the claimant, including where money
had been paid to the defendant by mistake. Each case shared the common
feature that the defendant’s obligation to repay was not contractual (after all, he
never promised to make the payment), but beyond this no obvious common
thread linking the various examples had been spotted.
It was not until the publication of a seminal book in the 1960s, The Law of
Restitution, and later academic writing, that these cases were linked at the level
of general principle, creating what was, in effect, a new legal subject (a bit like
the introduction of new scientific disciplines such as psychotherapy in the
nineteenth century and just as hotly disputed). Finally, in 1991 English law
officially caught up with this academic progress, when the House of Lords
acknowledged in Lipkin Gorman v Karpnale that all these different situations
could be explained by a single principle to prevent the defendant from being
unjustly enriched. Most lawyers think the development of the general principle
of unjust enrichment has allowed a better understanding of how the law operates
and what it achieves in individual cases.

41
POLICY UNDERPINNING THE RULE
It is all very well to be able to state what the law is and to be able to apply it to
particular problems, but the study of law as an academic subject involves
another dimension, namely having regard to the policy which underpins the law.
This method of legal study is often more theoretical and may also involve
engaging with other academic disciplines. For example, we may be concerned
with issues of social policy, such as whether a woman, who has cohabited with
a man, should have any rights to the house in which they both lived but which
was registered only in his name. This is considered further in chapter 5.
Elsewhere, lawyers may be concerned with economic issues, in that we are
seeking to ensure that the law promotes results which are economically
efficient. For example, if you have sold part of your land to a purchaser who
made an enforceable contractual promise not to build houses on the land, but
who later breaches this promise and builds houses, should you be entitled to
enforce that promise and obtain a court order for the destruction of those
houses, even at a time of housing shortage?
At other times, lawyers may be concerned with political issues, such as the
right balance between freedom of expression and national security, or with
ethical issues, such as whether it is appropriate to take body parts from
somebody who has just died if it will save somebody else’s life, even though the
deceased had not given prior consent. Sometimes we may be concerned with
philosophical issues, such as whether the law properly respects basic principles
of individual autonomy, or with sociological issues, such as whether applying a
rule equally to everyone may in fact disadvantage certain groups such as women
or ethnic minorities whose social or educational background means that they
cannot take advantage of that rule.
These illustrations show that choosing to study law certainly does not close
off other avenues of interest in academic terms; far from it, since to master law
you really need to understand many other policy issues in society. Much of the
real interest in studying and applying law lies in its impact on society. And what
is interesting is the extent to which law is, or can be, a vehicle for social change.
Take the example of the Sex Discrimination Act 1975 and the Race Relations
Act 1976 (now repealed and replaced by the Equality Act 2010). These statutes
were adopted at a time when it was commonplace for sexually and racially
discriminatory policies to be applied, especially at work. The Acts were

42
significant catalysts of social change because they contained the important
statement that the state disapproved of discrimination on the grounds of sex and
race. It is hard to prove cause and effect but attitudes to women and ethnic
minorities have certainly changed significantly in the last thirty years.

ONE FINAL EXAMPLE

The application of all the different approaches to the study of law outlined
above can be illustrated by the following problem which, as hypothetical legal
problems often do, might stretch your sense of credulity. David has just been
dumped by his girlfriend. He decides to kill her. He goes to a local craft shop to
buy some modelling clay and some pins. He moulds the clay into the shape of
his girlfriend and then sticks ten pins into it. Why? Because he believes in
voodoo and thinks that this will kill her. In fact, it has no effect on her at all. Is
David guilty of a criminal offence?
First, we need to describe the law in this area. There is a crime of murder
which is committed whenever the defendant kills the victim, intending either to
kill or to cause serious injury. Clearly, David is not guilty of this offence
because his girlfriend is not dead. But there is another crime of attempted
murder. This is governed by the Criminal Attempts Act 1981, which creates an
offence where the defendant does a more than merely preparatory act with the
intention to commit a crime. The Act specifically states that it is irrelevant that
it is impossible to commit the offence in the circumstances. Reviewing all the
cases which have been decided under this statute, it is clear that none of them
relate to trying to kill somebody by voodoo. So the simple description of the law
does not reveal whether David is guilty of an offence.
We therefore need to move on to the application of the law to the facts.
Analysis of the statute reveals that there are three elements to the offence. First,
the defendant must have intended to kill his girlfriend. Although intention can
be difficult to define, it is clear on our facts that the defendant wanted to kill his
girlfriend and so intention can be identified. But the application of the other two
elements is less straightforward. What is meant by ‘a more than merely
preparatory act’ and how should the notion of ‘impossibility’ be defined?
Answering these questions requires the statute to be interpreted. Reviewing the
cases which have interpreted the statute merely reveals that ‘a more than merely

43
preparatory act’ means an act which has gone further than merely preparing for
the crime. As David has done all that he believes he needs to do to kill his
girlfriend, since he stuck all the pins into the model of his girlfriend, it is
certainly arguable that he has done a more than merely preparatory act. In
reaching this conclusion, we might perhaps distinguish Campbell, where the
defendant, who had an imitation firearm with him, was arrested by the police
just before he entered a post office. He was charged with attempting to rob the
post office, but was acquitted because he had not gone beyond preparing for the
commission of the crime of robbery. The result would have been different had
he gone into the post office before he was arrested. In David’s case, he appears
to have got beyond preparing for the commission of the crime. But we would
also need to consider any possible defences that David might wish to rely on.
For example, if his mental state was wholly unhinged at the time (and a belief in
voodoo might suggest it was), then perhaps this would excuse David from
criminal culpability?
But the central question remains: if it is impossible to kill by voodoo, can
the crime of attempted murder really have been committed? To answer this
question we need to predict how the courts would decide a case involving
voodoo, an issue which has never come before the courts directly. Since the
statute is clear that impossibility to commit a crime is no defence, perhaps the
judges would feel they had no choice but to conclude that the offence has been
committed. But others might argue that there is a meaningful distinction
between the sort of impossibility involved in an attempt to kill using a replica
gun (which the defendant believed to be loaded) and the sort of impossibility we
are dealing with in the voodoo example.
We would also need to consider whether a conviction would be appropriate,
just as the courts would do when deciding the case. In considering this it is
useful to identify any rules or principles which can be generalised from the
cases on criminal attempts. The general principle appears to be that attempting
to commit a crime exists as a separate crime in itself in order to punish
defendants who want to cause harm to somebody else and who have done some
acts towards the commission of this goal, even if the goal can never actually be
achieved. It is the desire to reach the goal which is most significant and makes
the conduct culpable even though no harm has actually been caused to the
intended victim. This would justify conviction in David’s case.
We might then to go on to identify the policy which underpins the offence.

44
One policy might be that it is better to arrest and convict a defendant before any
harm is committed, so we need a crime of attempt to do this. But this policy
would suggest that David should not be convicted because he would never
succeed in killing his girlfriend using voodoo. In the light of this clash between
policy and principle, we would then need to consider whether the application
and interpretation of the law in this case really is defensible. This would turn on
whether we consider that it is fair and just to convict a defendant of a crime
when he or she has not caused any harm and will not do so using that method.
Other issues might arise, such as whether it is a good use of scarce public
resources to prosecute someone who has no prospect of causing harm by his
chosen method, or whether the mental health system might be more appropriate
than a criminal prosecution for dealing with David’s situation. So many
different questions, suggesting so many conflicting answers: that’s what makes
law exciting and challenging.

CONCLUSIONS
Learning law is about lots of reading—cases, statutes, textbooks, academic
articles—but it is also about thinking: what is the relevant legal rule here? Does
it apply to this case or can it be distinguished? Should it apply? If not, why not,
and what rule should apply instead? All lawyers need to think—logically,
clearly and critically. This is what judges have to do, what practising lawyers
have to do when giving legal advice to their clients, and what all law students
must do too. The aim of this book is to give you a flavour of this process in
action.

Cases
Donoghue v Stevenson [1932] AC 562
Lipkin Gorman v Karpnale [1991] 2 AC 548
Office of Fair Trading v Abbey National plc and others [2009] UKSC 6, [2009]
3 WLR 1215
R v Campbell [1991] Crim LR 268
Serco v Redfearn [2005] IRLR 744 (EAT); [2006] EWCA Civ 269; [2006]
IRLR 623 (Court of Appeal)

45
Surtees v Kingston Upon Thames Borough Council and another [1991] 2 FLR
559
Warren v Mendy [1989] 3 All ER 103

Websites
For many important cases which are freely available: www.bailii.org
For primary and secondary legislation: www.legislation.gov.uk/
For the English and Welsh Law Commission: www.lawcom.gov.uk, and for the
Scottish: www.scotlawcom.gov.uk
For links to the many legal resources available on the web:
www.law.cam.ac.uk/resources.php

Further reading

On law
Honoré, About Law: An Introduction (Oxford, Oxford University Press, 1995)
On legal study skills
Askey and McLeod, Studying Law (Basingstoke, Palgrave Macmillan, 2006)
Bradney, Cownie, Masson, Neal and Newell, How to Study Law, 5th edn
(London, Sweet & Maxwell, 2005)
Finch and Fafinsky, Legal Skills (Oxford, Oxford University Press, 2009)
Holland and Webb, Learning Legal Rules, 7th edn (Oxford, Oxford University
Press, 2010)
McBride, Letters to a Law Student, 2nd edn (Harlow, Longman, 2010)
McLeod, Legal Method, 6th edn (Basingstoke, Palgrave Macmillan, 2009)
Smith, Glanville Williams’ Learning the Law, 14th edn (London, Sweet &
Maxwell, 2010)

46
2

Criminal Law

Graham Virgo

We hear about crimes all the time and many of us probably feel that we have a
pretty good idea of what conduct is criminal, whether it is murder or rape or
theft. It may also be pretty obvious why we want to punish people for
committing such crimes. But when you study criminal law you cannot rely on
gut reaction: you need to think carefully about how crimes are defined, how
they should be defined and why it is appropriate for the state to punish
somebody. For example, should people who smoke cigarettes in pubs be
punished for doing so? Should we punish people who sell drugs? But why don’t
we punish people who break a contract, or prostitutes for selling sexual
services?

THE ELEMENTS OF A CRIME

When lawyers consider whether a crime has been committed, such as the crimes
which may have been committed at Laura’s party in chapter 1, they usually
break a criminal offence down into three separate elements. First, they consider
whether the prohibited conduct and result have occurred. This is known as the
external elements of the crime, which are often described by using the Latin
term actus reus. So, for the crime of murder, the actus reus is that the victim is
dead and that his or her death was caused by the defendant. Secondly, most
crimes also involve a fault element, which is often known as the mens rea. Not
every crime needs a mens rea, but many do, especially serious crimes, because
it is the fact that the defendant was at fault which makes him or her particularly

47
blameworthy and justifies the state in punishing the defendant. Relevant fault
elements include intention, recklessness and negligence. For the crime of
murder the relevant fault element is that the defendant intended either to kill or
to cause serious injury. If this cannot be established, the defendant cannot be
convicted of murder, although he or she might still be guilty of a less serious
offence, such as manslaughter. Once the external and fault elements have been
established, the third and final element is whether the defendant has any
defences to the crime. For the crime of murder there are a number of full or
partial defences which might be available. For example, if the defendant was
attacked by the victim, the defendant could plead self-defence. If this defence is
successful the defendant would be acquitted of the crime completely, so this is a
full defence. Alternatively, the defendant might plead defences such as loss of
self-control or diminished responsibility. If one of these partial defences is
successful the defendant would be convicted of the less serious offence of
manslaughter rather than murder.

THE REASONS FOR PUNISHMENT

Assuming that the defendant has been convicted of a crime, he or she can expect
to be punished. The criminal law recognises a variety of forms of punishment
including imprisonment, fines and community orders. Different reasons for
punishment can be identified depending on the nature of the punishment, but
there are four main reasons why the state wishes to punish a defendant who has
been convicted of an offence. First, there is the need to protect the public from
dangerous criminals, which can be satisfied by locking the defendant up in
prison for a substantial period of time. Secondly, there is the need to deter the
defendant and other potential defendants from committing crimes. Thirdly, there
is the need to rehabilitate defendants to seek to ensure that they do not commit
crimes in future. Finally, there is the need for retribution: society wishes to mark
certain types of conduct as wrongful and reassert the accepted social order by
punishing the wrongdoer.

REASONS FOR CHARACTERISING CONDUCT AS

48
CRIMINAL
In addition to considering the definition of offences and the reasons for
punishment, criminal lawyers also consider another crucial question, namely,
why certain conduct is criminal and other conduct, which we might dislike, is
not treated as criminal. In considering this question there are two separate
principles which are involved and which contradict each other. The first is the
principle of autonomy. According to this principle, individuals should be free to
do whatever they like. But if we allowed this principle to operate without any
check we would end up with a society which is lawless and where anarchy
prevails. Society needs rules to operate by and so the autonomy of individuals
needs to be restrained in some way. We can do this by means of a second
principle, which is called the welfare principle. According to this principle, the
needs of society must prevail over the interests of individuals. Of course, if we
allowed this principle to operate without check we would end up with a
totalitarian state where the interests and rights of individuals would always be
subordinated to the interests of the state. Whenever we consider whether or not
certain conduct should be criminalised we are really considering to what extent,
if at all, the autonomy of individuals should be restricted for the benefit of the
state and the protection of other individuals. We sometimes describe this
restriction on autonomy in other ways. One way is by reference to the doctrine
of utilitarianism, where the interests of the majority are more important than the
interests of the individual. Also, there is the doctrine of paternalism, where the
state intervenes to restrict the autonomy of the individual because the state is
acting in what it considers to be the best interests of the individual.
This tension between autonomy and welfare is illustrated by a number of
long-running debates in the criminal law. One of the best examples concerns the
use of certain types of drug. If we wished to adopt an approach which is simply
based on the autonomy of the individual, we would allow all drug-taking to be
legal since it would be up to the individual to decide if they wanted to take
drugs. However, the state has determined that there are certain types of drug the
possession of which should be criminalised because of the dangers posed by
drug addicts to other people (the utilitarian argument) and to themselves (the
paternalism argument).
The implications of these three distinct issues of the definitions of offences,
the reasons for punishment and the reasons for criminalising certain conduct

49
were raised by the very important decision of the House of Lords in a case
called Regina v Brown.

FACTS OF BROWN

Brown concerned a group of more than 40 sadomasochistic homosexuals. Some

of these men were sadists who obtained sexual satisfaction from causing pain.
Others were masochists who enjoyed having pain inflicted on them. The
activities were wide-ranging, but essentially involved branding, piercing and
beating sensitive parts of the body. Certain features of the men’s activities need
to be emphasised. They occurred in private; injuries were inflicted but they did
not result in any permanent disability; no infection was caused; the participants
had safety words to use to ensure that the activities did not get out of hand; no
medical attention was required; and no complaint was made to the police.
Crucially, all of the participants consented to the activities.
The police discovered the activities of this group in the course of a separate
investigation, called Operation Spanner, into the sale of obscene videos. In the
course of this investigation the police discovered private videos of the
sadomasochistic activities carried out by Brown and his friends and
consequently the participants were charged with various criminal offences.

THE KEY OFFENCES

The defendants were charged with two specific offences contrary to sections 47
and 20 of the Offences Against the Person Act 1861. To be convicted of the
section 47 offence it must be shown that the defendant assaulted the victim so as
to cause him or her actual bodily harm. This offence can be broken up into four
distinct elements, all of which need to be satisfied to convict the defendant of
the crime:

1. Assault: this means either causing the victim to apprehend immediate and
unlawful harm to the person (known as common assault) or unlawfully
touching the victim (known as battery).

50
 2. Actual bodily harm (otherwise known as ABH): this means that the victim
suffered an injury which interfered with his or her health or comfort but
was more than transient or trifling. So, for example, this would include a
broken finger and bruising which was painful to the touch.
3. Causation: that the actual bodily harm was caused by the defendant’s
conduct.
4. The fault element: the defendant must have intended to assault or batter the
victim or foresaw that this might happen as a possibility.

If the defendant is convicted of this offence he or she can be sentenced to

imprisonment for a period up to five years.
The other relevant offence in Brown was maliciously wounding or inflicting
grievous bodily harm contrary to section 20. This offence can also be broken up
into a number of distinct elements:

1. Either wounding, which means doing something which penetrates all the
layers of the victim’s skin, so a pin-prick could count as a wound; or
2. Inflicting grievous bodily harm, known as GBH. This injury is defined
simply as serious injury. It is clearly worse than ABH and includes broken
limbs as well as serious internal injuries. This harm needs to be inflicted.
The meaning of this word ‘inflicts’ has proved to be controversial but it
now seems that it simply means that the defendant caused the victim GBH.
3. The fault element for this offence is malice, regardless of whether the
defendant has wounded or inflicted GBH. Malice here means that the
defendant foresaw the possibility of some harm occurring, but that harm
need not be as serious as the harm which did actually occur. So, for
example, if the defendant punched the victim in the face thinking that the
victim would only suffer bruising, but her nose was badly broken, the
defendant could be guilty of the section 20 offence because he has inflicted
GBH and foresaw the possibility of some harm being caused.

The maximum sentence for this offence is five years’ imprisonment, just as for
the section 47 offence, even though that offence involves less serious harm.
However, in practice, if the defendant is convicted of a section 20 offence he or
she is likely to get a longer sentence than if he or she was convicted of the less
serious section 47 offence.

51
THE ISSUE IN BROWN
The key issue for the courts in Brown was whether it was appropriate to convict
the defendant sadists of harming the masochist victims where the victims
wanted to be harmed. In other words, should the consent of the victim operate
as a defence? You might be surprised to learn that, even though the relevant
criminal offences were defined by statute, the answer to this question turns on
the interpretation of the common law rather than statute. English law accepts
that, as a general rule, where the victim consents to harm, then that is a valid
defence. So, for example, if the defendant tattoos the adult victim at her own
request, the victim’s consent means that no crime has been committed. This
defence of consent even extends to cases where the victim cannot be shown to
have specifically consented to the harm but that harm occurs in circumstances
where the victim can be deemed to have consented to it. So, for example, if the
defendant slaps the victim on the back as a greeting at a party, that is the type of
touching to which everybody can be assumed to have consented. Similarly, if
the defendant is playing football with the victim and trips the victim up in order
to get the ball, that would usually be the sort of touching to which all football
players consent, at least if the defendant has not gone beyond what a player
could have reasonably been regarded as having consented to by taking part in
the sport. But should any limit be imposed upon the type and circumstances of
harm to which the victim can consent? That is the key issue with which the
judges in Brown had to grapple.

The Trial

The defendants were tried in a Crown Court before a judge and jury. In such a
trial the judge has to decide questions of law, such as the proper interpretation
of elements of the crime, but the jury has to decide questions of fact in the light
of the judge’s directions and rulings about legal questions. In Brown the jury
was asked to consider whether the elements of both the sections 47 and 20
offences had been satisfied to justify a conviction. For the most part this was
simply a question of fact. But there was a key question of law, namely, that if,
as the defence argued, the victims had consented to the harm, then, because of
the extreme circumstances in which that harm was caused, was this consent a
valid defence? The judge ruled that it was not and so, even if all the victims did

52
consent, it followed that the defendants would be guilty. Following this ruling
the defendants pleaded guilty and various sentences of imprisonment were
imposed on them, ranging from one to three years.

The Court of Appeal

Following the defendants’ conviction they wanted to appeal against the judge’s
ruling that the defence of consent was not available. This involved appealing to
the Court of Appeal (Criminal Division). The argument before the Court of
Appeal focused simply on a question of law rather than fact, namely whether
the actual consent of the victims meant that the defendants could not be found
guilty of the crimes. The judges reviewed earlier cases and concluded that they
were bound by these authorities to rule that the victim’s consent was not a valid
defence. Consequently, the defendants’ appeal was rejected. However, their
sentence was reduced to between three and six months because they did not
know that their conduct was criminal.

The House of Lords

The defendants then appealed to the House of Lords. Three of the five judges
decided that the appeal should be rejected and the other two dissented,
concluding that the appeal should be allowed. The decision of the majority
prevails and so the appeal was rejected, which meant that the defendants’
convictions were affirmed.
Since, however, there were three speeches given by the majority, it is not
immediately obvious what counts as the ‘official’ reason for rejecting the
appeal. It is, therefore, necessary to analyse these speeches very carefully, and
by doing so it is possible to identify a central principle which justifies the
decision of the majority. As we saw in chapter 1, this is called identifying the
ratio decidendi, otherwise known as the ratio. The ratio of Brown is as follows:

Where the victim has suffered harm which is actual bodily harm or worse,
then the victim’s consent to that harm is no defence.
But this principle is subject to an exception, namely that the consent can
operate as a defence if the circumstances of the harm can be justified by a
good reason.

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Since, on the facts of Brown, the harm was at least actual bodily harm and
because satisfaction of the sadomasochistic libido was not considered by the
majority to be a good reason for causing such harm, it followed that the victims’
consent was not relevant and the defendants were properly convicted.
The majority identified four key reasons in support of this decision.

Earlier Authorities

Although this was a decision of the House of Lords, which was not bound by
earlier decisions of lower courts such as the Court of Appeal, the judges in the
House of Lords considered it important that their decision was consistent with
such earlier authorities. These earlier cases were interpreted as recognising that
the consent of the victim to actual bodily harm or worse could be justified only
if the conduct was consistent with public policy. So, an earlier decision of the
Court of Appeal had held that causing harm in the course of a fight in public
was not an acceptable reason even if the victims had consented. This case had
recognised that acceptable reasons for consenting to harm would include
medical interventions and properly conducted sports. However, the judges in the
House of Lords could have decided to overrule these earlier cases if they
thought that the principles involved were not acceptable. Indeed, it is even
possible for the House of Lords to overrule its own earlier decisions if it is felt
that those decisions were incorrect or no longer appropriate.

Technical Reasons

The majority accepted that it was easier to differentiate between no injury and
some injury than it was to distinguish between degrees of injury. Consequently,
it was accepted that the appropriate line to be drawn between when the victim’s
consent should always be a defence and when it should only be a defence if the
conduct was consistent with public policy is the line between battery and actual
bodily harm, rather than between actual bodily harm and grievous bodily harm.
This is, however, highly dubious reasoning, because the criminal law
distinguishes between injuries constituting actual bodily harm and grievous
bodily harm all the time, since it is the difference between these degrees of
injury which underlies the separate offences of section 47 and section 20.

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Policy Reasons

A number of policy reasons were identified by the majority for their decision.
These included:

the dangers of more serious injury being caused if the defendant’s activities
became too exuberant;
the dangers of infection being transmitted, particularly of the HIV virus;
and
the danger that young men would be corrupted by involvement in
sadomasochistic activities.

But all of these factors involve potential harm, none of which was found to have
occurred on the facts. It is difficult to justify the decision in Brown on the basis
of what might have happened, rather than what did actually happen, particularly
because the defendants had introduced various safeguards to ensure that very
serious injuries were not caused and that any diseases were not transmitted.
Further, if there had been any evidence that young men had been corrupted into
performing sadomasochistic activities, this would suggest that they were not
consenting, which would unquestionably constitute an offence against the
person, and may also involve a sex offence in its own right.

Morality

None of these reasons is therefore altogether convincing. However, careful

reading of the majority speeches reveals a fourth reason for the decision, namely
that the majority perceived the case as involving conduct which was so immoral
that it could not be tolerated by society and had to be punished. For example,
Lord Templeman said that ‘[p]leasure derived from the infliction of pain is an
evil thing’ and Lord Lowry spoke in emotive terms of activities resulting from
‘perverted and depraved sexual desires’. Whether reliance on gut reactions to
perceived immorality is a sufficient reason to criminalise conduct is a difficult
question. The danger of such an argument is that the notion of what is immoral
is virtually impossible to define and depends very much on personal perceptions
and beliefs rather than legal principle. It is difficult to see, therefore, that this is
a sufficient reason in its own right to justify conviction.

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APPLICATION OF THE DECISION
Despite concerns about the reasons behind the decision of the majority, we are
left with Brown representing the law in England as to when the victim’s consent
can operate as a defence. When you are considering whether an important
decision is correct, it is always useful to test the implications of that decision by
applying it to hypothetical situations in an attempt to determine whether the
results are acceptable or absurd. In considering the application of Brown it is
important to consider those circumstances where harm might be considered to
be justified by public policy and those where it might not.

Good Reasons for Consenting to Harm

In a case decided before Brown, the Court of Appeal recognised that a victim
could validly consent to harm involving actual bodily harm or worse where the
harm occurred in the course of properly conducted games and sports, lawful
chastisement and correction, reasonable surgical interference, and dangerous
exhibitions, which would presumably cover the case of an incompetent knife-
thrower at a circus who misjudges the throw and wounds his assistant.
The test of properly conducted sports encompasses boxing, because such a
sport must be conducted within the Queensbury Rules, which provide that there
must be no hitting below the waist, gloves must be used and there must be a
referee. This is distinct from the old practice of prize-fighting, where the fight
occurred without rules and where, as a matter of public policy, the consent of
the participants was not sufficient to negate criminal liability. That boxing is a
legitimate activity was confirmed in Brown. It appears therefore that there is a
distinction between fighting without rules, where the participants’ consent is no
defence, and boxing, where the consent of the parties means that no crime has
been committed.
The boundary between unacceptable and acceptable fighting is difficult to
draw, particularly because it has been held that conduct characterised as
‘horseplay’ is acceptable. This was recognised in a case called Jones, which
involved a fight in a playground during which one boy was thrown into the air
and suffered a ruptured spleen when he fell to the ground. It was held that the
victim’s consent was a defence because ‘boys would be boys and would always
engage in rough and undisciplined horseplay’. This was applied in a later case

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called Aitken, which was decided not long before the House of Lords handed
down judgment in Brown. This was a decision of the Courts Martial Appeal
Court, which is the equivalent of the Court of Appeal (Criminal Division) but
which hears appeals from disciplinary decisions involving the armed forces. The
case concerned a group of drunken RAF officers who celebrated the end of their
exams by pouring white spirit over their fire-resistant suits and setting light to
them. One officer was doused with white spirit which, once set fire, caused 35
per cent burns to his body. Aitken was found to be not guilty of inflicting
grievous bodily harm, because he assumed that the victim consented to the
activity and, crucially, the victim’s consent could be considered legitimate
because the participants were engaged in rough and undisciplined horseplay.
Bearing in mind that this case was decided not long before Brown there appears
to be an inconsistency developing, especially given that the activities in Brown
were carefully controlled whereas those in Aitken were not and so were much
more dangerous. It is difficult to avoid the conclusion that the context of the
activities in each case played some influence in determining whether or not the
conduct was considered acceptable.
The law relating to one of the other recognised situations where consent can
be considered valid has in fact changed. It has been recognised that parents can
use force to chastise their children. Since this exception was recognised in
Brown it appears that parents could use force to cause actual bodily harm and
the child could still be deemed to have consented to the harm, so no crime
would have been committed. The law has since changed. By section 58(1) of the
Children Act 2004 the defendant has no defence of chastisement if the injury
caused is at least actual bodily harm. It follows that chastisement of children
now falls within the principle recognised in Brown and so chastisement is only a
defence to a battery, where no significant injury is caused, and not to assault
occasioning actual bodily harm, where the injury is more than merely transient
or trifling.

Bad Reasons for Consenting to Harm

Following Brown it is clear that the consent of the victim to actual bodily harm
or worse will be relevant only if the conduct can be justified by reference to
public policy. We have seen that fighting without rules and satisfaction of the
sadomasochistic libido by homosexuals do not satisfy this test. What else will

57
not satisfy it? What if the sadomasochistic activity occurs within a heterosexual
relationship, eg between husband and wife? Although the facts of Brown did not
involve heterosexual people, does the ratio extend to them? It appears that the
ratio in Brown is not confined to sadomasochistic activity amongst
homosexuals and so all such activity would appear to be criminal, regardless of
the sexuality of the participants. This is consistent with an earlier case called
Donovan where a man caned a woman to give him sexual pleasure. It was
unclear whether she had consented to this, but it was accepted that, if she had
been consenting, this would have been no defence because he had caused her
actual bodily harm.
A useful hypothetical example against which the application of the principle
in Brown can be tested concerns a boyfriend and a girlfriend who are in love
and the girlfriend asks her boyfriend to give her a love-bite, which he does.
Assuming that the love-bite results in a bruise to the girl’s neck which is painful
to the touch, and so constitutes actual bodily harm, can her consent be regarded
as legitimate within the Brown principle? It cannot be assumed that this is
acceptable conduct; a positive reason needs to be identified for such conduct. If
no such reason can be identified, then giving a loved one a love-bite would be a
criminal offence. This is, presumably, absurd, and we will see later that the
motive of the biter may be enough to make the conduct acceptable. Similarly,
what about a defendant who pierces the victim’s ear to enable her to wear an
ear-ring. Is that a crime? It does constitute actual bodily harm, but can a good
reason for the conduct be identified? What if other parts of the body are
pierced? What if the defendant is a schoolfriend who uses a needle to pierce the
victim’s ear without first sterilising it? When, if ever, should such conduct be
treated as criminal within the principle recognised in Brown? We are forced to
engage with such issues following Brown.

THE DISSENTING JUDGES

When you are seeking to analyse and criticise the law it is always useful to
consider the judgments of dissenting judges, even though their views do not
represent the law, because they can provide important arguments for criticising
the decision of the majority. Both of the dissenting Law Lords in Brown, Lords
Mustill and Slynn, shared the revulsion of the majority as to the nature of the

58
defendants’ conduct and characterised it as immoral, but they considered that
this was not a sufficient reason to convict the defendants. Lord Mustill in
particular sought to identify the rationale for determining when the victim’s
consent cannot be considered to be legitimate by reference to earlier decisions,
and he concluded that no rationale existed. Rather, he considered that these
cases turned on the application of vague principles of public policy and value
judgments. He, with Lord Slynn, sought to identify a workable principle for
such cases. Both judges accepted that there reaches a point where the nature of
the injuries caused are such that public policy should treat the victim’s consent
as invalid, but this should only occur where the harm involves serious injury.
Where lesser harm is involved the consent of the victim should be sufficient to
operate as a defence. Although the approach of the minority does not represent
the state of English law, it is an approach which is arguably more principled and
therefore easier to apply than that of the majority.

THEORY: AUTONOMY VERSUS WELFARE

The debate about whether the approach of the majority or the minority in Brown
is to be preferred goes right to the heart of the criminal law since it turns on the
question: what are we seeking to do when we punish? This raises some deep
issues about the philosophy of law. We saw earlier that there is a tension in the
criminal law between the autonomy of the individual on one side and the
welfare of society on the other. This tension is illustrated best by the issues in
Brown. An emphasis on autonomy would suggest that the defendants in Brown
should have been acquitted, since the recognition of the autonomy principle
means that the defendant should be free to do what he or she wants to do. If this
involves causing harm to others then the defendant should be free to do that.
This argument can be strengthened by reference to the autonomy of the victim
so that, if the victim wants to be injured, then he or she should be allowed to
consent to that. However, the welfare principle would appear to support the
decision of the majority, on the basis that the conviction of the defendants was
for the benefit of society. But where was this benefit? There was nothing to
suggest that the conduct of the defendants was harmful to society since no
member of the public, outside the group of sadomasochists, was in danger from
this type of conduct. The welfare principle must, consequently, be interpreted in

59
a somewhat different way so as to justify the conviction. This interpretation of
welfare would encompass the morality of the defendants’ conduct. This
interpretation is consistent with the approach of a former member of the House
of Lords, Lord Devlin, who wrote a book entitled The Enforcement of Morals.
Lord Devlin argued that there was a need for the criminal law to exist to ensure
that certain standards of morality are maintained. This approach focuses on the
paternalism of criminalising this sort of conduct, namely that it is considered to
be in the best interests of the defendants and society generally that sadists are
convicted for causing harm. There is no doubt that Lord Devlin would have
supported the approach of the majority in Brown.
Against the philosophical approach of Lord Devlin is the approach of other
philosophers of law, especially HLA Hart and John Stuart Mill, who advocated,
to varying degrees, that the criminal law should intrude only to ensure that
people’s interests are not adversely affected. This emphasis on adverse effects
suggests that, if the victim consents to being hurt, the hurt is not adverse and so
should not be criminalised. This approach clearly focuses on autonomy rather
than welfare and would result in an acquittal in Brown. This begs the question
as to whether any limit should be imposed as to the degree of harm to which the
victim should be allowed to consent. Would the answer differ if the victim
suffers from a rare psychiatric condition which makes him believe that one of
his limbs is repulsive and needs to be amputated? What if the victim wants to
die?
Brown is thus a decision which is founded on morality and the concept of
paternalism. In other words, the state seeks to protect certain types of people
from themselves where their conduct does not accord with what is regarded as
acceptable and normal, whatever that means.

SUBSEQUENT EVENTS: MOTIVE AND RISK

Even though Brown is a case which suggests that the welfare principle prevails
over that of individual autonomy, events subsequent to Brown indicate that
there is a move away from this approach. This section will examine the judicial
developments following Brown. This illustrates an important feature of the
study of law, namely that it is not sufficient to focus on the principles derived
from leading cases; it is also necessary to examine what has happened to those

60
principles subsequently. It may be found that these subsequent developments
have moved the law on dramatically.
One of the significant decisions following Brown was Wilson, in the Court
of Appeal. Although this was a decision of a lower court, which could not
overrule a decision of the House of Lords, it is possible for the Court of Appeal
to interpret the principles derived from a decision of the House of Lords and
apply them in such a way that we are better able to understand the rationale of
those principles. That is exactly what happened in Wilson, which concerns a
moving love story involving an elderly couple. Mr and Mrs Wilson wanted to
show their love for each other by bodily adornment. After discussing the matter
they agreed that Mr Wilson would brand his initials on his wife’s buttocks: A
(standing for Alan) on one and W (standing for Wilson) on the other. They
agreed that Mr Wilson would use a heated knife to do this. The wife never
complained about this conduct. Indeed, she wanted it. She went to her doctor for
a medical examination; he saw the scarring and complained to the police. Mr
Wilson was prosecuted for assault occasioning actual bodily harm and was
convicted. He appealed to the Court of Appeal and his conviction was quashed.
The decision of the House of Lords in Brown was distinguished for a number of
reasons, including that the wife was a willing participant, that the branding was
analogous to tattooing which is acceptable, and that this conduct was done in
the privacy of the matrimonial home, in which it was not for the courts or the
law to interfere, so that there was no public interest in prosecuting the husband
for this conduct. However, there was one reason which appears to be the most
significant, especially as a way of distinguishing the facts of Brown from those
in Wilson. This was the motive behind the activity. In Brown the motive was to
get pleasure from pain and this was not considered to be an acceptable reason.
However, in Wilson the wife got no pleasure from the experience of branding; it
was the consequence of the branding which she wanted. Consequently, the
motive was a sign of their affection for each other. The motive was love rather
than pain and love is consequently a perfectly acceptable motive for causing
injury to another.
This emphasis on motive is significant. If we return to the example of a
boyfriend giving his girlfriend a love-bite, although there may well be pleasure
in the activity it is not pleasure which derives from pain, but is pleasure which
derives from love. Consequently, it appears that it is not a crime to give
somebody a love-bite.

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 A further example of the retreat from Brown is to be seen in a series of cases
involving the transmission of HIV. In the first of these cases, Dica, the
defendant, who had AIDS, had unprotected sex with two women in the course
of which he transmitted HIV to them. The defendant was charged with
maliciously inflicting grievous bodily harm contrary to section 20 of the
Offences Against the Person Act 1861. It was held that the disease constituted
grievous bodily harm and that the defendant had inflicted this on the victims. He
was also aware that he had the disease and that he might transmit it to the
victims in the course of having unprotected sex. The crucial issue, however,
concerned whether the defendant’s conduct was unlawful, bearing in mind that
the women had consented to have sex with him. Did it follow that the victims
had consented to the disease? For, if they had consented, the defendant could
not be found guilty of the offence. One argument which was adopted was that,
even if the victims had consented to the disease, this was not a legitimate
consent within the Brown principle, since there was no social utility in
consenting to such a disease. The Court of Appeal in Dica rejected this
argument by distinguishing Brown again. The principle in Brown was
considered to be relevant only where the harm had been deliberately inflicted
and not where, as may have been the case in Dica, the victims had consented to
the risk of the harm being inflicted. Consequently, in any case where the victim
consents to the risk of harm rather than wanting the harm, the victim’s consent
is legitimate and the defendant would not be guilty. So, in Dica, if the victims
had contemplated the possibility that the defendant might have a sexually
transmitted disease and were prepared to take that risk by having unprotected
sex, the consent to the risk would mean that the defendant would not be guilty.
This raises a difficult question of policy as to whether the victim in such a case
should be required to bear the burden of taking the risk of the defendant having
unprotected sex with him or her. Dica was subsequently retried and was found
guilty, presumably because he had falsely told the victims that he did not have
the disease and so they did not in fact consent to the risk of the disease. A
subsequent case, Konzani, has placed the burden of risk-taking squarely on the
defendant by holding that the victim’s consent to the risk of the disease must be
a fully informed consent. So, if the defendant knew or suspected that he had the
disease but did not reveal this knowledge or suspicion to the victim, that
victim’s consent to the risk of the disease would not be considered to be fully
informed and would not therefore be relevant.

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 This review of the decisions following Brown indicates that the law has
developed dramatically. Today the victim can legitimately consent to injury
where the motive for the injury is regarded as acceptable or where the victim is
consenting to the risk of injury. It is only where the defendant wants the injury
to be inflicted for no acceptable motive that the victim’s consent will not be
considered relevant.

HUMAN RIGHTS
There is one further dimension to the decision in Brown, involving the
application of the European Convention on Human Rights. Following the
decision of the House of Lords, the defendants appealed to the European Court
of Human Rights. This was on the basis that the conviction of the defendants
interfered with their fundamental human rights under the European Convention.
In particular, the defendants relied on Article 8, which recognises the right to
respect for private and family life. They argued that this encompassed a right to
express their sexuality as they wished, even if this involved sadomasochism.
Article 8 does indeed protect the right to expression of sexuality, but the
European Court confirmed that the conviction of the defendants by the English
courts did not infringe the European Convention. This was because states which
are parties to the Convention are allowed to derogate from the right under
Article 8 where it is ‘necessary in a democratic society’ for the protection of
health and morals. So, even the European Court of Human Rights adopted a
paternalistic approach in preference to one which respected the autonomy of the
individuals to express their sexuality as they wished.

LAW REFORM
Having reviewed the decision of the House of Lords in Brown, its application
and its implications, we should now consider whether that decision itself is
justifiable. This requires students of the law to engage critically with the
decision and consider whether reform of the law is necessary. You might
consider that the decision of the majority in Brown is correct and that there is no
need to reform the law. However, if you conclude that the decision is

63
unsatisfactory, you need to consider how the law should be reformed and
whether this should be left to the judiciary or should be a matter for Parliament.
The question of reforming the law in this field has been considered by the
Law Commission. As we saw in chapter 1, the Law Commission was
established in 1965 to review the law in certain areas and, if the law is found
wanting, make recommendations for reform to the Government. The Law
Commission prepares reports for consultation and, having reviewed the
responses, prepares a final report. The Law Commission produced a
consultation paper in 1995, soon after the decision in Brown, on the relevance of
the victim’s consent where injury has been caused. Its preliminary conclusion
was that the victim’s consent to personal injury should be regarded as valid save
where the injury is seriously disabling or involves death, and even then the
victim should be allowed to consent to the risk of injury or death where it is for
a legitimate reason such as medical treatment. Unfortunately, the Law
Commission did not proceed with this project to a final report to be presented to
Parliament.
The Law Commission’s preliminary proposals would seem to be a
satisfactory compromise between the need to respect the autonomy of the
individual defendant and the victim and the need to protect those parties. Where
the injury is seriously disabling or worse it should be appropriate for the state to
intervene through the mechanism of the criminal law to protect defendants and
victims from themselves, for in an extreme case, such as that of Armin Meiwes,
a German national, who advertised on the internet for a willing victim to come
forward to be killed and eaten, the criminal law should make clear that such
conduct is unacceptable in a civilised society. In that case a victim did come
forward and allowed himself to be killed and eaten and the German court in
May 2006 held that Meiwes was guilty of murder, regardless of the victim’s
consent. Of course, issues of consent to one’s own death raise big and difficult
questions concerning euthanasia, suicide and assisting and encouraging suicide.
These issues essentially concern the legitimacy of consent and when engaging
with them the law student needs to take account not only of legal rules but also
moral and ethical considerations.

CONCLUSIONS

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Although Brown raises some issues of quite technical law, ultimately the
analysis of this case raises a very simple question, namely whether it is
appropriate to convict a defendant of a serious crime involving personal injury
where the victim consented to that injury. The case can be analysed on a variety
of different levels. First, there is the basic analysis of what the case decided and
the identification of the arguments for and against the decision. Secondly, the
practical implications of the decision need to be considered by reference to
hypothetical examples and subsequent decisions. Thirdly, the decision needs to
be considered critically by considering whether a workable principle can be
identified and whether that principle is acceptable with reference to theoretical
and social policy considerations. Ultimately, you need to ask, ‘If I were one of
the justices sitting in the Supreme Court how would I decide the appeal in
Brown?’

Cases
Aitken [1992] 1 WLR 1006
Attorney-General’s Reference (No 6 of l980) [1981] 2 All ER 1057
Barnes [2004] EWCA Crim 3246; [2005] 1 WLR 910
Brown [1992] QB 491 (Court of Appeal); [1994] 1 AC 212 (House of Lords)
Coney (1882) 8 QBD 534
Dica [2004] EWCA Crim 1103; [2004] QB 1257
Donovan [1934] 2 KB 498
Emmett (1999) The Times, 15 October
Laskey, Jaggard and Brown v UK (1997) 24 EHRR 39
Jones (1986) 83 Cr App R 375
Konzani [2005] EWCA Crim 706
Wilson [1996] 2 Cr App R 241

Further reading
Ashworth, Principles of Criminal Law, 6th edn (Oxford, Oxford University
Press, 2009) 307–15
Devlin, The Enforcement of Morals (Oxford, Oxford University Press, 1965)
Hart, Law, Liberty and Morality (Oxford, Oxford University Press 1963)
Law Commission Consultation Paper No 139 (1995) Consent in the Criminal
Law

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Simester and Sullivan’s Criminal Law: Theory and Doctrine, 4th edn (Oxford,
Hart Publishing, 2010) 432–46, 747–66

66
3

Law of Contract

Janet O’Sullivan

INTRODUCTION
I wonder how many contracts you have made today, before sitting down to read
this chapter. Perhaps you bought a sandwich from the supermarket, travelled on
public transport, opened a bank account or sold an unwanted gift on an internet
auction site? You may even have bought this book today. Meanwhile, all over
the world, other people are booking tickets and holidays, commissioning
building work, leasing flats or signing employment contracts for new jobs,
while small businesses and giant corporations are borrowing money and
employing staff, acquiring premises and equipment, even taking-over other
companies. The law of contract is at the heart of all these situations, the same
basic principles whether it is a simple, oral contract to purchase a book or a
complex financing transaction spelt out in hundreds of pages of detailed terms
and conditions. (It surprises some people to discover that, with notable
exceptions, most contracts can be made orally and are no less valid for not being
written down.) Admittedly, you may not notice any sort of contract when you
buy a book—you simply hand over your money and the shopkeeper hands over
the book—but you do in fact make an invisible contract, one which, for
example, obliges the shopkeeper to give you your money back if all the pages
fall out of the book the first time you open it.
To a lawyer (at least one with a traditional outlook), a contract is typically
an agreement between two (or sometimes more) parties who make binding
promises to each other, each party’s promise given in exchange for the other’s.
In this context, the adjective binding means that if the promise is not honoured,

67
the law becomes involved and provides some redress for the other party (as
opposed, for example, to the sorts of promises parents make to children about
treats in return for good behaviour). Many simple contracts are like the book-
purchase example, where the seller and the buyer don’t actually spell out any
promises to each other, because the goods and the money are handed over
simultaneously (although the seller, whether he likes it or not, is treated as
having made certain promises about the quality of what he is selling, because
these are implied into the contract by a statute called the Sale of Goods Act).
But in virtually all other sorts of contract, there is a gap in time between the
making of the contract and its ultimate performance, ie the date when
everything is finally done as the contract requires. So the parties promise each
other that they will do something in the future. For example imagine you pre-
ordered this book on the internet two months before its publication date. The
moment you clicked the ‘I agree’ button, the internet seller promised to deliver
the book, and you in turn promised to pay for it, even though both obligations
would not actually be performed for two further months.

SOME CRUCIAL IDEAS ABOUT CONTRACTUAL

REMEDIES
The crucial point is that these promises (to deliver, to pay the price) are
regarded as legally ‘binding’ from the moment the contract is made, not merely
at the later date when performance is due. In other words, if the seller changes
his mind and decides not to send you the book when it is published, you have a
legal right against him and not merely a right to complain, a right to a remedy if
your complaint doesn’t persuade him to change his mind, enforceable in the
civil courts. In fact in English law, the courts rarely actually compel a contract-
breaker like this seller to honour his contract and send you the book, but that is
not usually a problem (after all, you have not paid anything yet). Imagine that
the seller was offering the book for a bargain price of £5 to anyone who pre-
ordered it, instead of the usual selling price of £9.99. When he failed to deliver
it to you, you had to obtain the book from your local book shop for £9.99, so the
seller’s breach of contract meant that you spent £4.99 more than you would
have done if he had honoured his promise. Thus you would be entitled to
damages of £4.99 from the seller. Identical rules apply even if the figures

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involved are multiplied by millions and the transaction a complex, commercial
one.
All this explains why people and companies bother to make contracts at all.
Imagine X is a soft drink manufacturer and Y is a commercial grower of
tomatoes. X wishes to ensure a supply of tomatoes to make tomato juice, sales
of which peak at Christmas time. So X makes a contract with Y in June, to
purchase from Y 10,000 kilos of tomatoes to be delivered in October at an
agreed price per kilo, the price to be paid on delivery of the tomatoes. Both
parties, being rational, make the contract for a good reason—X to feel secure
about a supply of tomatoes in October at a price it is happy with, Y because it
wants to make a profit and is confident that the cost of growing and harvesting
the tomatoes will be less than the price. The contract allows both forward
planning and risk allocation, because the law treats it as valid and binding
immediately, even before any part of the contract has been performed or any
sums spent preparing to perform it. Indeed commerce is built on the
understanding that contracts create enforceable obligations and corresponding
expectations immediately, not at some unidentifiable later date when the other
party first acts or incurs expenditure in reliance.
Commerce also relies on the fact that Y’s promise to deliver the tomatoes is
a very strict concept, not merely a promise to take reasonable care to deliver
them or only to deliver them if has a plentiful supply. You will recall from
chapter 1 that defendants are generally only liable in tort where they are at fault
in some way: in contrast, liability for breach of contract does not depend on
fault. Put another way, you can be in breach of contract merely because
circumstances beyond your control prevented you from doing what you
promised. So in our tomato example, the law would not allow Y to ignore its
promise or to increase the contract price merely because, for example, there is
an unexpected drought, tomato yields are badly affected and their market price
soars accordingly. This may seem ‘hard’ on Y, since it is not Y’s fault in a
moral sense that it cannot honour the contract, but think back to the reasons why
the parties wanted to make a contract in the first place. Y took the risk that it
could perform for less than the contract price, hoping to make a profit (which it
would have done if the market price had moved down instead of up). X made
the contract to allow for forward planning, for the security of not having to
worry about the risk of the market price moving up because of problems like a
poor harvest (and was prepared to take the risk of the market price moving

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down to achieve this security). So it is crucial that the law holds the parties to
their contract in these unexpected conditions, ‘holds’ not in the sense of
requiring Y to deliver the tomatoes, but to pay damages to X instead,
representing the difference between the contract price and the October market
price.
At this point it is worth mentioning another important aspect of a remedy for
damages, the requirement of mitigation, that the claimant must mitigate his or
her loss. This means that claimants must act reasonably to keep their losses to a
minimum; more accurately claimants cannot claim damages for an amount in
excess of what they would have lost if they had acted reasonably. So in our
tomato example, X will only be entitled to the difference between the contract
price and the market price, not between the contract price and the highest price
of tomatoes on the date of delivery. Likewise a tort claimant who is injured by
the defendant’s negligent driving may claim damages if she suffers a broken
arm, but if she deliberately and unreasonably refrains from seeking medical help
and for this reason the arm develops gangrene, she cannot claim damages to
compensate her for the gangrene—she has failed to mitigate her loss.
Now some misguided law students regard the law about contractual
remedies as if it is an unimportant add-on to the legal rules about contracts, a
discrete module that can safely be ignored. They think of other areas as the
‘real’ parts of the law of contract. It is true that the law of contract is concerned
with much more than just remedies. To name just a few important issues, the
law of contract determines whether a binding contract has been formed at all,
what exactly the terms of the contract are and what those terms mean, whether
an apparent contract is invalidated by something improper that one of the parties
did (maybe he bullied the other party or made a false statement about the
contractual subject matter), what happens where one or both of the parties were
contracting under a mistake, whether one of the contractual promises has been
breached and, if so, what effect does this have on the rest of the contract.
Nonetheless, those misguided students are really missing the point. From what
we have seen already, it is clear that the remedy for breach of contract is a
crucial part of the legal regime supporting contracts—indeed, it is meaningless
to envisage contractual rights without a legally enforceable remedy for breach
of contract, meaningless to learn about the formation of contracts without
understanding the law’s response when a contractual obligation is breached.
For this reason, the rest of this chapter is concerned with a fascinating case

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called Ruxley Electronics and Constructions Ltd v Forsyth, which is about the
usual remedy for breach of contract, namely an award of damages. As you will
see, it started life as a small run-of-the-mill claim in the County Court about
some domestic building work, but ended up (because of a series of appeals
brought by one party, then the other) being resolved by the highest court in the
land, the House of Lords, whose decision is now a very important precedent
shaping the law of contract for the future. This is a really satisfying feature of
English law—it is not necessarily the big money cases that raise the important
issues of legal principle.

THE CASE

The Pool Was Too Shallow

Stephen Forsyth commissioned Ruxley Electronics, a small company run by a

builder, to build a swimming pool in the garden of his house in Kent. The
contract price for the pool and its enclosure, some of which was to be paid
during the construction and the rest on completion of the work, totalled just over
£70,000 (this simplifies the facts slightly, but not materially). The contract
originally specified that the pool was to have a maximum depth of 6 feet 6
inches, but the depth specification was increased some time later, at Forsyth’s
request, to 7 feet 6 inches, apparently because he was a tall man and wished to
feel confident that he would not hit his head when diving.
When the work was completed, Forsyth discovered that the pool had a
maximum depth of only 6 feet 9 inches and that it was only 6 feet deep at the
crucial entry point for dives, some distance from the end of the pool. So when
he received his final bill for the reminder of the contract price (approximately
£39,000), he pointed to this breach of the contractual specification and alleged a
number of other defects in the work, and refused to pay. Ruxley sued him for its
money (plus interest) and Forsyth counterclaimed for damages. This means that
Forsyth didn’t just defend himself against Ruxley’s action for the balance of the
price; he also went ‘on the attack’ and claimed damages from Ruxley. It also
means that it is easy to get confused when reading reports of the case, because
Forsyth is officially the defendant, even though most of the discussion concerns
his counterclaim for damages and it is of course usually a claimant who claims

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damages.
Notice that, although Ruxley and Forsyth were each claiming money from
the other, the claim and the counterclaim were for fundamentally different
remedies. Ruxley’s claim was for the sum of money agreed by the parties as the
contract price for building the pool. In this sort of claim, sometimes also called
a debt action, the role of the court is very simple, merely deciding whether the
sum claimed is in fact due. In contrast, Forsyth’s counterclaim was for damages
for breach of contract, where the court has a further job to do once it has
decided that there has been a breach of contract: it must also calculate those
damages, work out how to convert ‘loss’ into ‘money’. As we will see, this can
be a highly complex, controversial process.
The judge at the Central London County Court examined all the evidence,
listened to the witnesses and decided that there was a breach of the depth
specification, but that the pool as constructed was nonetheless perfectly safe to
dive into. He also decided, however, that Forsyth had not proved any of the
other defects in the pool that he was alleging. What did these findings mean for
both the claim and the counterclaim?
The straightforward part was that Ruxley’s claim for the balance of its
contract price succeeded. The law says that, in general, one party cannot resist
paying the price unless there was a ‘substantial failure’ to perform the relevant
contractual obligation by the other party (or, put the other way round, you must
pay the price if the work was substantially performed). There are some
exceptions to this rule: certain, unusual contractual obligations are said to be
‘entire’, in other words they must be performed entirely before the other party is
obliged to pay anything at all. A good example might be a contract to paint a
portrait—the painter cannot deliver a 90 per cent completed painting, lacking
only ears, and demand payment of 90 per cent (or indeed any part) of his price.
But this exception did not apply to our swimming pool contract. Ruxley’s
breach of the depth specification was not a ‘substantial failure’ and Forsyth
could not withhold the balance of the price.

Contractual Damages—A Brief Discussion

What about Forsyth’s counterclaim for damages to compensate him for the fact
that the pool was shallower than Ruxley had promised in the contract? This is
where we need to step away from the swimming pool for a moment and

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introduce some basic principles about legal compensation. The rationale for any
award of damages is to compensate the innocent party for what he or she has
lost, but the notion of ‘loss’ does not mean exactly the same thing in all
branches of the law. If you are the victim of a tort (eg you are run over and
injured by a negligent driver), you will be entitled to damages to put you into
the position you were in before the tort occurred. Of course, money can not
literally repair broken bones, but it can compensate you for your lost wages,
pain and suffering, ‘lost amenity’ in the sense of being able to enjoy your work
and leisure activities, as well as paying for any expenditure you incurred as a
result of the tort. The focus in tort is backward looking, to restore you to the
pre-tort position, and can be represented diagrammatically as shown in figure
3.1

Figure 3.1 Damages in tort

In contrast, the aim of damages for breach of contract is subtly but
significantly different. It was explained in an early Victorian case called
Robinson v Harman as follows:
The rule of common law is that where a party sustains a loss by reason of a
breach of contract, he is, so far as money can do it, to be placed in the same
situation, with respect to damages, as if the contract had been performed.
So this is forward looking: what would your position be if the other party had
performed, not breached, the contract? Sometimes a breach of contract actually
causes you loss in the tort sense, but very often the only adverse effect is on
your expected profit. The significance of contractual damages is that they are
paid even if you are not actually worse off than you were before you made the
contract, but merely if you are not as much better off as you would have been if
the contract had been performed (rather than breached). As in our earlier
examples about the book ordered from the internet at a bargain price and the
tomato grower that must pay its customer the difference between the contract
price and the (higher) market price. Of course, sometimes a breach of contract

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actually leaves you worse off, instead of making your expected profit, and you
can claim the difference. (See figure 3.2.)

Figure 3.2 Damages in contract

This contractual notion of damages is said to be compensating the fact that

you didn’t get the performance you were entitled to expect from the other party,
and so is commonly called the expectation measure of damages. All this is
relatively easy in theory, but how do the courts actually put a value on this
expectation measure?

How to Value the Contractual Expectation

Traditionally there have been two different ways of doing this valuation
exercise. The most obvious way, which works perfectly well when dealing with
contracts for the sale of marketable commodities like our book and tomatoes
examples, is to award the difference in value between (i) what, if anything, the
claimant actually received and (ii) what the claimant would have received had
the contract been performed. Notice that the more profitable the contract would
have been, the greater the amount of damages awarded to the claimant; in
contrast where the contract price is the same as the market price, the difference
in value and thus the damages will generally be nil. So going back to our
internet book example, imagine that the internet seller was not offering the book
for sale at a bargain price, but only at its market price of £9.99: if the seller fails
to deliver the book to you, you can simply buy it at the same price elsewhere, so
your damages (assuming you have not yet paid for the book) are nil.
Sometimes, however, the difference in value approach is not appropriate,
generally in the sort of case where the claimant cannot simply go to market and
purchase substitute performance. For example, in Radford v De Froberville, Mr

74
Radford owned a very large house in Holland Park, London, which was divided
into flats let to tenants and which had a big garden (used by the tenants). He
sold part of the garden to the defendant, Mrs De Froberville, who was planning
to redevelop the plot by building a new house on it. One of the contractual terms
of the sale was that she promised to build a brick boundary wall between her
plot and the rest of the garden, of a thickness and height specified in the
contract. But in breach of contract she did not build the wall or any other sort of
boundary (having failed to redevelop the plot at all). What was the appropriate
measure of damages for Mr Radford? The difference in value between his
property with the boundary wall and without it was negligible, but that wasn’t
really the point. He wanted the wall and so had obtained from Mrs De
Froberville a promise to build it, but he was now going to have to spend his own
money if he wanted a wall. The judge explained why the difference in value
measure would be inappropriate, giving an example of:
a man with a garden by the sea or a river, subject to inundation on rare
occasions by freak floods. He sells a part of his garden as part of the sale
and stipulates that the purchaser shall erect a flood wall on the property
purchased to protect both properties. If the purchaser fails to build the wall
and the court is satisfied that the plaintiff intends to build it on his own land
what the defendant has failed to build on his, why should he be limited to
the amount by which his land is diminished in value as a saleable asset by
the possibility of an occasional flood? He is interested in cultivating his
garden, not selling his property.
In this sort of case, the courts recognise that the difference in value measure is
inadequate to value the claimant’s lost expectation, so use instead another
approach, namely the cost of actually putting right the breach of contract. This
second approach is generally known as the ‘cost of cure’.
Often the cost of cure and the difference in value produce identical results
(eg when you can ‘cure’ the breach by purchasing substitute performance in the
market place), but sometimes they produce dramatically different figures. This
brings us back to Mr Forsyth’s shallow pool, which was a striking example of
the two conventional methods of assessing damages producing dramatically
different figures and, more to the point, neither of which seemed quite right.

Back to the Poolside

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The cost of cure was a staggering £21,650, since the only practical way of
increasing the depth of the pool to conform to the specification would be to
remove the existing pool, excavate further and construct a new pool. On the
other hand, the judge’s somewhat surprising conclusion was that there was no
difference in market value between the pool as built and the pool as it should
have been built (indeed it is somewhat artificial to think of built-in swimming
pools as having a ‘market value’ at all, separate from the property in which they
are constructed, so it is by no means clear precisely what the judge meant by
this finding, but for the purpose of this chapter we will put these factual doubts
to one side and continue).
Why is it that neither of the two conventional measures seems to fit the facts
of Ruxley? The cost of cure ‘feels’ too large, because it ignores the fact that
Forsyth obtained a perfectly serviceable, well-constructed pool, entirely suitable
for swimming, paddling and lounging next to, but merely shallower than the
depth specified. It would over-compensate him to award the full cost of cure,
particularly as Forsyth was highly unlikely to use the money to rebuild the pool.
On the other hand, the difference in value (nil) ‘feels’ inadequate: after all,
Forsyth did not get what he paid for, and it is irrelevant that what he paid for
was no more valuable than what he got. After all, he did not make the contract
to enhance the value of his house. In the words of Lord Mustill:
It is a common feature of small building works performed on residential
property that the cost of the work is not fully reflected by an increase in the
market value of the house, and that comparatively minor deviations from
specification or sound workmanship may have no direct financial effect at
all. Yet the householder must surely be entitled to say that he chose to obtain
from the builder a promise to produce a particular result because he wanted
to make his house more comfortable, more convenient and more
conformable to his own particular tastes; not because he had in mind that the
work might increase the amount which he would receive if, contrary to
expectation, he thought it expedient in the future to exchange his home for
cash. To say that in order to escape unscathed the builder has only to show
that to the mind of the average onlooker, or the average potential buyer, the
results which he has produced seem just as good as those which he had
promised would make a part of the promise illusory and unbalance the
bargain.
The reason for the law’s traditional emphasis on market value when measuring

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expectation damages for breach of contract is because of the historical
background to the modern law of contract. The classical rules of the law of
contract were first understood and conceptualised as such in the nineteenth
century, in a wholly commercial context. To a Victorian lawyer, the ethos of the
law was to interfere as little as possible in the parties’ freedom of contract,
while the paradigm contractual situation involved two gentlemen (note the
gender!) of roughly equal bargainingstrength negotiating and then making a
contract to sell a carriage or a business. This is self-evidently not the only
contractual model in the twenty-first century, in particular because of the
growth of contractual relationships between consumers and big businesses.
Today, almost all such contracts are made on non-negotiable printed forms,
often virtually identical across the particular market sector; Parliament has, in
turn, intervened with statutory controls on certain sorts of undesirable, onesided
contractual terms in consumer contracts.
In the area of contractual remedies, the traditional assumption that the
parties were contracting merely for profit-making, commercial motives (as in
our tomatoes example) does not fit comfortably in the context of consumer
contracts, where it is perfectly rational to be motivated for reasons other than a
desire for profit. The recognition of this in the field of building contracts led to
the adoption of the ‘cost of cure’ measure in the first place, but Ruxley forced
the law to confront whether more flexibility might be needed than just the two
familiar approaches.

The County Court’s Judge’s Decision and the ‘Middle Ground’ Award

The County Court judge refused to award the cost of cure. He said:
Not only am I not satisfied that Mr Forsyth intends to build a new pool at a
cost of £21,560, but in addition it seems to me that this cost would be
wholly disproportionate to the disadvantage of having a pool whose
maximum depth is 6 ft as opposed to 7 ft 6 in. In those circumstances I find
that it would be unreasonable for Mr Forsyth to carry out this work at such a
cost.
However, the judge did award Forsyth a small sum in damages (£2,500) as a
sort of middle-ground award, being neither the difference in value nor the cost
of cure. This, the judge said, was to reflect his lack of amenity in not having a
pool of the correct depth, saying that it is:

77
 a perfectly reasonable requirement to wish to make deeper dives or to have a
greater depth of water and one can sympathise with any pool owner who
makes a legitimate request for a specified depth of water and does not get
the depth he contracted for. There is, accordingly, a lack of amenity brought
about by the shortfall in the depth of water, but this lack of amenity is not
easy to quantify.
The judge did not analyse further the theoretical basis of this lost amenity
award, but that is unsurprising. After all, it is a commonplace, everyday matter
for County Court judges to award damages for lost amenity to tort claimants
who have suffered personal injury, reflecting their reduced ability to enjoy life
as much as before the injury. As a way of valuing expectation damages for
breach of contract, however, an approach based on ‘lack of amenity’ was new
and controversial.

On Appeal to the Court of Appeal

In any event, Forsyth was unhappy with the result of the County Court decision.
You will remember that Ruxley’s claim for the balance of the purchase price
succeeded, so Forsyth actually had to pay £39,000 plus interest, less the £2,500
damages for his counterclaim. He therefore appealed to the Court of Appeal,
arguing that the judge should have awarded him the full cost of cure on his
counterclaim. This time, his argument was successful. The Court of Appeal felt
considerable sympathy for Forsyth, presenting him as the long-suffering,
innocent victim of cowboy builders and stressing that he wanted a deeper pool
because he was tall and feared diving in shallow water. With this view of the
merits of the case, it is perhaps unsurprising that the Court of Appeal decided
(though only by a majority of 2:1) that his damages should be the full £21,650
cost of cure (Dillon LJ agreed with the County Court judge, but his was a
minority view). Staughton LJ said:
In the present case Mr Forsyth has without question suffered a loss; he has a
swimming pool which is less well suited to diving than the one he
contracted for. What money will place him ‘in the same situation … as if the
contract had been performed?’ The answer, on the facts of this case, is the
cost of replacing the pool. Otherwise, a builder of swimming pools need
never perform his contract. He can always argue that 5 ft in depth is enough
for diving, even if the purchaser has stipulated for 6, 7 or 8 ft, and pay no

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 damages.
The reasonableness or unreasonableness of rebuilding the pool, and Forsyth’s
intentions in that regard, were not regarded by the majority of the Court of
Appeal as relevant. As Mann LJ put it:
There can be instances where the cost of rectifying a failed project is not
reasonable, as, for example, where no personal preference is served or
where there is no preference and the value of the estate is undiminished. In
my judgment this is not such a case. The bargain was for a personal
preference.

On Appeal to the House of Lords

With the score at one-all, Ruxley wanted to appeal to the House of Lords, then
the highest court in the land. It is worth noting that a civil litigant did not have
an automatic right to appeal to the House of Lords if he or she disagreed with
the Court of Appeal’s decision, and the same applies now to the Supreme Court.
The litigant must obtain permission to do so, known as leave to appeal.
Sometimes this is granted by the Court of Appeal itself, but normally the Court
of Appeal refuses leave to appeal and the litigant must apply to the Supreme
Court itself for permission, by filing an application for permission to appeal.
The Court decides whether to allow or refuse an application, depending on
whether the case involves a point of law of general public importance that ought
to be considered by the Supreme Court. In our swimming pool case, the Court
of Appeal refused leave (the judges naturally thought their decision was correct
and should not be challenged further!), but Ruxley successfully petitioned the
House of Lords for leave to appeal. This small County Court dispute had, by
this stage, generated a point of law of considerable public importance and battle
lines were drawn.
The appeal to the House of Lords, like many final, decisive battles in long
military campaigns, was very much a tactical contest. It is crucial to appreciate
that, in civil litigation, the loser generally pays the winner’s legal costs as well
as his or her own, so if Ruxley won this appeal, Forsyth would be responsible
for its costs as well as his own. Bearing in mind that the dispute had already
lasted seven years since Forsyth first declined to pay the final invoice for the
pool, those costs were potentially astronomical. The other important tactical
point was that Ruxley had always been happy with the County Court judge’s

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middle-ground award of £2,500 and were only appealing against the Court of
Appeal’s decision to award the full cost of cure (concentrating only on why the
cost of cure was inappropriate). More significantly, Ruxley had offered to settle
the case on this basis (ie to abandon the appeal and ‘call it a draw’ if Forsyth
would accept £2,500), but Forsyth consistently refused this offer. From a costs
point of view, this stubborn stance put Forsyth in a dilemma when it came to his
arguments in the appeal, because the rules of civil procedure say that if a litigant
refuses an offer to settle a case but then is not awarded any more than the other
side were offering, he or she is treated as having ‘lost’ and must pay the other
side’s costs. So Forsyth was forced to argue, somewhat counterintuitively, that
the reason the House of Lords should stick with the cost of cure was because
their only other alternative was to award him the (plainly inadequate) difference
in value measure, namely nil. Only if that argument succeeded would he get his
costs paid by Ruxley.
All this meant that, bizarrely, for tactical reasons neither side offered any
argument or analysis whatsoever about the theoretical basis or practical
implications of the loss of amenity ‘middle-ground’ award, even though this
was central to the ‘point of law of general public importance’ which the appeal
was meant to consider, namely the appropriate way of valuing Forsyth’s lost
expectation.
The House of Lords evidently viewed the merits of the case very differently
from the Court of Appeal, presenting Forsyth as a pedantic, demanding client,
trying to find technical breaches of contract to avoid paying for good work
carried out by honest contractors. For example it was revealed in the House of
Lords appeal that Ruxley had already agreed to reduce Forsyth’s bill because of
unfounded allegations of defects and (more damning still) that Forsyth first
raised the question of the depth of the pool three days after the commencement
of the trial (amending his pleaded case accordingly), many years after the
completion of the work!
Viewing the case in this light, it is not surprising that the House of Lords
unanimously decided that the Court of Appeal had been wrong to award Forsyth
the full cost of cure and (undeterred by the lack of submissions on the point
from either side) that the middle-ground award for loss of amenity favoured by
the County Court judge had indeed been a perfectly proper way to value that
elusive notion of Forsyth’s lost expectation from the breach of contract. As Lord
Mustill said, once the possibility of a middle-ground award for loss of amenity

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is recognised,
the puzzling and paradoxical feature of this case, that it seems to involve a
contest of absurdities, simply falls away. There is no need to remedy the
injustice of awarding too little by unjustly awarding far too much.
So Forsyth’s tactic failed and he was left paying his own legal costs as well as
all of Ruxley’s.

THE HOUSE OF LORDS DECISION IN MORE

DETAIL
Let us look in more detail at the House of Lords decision. First, why was the
cost of cure refused? The House (unlike the Court of Appeal) stressed that the
cost of cure should not be awarded where it would be unreasonable for a
claimant to insist on reinstatement, ‘as where, for example, the expense of the
work involved would be out of all proportion to the benefit to be obtained’.
Their Lordships cited an old American case as an extreme example of this
principle in operation, called Jacob & Youngs v Kent. This involved a contract
for the construction of a new house, in which the owner had insisted in the
contractual specification that the builder should install plumbing using pipes of
‘Reading manufacture’, but the builder had mistakenly installed practically
identical pipes made by a different manufacturer. The owner’s counter-claim for
damages reflecting the cost of replacing the pipework was rejected: the famous
American judge Cardozo J expressed the view that a claimant ‘is entitled to the
money which will permit him to complete, unless the cost of completion is
grossly and unfairly out of proportion to the good to be attained’. In the same
way, their Lordships held that it would be grossly unreasonable and
disproportionate to incur the cost of demolishing the perfectly adequate existing
pool just to build a new and deeper one, so Forsyth’s loss should not be valued
at the cost of reinstatement.
In addition the House relied on the County Court judge’s refusal to believe
Forsyth’s evidence that he intended to rebuild the pool as another factor
indicating the unreasonableness of the cost of cure. Lord Lloyd said ‘if, as the
judge found, Mr Forsyth had no intention of rebuilding the pool, he has lost
nothing except the difference in value, if any’. For tactical reasons, Forsyth was

81
now willing to give the House an undertaking to rebuild the pool if they let him
keep his cost of cure damages, but even this did not make any difference: it
could not make the unreasonable reasonable and would not ‘be allowed to
create a loss, which does not exist’.
But if a cost of cure award of £21,650 was ‘wholly disproportionate’ to the
true value of Forsyth’s lost expectation, the House went on to explain why the
difference in value measure (nil) was also inappropriate on the facts. Remember
this measure looks at the difference between (i) the market value of the pool as
constructed and (ii) its market value if it had been built to the correct
specification.
The House of Lords’ reasoning was very simple: it is for the particular
individual making the contract, not the notional average punters who create the
market value, ‘to judge what performance he required in exchange for the price.
The court should honour that choice’. It ought to be irrelevant that the average
person would not have been bothered by the shallower pool, because Forsyth
had contracted for a pool of a particular depth in the contract to satisfy his own
preferences. Lord Mustill pointed out that, for example, contracts to install
features such as
lurid bathroom tiles, or a grotesque folly … may be so discordant with
general taste that in purely economic terms the builder may be said to do the
employer a favour by failing to install them. But this is too narrow and
materialistic a view of the transaction. Neither the contractor nor the court
has the right to substitute for the employer’s individual expectation of
performance a criterion derived from what ordinary people would regard as
sensible. As my Lords have shown, the test of reasonableness plays a central
part in determining the basis of recovery, and will indeed be decisive in a
case such as the present when the cost of reinstatement would be wholly
disproportionate to the non-monetary loss suffered by the employer. But it
would be equally unreasonable to deny all recovery for such a loss.
So, having rejected both the cost of cure and the difference in value measures,
their Lordships gratefully looked back to and adopted the County Court judge’s
middle-ground award for loss of amenity. Only two members of the House made
any attempt to explain the theoretical basis of the award.
Lord Mustill viewed it as reflecting the consumer surplus. This is an
important idea that needs explanation. What it means is the amount by which
the particular claimant values performance of a particular obligation, over and

82
above the amount by which the average person would value it. In other words, it
recognises that an individual can, for personal reasons, value something over
and above its market value—this extra value is the consumer surplus. For
example, an old gold wedding ring might be worth £100 on the market, but if
that ring was a family heirloom, once your great-grandmother’s wedding ring,
then you will value it at much more than £100. So if you make a contract with a
jeweller to repair or clean the ring, but in breach of contract he loses or destroys
it, then damages of £100 will not adequately compensate you for what you have
lost. The same applies to a set of wedding photographs, which have a limited
market value in terms of the paper and printing costs, but are worth vastly more
to the bride and groom.
Although the consumer surplus had been discussed at length by academics
as being an important consideration when valuing a claimant’s expectation
fully, Lord Mustill was the first Law Lord to acknowledge the concept. He said,
‘[T]he law must cater for those occasions where the value of the promise to the
promisee exceeds the financial enhancement of his position which full
performance will secure.’ This is a very significant statement, forming part of
the process we have already mentioned of bringing contract law into the twenty-
first century and recognising that people who make contracts are not all
motivated entirely by profit considerations. So, for Lord Mustill, the £2,500 loss
of amenity award was best regarded as an example of the consumer surplus—
the average pool purchaser placed no value on the depth of the pool, but Mr
Forsyth did.
Lord Lloyd, on the other hand, explained the £2,500 award as damages for
Forsyth’s ‘distress and disappointment’. Damages for mental distress or
disappointment are not generally awarded for breach of contract: this is not
surprising bearing in mind the commercial roots of English contract law, since
commercial parties are not expected to react emotionally to a breach of contract!
The courts have, however, recognised for some time a couple of limited
exceptions to this general rule, one of which is where the contract’s sole object
was to give pleasure, peace of mind or freedom from distress. A good example
is a holiday contract: if your holiday is a complete disaster and does not accord
with the promises made to you in the contract, you will be entitled to recover
damages for distress and disappointment, not just a cold, financial calculation of
the difference in value between the lovely holiday you were promised and the
grotty one you actually had. For example, in the recent decision of the Court of

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Appeal in Milner v Carnival plc (trading as Cunard) damages were awarded for
mental distress when a luxury cruise that should have been the ‘holiday of a
lifetime’ went disastrously wrong. In Ruxley, Lord Lloyd stressed that the
swimming pool contract was one to provide ‘pleasurable amenity’ and so was
able to treat the middle-ground award in this case as falling within the
exception.
So, although both Lords Mustill and Lloyd expressly approved of the loss of
amenity award, they did not adopt the same reasoning in doing so. Lord Lloyd’s
approach had the advantage of being built on existing precedent, but there are
strong arguments of principle for preferring Lord Mustill’s consumer surplus
analysis. Lord Lloyd was only able to rely on existing caselaw about contracts
to provide ‘pleasurable amenity’ or ‘freedom from distress’ because,
fortuitously, this case involved a swimming pool, something designed to give
pleasure. But there may be many instances where a consumer surplus exists, and
should be recognised, that do not fall into this exceptional category. For
example a domestic homeowner may have specified for a particular heating
system, roof tile or floor plan, which they value even though failure to comply
with the specification will not cause a reduction in the market value of
performance. Lord Lloyd himself recognised that a ‘distress’ award would not
be available for some defects, such as a difference in level between two rooms
creating an irritating step when the customer had expressly contracted for a flat
floor. There is no obvious ‘pleasurable amenity’ here and yet there is certainly a
consumer surplus that should be compensated. So this issue was not
conclusively resolved in Ruxley, leaving a ‘question mark’ over precisely what
the case decided, to be pondered by commentators and judges in the future.
In fact, some commentators felt uneasy about a more fundamental aspect of
the decision in Ruxley, namely the court’s restriction on the cost of cure
measure. It has been argued that, whilst it may be right to deny the cost of cure
in certain situations (eg where the landowner has died since the contract was
made and it is clear that his next of kin will be selling the property
immediately), consumer cases where there is simply ‘disproportion’ between
the cost of cure and the apparent value of what has been lost do not necessarily
warrant the same treatment. In other words, despite the obvious lack of merits of
Forsyth’s own counter-claim, perhaps a general test based on whether the loss is
disproportionate to the cost of cure is not sufficiently respectful of consumers’
contractual expectations in domestic building cases.

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 For example, the ‘disproportion’ approach may well have unfortunate
implications in the ordinary case of a domestic building contract. First, does it
give the right signal to contractors? Assume, for example, a contractor doing
domestic building work where, as in Ruxley, the employer is not on site
supervising his every move. If the contractor monitors the work properly,
keeping the employer informed at every stage, he risks spotting mistakes and
defects which he will then have to spend money remedying. If, however, he
ploughs on with the work, so that any defects are quickly buried in the fabric of
the construction, this maximises the chances that the cost of curing such defects
will be high, in comparison with the difference in market value, and thus
rejected as disproportionate. Perhaps the principle encourages a culture of
inefficiency and provides no incentive, indeed a positive disincentive, for
builders to monitor work or keep the employer informed. Secondly, the
vagueness of the ‘disproportion’ principle makes the position of a claimant
complaining of bad workmanship uncertain and risky, and (where the cost of
cure is high) enables a contractor to ‘hold out’, offering a low sum which he
asserts will adequately compensate the employer for his loss of amenity. As
Forsyth’s barrister observed after the House of Lords decision, ‘[M]any a
[building owner] may well accept such sum rather than undergo the uncertainty
of litigation’.

WHAT HAS HAPPENED SINCE RUXLEY?

Ruxley was decided almost fifteen years ago, so for an all-round picture of the
case it is important to consider how it has been applied and interpreted as a
precedent in subsequent cases. In fact it has been cited and discussed many
times, in all sorts of cases, but just by looking at two very different examples
will give you a flavour of its development and influence.
Very soon after Ruxley was decided, it was applied by the Court of Appeal
in Freeman v Niroomand. Mr Niroomand commissioned a builder to carry out
building work at his semidetached house, namely constructing a porch at the
front and an extension to the rear. The dispute involved the porch, which the
contract specified should mirror the porch on the adjoining house and should be
constructed of cavity wall brickwork (to minimise staining from the elements).
When the porch was built, it did match the porch next door, but it had not been

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constructed with cavity walls. As is all too common, the market value of the
house was not altered by the addition of the porch, whether or not it complied
with the contractual specifications. To cure the breach, the porch either had to
be demolished or have its internal dimensions considerably reduced by the
addition of an inner layer of brickwork. For this reason Mr Niroomand gave
evidence that he did not wish to rebuild the porch and thus did not ask for the
cost of cure, but only claimed a Ruxley ‘middle ground’ award from the
defendant builder, representing the value of his unfulfilled expectation
(essentially the risk of a weather-stained porch). The Court of Appeal
sympathised and awarded him £130 in damages, adopting Lord Mustill’s
consumer surplus reasoning in the process. Notice that Lord Lloyd’s
justification would not have worked on the facts, as a contract to construct a
porch cannot be explained as one which has ‘pleasure, peace of mind and
freedom from distress’ as its object!
A few years later, the House of Lords had another opportunity to consider
damages in the consumer contract context, although not this time concerned
with a building contract. In Farley v Skinner the claimant, Mr Farley, was
interested in purchasing a property in Sussex (near Gatwick Airport) as a quiet,
relaxing house to live in once he retired. Keen to check that the house was
suitable for this purpose, he employed Mr Skinner, a surveyor, to look over it
and expressly asked him to report on whether aircraft noise was likely to be a
problem. In breach of contract, Skinner negligently reported back that it was
unlikely that the property would be noisy. Therefore, Farley bought the house,
only to find to his horror that the property was seriously noisy: aircraft ‘stacked’
in the air just over the house at busy times (mornings, early evenings and
weekends), spiralling there until a landing slot became free! Despite the fact that
the trial judge found that the price Farley paid reflected the aircraft noise
problem (so his financial loss was nil), he nevertheless awarded Farley £10,000
for his ‘loss of amenity’. The House of Lords unanimously affirmed this award,
although suggesting that the amount awarded was at the ‘high end of what was
appropriate’.
Some of the Law Lords adopted Lord Lloyd’s rationalisation of the Ruxley
middle-ground award as falling within the exceptional category of contracts
(such as holiday contracts) made with the object of providing pleasure, peace of
mind and freedom from distress, for which damages for distress were available.
It was then a simple matter merely to expand the exception very slightly to

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cover cases like this, where pleasure/freedom from distress was not the sole
object of the contract, but was nonetheless an important object (after all, Farley
contracted with the surveyor to check for other defects and problems with the
house, not solely to consider the noise issue). Lord Scott, on the other hand,
preferred Lord Mustill’s approach, unhesitatingly endorsing the concept of the
consumer surplus and allowing relief on this basis: Skinner’s breach of contract
prevented Farley from obtaining the peace and quiet that were extremely
important to him.
So after two House of Lords cases and numerous lesser decisions, we are
still not entirely certain how to rationalise ‘middle-ground’ awards of this kind
or what the relationship is between the ‘consumer surplus’ and damages for
distress allowed in exceptional cases. Perhaps by the time you study law, this
issue will have been clarified by the Supreme Court, but experience suggests
that, by then, new cases will have arisen with yet more factual twists, leading
instead to refinement and possibly even complication of the relevant legal rules.

WHAT IF THE BUILDER HAD SAVED MONEY BY

BREACHING THE CONTRACT?
One notable feature of the facts of Ruxley was that the builders did not appear
to have saved any money by building the pool too shallow, or at least that was
not mentioned in the pleaded facts. But in other cases, a contracting party might
very well save a lot of money by breaching his contract, or even make a big
profit by deliberately breaching one contract in order to enter into a more
favourable one with someone else. Should this be taken into account when
calculating the claimant’s damages for breach of contract?
The traditional answer to that question in English law has always been a
resounding ‘no’. Damages for breach of contract have always been purely
compensatory, calculated (as we’ve seen already) to put the claimant into the
position he would have been in if the contract had been properly performed—in
other words, based solely on the claimant’s loss not the defendant’s gain. So the
rule has always been very clear— damages are not meant to strip profits away
from contract-breakers or to punish contract-breakers. Their only role is to make
good the claimant’s loss.
There are very good reasons for contractual damages being compensatory

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only. For example, the requirement that claimants must mitigate their loss when
suing for damages (act reasonably to keep their loss to a minimum) only makes
sense in a damages regime that is loss-based. Economists offer another
explanation, namely that the law should allow contract breakers to keep any
profit they make from the breach provided they compensate the other party’s
losses, as this is the most ‘efficient’ outcome. Imagine A contracts to sell B 100
kilos of widgets for £100 when the market price is £110 (for some reason, legal
examples about generic goods nearly always involve imaginary items called
‘widgets’!). Then someone else, C, offers to pay £150 for the widgets (in other
words, more than the market price). Economists regard it as rational for A to
break his contract with B and sell to C instead, because this is said to be an
efficient outcome. This way, A is happy because he has made £50 more than he
would have done, C is happy because he has got the widgets, and B should be
neutral, because she has got £10 damages and keeps the £100 price, so can
mitigate her loss by buying widgets at their market value.
This economic approach looks very neat, but not everyone is happy with the
idea behind it. After all, it treats A as if he had an entirely free choice between
performing his contract with B or breaching it and paying damages, when he
actually made a promise to B to sell the widgets. It seems to underplay the
importance of respecting contractual promises. After all, breaching a contract is
‘wrongful’, although not as serious a wrong as a criminal offence or a tort. It
also underplays B’s expectation when making a contract: B almost certainly
isn’t ‘neutral’ about receiving £10 damages rather than the widgets she ordered,
not least because of the hassle involved in finding another supplier of widgets.
Finally, and more fundamentally, it just troubles many lawyers that a defendant
can make a profit from a breach of contract and yet be allowed to keep that
profit—surely, they argue, the law should respond to this ‘unjust enrichment’ of
the defendant by depriving him of his profit and paying it to the innocent
claimant.
These objections have led some judges and commentators to argue that
damages for breach of contract should, in some circumstances, be calculated by
reference to the defendant’s gain and not solely the claimant’s loss. This is
difficult and very controversial territory. The argument generally begins by
suggesting that the law already does recognise ‘gain-based’ damages and so it is
time for it to ‘come clean’ and admit that damages are not purely compensatory.
This is tricky because sometimes an award of damages looks as if it is

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depriving a defendant of some or all of his profit, but that profit is just being
treated as a way of valuing the claimant’s loss. For example, what if A sells
some of his land to B for development and B promises not to build more than 20
houses on the site? If B breaches that covenant and builds 25 houses, the extra
houses may have no adverse financial effect on A at all, and yet B has made
more profit than he should have. English law has long recognised that B must
pay damages to A in this situation and what’s more those damages will be
calculated by reference to a proportion of B’s extra profit. But that approach to
damages is perfectly consistent with a compensatory approach. B has gone
ahead and built the extra houses in breach of contract without A’s permission,
but if B had asked A’s permission to release him from the contractual
restriction, A would probably have granted that permission at a price. So B’s
breach has deprived A of something of value—the opportunity to charge for
release of the ‘20 houses only’ restriction. And the same compensatory
approach applies even if it is clear that A would not have agreed to release B
from the contractual restriction at any price. Indeed, the fact that A would not
have agreed at any price suggests that it is particularly important to him to
prevent B building extra houses, so it is counterintuitive to suggest that A has
suffered no loss in such circumstances. After all, if you lose your legs as a result
of someone’s negligence and claim damages in tort, the fact that you would not
have sold your legs for any amount of money does not mean that you have
suffered no loss!
A further argument sometimes offered in favour of gain-based damages for
breach of contract is that they would be a useful additional tool to help the law
to protect contractual expectations properly, even where the claimant has
suffered no obvious financial loss from the breach: the same sentiment, in other
words, behind the decision in Ruxley. This is a very laudable aim, but if the real
problem in the law is insufficient respect for contractual expectations (so some
losses are overlooked or inadequately respected), would it not be better to attack
that problem directly and concentrate on valuing contractual expectations
properly, rather than turning to the defendant’s gain instead?
An old American case called City of New Orleans v Fireman’s Charitable
Association provides a good example. The claimant paid the defendant to
provide a fire-fighting service for five years, with the contract specifying how
many men and horses should be kept available and how much hosepipe. At the
end of the contract period, the claimant discovered that the defendant had failed

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to keep available as many men or horses as specified, or the length of hosepipe
that had been promised, thereby saving itself over $40,000. However, the
claimant could not show that the breach had prevented the defendant
extinguishing any fires, so the Supreme Court of Louisiana held that the
claimant had suffered no loss and thus was not entitled to damages.
Many commentators have argued that this is the perfect example of a case in
which damages should be based on the defendant’s profit, because otherwise the
claimant goes under-compensated. But if you stop and think for a moment, it is
obvious that the Supreme Court of Louisiana got it wrong—the claimant has
suffered a loss, because he did not get the level of contractual performance he
had bargained and paid for. This problem should be tackled directly: if the
problem is failure to compensate properly, the answer is to expand the notion of
loss to enable the law to compensate more fully, not concentrate on the
defendant’s profit instead.
However, the House of Lords in Attorney General v Blake agreed that the
defendant’s gain might occasionally be relevant to calculating damages for
breach of contract, although only in very exceptional cases where a
compensatory remedy would be inadequate. George Blake was a spy for the
British intelligence services, but he was also a double agent working for the
Soviet Union. He was convicted of treason and imprisoned, but later escaped
from Wormwood Scrubs prison to Moscow. There in 1989 he wrote his
autobiography, which contained some old information about his career in
British intelligence. The information was no longer confidential by this time: if
it had been, the Crown could have recovered Blake’s profits in a different type
of legal action for breach of confidence, but this was of course not available.
Nor was its disclosure damaging to the public interest, but by releasing it Blake
was in breach of his employment contract, in which he had promised, ‘not to
divulge any official information gained as a result of [his] employment’ (this
promise continued in effect beyond the time his employment ended). So the
Crown (in the person of the Attorney General) sued for breach of contract to get
its hands on Blake’s profit from publishing the book.
The House of Lords held in 2000, by a 4–1 majority, that because the facts
were so exceptional, the Crown could recover the profits made from Blake’s
breach of contract, even though it had not suffered any loss from that breach.
The reason given by Lord Nicholls was that the traditional remedies for breach
of contract were inadequate on the particular facts of the case:

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 It will only be in exceptional cases, where those remedies are inadequate,
that any question of accounting for profits will arise. No fixed rules can be
prescribed. The court will have regard to all the circumstances, including the
subject matter of the contract, the purpose of the contractual provision that
has been breached, the circumstances in which the breach occurred, the
consequences of the breach and the circumstances in which the relief is
being sought. A useful general guide, although not exhaustive, is whether
the [claimant] had a legitimate interest in preventing the defendant’s profit-
making activity and, hence, in depriving him of his profit. It would be
difficult, and unwise, to attempt to be more specific.
He went on to explain what the Crown’s legitimate interest was:
The context is employment as a member of the security and intelligence
services. Secret information is the lifeblood of these services. In the 1950s
Blake deliberately committed repeated breaches of his undertaking not to
divulge official information gained as a result of his employment. He caused
untold and immeasurable damage to the public interest he had committed
himself to serve.
Many lawyers have criticised this decision and its reasoning. Although it is
obvious why the House of Lords disliked George Blake and wanted to find a
way of making him give up his profits, it looks as if this instinct was based on a
desire to punish him over again for his previous treachery in the 1950s. But this
was an action for Blake’s breach of contract in publishing his memoirs in 1989,
which wasn’t actually a particularly serious breach of his former employment
contract. So it is not obvious why the Crown’s interest is legitimate here.
More to the point, the decision does not just affect George Blake, but
(because of the doctrine of precedent) makes this sort of remedy potentially
available in other cases as well. A number of judges have already struggled in
subsequent cases, trying to decide whether or not their facts are sufficiently
‘exceptional’. Lord Hobhouse dissented in Attorney General v Blake, warning
of the danger of introducing an element of uncertainty into commercial
transactions, which would make it hard for lawyers and their clients to predict in
advance when such a remedy would be awarded. He said:
I must also sound a further note of warning that if some more extensive
principle of awarding non-compensatory damages for breach of contract is
to be introduced into our commercial law the consequences will be very far

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 reaching and disruptive.
So now if another Ruxley-type case came along in which the builder had saved
money, a sharp barrister would probably try to argue that the facts fell within
the Attorney General v Blake exception. This probably wouldn’t succeed, but
the law of contractual remedies is so dynamic and controversial that you never
know!

CONCLUSION
I hope that this chapter has shown that there is much more to contractual
remedies than just the boring mathematical bit tacked onto the end of a course
on the law of contract. As a topic, it reminds us very sharply that good lawyers
must be able to focus on complex arguments and make fine distinctions, whilst
at the same time recognising the shared general principles and common
problems that can link apparently unconnected situations like ordering books,
building swimming pools, buying houses near airports and spying for the
enemy.

Cases
Attorney General v Blake [2001] 1 AC 268
City of New Orleans v Fireman’s Charitable Association 9 So 486 (1891)
Farley v Skinner [2002] 2 AC 732
Freeman v Niroomand (1996) 52 Con LR 116
Jacob & Youngs v Kent (1921) 129 NE 889
Milner v Carnival plc (trading as Cunard) [2010] 3 All ER 701
Radford v De Froberville [1977] 1 WLR 1262 Ruxley Electronics &
Construction Ltd v Forsyth [1996] AC 344

Further reading
O’Sullivan and Hilliard, The Law of Contract, 4th edn (Oxford, Oxford
University Press, 2010)
Harris, Ogus and Phillips, ‘Contract Remedies and the Consumer Surplus’
(1979) 95 LQR 581

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Hedley, ‘“Very Much the Wrong People”: The House of Lords and Publication
of Spy Memoirs’ [2000] Web JCLI

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4

Tort

Tony Weir

You may not be familiar with the term tort, but you are bound to have come
across lots of tort cases in the newspapers. It derives from the French word for
‘wrong’ and, in English law, means a civil wrong. Criminal cases are pursued
by the state against the wrongdoer, with punishment of that wrongdoer as the
principal aim; tort cases, on the other hand, involve one individual (the
claimant) suing another individual (the defendant) whom the claimant alleges
has done him wrong in some way, principally with a view to obtaining financial
compensation. The same set of facts sometimes gives rise to criminal and tort
liability, but more often than not the wrongdoing involved in a tort case is not
serious enough to attract criminal sanctions.
The case chosen here to illustrate the law of tort in operation is McFarlane v
Tayside Health Authority. This is a House of Lords case from Scotland, which is
of interest in itself, because in many respects Scots law differs considerably
from its English relative south of the border, yet the House of Lords was the
final appeal court for Scottish cases as well as English ones, as the Supreme
Court is today. The Supreme Court must therefore apply Scots law from time to
time, so it helps that there are usually senior Scottish judges amongst the
Supreme Court justices. McFarlane is a very important case for English lawyers
too, because the law of tort it considered is virtually identical north and south of
the border.
McFarlane involved a bouncing baby born, owing to the fault of a doctor, to
parents who had decided they had enough children already, so it could equally
well figure in books on family law, or even medical law. The reason the case
appears in books on tort is that the parents were suing the hospital for damages,

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compensation for the cost of bringing up the baby. It therefore sits in the tort
books alongside other cases whose main feature is that the claimants—mainly
those injured in industrial or highway accidents—are seeking damages as
compensation for the harm they have suffered owing to the misconduct of the
defendant or, in our case as in many others, the defendant’s employee (a
wrongdoer’s employer is very often sued as well as, or instead of, the individual
wrongdoer, because the law makes employers vicariously liable to pay damages
wherever an employee commits a tort in the course of his or her employment;
employers commonly have insurance to cover claims of this kind). Sometimes
such harm is caused deliberately, but usually it is the result of carelessness, or
negligence, as lawyers like to call it.
Just as there are a number of separate crimes (such as murder, theft and
rape), similarly there are various separate torts. Of these the tort of negligence is
by far the most important in practice, but you may well have heard of some of
the other torts, such as defamation and nuisance. To bring a claim in negligence,
the claimant must establish certain basic elements. These are first, that the
defendant owed him a duty of care (which, as we will see later, is so self-
evident in most straightforward cases that it goes without saying, but which
occasionally gives rise to problems in unusual situations); secondly, that the
defendant breached that duty by behaving unreasonably or carelessly; thirdly,
that the defendant’s breach of duty caused the claimant to suffer, fourthly,
legally recognised harm. Lawyers tend to use the word ‘negligence’ in two
ways: as shorthand for the second element just mentioned, careless conduct on
the part of the defendant, and also (more properly) to denote the whole ‘tort’,
the cause of action which is established if the claimant establishes all four
elements.
McFarlane is a case of ‘negligence’ in this sense, and it is of particular
interest because the outcome is not quite what one would expect in view of the
accepted rules of negligence as a tort. The alleged facts were that the claimants,
husband and wife, decided that four children were enough and that the husband
should submit to a vasectomy, like some 8,000 other Scotsmen each year. The
doctor reported that the operation, which he performed quite properly, had been
successful and that normal marital relations could be resumed. Alas, the doctor
was wrong in this (having misinterpreted the husband’s sperm tests carried out
after the operation) and the wife conceived. The pregnancy and birth, though
painful as always, were quite normal, and baby Catherine McFarlane was in

95
perfect health. But it costs a lot of money to bring up a child (an average of
£165,000 has been suggested). Who was to bear this cost, the parents whose
child it was, or the health service whose fault it was that the child had been born
at all?
If the case had arisen in England it would never have reached the House of
Lords for, in 1984, the House had declined to review a decision of the Court of
Appeal which had held that there was no objection to such a claim. Although
the Court of Appeal case concerned a disabled rather than a healthy child, so its
decision as to a healthy child was arguably obiter (not binding), and although
the court rendered its decision immediately after the barristers had finished their
submissions, without taking any time taken to consider its implications, the
decision was treated as conclusive thereafter and was followed for fifteen years.
But Scottish courts are not bound by the English Court of Appeal and, unlike
their English counterparts, Scots applicants such as the McFarlanes needed no
leave to appeal to the House (the rules are slightly more complicated now for
appeals to the Supreme Court). In the event, the House of Lords held
unanimously that the McFarlanes’ claim must fail.

THE MOST FAMOUS TORT CASE

Seventy years earlier, in 1932, Scotland had produced the most famous case in
the tort of negligence—the ‘snail-in-the-ginger-beer-bottle’ case of Donoghue v
Stevenson. Mrs Donoghue alleged that she had been poisoned by a foreign
body, to wit a very dead snail, lurking in a bottle of Stevenson’s ginger beer
bought for her by a friend in a café. The Scottish court held that, even if she
could show that Stevenson had been careless, her claim must fail since he owed
her no duty in law to take care of her: she had not actually bought the product.
The House of Lords, by a majority, held that the manufacturer did indeed owe
her a duty to take such care.
Why is this case regarded as so important? After all, by 1932 there were
plenty of situations in which a defendant would be liable if he caused harm
negligently, but they were regarded as isolated, unconnected instances that just
happened to have similar characteristics, not linked at a conceptual level to form
one general tort of negligence. At the time most lawyers thought that Donoghue
v Stevenson merely added one more such isolated pocket of liability and was no

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more than a small step forward for ‘consumer protection’, of little or no
significance outside that area. But the case is as famous and important as it is
today because its reasoning went beyond that narrow view, when Lord Atkin,
with some aid from the Sermon on the Mount, delivered himself of a general
statement regarding the situations in which one person would be held to owe
another a duty to be careful not to injure them. There need not be a contract
between the parties, it was enough if there were ‘neighbourhood’ between them,
and one’s neighbour was not just the person next door, though such persons are
very close, but anyone close enough that injury to them was reasonably
foreseeable if one mismanaged whatever one was doing.
As the case indicates, liability in the tort of negligence depends, among
other things, on the defendant’s having been under a ‘duty of care’. Whether or
not such a duty exists is a matter of law, the subject of legal argument that can
be decided in principle without hearing any of the evidence. This is in sharp
contrast to the question of whether or not the duty has been breached, ie whether
the defendant had actually been negligent by falling below the proper standard
of conduct, which is a matter of fact to be proved by witnesses. This distinction
was more obviously significant before 1965, when juries were still used to
decide negligence cases, because questions of law remained for the judge to
decide and thus it was open to the judge to hold that there was no duty of care
on the facts as pleaded, however careless the defendant might have been, so that
the case failed before getting as far as a jury. Nowadays negligence cases are
invariably decided by a judge alone, but the distinction between questions of
law and questions of fact remains a very important one in practice.

THE ‘DUTY’ QUESTION

Mrs Donoghue had, we suppose, suffered injury to her person, and the same
was true of Mrs McFarlane, what with the pregnancy and confinement. Where
the injury is physical in nature, the ‘duty’ question is not often discussed, at any
rate where, as in both Donoghue and McFarlane, the defendant’s conduct
actually created the danger, as opposed to merely failing to prevent it:
Stevenson actually despatched the noxious bottle into the world and the doctor
in McFarlane said that sex was now safe (from babies anyway). So there was
not much discussion of the mother’s claim for the pain of pregnancy and

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parturition. Indeed, in cases of highway or industrial accidents the existence of
the duty is never questioned—it is too obvious that road-users owe each other a
duty to drive carefully, and that an employer is under a special duty to look out
for the safety of his employees—but the question does arise in novel cases,
especially if the judges want to exonerate the negligent defendant from liability
for the foreseeable harm he has caused, for then ‘no duty in law’ is almost the
only device they can deploy.

THE KIND OF HARM

Tort lawyers often say, somewhat illogically, that the existence of the duty, or
its scope or ambit, depends on the nature of the harm that resulted from breach
of the duty. In McFarlane there were two types of harm: the wife had suffered
not only physical harm, harm to her body, as a result of the unwanted pregnancy
but also financial harm, in having to pay for the baby’s upkeep, while the
husband had suffered only harm of the latter kind. The real issue was the cost of
bringing up the child. This was problematic because our law of tort has always
been less ready to award compensation for a loss which is merely financial than
for damage which is physical in nature, harm to person or property. In other
words, the claim ‘You wounded me’ has always been held stronger than ‘You
cost me’. Of course, where the tort has caused the claimant to suffer personal
injury or property damage, its economic aspects—lost wages, cost of cure,
repairs and so on—are every bit as compensable as pain and suffering and loss
of amenity, but it is different if the only harm is financial, not consequent on
physical damage to person or property: this is commonly called pure financial
loss, and it is less readily compensated in tort. Some judges regarded the
financial loss in McFarlane not as ‘pure’ but rather as consequential on the
personal injury to the wife, and therefore compensable on normal principles, but
a majority of their Lordships treated the harm to the mother as regards the
pregnancy and birth as quite distinct from harm in the sense of the cost to both
parents of bringing up the baby.

DAMAGE AND LOSS

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This distinction between physical damage and pure economic loss makes some
commentators uneasy—after all, they are both kinds of harm—but it seems
perfectly justifiable, even in a society which seems to put money above all else.
Consider, for example, the word ‘dangerous’. It is applied only in situations
where the potential harm is of a physical variety, where there is a risk of injury
to person or property, and since the counterpart of ‘danger’ is safety, it is not too
surprising if the law puts safety first. To put it another way, health is more
important than wealth: we don’t have a National Wealth Service—indeed, we
have the very opposite, in the form of Her Majesty’s Revenue and Customs.

RECOVERY FOR PURE FINANCIAL HARM

For thirty years after Donoghue v Stevenson it was assumed that there was no
prospect of claiming in the tort of negligence for pure financial loss due to mere
carelessness, as opposed to deliberate lies (deceit) or failure to do what one had
been paid to do (breach of contract). Then, in 1963, the House of Lords held
that such a claim might lie. In Hedley Byrne v Heller and Partners the claimant
lost money as a result of a misleading credit-reference given, gratuitously, by
the defendant bank on one of the claimant’s customers. What the bank did—
certifying that the customer was in a good financial position when it was
anything but — was careless and negligent, but it was not dangerous, since the
only loss that could and did result from the claimant’s relying on the reference
and giving credit to the customer was purely financial.
As in McFarlane, as we shall see, the House of Lords in the banking case
was agreed as to the result—that there could be liability in negligence for
causing merely financial harm—but their Lordships differed in the reasons they
gave and consequently as to the circumstances in which liability would attach.
The five different speeches emphasise different points. Could the defendant
foresee that the recipient of the information would rely on it? Was it on a
business rather than a social occasion? Was the defendant an expert on the
matter in issue? Was the relationship between the parties ‘equivalent to
contract’? Did the defendant undertake responsibility for the statement in
question?
As the law developed, it became less important whether the defendant had
spoken or acted, and more important that there be a ‘special relationship’

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between the parties, characterised by an ‘undertaking of responsibility’ on the
part of the defendant. The fact that different reasons were given for the decision
made it easier for later courts to expand its scope, to the point that in 1995 a
solicitor who failed to draw up a will as instructed by his client was held liable
in White v Jones to the client’s daughters who would have inherited had the will
been drawn up as it should have been. The disappointed daughters won, despite
the facts that the solicitor neither spoke nor acted, and seemed to be in no very
special relationship with them, and that, even supposing that he could be said to
have assumed responsibility for drawing up the will, they surely did not rely on
his doing so, foreseeable though the harm to them was. In other words, although
he undoubtedly assumed responsibility to his client, the father, it is quite
another thing to say that he assumed responsibility, in any meaningful sense, to
the daughters. One can easily see that rather surprising decisions may ‘follow’
from a previous decision, especially one in which several different reasons are
given for the same outcome.

APPLICATION IN MCFARLANE
Now, in McFarlane it was plain that there was a ‘special relationship’ between
the parents and the doctor, that he was a specialist who undertook responsibility
and that he knew they would be relying on what he told them. It is true that they
didn’t pay for the treatment, so there was no contract, but after Hedley Byrne
that was unimportant. It had been held for centuries that doctors owe their
patients a duty of care, and though the cases have generally involved harm to
the patient’s person rather than his pocket, Lord Devlin in Hedley Byrne said
that that made no difference. Since the birth of the child was the ‘very thing’
that the defendant was retained to prevent, it was not easy to say that it fell
outside the scope of his duty of care; and since it is notorious that children are
expensive, the loss could not possibly be described as too ‘remote’.
Furthermore, several of the judges said that it was immaterial whether the claim
rested on Donoghue or on Hedley Byrne. As Lord Bingham put it in a later case,
‘An orthodox application of familiar and conventional principles of the law of
tort would, I think, have pointed to’ imposing liability in McFarlane. So how
was this avoided?

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FAIR, JUST AND REASONABLE
The majority in the House of Lords invoked an element which their
predecessors in 1990 had added to Lord Atkin’s statement of the requirements
for finding a duty of care. The 1990 case—Caparo v Dickman—was again one
of pure economic loss: a shareholder interested in taking over a company was
suing the auditor whose carelessly favourable statement about its profitability in
its annual accounts, a publicly available document, induced him to pay too
much for further shares. In rejecting his claim, their Lordships said that in
addition to ‘foreseeability of the harm’ and ‘proximity between the parties’ (=
neighbourhood) it must be found that it would be ‘fair, just and reasonable’ to
impose a duty (= make the defendant liable).
The first two of these elements were plainly satisfied on the facts of
McFarlane. The doctor could hardly have been closer to the husband in
performing the operation, which he knew would, if its outcome were carelessly
misreported, affect the wife. The harm was evidently foreseeable—indeed, what
happened was the very thing the doctor was retained to prevent—but the
majority of their Lordships held that it was not ‘fair, just and reasonable’ to
impose liability on the careless doctor for the cost of upbringing.

THE REASONS GIVEN IN MCFARLANE

The reasons given by their Lordships were rather varied. Some members of the
House of Lords were content to rely on the formula that it was not ‘fair, just and
reasonable’ to impose on the medical services liability for the cost of bringing
up a healthy, though unwanted, child, or that to make the doctor liable to pay for
the maintenance of a healthy child for eighteen years was disproportionate to his
fault. Less time was spent on justifying the decision than on dismissing
arguments which had been raised against it. These included the argument that
the (provable) harm of having to pay for the child’s upbringing should be offset
by the (intangible) joy of parenthood. This was regarded as impracticable and
unprincipled: after all, a person disabled from working by a negligent driver
does not have his claim for lost earnings reduced just because he can now relax
and watch daytime television.

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THE SPEECH OF LORD STEYN
Lord Steyn did not care much for the reasons given by his colleagues:
To explain decisions denying a remedy for the cost of bringing up an
unwanted child by saying that there is no loss, no foreseeable loss, no
causative link or no ground [for] reasonable restitution is to resort to
unrealistic and formalistic propositions which mask the real reasons for the
decisions. And judges ought to strive to give the real reasons for their
decision.
He held that when there were thousands of people in the kingdom who
desperately wanted a family and paid good money in the vain hope of achieving
it, it would be contrary to the principle of distributive justice to give damages to
the parents of a healthy child they did not want (but kept). Furthermore, he said:
Instinctively, the traveller on the Underground would consider that the law
of tort has no business to provide legal remedies consequent upon the birth
of a healthy child, which all of us regard as a valuable and good thing.
Lord Millett said much the same. He said that ‘plaintiffs are not allowed, by a
process of subjective devaluation, to make a detriment out of a benefit’ and that
‘it is morally offensive to regard a normal, healthy baby as more trouble and
expense than it is worth.’

DISTRIBUTIVE JUSTICE
Lord Steyn referred to ‘distributive justice’, a rather unattractive term often
attributed to Aristotle’s distinction between what is fair between claimant and
defendant on the one hand and what is fair between different classes of claimant
or potential claimant on the other. Thus Lord Steyn suggested that when
deciding on a claim made by parents who didn’t want a child one should bear in
mind the many other people who do want a child and can’t have one. He might
also have mentioned another constituency, namely sick children who would be
deprived of proper treatment if the limited resources of the health service were
deployed to pay for the upbringing of children in perfect health.

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PSYCHIATRIC HARM
The term ‘distributive justice’ had surfaced in the House of Lords a few years
previously in one of the cases arising out of the Hillsborough disaster in
Sheffield when 95 football fans were crushed to death when the police
negligently allowed too many of them to enter the stadium. Many claims were
brought by relatives of the deceased victims, who had been shocked by what
they witnessed, with their own eyes or on television, but almost all their claims
were dismissed. The harm here was psychiatric, not physical: to the mind, not
the body. Harm of this kind might well seem at the other extreme from pure
economic loss, but it, too, is subject to restrictive rules: in particular, the
claimant, unless himself physically endangered, must have been physically
close to the shocking event and emotionally close to the person primarily
affected. But there was some authority that the second restriction did not apply
to those who went to the rescue of those actually injured, and clear authority
that employers owe their employees a special duty not to cause them injury, so
there was a problem when claims were brought by members of the police force,
shocked by having to deal with the dead and dying, since they were rescuers
suing their employer, the negligent police authority. Could the courts really
bring themselves to award damages to the police when they had refused to
compensate relatives of the deceased victims, members of the public whom the
police are supposed to protect? To award damages might be fair as between the
policemen and their employers, but it wouldn’t seem right as between
policemen and the relatives. Likewise, in the McFarlane case, it didn’t seem
right to award damages to parents of a child they didn’t want (though now
dearly loved) when so many parents wanted children they couldn’t have,
however much they paid.

EFFECT ON THIRD PARTIES

That the courts do and should consider the effect of their decisions on third
parties is shown by another recent case. In Tomlinson a young man ignored
signs prohibiting swimming in a reservoir in a public park and was badly
injured in the water. The Court of Appeal held the occupier liable because,
knowing that the prohibitions were ineffective, it had failed to erect a physical

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barrier which it had resolved to erect and which would have prevented all access
to the water. A unanimous House of Lords, in unusually vigorous judgments,
reversed the Court of Appeal’s decision: to block access in this way was not fair
to innocent holiday-makers who wished to sit beside the water, and the local
authority had, in deciding to effect a physical barrier, overreacted to the fear of
being held liable to injured trespassers.

TORT AS DETERRENCE
To be held liable is unpleasant, even if one has insurance against such liability
(as is required of employers and motorists, among many others), so the risk of
being held liable may act as a deterrent. Indeed, it follows from the doctrine of
precedent that decisions which impose liability are apt to affect third parties:
court decisions may affect the behaviour of the public, or a relevant section of
it, just as much as statutory prohibitions. Given that tort liability is commonly
imposed for conduct which is dangerous, it may well be conducive to safety if
third parties, especially public bodies and firms conscious of risk management,
respond to the decision. So tort law certainly has some deterrent effect. But
there may be better devices, in particular those enforced by the criminal law. A
statute or regulation can state precisely what must be done on pain of penalty
(eg that a guardrail must be provided where persons work more than two metres
above the ground) but all a judge can say—and that after the event—is that the
employer or occupier must take reasonable care of the safety of his employees
or visitors. Indeed, the existence of sanctions other than damages was one
reason why the House of Lords reversed a decision of the Court of Appeal
which had held that where a claimant’s ‘constitutional right’ had been infringed
by malicious conduct on the part of a public officer (in the case, a prison officer
who insisted on reading the prisoner’s privileged mail), there was no need to
prove any damage at all.

DETERRENCE AND COMPENSATION

If the primary, though by no means the sole, function of tort law is to award
compensation for harm due to culpable conduct, there are dangers in

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overemphasising its deterrent aspects: since compensation looks to the harm
suffered by the claimant and deterrence looks to the conduct of the defendant,
compensation and deterrence do not quite go hand in hand. Accordingly, to
focus on deterrence may lead one to downplay the importance of the harm in
relation to the conduct: one might be tempted to impose liability on those who
have acted negligently so as to deter others from doing likewise, even if the
harm in the case is not obviously attributable to their negligence. After all, the
defendant’s carelessness might well have caused harm even if it did not
obviously do so in the particular case, and might, unless repressed now, do so
the next time. Does some such idea lie behind the fact that the common law
seems to treat damage to property very much like injury to the person, although
people are surely more important than their property and should have greater
protection? After all, anything which can damage a thing could have injured a
person. Again, one might think that unless we hold people liable for breaching
their duty of care, even if it is not clear that the breach caused any harm, people
similarly situated might be able to ignore their duty with impunity.

TWO RECENT CASES

Two cases from the start of the twenty-first century are indicative. In Chester v
Afshar a doctor failed to inform his patient, as he was duty-bound to do, of the
risk of paralysis inherent in the proposed operation, which tragically
materialised even though the operation was performed impeccably. Had she
been informed, the patient would still have had the operation, though not then
and there because she would have wanted to go away first to consider and
research the possible risk, and that risk would have been the same on whatever
day she eventually had the surgery. The minority in the House of Lords would
have absolved the doctor on the ground that his breach of duty did not increase
the risk of harm, but the majority gave judgment for the patient, even though
they said that this was inconsistent with the conventional principles of
causation, because otherwise doctors could ignore their duty with impunity.
Similar considerations led to a unanimous decision in Fairchild v Glenhaven
Funeral Services to impose liability on all the successive employers who had
carelessly exposed the claimant to asbestos fibres, although only one of them
could possibly have triggered his cancer: in certain circumstances, especially

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where it is impossible to identify the precise cause, you are taken to have caused
harm if your misconduct increased the risk of its occurrence, for otherwise your
breach of duty would have no legal consequences at all.
Analogous are cases where a defendant who had acted in a manner apt to
cause physical harm has been held liable for harm of a different kind not
otherwise compensable. In Page v Smith, for instance, the defendant was held
liable when his slightly bad driving caused a minor accident in which the
claimant, though not physically injured at all, was (unforeseeably) shocked
enough to take to his bed. Again, it was held in Anns v Merton LBC that the
buyer of a badly built house was entitled to damages, but only if the house was
‘imminently dangerous’ so that it could have collapsed and injured him
physically, though it didn’t, and all he lost was some money. That decision also
held that if the house was dangerous the local authority was liable for
negligently permitting it to be built. The risk of such liability was later felt to
induce planning authorities to be overcareful and unduly scrupulous, thereby
delaying the construction of buildings in an unacceptable manner. Anns has
since been overruled. One reason for the overruling was that there was a statute
on the books which provided the purchaser of a jerry-built dwelling with a claim
against the builder.

STATUTES AND JUDGE-MADE LAW

That statute (the Defective Premises Act 1972) applied only to dwellings, homes
for people; Anns, had it not been overruled, would have applied to all buildings,
including office-blocks. This indicates a distinction between statutory and
judge-made rules which deserves further reflection. In McFarlane itself no
statute was involved, and our choice of it to illustrate the law of tort might lead
one to suppose that tort law is largely judge-made. The supposition is quite
false: almost all tort suits involve, and frequently turn on, a statute. This is true
not only of those cases where a workman sues for breach of a safety regulation
and his claim is based explicitly on the statutory rule, but also of cases where
statute has intervened to reverse or modify rules laid down by judges. Thus in
every case involving death or more than one defendant or injury to which the
claimant’s fault has contributed or which occurred on the defendant’s premises
or which is due to a defective product or the act of an animal—and that is a lot

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of cases!—the outcome depends on some statute or other.
Statutory rules and those laid down by the judges are very different in nature
and operation. Judge-made rules are applied by analogy—a decision involving a
dog may well be applied in a case concerning a cat, since cats and dogs are
analogous (in some ways), but a statute which refers to a dog could never be
applied to a cat, for a statute applies only to what is covered by its wording,
whatever the courts hold the words to mean. Again, while both Parliament and
the courts speak by a majority, often a very slim one, Parliament speaks with
one voice, and its very words are law. One cannot imagine five different
versions of a statute, but a court may speak with five different voices, and while
it is the actual holding which is binding rather than the words the judges use, it
is the reasons they give which will be ventilated in subsequent cases.

THE EFFECT OF MCFARLANE

We have seen that the decision in the case of the misleading banker’s reference,
in which there were five different speeches, has been applied in situations very
far from the facts of Hedley Byrne itself. There were five different speeches in
McFarlane also, and though it can hardly prove equally seminal, it has left some
unanswered questions. Thus while we know that a doctor whose fault is
responsible for the birth of a healthy baby need not pay for its upbringing, what
if the child is born because of a defect in a contraceptive device carelessly
manufactured, or sold, by the defendant? What if the child is not healthy, but
handicapped? Are these also situations in which it would not be fair just and
reasonable to make the defendant pay?
The actual decision in McFarlane displeased two classes of critic— those
who objected to the displacement of the normal rules of tort law, and those who
thought it was unfair on the parents. Two years after McFarlane, the Court of
Appeal held in Parkinson v St James and Seacroft University Hospital NHS
Trust that if the child was disabled, the extra cost of upbringing attributable to
the disability could be claimed, and shortly after that the same court held in
Rees v Darlington Memorial Hospital NHS Trust that where the extra cost was
due not to any disability in the child but to the disability of the mother, that too
was compensable. Both parties in Rees appealed to the House of Lords so, less
than four years after McFarlane, the House, with seven judges instead of the

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usual five, was invited to change its mind about its original decision. All seven
judges held that McFarlane should not be overruled, and allowed the
defendant’s appeal. But then four of them did something very remarkable: they
held that though, under McFarlane, the parents of the unwanted child could not
claim damages, ie full compensation for their loss, they should nonetheless
receive a lump sum of £15,000.

DAMAGE AND THE INVASION OF RIGHTS

This decision to award £15,000 is simply extraordinary, as the minority
emphasised with great vigour. The only explanation is that the claimants had
suffered a wrong in that their right to organise their life and plan their family
had been negligently infringed, and that while McFarlane had declined to award
compensation for the consequent harm (the standard consequence of wrongful
conduct), still something should be done about it. It is true that in recent years
we have become increasingly used to people claiming that their rights have been
infringed. In fact, however, the common law always did award money when
certain basic rights had been infringed (even without negligence or consequent
harm): the right to freedom of movement, to physical integrity and to
undisturbed possession of property were protected by the tort of trespass, and
the right to one’s reputation was (over)protected by the tort of defamation (libel
and slander).
Now, since the enactment by the Human Rights Act 1998 of the European
Convention of Human Rights, the number of protected rights has been greatly
increased, but the person complaining of infringement of one of the new rights
(including the right to ‘respect for family life’) may have to forgo damages and
be content with a declaration that his grievance is justified. Future McFarlanes
will do better than that—they will get £15,000. The £15,000 was said (but not
held) to be payable whether the child is healthy or disabled, with the implication
that (contrary to Parkinson) even where the child is disabled, only the £15,000
is payable. But McFarlane and Rees, which endorsed it, were concerned only
with the healthy child, so there are some untidy ends, as well as an
unprecedented precedent.

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THE UNWANTED BABY ABROAD
There seem to be unwanted babies and claimant parents all over the world, and
in McFarlane the House of Lords considered a few decisions from abroad.
Subsequently the High Court of Australia, after very full argument, declined (by
a majority) to follow McFarlane and awarded full damages in the case of a
healthy child. In Germany the Constitutional Court split on the question whether
to treat a child as harm was consistent with the constitutional requirement of
respect for the human being, but now it is accepted that the harm is not the
existence of the child but the cost of maintaining it, and the courts, treating the
doctor’s negligence as a breach of contract, award damages to the mother,
though not the full amount where the child is healthy. France is different, as
usual, for it holds that to have a healthy child is not damage at all, which is a
very sensible view. But then the French court did something remarkable, not
possible in England: it held that the child itself could sue if (a) the doctors had
failed to recognise that it would probably be handicapped and (b) the mother, if
informed of this, would have proceeded to a lawful abortion. Now there is
certainly something odd and unpalatable about letting a person claim on the
basis that if the defendants had done their duty he would not have been born at
all, but be that as it may, the decision caused public outrage and legislation was
passed in great haste: it was the state’s job to provide for disabled persons,
regardless of the reason for their disability, and doctors were to be liable for the
parents’ personal harm only, ignoring the extra cost of the child. Subsequently,
however, the High Court in the Netherlands has held that the disabled child can
indeed claim for being born if the doctors carelessly failed to inform his mother
that he was likely to be born disabled, and she would, if so informed, have
proceeded to an abortion. Whether this approach enhances or reduces the
dignity of the disabled claimant, and how it affects the perception of disabled
people in society, are impossibly difficult questions to answer, indeed even to
address in civil legal proceedings.

CONCLUSION
It is hardly surprising that courts in different countries, faced with the same
problem, reach different conclusions. Nor is this entirely due to the fact that

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they may be operating in different social and legal contexts and traditions. After
all, even in a single system such as ours, quite cogent decisions of trial judges
may be reversed by a divided Court of Appeal, and unanimous decisions of the
Court of Appeal, seemingly the last word, may be overturned by three members
of the Supreme Court, unpersuaded by the very plausible speeches of two
determined dissentients. There is therefore no point in pretending that the
ultimate holding in any debated case is at all inevitable or obviously ‘right’. But
disputes must be resolved and cases decided: there must be a decision one way
or the other so that citizens can be advised where they stand (and perhaps press
for remedial legislation). Meanwhile, the ultimate decision is authoritative,
however minoritarian or objectionable. It is necessary, therefore, to know what
the law is (for the time being), but it is also very desirable to know how it comes
to be the way it is and how easily it might have been otherwise. And that is one
of the things that makes the study of law as interesting as it is.

Cases
Alcock v Chief Constable [1992] 1 AC 310
Anns v Merton London Borough Council [1978] AC 728
Caparo Industries v Dickman [1990] 2 AC 605
Chester v Afshar [2004] UKHL 41
Donoghue v Stevenson [1932] AC 562
Fairchild v Glenhaven Funeral Services [2002] UKHL 22
Hedley Byrne & Co v Heller and Partners [1964] AC 465
McFarlane v Tayside Health Board [2000] 2 AC 59
Page v Smith [1996] AC 155
Parkinson v St James and Seacroft University Hospital NHS Trust [2001]
EWCA Civ 530
Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52
Tomlinson v Congleton BC [2003] UKHL 47
White (or Frost) v Chief Constable [1999] 2 AC 455
White v Jones [1995] 2 AC 207

Further reading
Atiyah, The Damages Lottery (Hart Publishing, Oxford 1997)
Cane and Atiyah, Atiyah’s Accidents, Compensation and the Law, 7th edn

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 (Cambridge, Cambridge University Press, 2006)
Weir, An Introduction to Tort Law, 2nd edn (Oxford, Oxford University Press,
2006)

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5

Land Law

Kevin Gray

INTRODUCTION
William Blackstone was the first ever Professor of English Law, being
appointed to the newly established Vinerian Chair in Oxford in 1758. He wrote
four monumental volumes of Commentaries on the Laws of England, a work
which still ranks as one of the most remarkable attempts to rationalise and
expound the law for the benefit of university students and, more generally, for
an intelligent citizenry. However, Blackstone concluded the second volume of
his Commentaries (which was devoted to the law of property) on an extremely
gloomy note, recording his fear that this volume ‘has afforded the student less
amusement and pleasure in the pursuit, than the matters discussed in the
preceding volume’ (Blackstone Commentaries, vol II (1766) 382). Blackstone’s
evident disenchantment with the law of property—and particularly with the law
of land—inaugurated a myth which has since coloured the perceptions of entire
generations of students as they embark on their exploration of land law. Many
have approached the encounter with a weary resignation born of some
apprehension that the law of realty (as it is often known) will be dry, dusty and
dull in comparison with the more vivid entertainment offered by, say, the law of
crime or tort.
How wrong such perceptions turn out to be! True it is that property matters
are, at least initially, more technical than many other areas of law. It is also fair
to say that the land law of Blackstone’s day was deeply marked by the mind-
numbing complexities of a rapidly disintegrating feudal order. But the reality of
realty—so to speak—is that ‘all human life is here’ (if we may borrow a phrase

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once employed by the News of the World). If you want sex, lies, violence and
vitality—the full gamut of human strengths and frailties—it is all here.
Moreover, there is something for everyone: something for the theorist, the
technician, the pragmatist, the romantic and the cynic alike. The reason is not
hard to search out. The law of property is not ultimately about land or things. It
is about ourselves; it is about the way in which we perceive our relationship
with the external world; it is about the rapaciousness with which we choose to
seize the resources and opportunities offered by that world. Here is an arena in
which the agony and ecstasy of life are played out against a backdrop of abstract
proprietary concepts.

THE PROBLEM OF PROPERTY

For the student, the challenge of property is deeply internal. Property law is,
effectively, a kind of applied psychology. The law of property poses
fundamental questions to which the answers lie not outside, but inside, oneself.
How absolute or sacrosanct should property entitlements be? How much room
is there for notions of fairness in the allocation of property rights? What is the
proper balance between justice, certainty and efficiency? Is property law simply
about excluding other people from resources which one values or is it more
about a sharing of socially valued resources with others? How do human rights
and property rights interact? On what grounds can one’s property be taken away
or confiscated? What is property anyway? The answers to such questions
depend upon the private, latent, barely conscious assumptions and perceptions
which each of us brings to the study of property. Yet our responses to these
ancient questions have implications which go far beyond the immediate
resolution of property disputes. Our conclusions impinge upon a whole range of
modern debates—about personal privacy, civil liberty, distributive justice,
social exclusion and environmental welfare—debates which are central to the
way in which we live our lives. Property questions are profound; their reach is
universal; their power to engage is immense. Small wonder that even
Blackstone, in one of his more cheerful moments, recognised that there is
‘nothing which so generally strikes the imagination, and engages the affections
of mankind, as the right of property’ (Blackstone Commentaries, vol II, 2).
In the case of land, the factor which intensifies the explosive cocktail of

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proprietary emotion is the truism that there is a strictly limited supply of the
commodity. Particularly in the context of land, property becomes the obsessive
concern of a lifetime: ask anyone with a mortgage or, for that matter, anyone
who sleeps in a doorway. Indeed you, the reader, are already a fully fledged
expert on property, for you have spent most of your life engaged in the constant
and instinctive—often subconscious— identification of things as being either
your own or someone else’s. Nor will you ever escape the long reach of land
law, for this body of rules has something to say about every aspect of your daily
life. What right, for example, do you have to be in the place where you are
reading this book? Do you own the space in which you are sitting? Are you a
tenant? Are you a licensee (or permitted visitor)? Are your parents entitled to
throw you out of the family home? Or are you, perhaps, a squatter or trespasser
in someone else’s premises? You are never, in fact, immune from classification
in land law terms. As the American jurist, Max Radin, once said, ‘[t]o go to
sleep in one’s bed is as much and as little of a legal act … as signing a deed’
(Radin, ‘The Permanent Problems of the Law’ (1929–30) 15 Cornell LQ 1 at 3).
Even when you rest six feet under, land law can still tell us your precise legal
status in relation to realty.

THE CASE (CHHOKAR V CHHOKAR)

An Ordinary Family Home

But let me transport you far away from these musings to a street in West
London and to an everyday story of ordinary people living in Southall. The
central characters in this drama are a husband and wife, Mr and Mrs Chhokar.
The beguiling normality of the suburban context should never, of course, blind
us to the volatility of emotion, the duplicitous scheming and the bizarre twists of
fate that often flourish in such settings: always expect the unexpected! The
tangled narrative of the Chhokars’ life together was to end up in the Court of
Appeal in the 1980s and to lead to a ruling which, somewhat improbably,
invoked the authority of an unreported decision of a Venetian court some four
centuries earlier.
Two years after their marriage in 1975 the Chhokars bought a house in
Clarence Street in Southall for a price (in today’s values) of £120,000. The

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deposit of £10,000 came from their joint savings and the remaining £110,000
was borrowed by Mr Chhokar from a building society. The Chhokars were
typical participants in what soon became Thatcher’s ‘property-owning
democracy’ or, as Lord Diplock more accurately described it in Pettitt v Pettitt
(1970), ‘a real-property-mortgaged-to-a-building-society-owning democracy’.
The Chhokars’ purchase was doubtless founded on hard work; their aspirations
were upwardly mobile; they had a young child for whom they were striving to
create a better life.
Legal title to the Chhokars’ home was registered at the Land Registry in Mr
Chhokar’s name alone (although, in the confusion of the purchase, his wife
initially believed that it had been registered in their joint names). The rights of
the building society were, incidentally, merely those of a secured creditor. This
meant that, although the money which it had lent to Mr Chhokar ranked
immediately as his money for the purpose of the purchase, the building society
was entitled, in the event of any default, to recover the outstanding loan money
by forcing a sale of the home. Herein lies the essence of mortgage-fuelled
house-purchase. The borrower is enabled to acquire a major capital asset
(usually by means of instalment payments over a mortgage term of some 20 or
25 years), while the lender’s rights are confined to the eventual return of the
loan principal plus any interest which has accrued on this sum. Of course, land
(together with any house which is part of the land) tends to inflate in value over
time, with the result that the modern mortgage operates as a very remarkable
engine of wealth creation for the borrower. By purchasing a home with
externally sourced funds, the borrower is allowed to ride up on the steadily
increasing capital value of the land, thereby achieving a tax-free windfall in
which the lender takes no share beyond the contracted return of loan money
with interest.

Legal and Equitable Ownership

Right at the outset we meet our first difficulty in the Chhokar saga— where
exactly did Mrs Chhokar fit into the ownership picture? So far as the Land
Registry was concerned, Mr Chhokar was quite plainly the sole registered
proprietor of the matrimonial home. There was not a scrap of documentation
anywhere to suggest that his wife owned any share in that home. Yet it was
beyond dispute that at all relevant times Mrs Chhokar had handed her wages

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over to her husband, with the result that both the initial deposit on the house and
the subsequent mortgage payments had been generated by the earnings of both.
No matter how the registered (or ‘legal’) title is held, it seems intuitively unfair
that joint contributory effort should not be recognised in some form of shared
ownership. But here the legal ownership of the Chhokars’ home had already
crystallised definitively in the husband’s name alone.
At this point an extraordinarily significant branch of English jurisprudential
doctrine comes into play. For centuries the courts have recognised that
ownership can sometimes exist on two parallel planes. In such cases, ‘legal’
ownership (or ownership ‘at common law’) comprises merely the superficial
documentary record of ownership (usually as evidenced by title deeds or by the
proprietorship entered in the Land Register). Viewed in this way, ‘legal’
ownership is only the external face of proprietary entitlement. It is, in many
ways, a nominal kind of ownership, signifying simply that someone is the
caretaker or custodian of the land. ‘Legal’ ownership is not even that important,
since it does little more than reflect the fact that the name of a particular
transferee has been inscribed (sometimes quite fortuitously) on a deed of
transfer. More vital by far is the ‘equitable’ (or ‘beneficial’) ownership of the
asset in question. The jurisdiction of equity—originating in the court of the
king’s Chancellor in medieval times and later exercised by the Court of
Chancery—came to recognise that ‘legal’ ownership is not necessarily
conclusive of the allocation of proprietary entitlement (see chapter 6). Equity’s
central contribution to English jurisprudence has always been the idea that
conscience-based obligation takes priority over strict legal right. Unlike the
common law (which is moved by the sheer outer form of documentary titles),
equity looks to the inner reality of transactions. Accordingly, in appropriate
circumstances, equity answers its primary call of conscience by engrafting a
corrective image of entitlement—a species of ‘equitable’ ownership—upon the
ownership which exists at common law.
In this way equity is able to supplement the common law by responding
more flexibly and sensitively to the need for fair dealing and just outcomes. It
would be wrong, however, to suggest that equity intervenes in every
circumstance in which a person in the street might identify a particular outcome
as unfair. To go down this path would simply lead to chaos. But one of the
standard cases where equity does interpose its own view of ownership occurs
where a legal title to property is purchased using money contributed by some

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person or persons who are omitted from the legal ownership. In a world where
money talks loudly, it is intrinsically unlikely that money contributors will have
intended to part with substantial amounts of cash otherwise than in the
expectation of some form of ownership. In these circumstances it seems
‘inequitable’ for the purchaser of a legal title to deny the ownership rights of the
very persons who made his acquisition possible. Accordingly, in the absence of
any proven contrary intention, equity regards the purchaser as a mere ‘trustee’
(or custodian) who holds his legal title ‘on trust’ for those who directly funded
his purchase (each in proportion to their respective money contributions). The
fair return expected by the money contributors takes the form of shares of
‘equitable’ (or ‘beneficial’) ownership under the ‘trust’. In effect, ‘legal’
ownership is reserved for the person nominally entitled to the property, while a
parallel form of ‘equitable’ ownership—ultimately the more important kind of
ownership—is recognised in those whose efforts, in reality, facilitated the
purchase. So forceful is equity’s mandate of conscience that the trust which
arises here requires no documentary existence. It subsists as an ‘implied trust’,
hovering—as it were—in mid-air, but in no sense diminished or weakened by
its lack of visible paper form.
When this doctrine of trusts is applied to the facts of the Chhokar case, it
readily yields the conclusion—undisputed by all parties concerned—that
although Mr Chhokar owned the matrimonial home ‘at law’, ownership ‘in
equity’ was divided between husband and wife in equal shares by virtue of their
joint contributions of money. (Ongoing mortgage payments are effectively
treated as a discharge by instalments of the initial purchase price.) The overall
effect was therefore that, while Mr Chhokar (as ‘legal’ owner) retained the bare
right to sell or otherwise dispose of the home, the money value inherent in that
home was shared equally between husband and wife as co-owners of the
‘equitable’ (or ‘beneficial’) interest. These parallel versions of ownership can be
expressed in the graphic form, as shown in figure 5.1

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Figure 5.1 Ownership in law and equity by Mr and Mrs Chhokar

A Dreadful Deed

So far so good. You have just survived a first (and not entirely easy) encounter
with the technicalities of the law of property. But the same cannot be said for
the Chhokar family, because from here on storm clouds begin to gather over
their heads. Tolstoy wrote famously that ‘all happy families are alike but an
unhappy family is unhappy after its own fashion’. Domestic discord struck the
Chhokars in an inimitable sequence of events. In 1978, just as their second child
was on the way, Mr Chhokar suspected his wife of infidelity, although no
evidence was ever found to support such an assertion. Nevertheless, Mr
Chhokar devoted himself single-mindedly to a strategy which was designed to
rid himself of his wife. He took her to India for a short holiday and, while there,
he confiscated her return ticket and came home alone, leaving her destitute.
Somehow Mrs Chhokar, heavily pregnant, managed to borrow enough money to
make her way back to London: we are told that her husband was ‘surprised to
see her’. Mr Chhokar then embarked upon a scheme which he hoped would not
only disembarrass himself permanently of his wife, but also siphon-off a
sufficiently substantial portion of the value of the matrimonial home to enable
him to start a new life elsewhere without her. To this end he met a Mr Parmar in
a bar somewhere in London. There, as Ewbank J was later to say, he had ‘a
discussion that might take place in similar circumstances in relation to property
… asserted to have fallen off the back of a lorry’.
The upshot of this conversation was an agreement to sell the Chhokars’
home to Parmar for £165,000, a sum which was patently a gross undervalue.
The transaction was planned behind the back of Mrs Chhokar, who was led to
believe that Parmar, during his inspection of the premises, was merely a

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prospective lodger. Parmar was fully aware of Mr Chhokar’s fraudulent intent
and together they agreed that completion of the house transfer should occur
while Mrs Chhokar was in hospital having her next baby. Such plans never, of
course, run smoothly. Mrs Chhokar’s baby was tardy in making its appearance
and completion of the transfer had to be postponed for some four days after the
expected date of delivery. Notwithstanding this inconvenience, the duplicitous
transfer eventually took place while Mrs Chhokar was still in the maternity
ward. Mr Chhokar immediately repaid his outstanding mortgage debt and set off
for India with a cash windfall of some £50,000. Two days after completion
Parmar put the house on the market for £240,000—ie £75,000 more than the
price he had paid to Mr Chhokar. When, a day later, Mrs Chhokar emerged
from hospital clutching her new-born child, she found the locks changed at her
home and, on trying to gain access, was beaten up by Parmar’s heavies. Parmar
threatened to throw the baby out of a window and he and his thugs proceeded to
break every window in the house and vandalise the lavatory in an attempt to
render the house uninhabitable by Mrs Chhokar.

An Unforeseen Outcome

At this stage the scoreline could not but register the fact that some of the
participants in this story had fared rather better than others. Parmar had got the
house and the prospect of a massive profit on resale; Mr Chhokar had got no
wife, a large cash bonus, a new life incognito, and probably a new woman;
whereas Mrs Chhokar had got two small children and no home and was
therefore compelled to live in a hostel. But how fundamentally the
circumstances of life can alter! As the Bard of the North once put it, ‘the best
laid plans of mice and men gang aft agley’. Two entirely unforeseen
developments occurred which were to confound the expectations of Parmar and
his feckless accomplice. A few months after the fraudulent transfer Mrs
Chhokar—a brave and resourceful woman— managed to move back into her
former home in Southall, still unoccupied, and to reinstate there a semblance of
family life with her two children. Then even less predictably—and after an
absence of two years—Mr Chhokar reappeared on the scene. The prodigal
husband, it turned out, had wasted his substance in riotous living, had secretly
returned to England, and had been working on the buses in Leicester. He now
sought a reconciliation with his wife and children—to which, amazingly, Mrs

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Chhokar eventually agreed—with the consequence that things had now come
full circle. Mr Chhokar resumed residence in the original matrimonial home.
The Chhokars were once again living en famille under the same roof. One
suspects, nonetheless, that the balance of power in the Chhokar household had
altered for ever and that Mr Chhokar was made keenly aware that his whole
domestic existence rested on the leave and licence of his incredibly long-
suffering wife.
The only trouble was that the roof under which the Chhokars were living
now belonged at law to someone else, ie Parmar. However wrongful the actions
of Mr Chhokar—and no matter how complicit Parmar was in Chhokar’s
dishonest design—the transfer of the matrimonial home had indeed been
effective to pass the registered (ie the ‘legal’ or ‘paper’) title to Parmar. This
consequence followed from the fact that, unlike equity, the common law focuses
simply on the outer form of transactions. Here there had been a duly executed
transfer of title perfected by the registration of Parmar as the new proprietor.
And Parmar, on becoming aware that the Chhokars had been restored to a state
of family life within his own house, was inevitably concerned to terminate what
he perceived as a trespass upon his property. The newly reconstituted Chhokar
family was equally determined to resist Parmar’s attempts to deprive them of
their home. These competing concerns translated themselves into a number of
legal questions which eventually required to be decided by the Court of Appeal.

Some Legal Realism

Now it is highly likely that you have already reached some preliminary view of
the intrinsic merits of the Chhokar case. Anyone who engages seriously with
this miserable narrative of treachery and double-dealing has probably decided
that the scales of justice tilt rather more heavily in favour of Mrs Chhokar than
of Parmar. But this, of course, is to state merely a moral preference as distinct
from a reasoned legal conclusion. Yet there has long been a branch of
jurisprudential theory (promoted largely by the ‘American Realists’ of the
1930s and 1940s) which tends towards the view that instinctive ethical
assessments of given fact-situations play a hugely formative role in the process
of judicial decision. Much has been written about the function of the judicial
‘hunch’ in the determination of legal outcomes; and there may well be a residual
truth in the idea that legal decisions are governed, in some degree or other, by

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the judge’s perception of the relative moral merits of the opposing parties. In
effect, the judge first decides which party he or she wants to win and then crafts
a judgment (ie manipulates the legal ‘rules’) so as to bring about precisely this
result. On this basis, a judge’s ruling in any particular case is little more than a
semantic ploy aimed at achieving the desired conclusion; the ruling is simply an
ex post facto rationalisation of an intuitively preconceived solution. In the words
of one of the Realists, court judgments should be seen, not as mirroring the
actual process of deciding cases, but ‘rather as trained lawyers’ arguments made
by the judges (after the decision has been reached), intended to make the
decision seem plausible, legally decent, legally right, to make it seem, indeed,
legally inevitable’ (Karl N Llewellyn, ‘Some Realism about Realism’ (1931) 44
Harvard Law Review 1222 at 1238–39). The student of the law is always well
advised to look closely at what judges are really doing, rather than merely at
what judges say they are doing.
Let us bear this injunction in mind as we examine the various questions
posed in the Chhokar case and the responses made by the court. The case was
heard first by Ewbank J as a single judge in the High Court and then, on appeal,
by Cumming-Bruce LJ and Reeve J in the Court of Appeal.

Did Mrs Chhokar Still Own Any Share in the Home?

In Chhokar an initial question obviously arose as to whether, in the aftermath of

the dishonest transfer of the house to Parmar, Mrs Chhokar retained any
equitable entitlement in the property. In other words, had her beneficial half-
share in the matrimonial home been destroyed by the sale of that home to a
stranger? If that were so, not only would Mrs Chhokar have lost any right to live
in the house, but she would also have lost the money value of her substantial
investment in its acquisition. Her sole remedy would have been a futile action in
damages against her indigent husband for breach of trust. Accordingly, it was
vital for Mrs Chhokar to be able to show that her beneficial half-share had
survived the transfer of the registered title to Parmar. But there arises here a
technical difficulty which originates in a much more general principle of land
transfer under English law.
It is a major objective of English law to ensure that, in so far as possible, the
transferee of a registered title (such as Parmar) takes the land free of all pre-
existing interests. The transferee thus starts, as it were, with a clean sheet. He or

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she is unencumbered by adverse entitlements belonging to others which might
impede the enjoyment or profitable exploitation of the land or might act as a
disincentive to long-term planning, strategic investment and future
marketability. Fundamental economic motivations underpin this concern to
liberate the new registered proprietor from interests which could otherwise
operate as a drag (or, in more old-fashioned terminology, a ‘clog’) upon his or
her title. A healthily functioning economy requires that land should remain open
to efficient processes of sale or other disposition. It is important, so to speak,
that land is kept on the move: the fewer the burdens that inhibit market transfer,
the better.
It follows that the statute law which governs registered transfers has always
placed strict limits on the interests which are allowed to continue to affect a
registered title after its transfer. A few kinds of entitlement survive the transfer
precisely because they are recorded very obviously on the face of the
transferor’s register of title and are therefore deemed to have been perfectly
apparent to any potential transferee. Otherwise, however, the basic rule is that
every new registered proprietor is immediately released—in all but a small
number of specially defined circumstances— from the burden of pre-existing
rights belonging to other persons. In the Chhokar case the normal expectation
would therefore have been that the new legal owner, Parmar, took his title free
of any adverse claims made by others (including the claim by Mrs Chhokar to a
50 per cent beneficial share in the home by way of implied trust). However,
such an outcome would have spelt complete disaster for Mrs Chhokar and her
vulnerable family.

The Protection of Actual Occupation

At this point we look more closely at the text of the Land Registration Act,
which carefully details the exceptional cases where pre-existing entitlements
continue to bind the transferee of a registered title. One such exceptional case
relates specifically to the proprietary rights of anyone who, at the time of the
transfer, was a ‘person in actual occupation’ of the land concerned. It has long
been clear that the proprietary rights of actual occupiers—albeit unrecorded on
the face of the Land Register—are protected on a transfer of the legal title.
These rights are said to ‘override’ the transfer and to fetter the land in the hands
of the transferee (Land Registration Act 1925, section 70(1)(g); Land

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Registration Act 2002, section 29, Schedule 3, paragraph 2). This significant
exception to the normal rule reflects the enormous respect which English law
has traditionally accorded to the entitlements of those who, at any given time,
have established a physical presence on the ground. Precisely the same impulse
underlies the ancient maxim that ‘an Englishman’s home is his castle’, as also
the longstanding distaste of the common law for any form of violent seizure or
forcible eviction. Moreover, the statutory protection of those ‘in actual
occupation’ of registered land is widely viewed as striking a fair balance
between all parties concerned. Even though their rights are not apparent from
the Land Register itself, actual occupiers can justifiably claim that the sheer fact
of their physical occupancy sends a powerful signal to any potential transferee
that they may own proprietary rights in the land which merit further
investigation. It seems not entirely unfair that an intending purchaser who fails
to inquire into the possibility of their entitlement should therefore take the land
subject to any interests held by persons whose presence was so blatantly
obvious.
Herein, of course, lay a significant difficulty for Mrs Chhokar. It was
painfully apparent that, although she had undoubtedly held proprietary ‘rights’
in the land (ie her beneficial half-share), she was absent from that land at the
precise moment of the transfer of the legal title to Parmar. She had been in the
maternity ward of the local hospital. Could it really be said that, for the purpose
of the statutory exception, she was a ‘person in actual occupation’ of the land?

Some Statutory Interpretation

Here we must learn something about the art of statutory interpretation. By virtue
of the sheer indeterminacy of language, words can convey only a crude
approximation of meaning: they are the distorted echoes of ideas. Words,
declared Oliver Wendell Holmes, are not transparent crystals: they are merely
‘the skin of a living thought’ and they may ‘vary greatly in color and content’
according to the context in which they are used (Towne v Eisner (1918)). In
particular, statutory words have a flexibility of application (or plasticity) which
almost always enables the judge to work towards an ethically satisfying solution
of the legal problem before the court. Thus, in the Chhokar case, the first
instance judge adopted an expansive interpretation of the phrase ‘actual
occupation’. True it was that Mrs Chhokar had not been physically present in

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the home at the date of transfer. But what, on closer analysis, does ‘actual
occupation’ really mean anyway? The phrase surely cannot be interpreted in
such an arbitrary or quixotic fashion that people forfeit their rights simply
because, on some vital date, they are rushed off to hospital with a broken leg or
happen to go away on holiday or even—come to that—pop out of the house for
five minutes to buy a pint of milk. Lord Wilberforce once claimed, slightly
incautiously, that the phrase ‘actual occupation’ comprises ‘ordinary words of
plain English’ (Williams & Glyn’s Bank Ltd v Boland (1981)). It became readily
apparent, however, that these innocuous words conceal some rather difficult
questions relating to the required substantiality or continuity of the presence
concerned. In this example—as in so many others—the intrinsic frailty of
legislative language is rapidly exposed. Statutory words are indeed blunt
instruments in the communicative process and it is hardly surprising that the
angle, force and range of their impact often need to be controlled by an actor
somewhat closer to the scene than the legislator. The process of statutory
communication cannot be allowed to be erratic—and indeed it is not. The
statutory bludgeon becomes the judge’s chisel; the dull blow of the
parliamentary draftsman is converted into the judicial craftsman’s more finely
fashioned legal solution.
Thus, at first instance in the Chhokar case, Ewbank J found no difficulty in
construing the relevant statutory formula so as to catch circumstances where—
as in the present case—the home still contained furniture and other items
belonging to the absent Mrs Chhokar. The statutory requirement of ‘actual
occupation’ could not (and did not) exclude occupation which was symbolised,
or established vicariously, by the presence of personal paraphernalia associated
with the claimant ‘occupier’. In this way statutory language can be seen as the
tool of the judge, rather than the judge as a mere tool of the legislative process.
And the end result—not contested before the Court of Appeal—was that Mrs
Chhokar’s beneficial half-share in the matrimonial home was held to ‘override’
the transfer of the registered title to Parmar. He effectively took that title subject
to an implied trust under which he now shared the beneficial ownership on
equal terms with Mrs Chhokar. In reality, Parmar had simply stepped into the
shoes of his vendor, Mr Chhokar. In graphic form, the history of the entire
transaction now appears as shown in figure 5.2.

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Figure 5.2 The transaction between Mr Chhokar and Parmar

Could Parmar Force a Sale of the Home?

Of course, the conclusion that Mrs Chhokar still held an equitable interest did
not necessarily foreclose a number of other claims which Parmar wished to
advance in respect of the house. Having grudgingly accepted that Mrs
Chhokar’s beneficial rights had survived the transfer, Parmar predictably sought
to salvage what he could from the débâcle by requesting the court to order a sale
of the home in which the Chhokar family were now residing. (The court has a
discretionary power, now formalised in the Trusts of Land and Appointment of
Trustees Act 1996, to order the sale of land which is the subject of a trust.) Such
an order would have involved a mandatory disposal of Parmar’s registered title
on the open market, Mrs Chhokar’s beneficial share in the home being
compulsorily converted into a half-share of the sale proceeds. At least in this
way Parmar could recoup the value of his own beneficial half-share in the
property.
At first instance Ewbank J ordered that a sale of the Chhokars’ home be
effected within nine months and that the sale proceeds be divided between
Parmar and Mrs Chhokar. Ewbank J’s decision was based on his belief that it
was ‘quite wrong’ that Parmar should provide the Chhokars, free of charge,
with a relatively valuable house as their home for the indefinite future. This
conclusion was consistent with a long line of cases in which the courts had
tended to order the sale of a co-owned home where sale was being pressed for
by some complete stranger to the family relationship (such as a creditor who
had lent money which he now wished to recover from the sale proceeds).
Ewbank J’s ruling in favour of sale was, however, reversed on appeal. In
giving the principal judgment in the Court of Appeal, Cumming-Bruce LJ
indicated that, although the ‘scoundrel Parmar’ had no ‘matrimonial privity’
with Mrs Chhokar, he had sought by his ‘monstrous fraud’ to ‘intermeddle in

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the wife’s interests in the family home’. Parmar was not therefore truly a
‘stranger to the marriage’. Accordingly, the discretion to order sale fell to be
exercised with reference to the criteria normally applicable where, no ‘stranger’
being involved, a family home is held on trust for a number of co-owners who
cannot agree between themselves whether a sale should occur. These criteria
have always placed a heavy emphasis on the question whether the original
underlying purpose of the trust remains capable of substantial fulfilment.
Ironically, in view of the extraordinary reconciliation achieved between the
Chhokars, this original purpose—ie the provision of a home for the Chhokar
family—still seemed eminently capable of fulfilment. Nor could the Court of
Appeal now see any reason for frustrating the Chhokars’ initial intention to use
the property as their matrimonial home. But it is also interesting to note that the
refusal of the sale so desperately sought by Parmar was explicitly linked to the
Court’s perception that ‘[e]verything that [Parmar] did from first to last in
connection with the transaction is stamped with immoral stigma’. Cumming-
Bruce LJ declared it difficult to ‘find language which, with becoming
moderation, describes the moral turpitude of every step taken by Parmar
throughout’. To the judge it seemed quite plain that, on the question of sale, the
voice of the ‘innocent’ Mrs Chhokar should ‘prevail over the voice of the
scoundrel who, as the accomplice of [Mr Chhokar], attempted by fraud and
diverse devices to frustrate and destroy the wife’s overriding interest’. Parmar
had been ‘caught’ in his ‘deceit’ and could not therefore succeed.
The Court of Appeal accordingly declined to order any sale of the family
home. Cumming-Bruce LJ observed that Mrs Chhokar might ‘very well be
entitled’ to ‘enjoy her beneficial interest in the matrimonial home, in consortium
with her husband or otherwise, for the rest of her life’. Of course, it always
remained open to Parmar to reapply to the court for an order for sale in the
event of some major change in the parties’ circumstances, but Cumming-Bruce
LJ (with whom Reeve J expressly agreed) thought it unlikely that such an
application could or should be made for ‘many years ahead’.

Could Parmar Insist on Sharing Residence in the Home?

If an immediate sale of the Chhokars’ home was no longer an outcome available

to Parmar, there arose some question as to whether Parmar could at least insist
on sharing residence in that home alongside the entire Chhokar family. In

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English law, after all, a co-owner is presumed to be equally entitled—together
with any other co-owner—to enjoy physical possession of each and every part
of the co-owned land. However, when the Chhokar case reached the Court of
Appeal, even Parmar’s counsel shrank from pressing such a claim on his behalf.
As Cumming-Bruce LJ pointed out, Parmar was a married man himself and ‘no
court would allow him to try to occupy the matrimonial home in common with
Mrs Chhokar’. Indeed, said the judge, ‘Mrs Parmar might have something to say
about it too, if he tried to do so.’

Could Parmar Exact any Payment of Rent?

Deprived of the possibility of either sale or shared residence, Parmar then

argued before the Court of Appeal that Mrs Chhokar should be required to pay
him a money rent by virtue of the Chhokar family’s exclusive occupancy of the
house. Parmar was, after all, a beneficial co-owner and he plainly thought it not
improper to extract some rental income in recognition of his equitable half-share
in the property. There is, however, a general principle of English law that no
rent obligation arises between co-owners merely on the ground that one of these
co-owners happens to enjoy sole possession of the co-owned land. This rent
immunity flows from the intrinsic entitlement of all the co-owners to share
simultaneous physical possession of the land. In effect, no rent can be
demanded by a co-owner whose absence from the premises is simply the result
of his own voluntary choice. Over the years the courts have been compelled to
recognise certain exceptions to this principle, as for example where one co-
owner’s absence is precipitated by a wrongful act of forcible eviction or
domestic violence committed by a co-owner now in possession. Indeed, in
modern times it is highly likely that the question whether an occupation rent is
due from a co-owner in sole possession has come to rest on a simple test of
‘fairness’. Would it be ‘fair’ to impose such an obligation in all the
circumstances of the case?
In Chhokar it could, of course, be said that Parmar’s absence from the co-
owned premises was not immediately a matter of his own choosing: the courts
had explicitly denied him any chance of shared occupancy. The historic
rationale for rent immunity between co-owners supposedly rests on the freedom
of each to occupy the co-owned property at will. Yet the Court of Appeal
showed no detectible sign of regret that this freedom was presently unavailable

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to Parmar. In view of Parmar’s ‘crooked deceptions’ and ‘fraudulent
conspiracy’, the Court considered that it was now wholly unfair to cast any
rental burden on Mrs Chhokar. In the result Parmar was condemned to stand
idly by while the Chhokars enjoyed, for the indefinite future, rent-free
occupation of his property. It was quite irrelevant, said Cumming-Bruce LJ, that
Mrs Chhokar had currently decided to share this rent-free accommodation with
her ‘unsatisfactory’ husband.

CONCLUSION
All in all, the Chhokar case provides a superb cautionary tale couched in the
improbable language of the law of realty. It comprises a modern conte morale,
in which human weakness is countered and ultimately redeemed by the
magnanimity of a courageous and determined woman. Powerful forces of lust
and cupidity are brought low. There is an eventual triumph of good over ill.
There is an ethically satisfying conclusion. A confused and feckless husband is
rescued by an act of forgiveness and reconciliation; an avaricious and
unscrupulous intermeddler suffers a reversal of his fortunes. Indeed, by the
conclusion of the Court of Appeal hearing in the Chhokar case, the wrongdoer
Parmar began to cut a rather woebegone figure—but the Court seemed
disinclined to temper justice with much mercy. Parmar ended up owning a half-
share in a house which he could neither occupy nor sell and from which he
could derive no rental income. He still owed £65,000 to an estate agent who had
lent money towards his conspiratorial purchase. He was ordered to pay a further
£21,500 to Mrs Chhokar and her children by way of damages for their wrongful
eviction. For Parmar the only morsel of comfort lay in the fact that when the
house finally came to be sold at some (as yet unknown) future date, he would
receive credit for the original mortgage debt which had been discharged by Mr
Chhokar out of the proceeds of their conspiratorial transaction.
By contrast Mrs Chhokar (with the help of legal aid) had vindicated her
original entitlement to a half-share in her family’s home. Furthermore she was
guaranteed rent- and mortgage-free accommodation in that home for the
indefinite future, together with the possibly more dubious benefits of continued
cohabitation with her reconciled husband. It would have required the skill of a
consummate playwright to craft so ironic a conclusion to this remarkable human

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drama. But, as the Court of Appeal observed, there was no room for ‘crocodile
tears’ on behalf of Parmar merely because his unlawful enterprise did not
succeed. Indeed, Cumming-Bruce LJ professed himself able to see ‘no reason
for giving him anything more than the court in an unreported case gave to the
money-lender who had rights over a debtor’. The proceedings, said the judge,
‘are recorded in a play of Shakespeare’.

Cases
Chhokar v Chhokar [1984] 5 FLR 313
Pettitt v Pettitt [1970] AC 777
Towne v Eisner 245 US 418, 62 L Ed 372 (1918) (Holmes J)
Williams & Glyn’s Bank Ltd v Boland [1981] AC 487

Further reading
Gray and Gray, Land Law, 7th edn (Oxford, Oxford University Press, 2011)
A Bottomley and H Lim, ‘Feminist Perambulations: Taking the Law for a Walk
in land’, in H Lim and A Bottomley (eds), Feminist Perspectives on Land
Law (Abingdon, Routledge-Cavendish, 2007) 1–30
J Dewar, ‘Land, Law, and The Family Home’, in S Bright and J Dewar (eds),
Land Law: Themes and Perspectives (Oxford, Oxford University Press,
1998) 327–55
Louise Tee, ‘Co-ownership and Trusts’, in L Tee (ed), Land Law: Issues,
Debates, Policy (Devon, Willan Publishing, 2002) 132–68

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6

Equity

Graham Virgo
Charles Dickens’ Bleak House, first published in 1852, contains this description
of equity as practised in the courts of the time:
On such an afternoon, some score of members of the High Court of
Chancery bar ought to be—as here they are—mistily engaged in one of the
ten thousand stages of an endless cause, tripping one another up on slippery
precedents, groping knee-deep in technicalities, running their goat-hair and
horse-hair warded heads against walls of words, and making a pretence of
equity with serious faces, as players might.
Dickens adds that all the people in the court are yawning ‘for no crumb of
amusement ever falls from JARNDYCE AND JARNDYCE (the cause in hand),
which was squeezed dry years upon years ago’. That case involved a disputed
inheritance and, as Dickens says: ‘this scarecrow of a suit has, in course of time,
become so complicated, that no man alive knows what it means’. By the end of
the novel, judgment is given but the legal costs which have been incurred are so
great that they devour most of the estate which was disputed in the first place.
This is the equity of the nineteenth century, which was concerned with death
and succession, taxes and debts. This is dry and technical law. But equity today
is very different. Although the modern subject is built on the old cases, the
principles which underpin those cases have been refined over the years and are
of real significance today, often in contexts very different from inheritance
disputes. For example, a lot of modern commercial law, especially company
law, has been dramatically influenced by equity. Equity is a subject which is
intellectually challenging but provides solutions to some important and difficult
current problems. This is shown by the case on which this chapter will focus:
Foskett v McKeown—a case which arose from a father’s greed and stupidity. At

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its heart the House of Lords was concerned with the question: ‘Should the sins
of the father be visited on his children?’ This raises difficult questions about
what justice demands, especially when all the parties before the court are
innocent of any wrongdoing. But the case raises even bigger questions than this,
involving the very nature of legal reasoning and legal method. When judges,
especially judges in the appeal courts, have to decide a case, they are faced with
a dilemma. Should they be concerned primarily with the merits of the case and
focus on the facts, or should they have regard to the bigger picture, by ensuring
that the rules and principles of law are clear and coherent to resolve both the
present dispute and also future cases? This dilemma can be caricatured as being
a choice between a just and fair result (colloquially called an equitable result),
which might be uncertain, and a clear and principled result, which might be
unjust on the facts. It is a dilemma which underpins much legal decision-
making, but it was particularly marked in Foskett v McKeown.
But before that case is considered we need to examine what this body of law
known as equity actually involves.

WHAT IS EQUITY?
Much of the law which you have been reading about in this book so far is called
the common law. It has been developed by the judges in the courts over
hundreds of years. But there is another stream of judge-made law known as
equity, which was considered in chapter 5 as well. To understand why we have
two different streams of judge-made law we need to go back in time to the
medieval age. This was the period when judge-made law started to develop
rapidly. Legal principles, some of which are still relevant today, started to
emerge. However, the general attitude of the judges was strict and inflexible.
Although there was room for judicial creativity, the judges tended to interpret
the law rigidly and developed it through the elaboration of ever more
complicated rules. In particular, claims brought by individual litigants had to
fall within clearly established categories and, if they did not, they would fail. If
no remedy was awarded or was even available, it was possible to petition the
King to seek justice. The King delegated this function to his principal minister,
the Chancellor, who exercised his judgment according to his conscience. Equity
in this period was discretionary and vague, as was famously described by John

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Selden, a legal author in the seventeenth century:
Equity is a roguish thing: for law we have a measure, know what to trust to;
equity is according to the conscience of him that is chancellor, and as that is
larger or narrower, so is equity. [It is] as if they should make the standard
for the measure we call a foot a chancellor’s foot; what an uncertain
measure would this be! One chancellor has a long foot, another a short foot,
a third an indifferent foot. ’Tis the same in the chancellor’s conscience.
Eventually a separate court was established, known as the Court of Chancery, to
deal with petitions to the Chancellor and it was the law which was developed
and applied in this court which became known as equity. The purpose of this
body of law was to temper the rigidity in the application of the law by common
law judges. From the seventeenth century onwards this body of law became
more systematic.
Equity is still sometimes described as operating to modify the rigidity of the
common law. But, to the extent that this indicates that equity is vague and
unprincipled, it is untrue, for much of equity today is rule-based and certain. But
it does not follow that equity is, as it is sometimes quaintly put, ‘past the age of
child-bearing’. Equity can still be used to create new doctrines and to develop
existing ones to provide solutions to problems which are ignored by the
common law.

THE CONTRIBUTION OF EQUITY

Equity has had a profound contribution in many areas of the law, especially as
regards the identification of rights and the development of important remedies,
such as the order of specific performance to make the defendant perform his or
her obligations under a contract, or injunctions to stop the defendant from
committing a wrong. The role of equity in creating rights to land was examined
in chapter 5. The creative function of equity is particularly well illustrated by an
important remedy developed in the 1970s to deal with the problem of a
defendant who seeks to hide his or her assets or take them out of the jurisdiction
to prevent the claimant from enforcing a judgment for damages against him or
her. To avoid this problem equity was relied on to create a new form of
injunction, known then as a Mareva injunction (after the case which first

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recognised it, which concerned a ship of that name) and now known as a
freezing order. This is an injunction which can be used by judges to freeze some
or all of the defendant’s assets to ensure that any judgment can be enforced
against the defendant. For example, the order might mean that the defendant
would not be able to gain access to money which has been credited to his or her
bank account. This is an injunction which has proved to be a significant feature
of the English law of civil procedure.
Equity has been influential in many other ways. For example, there is a body
of law where equity can be used to regulate exploitative transactions, such as
where one party unduly influences another to enter into a disadvantageous
contract or to make a gift. Equity is also responsible for the recognition and
regulation of certain types of relationship which are called fiduciary
relationships. A fiduciary is somebody who is in a relationship of trust and
confidence with somebody else, known as the principal. The fiduciary is
expected to be loyal to the principal and to maintain the highest standards of
behaviour in looking after the principal’s interests. Typical fiduciary
relationships are those of company directors who are in a fiduciary relationship
with their company, and solicitors who are in a fiduciary relationship with their
clients. The importance of fiduciary law is illustrated by Attorney-General of
Hong Kong v Reid, a decision of the Privy Council. Reid was a public
prosecutor in Hong Kong. Having been bribed by a gang to obstruct the
prosecution of some of its members, he invested the bribe money in land in New
Zealand. The Hong Kong government sought to recover this land. The Privy
Council held that Reid was a fiduciary, because he was in a relationship of trust
and confidence with the state; that he had breached his fiduciary duties in
accepting the bribe money; and this money should be treated as belonging to the
state, which therefore owned the land in New Zealand because it had been
bought with the bribe money.
Despite the significant contribution of these different equitable remedies and
doctrines to English law, the most important contribution of equity is
undoubtedly the trust. The crucial feature of the trust is that property is held by
one person for the benefit of another. This is recognised through the division of
property rights. One person holds the legal title to the property. This is the
trustee. As far as the common law is concerned that person is the sole owner.
But equity can see that the legal owner holds the property for the benefit of
somebody else, the beneficiary. That beneficiary therefore has an equitable

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interest in the property. The trustee is obliged to look after the property for the
benefit of the beneficiary. If the trustee fails to do this, he or she will have
breached the trust and will be liable to the beneficiary.

TYPES OF TRUST
English law recognises a variety of different trusts. The main form is the
express trust, which is created intentionally by the settlor (if the trust is created
by somebody, while he or she is alive, who ‘settles’ property on trust) or the
testator (if the trust is created by somebody in a will). The express trust can
either be fixed or discretionary. In a fixed trust the interests of the beneficiaries
are established at the time the trust is created. For example, a father may put in
his will that, if he dies before his three children attain the age of 18, his property
should be transferred to trustees for the benefit of the children. If the father died
before the children were 18 the trustees would have legal title to the property,
but they would not be able to benefit from it since they would have to manage
the property for the children until they attained 18. Each child would have a
fixed equitable interest in one-third of the property until they became 18, when
the legal interest in their share of the property would be transferred to them.
Alternatively, in an express discretionary trust the trustees own the property at
law but no beneficiary has an existing interest in the property. Rather, the
trustees have a discretion to distribute the property as they see fit to people from
a particular class of potential beneficiaries. So, for example, the trust may give
the trustees a discretion to use the trust property to pay for the education of
children of employees from a particular business. The trustees would be free to
decide how they could allocate trust funds to such children in such amounts as
they consider to be appropriate.
There are a number of reasons why a settlor or testator might wish to
establish an express trust. There may be a particular advantage in having
trustees managing and administering the property. This might be because the
beneficiaries are too young to do so or cannot be trusted with the property. Or
the trust might be a convenient way of holding the property for the mutual
benefit of a group of people. This is one of the main reasons why the trust is
used in the commercial world. For example, it is used as a mechanism for
managing pension funds for the benefit of many employees, or as a mechanism

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for a group of people investing their funds by means of a unit or investment
trust. Another purpose of the trust is that it can provide a means for avoiding
tax, by transferring property to somebody whose tax liability might be smaller.
But here the trust might be open to abuse and there is a lot of complex law to
ensure that the trust is not used as an illegitimate method of tax evasion.
Another type of trust is known as the constructive trust. This arises through
the application of legal rules rather than being expressly created by a settlor or
testator. It is relevant, for example, where a defendant has obtained property by
fraud. Even though the common law might say that the property belongs to the
fraudster, equity will say that the property is held on constructive trust by the
fraudster for the victim of the fraud.
Normally the trust works well, but sometimes the temptation of the trustee
to benefit personally from the property is too great and there is an abuse or
breach of trust. It was a breach of an express fixed trust which triggered the
litigation in Foskett v McKeown.

THE FACTS OF FOSKETT V MCKEOWN

A group of businessmen decided that they wished to invest in property on the
Algarve in Portugal, which they wanted to develop as a golf course. They
agreed that their money should be held on trust for them, so that the money was
managed by somebody else on their behalf. The money was therefore
transferred to a trustee. He had legal title to the property but, because he held it
on an express trust for the businessmen, they had an equitable interest in the
money.
Some time earlier the trustee had set up a life insurance policy on his own
life. The terms of the policy were such that, if he died, the sum of £1 million
would be paid to his children. He was required to pay annual insurance
premiums of about £10,000. These premiums were invested to obtain units and
it was the value of these units which was used to pay for the maintenance of the
policy. The trustee paid the first three premiums from his own money. He then
stole £10,000 from the trust to pay for the fourth premium and did the same the
following year. This constituted a breach of trust. He then committed suicide.
The fact that he died at his own hand did not invalidate the policy. It followed
that his children were eligible to receive a lump sum payment of £1 million

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from the insurance company (see figure 6.1 below).

Figure 6.1 Sources of payments of the insurance premiums

However, the beneficiaries of the trust discovered that the trustee had stolen
£20,000 from the trust and that he had used this money to pay two of the
premiums. The beneficiaries argued that, since their money had been used to
pay two of the five premiums which had contributed to the payment of £1
million, it followed that they should have two-fifths of that sum, amounting to
£400,000. The children contested this on the basis that the money belonged to
them and either they should keep the whole £1 million or they should simply
reimburse the beneficiaries for what they had lost.

THE POSSIBLE SOLUTIONS

Despite the somewhat complicated facts of Foskett v McKeown, the basic issue
was straightforward: should the businessmen beneficiaries recover a
proportionate share of the £1 million? There were essentially four solutions to
this dispute:

1. As the beneficiaries argued, since the money which had been used to pay
the fourth and the fifth premiums belonged to them in equity, they should
get a two-fifths share of the £1 million.
2. Since the beneficiaries had only contributed £20,000, that is what the
children should be required to reimburse, plus interest to compensate the
beneficiaries because they had not been able to use their money for a
period of time.
3. The beneficiaries should recover nothing. This argument, which was also
made by the children, was dependent on the peculiar nature of the
insurance policy. The premiums which were paid were not automatically
used to maintain the policy. Rather, the premiums were used to purchase

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 units. The first three premiums had purchased sufficient units to mean that,
even if the fourth and the fifth premium had not been paid, the insurance
policy would not have lapsed and the £1 million would still have been
paid. Consequently, it was argued that the beneficiaries’ money had not
contributed to the receipt of the £1 million in any way.
4. There is a further solution which was not argued in the case, namely, that,
because the fourth and the fifth premiums had been stolen from the trust,
which was a criminal offence, it followed that the £1 million was the
proceeds of crime. English law has long recognised that recipients of the
proceeds of crime should be required to give up those proceeds to the
victim and cannot be seen to benefit from them. Consequently, even
though the children were innocent of the crime themselves, they could not
be seen to benefit from their father’s crime in any way and so the
beneficiaries should recover the whole of the £1 million.

IDENTIFICATION AND APPLICATION OF RULES

AND PRINCIPLES
Although the five judges in the House of Lords were divided by three to two as
to the appropriate result, there was a great deal of consensus amongst them as to
the proper mode of analysing a problem such as this. The judges identified the
following principles and steps in their reasoning.

Principle and Not Discretion

In determining whether the businessmen beneficiaries or the children should

win, one approach is to determine what is the just and fair result by reference to
the facts of the case. This is a discretionary approach. Such an approach may
have a variety of benefits, but it is subject to the drawback that it results in
uncertain and unpredictable law. Where there is a dispute between parties it is
preferable to resolve that dispute outside the courts through a settlement
between the parties, if only because it is quicker and cheaper to do so. If the law
is certain and predictable it makes it much easier for a settlement to be reached
because the parties can predict how a judge might decide the case. Even where a
settlement may not be possible, perhaps because there is a dispute as to the facts

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and the case goes to trial, there are major advantages in having law which is
certain and predictable. This is because it enables the judge to apply the law
more easily and ensures that there is consistency in that application, for
otherwise the result of the case may become a lottery, depending on which
judge hears the case.
In Foskett the majority recognised that vague notions of justice and equity,
in the sense of fairness, were not appropriate when considering who had an
interest in the £1 million. That should be resolved through the application of
established principles. The relevance of principles was identified by one of the
judges as follows:
This case does not depend on whether it is fair, just and reasonable to give
the [beneficiaries] an interest as a result of which the court in its discretion
provides a remedy. It is a case of hard-nosed property rights.
Certainty and clarity in the law were considered to be more important than the
application of judicial discretion.

The Proprietary Base

It was therefore necessary for the judges to consider what the applicable
principles were. For the beneficiaries to show that some, if not all, of the £1
million received by the children belonged to them, they needed to show that the
money which was stolen from the trust was their money. This has been called
the proprietary base on which the claim is built. This proprietary base was very
easy to establish on the facts of the case because it was clear that the money was
stolen from an express fixed trust. This trust was significant for two reasons.
First, because it showed that the beneficiaries had a property interest in the
money. Secondly, because it meant that this interest was equitable. The nature
of the interest is very important for a number of reasons. Legal property
interests are governed by the common law, whereas equitable proprietary
interests are governed by equity. The source of the interest will be particularly
important as regards the nature of the remedy which is awarded. This is
because, where somebody has taken your property, the common law’s response
is almost always to require the defendant to pay the claimant the value which
that property had when it was stolen. This is called a ‘personal’ remedy.
However, equity is more willing to require the defendant to transfer the property
itself back to the claimant by means of a proprietary remedy. This is often a

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much more attractive remedy, especially where the value of the property has
increased, as it had in Foskett.

Following and Tracing

Once the beneficiaries could show that money which belonged to them in equity
had been used to pay two of the premiums, they then needed to be able to link
this money to the eventual payment of the £1 million. This involved the
application of a complex body of law known as the following and tracing rules.
The application of these rules can be illustrated by the following examples.
First, imagine that your car has been stolen by a thief who gives it to the
defendant. In order to make a claim to the car you need to be able to show that
the car which was stolen from you was the same car which was received by the
defendant. You would establish this by following the car from you to the thief to
the defendant. Following involves identifying the original property in somebody
else’s hands. This is easy. But things become a lot more difficult where the car
was stolen by a thief who sold it and used the proceeds to buy a motorbike
which he gave to the defendant. Let us also assume that the car has been
destroyed. In those circumstances you cannot follow the car because it no longer
exists. But you can show that the value which was within the car has been used
to purchase the bike. You should then be able to make a claim to the bike on the
basis that the bike now represents your car. To make such a claim you need to
trace the value which was within the car into the bike. The application of tracing
rules enables the owner of property to claim a substitute for that property or its
product.
The reason why the law in this area is so complex is because the rules
relating to tracing are interpreted differently depending on whether you are
tracing property at law, where the claimant has a proprietary base recognised by
the common law, or in equity, where the proprietary base is equitable. The
common law adopts a restrictive approach to its tracing rules, especially
because the common law says that where the claimant’s property is mixed with
other property it is no longer possible to identify the claimant’s property and so
tracing fails. The equitable tracing rules are different, since equity is willing to
trace property into and through a mixture. This difference between tracing at
law and in equity is most important as regards money credited to a bank
account. This can be illustrated by the following example. Imagine that the

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claimant has two bags, one containing £1,000 and the other containing £2,000.
The first bag belongs to the claimant at law; but the second bag is held on trust
for the claimant, so that she has an equitable but not a legal interest in it. Both of
the bags are then stolen by the defendant who takes them to a bank where the
money is credited to the defendant’s existing bank account. When you pay
money into a bank account, those particular notes and coins are not paid
physically into a particular account. Rather, the money is credited to that
account. This means that the bank owns the actual notes and coins, but the
credit to the account means that the bank owes the account-holder the amount of
money which was credited. In other words, the relationship between the
account-holder and the bank is one of creditor and debtor. Even though there is
no physical money in the account, the debt which is owed by the bank is itself a
piece of property which can be owned and transferred. This debt is sometimes
known as a ‘thing in action’ or a ‘chose in action’. Whatever it is called, it is a
piece of property in its own right which is distinct from the original cash.
Returning to our example (see figure 6.2 below), when the defendant took
the two bags to the bank, let us assume that he already had £500 credited to his
account. So when the money in the two bags is deposited it will mean that the
defendant has £3,500 credited to his bank account, as shown in figure 6.2
below.

Figure 6.2 Tracing and following

Can the claimant trace his money in such circumstances? As regards the
£1,000 which belongs to the claimant at law, tracing is not possible because that

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money is transformed into a debt worth £1,000 but this has become mixed with
the existing £500 which was already credited to the account, so that it is no
longer possible to say which money belongs to the claimant and which to the
defendant. It is like mixing the claimant’s bag of peas in a saucepan with the
defendant’s bag of peas; it is no longer possible to say which peas belong to the
claimant and which to the defendant. Consequently, the common law throws up
its hands and says ‘we cannot unpack this mixture because the peas all look the
same’ and so tracing into the mixture will fail. It follows that all the peas will
belong to the defendant. Of course, the answer would be different if the
claimant’s peas were green and the defendant’s peas were yellow, because they
could be easily distinguished. Even if the peas were the same colour, however,
equity, which is more creative than the common law, is willing to separate the
mixture into its constituent parts. So, if the claimant knew that his bag contained
1,000 peas he would be able to recover any 1,000 peas from the mixture, even
though some of the peas may actually have been contributed by the defendant.
Equity is able to do exactly the same as regards money credited to a bank
account. In our example there will be £3,500 credited to the defendant’s bank
account. £500 of this will belong to the defendant, since that was the amount
which was already credited to the account. £1,000 will represent the money
which belonged to the claimant at law, and which will have lost its identity
because it was paid into a mixture. But the remaining £2,000 will represent the
money in which the claimant had an equitable interest and which will not have
lost its identity because equity can see it represented within the mixture. So the
claimant will be able to recover this amount in equity. This example shows how
important it is to distinguish between interests in property which exist at law
and those which exist in equity, because different tracing rules apply.

Although these examples are very basic, they form the foundation for the
intervention of equity in cases involving millions of pounds. Some of these
cases may involve massive corporate fraud or money laundering where it is
important to show that the value of money which belonged to the claimant can
be identified in different property which is now in the hands of the defendant
money-launderer.
The importance of the tracing rules is especially well illustrated by the facts
of Foskett v McKeown. Once the beneficiaries had established that the money
which had been taken from the trust belonged to them in equity they needed to
show that this money existed in the £1 million. They could not follow their

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money into the £1 million, because it was not the same money as that which had
been stolen from the trust, so they had to rely on the tracing rules and, because
they had an equitable proprietary interest in the trust fund, they relied on the
equitable tracing rules.
The judges in the majority in the House of Lords clarified what the function
of the tracing rules was, by emphasising that tracing was concerned with
identifying the value which was originally in the trust fund and locating it in the
£1 million. This involved two different steps. First, it was necessary to establish
that the money which had been taken from the trust could be traced through
various bank accounts and into the fourth and fifth premiums which were paid
to the insurance company. Equity was willing to do this even though the money
had been mixed in various bank accounts.
Secondly, and this was the most difficult part of the claim, it was necessary
to show that the value of the money which had been taken from the trust could
be traced from the premiums into the £1 million. This was difficult to establish
because of the peculiar nature of the insurance policy which meant that, even
had the fourth and fifth premiums not been paid, sufficient value had been
contributed by the first three premiums to mean that the £1 million would have
been paid anyway. How then could it be shown that the fourth and fifth
premiums contributed to the £1 million? For one of the dissenting judges this
was the reason why the beneficiaries’ claim failed, because it was not possible
to show that the payment of the fourth and the fifth premiums had caused the £1
million to be paid. But, for the majority, it was possible to trace into the £1
million despite this feature of the insurance policy. This was because it was
sufficient that the value of the money which had been taken from the trust could
be attributed to the £1 million, even though this value had not caused the £1
million to be obtained. This attribution was established by reference to a very
technical argument which derived from the terms of the insurance policy. That
policy said that the death benefit would be paid ‘in consideration for’ all of the
premiums which had been paid. What this meant was that, in return for the
payment of the premiums, £1 million would be paid once the person whose life
had been insured died. In other words, although £1 million would have been
paid even had the fourth and fifth premiums not been paid, the £1 million was
paid with explicit reference to all the premiums, which included the contribution
from the beneficiaries.
The consequence of the approach of the majority was that the value which

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was recognised by equity as belonging to the beneficiaries in the trust fund
could be traced from that fund, through various bank accounts, into the fourth
and fifth premiums and from there into the £1 million.

Identification of the Remedy

Even though the beneficiaries could show that they had an equitable proprietary
interest in the £1 million, it certainly did not follow that they could recover the
whole amount. This was because the beneficiaries had only contributed two-
fifths of the premiums which had been paid, with the remaining three-fifths
being contributed by the trustee himself. It was therefore necessary for the court
to determine what the appropriate remedy should be. This was the crucial part
of the case and the part which proved to be most controversial.
Once a claim or cause of action has been established this means that the
claimant has a right which needs to be protected or remedied in some way. In
Foskett v McKeown the businessmen beneficiaries were able to show that they
had a property right which needed protecting. There are two general types of
remedy which can be used to protect property rights. The first is called a
personal remedy. This requires the defendant to pay to the claimant the value of
the property which has been received. In other words, it creates a debt. The
other type is a proprietary remedy. This can operate in a number of ways, but
the simplest is to require the defendant to transfer the actual property received to
the defendant. Personal and proprietary remedies have different advantages and
disadvantages.
The main advantage of personal remedies is that, if the property is lost or
falls in value, the defendant is still liable to pay money to the claimant which
represents the value of the property at the time it was received. However, if the
property still exists and has increased in value, it is preferable to get a
proprietary remedy, because the claimant will get the benefit of that increase in
value. Proprietary remedies have another advantage which is relevant where the
defendant has few, if any, assets. Such a defendant may be declared bankrupt, if
they are an individual, or insolvent, if they are a company. The defendant will
typically owe money to a number of creditors and there may not be enough to
go around, so with a personal remedy the claimant may end up with nothing.
However, if the claimant is awarded a proprietary remedy he or she would rank
above other creditors and would be able to claim the relevant property in

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priority to their claims. This might prove to be highly significant, depending on
the defendant’s financial circumstances.
We have already seen that one of the key differences between legal and
equitable remedies is that the common law, for the most part, awards only
personal remedies, to restore the value of the property received, whereas equity
can award both personal and proprietary remedies. In Foskett v McKeown the
beneficiaries sought a proprietary remedy to recover a proportionate share of the
£1 million, amounting to £400,000.
This remedy had not been awarded in the Court of Appeal. Rather, that court
held that the children were liable to repay only £20,000 because the
beneficiaries’ contribution of that amount was not used to acquire the £1
million, but operated only to maintain the insurance policy. An analogy can be
drawn with reference to money being spent on a house. If the claimant’s money
was used to acquire the house, either completely or partially, the claimant
should have a property interest in the house to the extent of that contribution. If,
however, the money was used simply to maintain the house which already
belonged to the defendant, eg by enabling the defendant to paint the external
walls, it would not be appropriate to say that the claimant had a property interest
in the house itself because the value in the claimant’s property had not been
used to acquire the house. Rather, the claimant should only be reimbursed the
cost of maintaining the house. The cost of maintaining the policy was held by
the Court of Appeal to be £20,000, representing the value of the fourth and fifth
premiums.
The House of Lords accepted this distinction between acquiring and
maintaining property, but reached the opposite conclusion when applying this
distinction to the facts. The majority in the House of Lords concluded that the
beneficiaries’ money was used to help acquire the £1 million rather than simply
to maintain the policy and so it was held that the children were liable to pay
£400,000 of the £1 million to the beneficiaries.
This conclusion needs to be considered carefully. Is it really fair that the
beneficiaries should have recovered such a large amount of money? This may
have been appropriate had the fourth and fifth premiums actually been
necessary to obtain the £1 million. But that was not the case on the facts. It was
one thing to conclude that the beneficiaries had a property interest in the £1
million. It is a very different matter to conclude that this interest should be
valued at two-fifths of the fund where the beneficiaries had not actually

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contributed to that amount being obtained. Against this you might wish to argue
that it is not fair that the children should get £1 million minus £20,000, when
their father had stolen money from the beneficiaries and when that money
would have been necessary to obtain the £1 million had the father lived a bit
longer. When it comes to criticising a decision such as this it is difficult to avoid
introducing questions of justice and fairness – and even to ask, ‘what would be
the equitable result?’

Defences

Some of the judges went on to consider one other matter relating to property
claims in equity, even though this was not relevant on the facts. Once it has
been concluded that the claimant has a proprietary base in property, that the
value in this property can be traced into the property held by the defendant and
that the appropriate remedy is a proprietary one, it may also be necessary to
consider whether the defendant should be given a defence to protect him or
herself from the claim. The most important defence which might be available is
one which has been called the defence of change of position. At its most basic
this defence is relevant where, for example, the claimant paid £1,000 to the
defendant by mistake but the defendant, without knowing or suspecting that
there had been a mistake, spent £800 of it on a holiday. When the claimant sues
the defendant for the £1,000, the defendant is not liable to pay back £800
because his or her position has changed. It follows that, if the defendant had
spent all the money, he or she would not be liable to pay anything to the
claimant.
The issue which was canvassed in Foskett v McKeown was whether this
defence of change of position should be available even where the claimant
wishes to recover his or her property. The issues of principle and policy which
this raises can be illustrated by the following hypothetical problems:

A trustee steals £1,000 from a trust and gives this money to the defendant.
The defendant is a poor student who, thinking that the money belonged
absolutely to the trustee, spends all of it at various pubs and clubs. The
beneficiaries of the trust would not be able to bring a claim against the
defendant to recover the money. But this is not because of the application
of the defence of change of position as such. It is simply because, if the

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 defendant no longer has assets in which the claimant has an equitable
proprietary interest, the claimant cannot recover any property since the
defendant does not have any property which belongs to the claimant. In
such a case the claimant would have to sue the trustee for breach of trust in
stealing the money in the first place. This is the easy case. The following
scenario is more difficult.
Again, the trustee steals £1,000 from the trust, which he gives to the
defendant. But this time money is credited to the defendant’s bank account.
Since the defendant is richer than he was before, he decides to sell some
shares which had been left to him by his grandmother. He sells them for
£1,000 and uses this to pay for a holiday to the Caribbean. In this situation
the defendant still has assets in which the claimant has a proprietary
interest, in the form of the money which is credited to his bank account.
But the defendant has changed his position in good faith as a result of
receiving this money, since he sold the shares and spent the proceeds. In
this situation whose interests should prevail? Should it be the claimant
beneficiary, who can show that the defendant still has property which
belongs to the claimant in equity? Or should it be the defendant, who is
now in no better position after having sold the shares, which would not
have been sold had the defendant not received the money from the trustee?

Lord Millett in Foskett v McKeown indicated, in part of his judgment which did
not relate to the issues arising in the case and so is called obiter dicta, that the
defence of change of position should not be available where the claimant wishes
to recover his or her property and where that property or its substitute or product
remains identifiable. Whether you like such a result will depend, to some extent
at least, on the general approach which you want to adopt to the structure and
operation of the law. If you would prefer the legal system to operate to obtain a
just result at all costs you might prefer the defence of change of position to
operate in such a scenario. For the defendant did nothing wrong in selling the
shares and we can show that those shares would not have been sold had the
£1,000 not been received. Against this, a stricter, more principled, approach
would focus on the fact that the claimant’s property is still in the defendant’s
hands. Property rights are particularly strong rights in English law and perhaps
they should not be defeated by changes in the defendant’s circumstances, save
where that change has the effect of destroying the property in which the

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claimant has the right. The rejection of the defence of change of position is
consistent with this idea that property rights are strong, or, as Lord Browne-
Wilkinson described them in Foskett v McKeown, they are ‘hard-nosed’ rights.
According to this approach it is tough luck that the defendant changed his or her
position and, anyway, the defendant did at least have the benefit of the holiday
in the Caribbean.

CONCLUSIONS
The analysis of Foskett v McKeown tells us a lot about the nature of that body of
law known as equity, but also forces us to think rather more deeply about our
approach to legal method. It can be seen that this body of law is technical, but it
is a vital part of being a law student that you are able to apply legal rules and
principles logically and go on to consider whether the interpretation of the law
is acceptable and workable.
But this case raises some bigger questions. First, is the fundamental
distinction between the common law and equity defensible today? We have seen
that equity developed as a distinct stream of law hundreds of years ago for
reasons which are no longer relevant today. We have seen that the maintenance
of two distinct streams of judge-made law makes for very complex exposition
of that law. This is especially well illustrated by the fact that we have different
tracing rules at law and in equity. Is this defensible today? Indeed, a number of
the judges in Foskett v McKeown suggested that these two sets of tracing rules
should be merged. But if such a merger did occur, where should it stop? Should
we get rid of equity completely? If so, we would lose many vital mechanisms in
the law, especially the trust. Perhaps we need closer co-operation between law
and equity, but this should not extend to total assimilation.
Finally, we are left with the big theme which runs throughout Foskett v
McKeown. Should our approach to law and legal method be principled or
discretionary? Justice, equity and common sense are vital attributes of any
coherent legal system, but the importance of principles must not be forgotten.
This was expressed most eloquently by Lord Goff in a lecture called The Search
for Principle:
When we talk about the desired result, or the merits, of any particular case,
we can do so at more than one level. There is the crude, purely factual level

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 —the plaintiff is a poor widow, who has lost her money, and such like. At
another level there is the gut reaction, often most influential. But there is a
more sophisticated, lawyerly level, which often consists of the perception of
the just solution on legal terms, satisfying both the gut and the intellect. …
The judgment so exercised should not be, and is not, a purely personal
judgment. It is an informed and educated judgment, formulated in public
discussion and founded not merely upon a shared experience of the practical
administration of justice, but also upon an accepted basis of systematic legal
principle.

There is a role for the gut reaction in our approach to the law, but it is the
identification of principles which is at the heart of the study of law as an
intellectual discipline.

Cases
Attorney-General of Hong Kong v Reid [1994] 1 AC 324
Foskett v McKeown [1998] Ch 265 (CA); [2001] 1 AC 102 (HL)
Lipkin Gorman (a firm) v Karpnale Ltd [1991] 2 AC 548
Mareva Compania Naveira SA v International Bulk Carriers SA [1975] 2
Lloyd’s Rep 509

Additional reading
Dickens, Bleak House (1852)
Lord Goff of Chieveley, The Search for Principle: Essays in Honour of Lord
Goff of Chieveley, ed Swadling and Jones (Oxford, Oxford University
Press, 1999) 313–29
Virgo, The Principles of the Law of Restitution, 2nd edn (Oxford, Oxford
University Press, 2006) part V
Worthington, Equity, 2nd edn (Oxford, Oxford University Press, 2006) ch 1

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7

Constitutional Law

Mark Elliott

INTRODUCTION

A Rude Awakening

Imagine that, in the dead of night, you are awoken by the sound of your front
door being smashed in. Your first thought is that your house is being burgled;
but there seem to be an awful lot of sets of boots pounding up the stairs. Before
you know it, your bed is surrounded by police officers, and children who were
sleeping in other bedrooms are screaming in fear as you are handcuffed and
bundled into a police car. Are you under arrest? ‘No,’ says one of the police
officers. Are you being charged with committing a criminal offence? ‘No.’
Why, then, are you by now in prison cell? ‘Suspected involvement in terrorism,’
you are told. But why has this suspicion arisen? ‘Can’t say—national security
reasons.’ And how long might it be before you are released? ‘Can’t say—you
are being indefinitely detained by order of the government.’ Will you at least
have a chance to put your side of the story—to show why you think the
government’s suspicions are groundless? ‘Yes.’ But then it turns out that the
government will not tell you in any meaningful detail why it is detaining you, so
you do not know how to defend yourself: the hearing you are given is nothing
more than a sham. Years later, you are still in prison, and you still don’t know
why.
This is the stuff of nightmares. It is the sort of thing that happens in
countries run by dictators and shady military juntas. But it does not happen in
civilised, enlightened societies, and it is unthinkable that people could be treated

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in this way in the United Kingdom. Isn’t it?

The World Trade Center, New York, and Belmarsh Prison, London

This chapter on UK constitutional law begins in two very different locations:

Belmarsh prison in south-east London and the World Trade Center in New
York. On 11 September 2001, Al-Qaeda terrorists hijacked four airliners in the
USA, two of which were flown into the twin towers of the World Trade Center.
More than 2,600 people died as a result. Of the two remaining planes, one was
flown into the Pentagon in Washington DC, costing nearly 200 lives, while the
other airliner, possibly destined for the White House, crashed in Pennsylvania,
killing all 40 passengers and crew. The consequences for those who were killed,
injured and bereaved were as obvious as they were horrific. But the wider
ramifications of the 9/11 attacks were also immense. Shockwaves were felt
around the world—including in Belmarsh high-security prison in London.
There, as a direct response to the events of September 11, a number of men
suspected by the British government of being involved in international terrorism
were detained for over three years without ever being accused of, let alone tried
for or convicted of, any criminal offence. The treatment of the suspects was
later held by the Council of Europe’s Committee for the Prevention of Torture
to amount to ‘inhuman and degrading treatment’.
What, then, does all of this have to do with the constitutional law of the UK?
And why, in any event, does this book contain a chapter on that subject, when it
is often said that the UK does not have a constitution? The purpose of this
chapter is to answer the latter question—by explaining that the UK does have a
constitution, albeit not a ‘written’ one—through engaging with the former. As
we will see, the legal and constitutional aftermath in the UK of the 9/11 attacks
casts a bright light on the nature of Britain’s constitutional arrangements.
Looking at what happened in the wake of 9/11 will help to illustrate some of the
key features—and peculiarities—of the UK constitution.

The Response to 9/11: Detention without Trial

Although no strangers to terrorist violence—more than 3,000 deaths resulted

from Northern Ireland-related terrorism—people in the UK unsurprisingly felt
vulnerable after 9/11. Given the close relationship between the UK and the

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USA, there was a strong sense that a group antagonistic to the US might be
equally ill-disposed towards its smaller ally. (Indeed, these anxieties proved
well-founded when, on 7 July 2005, over 50 people were killed as a result of an
Al-Qaeda sponsored attack on London’s transport network.) It was against the
background of such fears that, shortly after 9/11, the UK Parliament enacted a
new law known as the Anti-Terrorism, Crime and Security Act 2001. It was
intended to provide greater legal powers for fighting terrorism. For instance, it
sought to enhance aviation, nuclear and biological security, to extend police
powers in terrorism-related investigations, and to make it easier to freeze
terrorists’ assets (eg by preventing access to funds in bank accounts). But our
particular concern is with a different, and truly extraordinary, part of the Act.
Part 4 of the Anti-terrorism, Crime and Security Act 2001 (‘the Anti-
terrorism Act’) was enacted in order to contain the perceived threat posed by
foreigners who were suspected of involvement in terrorism, but who could not
be dealt with in either of two more conventional ways. As we have seen in
chapters 1 and 2 of this book, the first way of dealing with those suspected of
criminal activity is to prosecute them in the criminal courts. However, the
government felt that in respect of certain suspected terrorists prosecution would
be either impossible (eg due to an insufficiency of evidence) or unwise (eg
because bringing a prosecution would require the presentation in court of
evidence that might compromise intelligence sources). A second way of
addressing the risk posed by foreign nationals considered to be dangerous is to
deport them—ie to expel them from the country. However, as the law currently
stands, the government cannot do this if there is a real risk that the person, when
sent to another country, would be subjected to torture or to inhuman or
degrading treatment. This created a significant difficulty from the UK
government’s perspective, since many of the people it regarded as presenting a
terrorist threat came from countries whose governments are known to practice
torture.
For these reasons, the government considered itself to be between a rock and
a hard place: some foreign terror suspects could neither be prosecuted nor
deported. Part 4 of the Anti-terrorism Act was designed to address this problem.
It applied to any foreign national whom the Home Secretary—a government
minister—had reason to believe was involved in terrorism. When such a person
could not be deported, he could instead be detained indefinitely: in other words,
put in jail for an open-ended, potentially limitless, period of time. For the

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government, this represented the best of both worlds. On the one hand, the
criminal justice process was bypassed, so there was no need to gather or
disclose to a court enough evidence to secure a conviction (which would have
required proof beyond reasonable doubt). On the other hand, the ban on
deportations when torture abroad was a real possibility was rendered practically
irrelevant: the perceived threat posed by foreign suspects could be contained by
incarceration in the UK, rather than by physical removal from the country.
It would be hard to exaggerate the exceptional nature of the powers which
Part 4 of the Anti-terrorism Act conferred on the Home Secretary. Allowing
someone to be imprisoned for an open-ended period on the say-so of a politician
involves a major departure from the standards that are normally expected in a
civilised society. You do not need to be a legal expert to know that locking
people up in this way contradicts basic principles of justice and human rights,
such as the right to a fair trial, the presumption of innocence and the liberty of
the individual. As Baroness Hale—one of the judges involved in hearing the
detainees’ legal challenge, to which we turn below—put it, ‘We have always
taken it for granted in this country that we cannot be locked up indefinitely
without trial or explanation.’ The Bush administration in the US was widely
condemned for the way in which it held suspected terrorists without trial at its
military base in Guantanamo Bay, Cuba. What is less well-known is that
something fundamentally similar—in that it involved imprisonment of suspects
without charge or trial on the say-so of the executive government—went on at
Belmarsh Prison. It was there that the suspects detained under Part 4 of the
Anti-terrorism Act (of whom there were fewer than 20: Belmarsh was no
Guantanamo in terms of numbers) were held for several years.
What happened here is really very simple. The government, acting, as it saw
it, for the general public good, decided to sacrifice the interests of a very small
minority in pursuit of the majority’s security. In one sense, there is nothing
particularly startling about this. Governments have to strike a balance between
competing sets of interests all the time. For instance, if employees’ interests are
favoured by raising the national minimum wage, employers may argue that their
interests are thereby compromised; if spending on public services is increased in
order to benefit the less well-off, the wealthy may suffer through higher taxes.
However, the effect of Part 4 of the Anti-terrorism Act was different in an
important respect: an absolutely fundamental right—the right to personal liberty
—was suppressed in the interests of the majority. You would be forgiven for

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thinking that this is just the sort of thing that a constitution is supposed to stop
from happening. This is a good point, then, at which to step back from the
Belmarsh detainees—we will pick up their story later—to consider what
constitutions are, and what they are for.

CONSTITUTIONS

What Are Constitutions For?

Any organisation—whether a school, company or country—needs a set of

ground-rules which determines basic things about how it is to operate. Who is in
charge? How do they get to be in charge? What powers do they have? What are
the limits on their powers? Who enforces such limits? And what can people do
if they do not like how the organisation is being run? These are exactly the sort
of questions which, in relation to countries, constitutions are supposed to
answer. Unpacking these points a little further, it can be said that, at least in
most countries, constitutions serve four main functions.
First, they allocate power to the government. Classically, this is done
according to the ‘separation of powers’ principle, whereby the constitution
creates three institutions—or ‘branches’—of government, giving each a
different job. For example, the first three articles of the US Constitution create a
legislative branch, which is responsible for making law; an executive branch,
which implements the law; and a judicial branch whose job is to interpret and
apply the law in particular cases. These three institutions of government
recognisably exist in Britain—there is a national legislature in the form of the
UK Parliament at Westminster; an executive government, headed by the Prime
Minister and the Cabinet; and a judicial system—although, as we will see
below, the dividing lines between the three branches are far from distinct in the
UK. It is also often the case that constitutions divide power between different
tiers of government—local, regional, national and so on. For instance, in the
UK, there is a local tier of government (eg district and county councils),
devolved government (in Scotland, Northern Ireland and Wales), national
government and a further layer in the form of the European Union.
Secondly—and this point follows from the first—constitutions generally
limit the powers of the government. Another way of putting this point would be

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to say that constitutions determine where government power ends and
individual freedom begins. Many constitutions do this by setting out people’s
fundamental rights and stipulating that the government is not allowed to do
anything which interferes with such rights. Within such a constitutional system,
if the executive was to adopt a policy or if the legislature was to pass a law
which conflicted with an individual’s constitutional rights, that policy or law
would be invalid, and the courts would be able to strike it down. The
constitution therefore stands as an important brake on government power, and
as a crucial safeguard of the individual’s rights.
Thirdly, constitutions normally put in place arrangements for ensuring that
governmental powers are exercised responsibly. This is normally done in two
(mutually complementary) ways. On the one hand, the separation of powers
principle recognises that there is truth in the view expressed by Lord Acton—a
nineteenth-century commentator and historian—that ‘power tends to corrupt,
and absolute power corrupts absolutely’. In the light of this, the separation of
powers principle says that no one should have a monopoly on power, and that it
should, instead, be shared among different bodies. This, then, is the thinking
that lies behind our first point, above. On the other hand, constitutions often
provide for a system of checks and balances. This may, for example, involve
requiring two branches of government to agree before certain things can be
done, or giving one branch powers to scrutinise the work of another.
Fourthly, constitutions—or good ones, at any rate—aim to provide a
structure for government and its relationship with individuals that reflects
widely shared values, such as a commitment to democracy, human rights and so
on. Constitutions therefore tend to confer a degree of permanence upon the
arrangements which they contain. If those arrangements are animated by deep-
seated values, it stands to reason that they should not be capable of being
casually cast aside. Constitutions are therefore often entrenched, meaning that
they are hard to change, such that arrangements, rights and values set out in a
constitution can be altered only in limited circumstances. For example, an
amendment to the US Constitution can be made only if it is proposed by a two-
thirds majority of both chambers of the national legislature and then approved
by three-quarters of the individual states’ legislatures. (There is an alternative
process that is even harder to comply with, but which has never been
successfully used.)

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The UK’s Peculiar Constitution

The previous section was concerned with things that constitutions typically do.
But Britain’s constitution, as we are about to discover, is far from typical. The
most obvious respect in which it is unusual is in its being ‘unwritten’. Although
this adjective is often applied to the UK’s constitution, it is important to be clear
about what it means in this context.
First, it does not mean that there is no such thing as a British constitution.
We observed above that any organisation, including any country, must have a
set of ground-rules if it is to have any prospect of working effectively rather
than descending into utter chaos. The UK is no exception: it simply could not
function without a constitution.
Secondly, when we say that the UK lacks a written constitution, this does
not mean that none of its constitutional arrangements exists in written form.
There is a great deal of legislation which deals with constitutional matters—
human rights, the division of power between local, regional, national and
European tiers of government, and so on. In this sense, large swathes of
Britain’s constitutional arrangements are actually written down, even though
there is no single document entitled ‘The Constitution’.
Does this mean, then, that the UK’s constitution is atypical, but in a
relatively unimportant sense? That it might be harder to deduce its content—
because it is scattered around various pieces of legislation—but that it otherwise
conforms to the norms considered in the previous section? The short answer to
this question is ‘no’. To give a longer answer, we need to return to Belmarsh
Prison. Using Part 4 of the Anti-terrorism Act as a reference point, we consider,
in the remainder of this chapter, a number of respects in which the British
constitution is highly unusual. In particular, three questions need to be asked.
First, why was it possible to enact such a draconian piece of legislation as the
Anti-terrorism Act? Secondly, what was the role of the courts in all of this: were
the detainees able to contest the legality of their detention in the courts? And,
thirdly, does this extraordinary episode reflect well or badly on the British
constitution: are the eccentricities it highlights a cause for concern or
celebration?

BRITAIN’S CONSTITUTIONAL ARCHITECTURE

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The answer to the first of those questions lies in the unusual (many would say
highly defective) nature of Britain’s constitutional architecture—ie the
fundamental way in which the system works and in which the various parts of it
fit together. In two crucial respects, the UK’s constitution differs markedly from
the model set out above. Taken together, they help to explain why British
governments are peculiarly well-placed to secure the enactment of legislation—
even if, like Part 4 of the Anti-terrorism Act, it rides roughshod over
fundamental rights.

Executive Control of Parliament

We noted above that constitutions classically allocate distinct functions to the

three branches of government in order to ensure that power is not concentrated
in one set of hands. This will sometimes mean that it is harder to get things done
because one branch can be thwarted by another. For instance, the executive
government may wish to adopt a given policy, but the legislature may be
unwilling to enact the necessary legislation (either at all or in the precise terms
the executive wants); or the executive might contend that it already has
sufficient legal powers to implement the policy in question, but the courts might
rule otherwise. From one perspective, this may seem undesirable: a dynamic
government intent on introducing radical reforms might be prevented from
doing so. But the upside is that no one branch of government is all-powerful: the
powers of each branch are held in tension with those of the others, and so (the
theory goes) it is more difficult for any one government institution to exercise
its powers in an abusive, oppressive or otherwise improper way.
So much for the theory of the separation of powers. The reality is that (in at
least one crucial respect) the UK constitution does not adhere to that theory.
This, in turn, helps us to understand why it was relatively straightforward for the
executive government to persuade Parliament to give it the extraordinary
powers that were contained in Part 4 of the Anti-terrorism Act. In the UK, there
is no real separation of powers between the executive government and the
legislature. This is not to say that the executive and Parliament do not exist as
distinct institutions. Crucially, however, there is a high degree of overlap in
terms of membership. This is no accident: it is an inevitable consequence of the
nature of the UK system of parliamentary government.
Under this system, members of the executive government are not directly

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elected: whereas, for instance, individuals stand for election to the office of
President of the USA, no one puts themselves forward in the same way for the
post of British Prime Minister. Barak Obama became US President in 2009
because he won the presidential election. But there is no such thing as a British
prime ministerial election. In the UK, the explicit function of a general election
is to determine who becomes a Member of Parliament and is thereby entitled to
sit in the House of Commons and (among other things) participate in the
enactment of legislation. However, general elections also indirectly determine
who becomes Prime Minister, because that position is held by the person best
able to command the confidence—ie the support—of the House of Commons.
Normally, one party secures more than half the seats in the Commons, meaning
that its leader becomes Prime Minister. He then appoints members of his party
to other positions within the government. As a result, around 100 MPs—roughly
a sixth of the total membership of the House of Commons—are government
ministers. However, the influence of the government over the House of
Commons is even greater than this simple statistic implies. The Prime Minister
can rely not just on the support of his 100 or so ministers who sit as MPs in the
House of Commons: he can also rely on the support of the other
—‘backbench’—MPs from his party. And while government backbench MPs
are ultimately free to vote as they wish, most vote as the government tells them
to—not least because any ambitious backbencher will want to curry favour with
senior members of the government in order to bolster his or her chances of
being appointed in the future to a government position.
What we have said so far presupposes that one political party ‘wins’ the
general election, meaning that it secures more than half the seats in the House of
Commons. However, that was not what happened when a general election was
held in 2010. Instead, a ‘hung Parliament’—in which no party had an outright
majority—resulted. The Conservatives secured 47 per cent of the seats in the
House of Commons, making them the biggest party—but not quite big enough
to form a majority government on their own. As a result, they joined with the
Liberal Democrats (who won 9 per cent of the seats) to form a coalition
government. As leader of the bigger of the two coalition parties, and therefore
the person best-placed to command the confidence of the House of Commons,
David Cameron became Prime Minister, while the leader of the Liberal
Democrats, Nick Clegg, became Deputy Prime Minister. Coalition government
is clearly different from single-party government: it involves two parties,

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perhaps with very different views in some areas, working together and therefore
compromising. But the distinctiveness of coalition should not be overstated.
Most parties, and most governments, have to accommodate people with
differing points of view; coalition simply means that those differences may be
sharper and more obvious, in that the presence of two formally distinct parties
emphasises the existence of political and ideological divisions. There is no
doubt a greater risk of a coalition government being derailed by disagreements,
and it may be harder for the government to impose discipline if the members of
one or other of the coalition parties are being asked to vote for legislation with
which they fundamentally disagree. However, if the coalition partners have
agreed on a package of policies that are mutually acceptable, such a government
—whose parties will, of course, account for more than half the MPs—at least
has the potential to dominate the House of Commons in much the same way as a
single-party government.

David Cameron and Nick Clegg outside No 10 Downing Street.

© Prime Minister’s Office; Crown Copyright

Governments, whether composed of one party or a coalition of parties, are

therefore generally in a commanding position when it comes to getting
Parliament to enact legislation. And so it proved with the Anti-terrorism Act
2001. The then Labour government, whose MPs accounted for 63 per cent of

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membership of the House of Commons, faced almost no real opposition in the
Commons. Indeed, many opposition, as well as government, MPs were willing
to support the legislation (being tough on terrorism was very much in vogue in
the aftermath of 9/11), and it received little genuine scrutiny in the House of
Commons: only 16 hours were spent considering the legislation, which was
comprised of 126 clauses and eight schedules covering over 120 pages. This is
striking, bearing in mind the extraordinary nature of the powers conferred, in
particular, by Part 4 of the Act.
The House of Commons is only one half of the legislature: there is also the
House of Lords. The general principle is that in order for legislation to be
enacted, it must be approved by both Houses—and the Lords is often willing to
subject legislation to more thoroughgoing, objective scrutiny than the Commons
is. This is largely because the Lords, at least for the time being, is not dominated
in the same way as the Commons by party politics—partly because a substantial
minority of peers (as members of the Lords are known) are not affiliated to any
party (the so-called ‘cross-benchers’), and partly because even those who are
members of political parties are less likely than their MP colleagues to follow
the party line slavishly. The chief reason for this is that few peers are career
politicians looking to advance their own prospects by doing what their party
leaders would wish. Ultimately, these characteristics of the House of Lords are
attributable to the fact that peers are unelected (most are appointed by the
monarch on the advice of the Prime Minister) although it may well be that
elections to the House of Lords will be introduced in the foreseeable future. In
any event, the House of Lords took a much closer, and more critical, look at the
Anti-terrorism Act than the Commons had done. In relation to Part 4, the Lords
insisted that the text should be amended so as to require the Home Secretary’s
belief that a person was involved in terrorism to be an objectively reasonable
one. This was a small but important concession: it meant that the Home
Secretary could not claim to have an absolute discretion to detain anyone who
he subjectively believed to be a terrorist.
At the end of the day, however, the Commons and the Lords are unequal
legislative partners. In recognition of the fact that (at least for now) the Lords
has no democratic legitimacy, a special mechanism—under the Parliament Acts
1911 and 1949—can be invoked if the two Houses cannot agree. The upshot is
that the most the House of Lords can do is to delay, by one year, the enactment
of legislation (and it does not even have this delaying power in respect of

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financial legislation). This is not an insignificant power. If, as was the case in
relation to the Anti-terrorism Act, the executive government is anxious to see
legislation enacted rapidly, the House of Lords’ delaying power is a useful
bargaining chip—hence the government’s willingness to concede a requirement
of objective reasonableness in relation to Part 4 rather than waiting a year to
enact the legislation in its preferred form. Nevertheless, it remains the case that
the executive government in the UK is in an unusually strong position. It exerts
considerable influence—control would not be an exaggeration—over the House
of Commons, such that, in most circumstances, it is assured by virtue of its
majority of being able to get the Commons to do more or less whatever it wants.
And while the House of Lords may be a source of more critical scrutiny and
greater opposition, the legal limits on its powers are such that it is ultimately
unable to block the enactment of legislation which the House of Commons—at
the instigation of the executive government—is intent on pushing through.

The Constitution as Ordinary Law

We can see, then, that the nature of the relationship between the executive and
legislative branches in the UK is such that its constitution does not strictly
adhere to the separation of powers principle set out earlier in this chapter. That,
in itself, might be thought to be a cause for concern. Whereas, under the
separation of powers doctrine, the legislature should be a counterweight to the
executive, the British system allows the latter branch to dominate the former,
resulting in precisely the sort of overconcentration of authority which the
separation of powers seeks to guard against.
It is, however, important to recognise that the separation of powers principle
is not an end in itself: it is merely a means to an end. It prescribes a form of
government which, it is said, will prevent, or at least reduce the risk of, the
abuse of power. The key question, then, is not whether a given constitution
rigidly adheres to the detailed requirements of the separation of powers; rather,
it is whether whatever arrangements are actually adopted adequately guard
against the misuse of power. Notwithstanding the lack of a clear distinction in
the UK between the executive and legislative branches, other features of the
constitution might compensate for this by adequately guarding against the risk
of power being used in an oppressive or otherwise improper way.
For example, if Parliament (for the reasons considered above) is unable or

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unwilling to stand up to the executive by preventing it from getting its way in
relation to the enactment of legislation, perhaps some other body—the courts,
for instance—might step in. In many countries, this is precisely what happens:
courts are able to set aside legislation which conflicts with the constitution. So
if, for example, the legislature (as a result of executive persuasion or otherwise)
enacted legislation that cut across fundamental rights protected by the
constitution, the courts would be able to rule that the legislature had exceeded
its authority and strike down the legislation as unconstitutional. However,
although commonplace elsewhere, arrangements of this sort are not embodied in
the UK’s constitution. Here, then, we encounter the second architectural feature
of the British constitution that makes it strikingly unusual.
If there is one key to understanding what sets the British constitution apart
from almost every other constitution in the world, it is that it consists only in
ordinary law. What we mean by this is that legislation (eg the Human Rights
Act 1998, which we consider below) dealing with fundamentally important
constitutional matters has the same legal status in the UK as any other piece of
legislation (eg the Driving Instruction (Suspension And Exemption Powers) Act
2009, which made modest changes to the system for regulating driving
instructors). This has two absolutely crucial consequences.
First, it means that the UK constitution is unusually flexible. Constitutional
laws, being ordinary laws, can be changed as easily as all other laws. As a
result, fundamentally important constitutional arrangements can be changed
with the same ease—by passing an Act of Parliament—as amending the law on
more mundane matters. This stands in stark contrast to most countries’
constitutions, which are usually much harder to change than ordinary laws. It
follows that in the UK, nothing is legally sacrosanct. For instance, the
Conservative Party was able, in its 2010 election manifesto, to propose
scrapping the Human Rights Act, safe in the knowledge that even a
constitutional change as substantial as this could be achieved simply by enacting
a normal Act of Parliament. (In fact, the Act has not been scrapped; the
Conservatives’ coalition partners, the Liberal Democrats, are strong supporters
of it.)
Secondly, most countries’ constitutions are regarded not just as a different
(and harder-to-change) form of law: they are regarded as a superior kind of law.
In many countries, all other law exists in the shadow of constitutional law. What
this means in practice is that any law that is inconsistent with the constitution—

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eg a law that tries to take away fundamental rights protected by the constitution
—will be invalid, and so vulnerable to being struck down by the courts. But
precisely because its constitution is contained in ordinary laws—such as regular
Acts of Parliament—this is not so in the UK. Because constitutional law does
not have a special status (in the sense of being hierarchically superior to
ordinary law), it cannot override other law.
These two defining features of the UK’s constitution—flexibility and
absence of hierarchy—are really two sides of the same coin, the key point being
that Parliament’s power to make and change the law is legally unlimited. Or, as
constitutional lawyers like to put it, Parliament is sovereign. This simply means
that Parliament is always legally free to enact any legislation it wishes (even if
this involves tearing up longstanding constitutional principles) and that the
courts are powerless to intervene. This explains why, once the executive had
persuaded Parliament to enact Part 4 of the Anti-terrorism Act providing for
indefinite imprisonment of terror suspects, the government could be confident
that the courts could not set it aside as invalid, even though it was at odds with
suspects’ basic rights.
One final point should be made in this regard. The principle of
parliamentary sovereignty is only relevant to Acts of Parliament made at
Westminster by the UK legislature. It has no application to other types of law
(eg rules enacted by the executive government and laws made by devolved
legislatures such as the Scottish Parliament), and courts therefore can strike
down such laws if they are contrary to fundamental constitutional principles
(including human rights). Similarly, decisions and policies of the executive
government are not covered by the principle of parliamentary sovereignty,
meaning that they, too, can be struck down by the courts in appropriate
circumstances. If, then, the executive government wishes to ensure that
something is placed beyond interference, it must enshrine it in an Act of
Parliament. This can only be done with Parliament’s agreement—but, as we
have seen, the executive is very well-placed to secure such agreement.

Taking Stock: The Story So Far

A picture thus emerges of a set of constitutional arrangements in Britain that is

strikingly unusual. Most of the things that were said above about how
constitutions typically work turn out not to be accurate descriptions of the

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position in the UK. In particular, what has been said so far suggests that the
British constitution lacks the careful balance of powers between the three
branches of government that is supposed to guard against the oppressive or
otherwise improper use of authority. Instead, what seems to exist is an executive
branch of government which, in effect, controls the legislature, and a legislature
which is uncontrollable by the courts. It is unsurprising, then, that a major
concern for writers about British politics and the British constitution is that the
executive government is too powerful.
Clearly, these fears are not wholly ill-founded: that much is demonstrated by
the simple fact that the executive was able to get Parliament to give it the power
to lock people up whenever a government minister (reasonably) thought that
they might be involved in terrorism. You might wonder, then, why the UK is—
the likes of the Anti-terrorism Act notwithstanding—a largely free society in
which people’s fundamental rights are generally respected. If the executive
government has, in the way described above, its hands on all the key levers of
power, why does Britain not more closely resemble a dictatorship in which
basic freedoms are denied to people? One possible explanation is that the people
with their hands on the levers of power might not want to do things like this—
they might be decent people, determined to govern in a way that is fair and just.
But is that it? Does freedom in the UK ultimately depend on the integrity of
politicians (which, history suggests, cannot always be relied upon)? Or are there
other factors which help to explain why those who run the country—and who,
for the reasons considered above, have legally unlimited powers—nevertheless
generally exercise such powers in ways that respect people’s basic rights and
freedoms? Happily, as we explain in the next section, the answer to this
question is yes.

THE ROLE OF THE COURTS

Back to Belmarsh

The Belmarsh detainees were eventually released. And although the courts did
not compel their release—because their detention was authorised by an Act of
Parliament—the courts were nevertheless instrumental in securing the
detainees’ freedom. This, then, is the point at which to tell the detainees’ story

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—and, in particular, the part of it in which they mounted a legal challenge to
their detention—in more detail. The case is formally known as A and others v
Home Secretary, but we will simply call it the Belmarsh case. Although the case
was heard at a number of judicial levels, our concern is mainly with the decision
of the House of Lords. (When Belmarsh was decided in 2004, the Appellate
Committee of the House of Lords was the highest court in the UK—although, as
explained in chapter 1, it has now been replaced by the UK Supreme Court.)
The decision of the House of Lords in Belmarsh was a trail-blazing one. As
we shall see, it demonstrates that, in spite of what has been said so far, the UK
government is not truly free to do exactly as it pleases. If the significance of
Belmarsh can be reduced to a single proposition, it is that it shows that while,
under the UK constitution, the executive-controlled Parliament may have
theoretically unlimited powers, there are nevertheless practical limits to what it
can do. In order to explain why this is so, we need to consider two interlocking
aspects of the Belmarsh case.

Belmarsh protest.
© Gareth Fuller/Press Association Images

The First Question: Had the Detainees’ Human Rights Been Breached?

The first aspect concerns the surprisingly bold way in which the House of Lords
assessed the detainees’ claim that Part 4 of the Anti-terrorism Act breached their

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human rights. Until the passage of the Human Rights Act 1998, such arguments
were rarely made—and, when they were, courts tended to adopt a highly
reticent approach, attaching great respect to the government’s views,
particularly if arguments such as national security were deployed. The
significance of Belmarsh is that the House of Lords took a strikingly different
approach, subjecting the government’s attempts to justify the detention of the
suspects to searching and critical scrutiny—and, as we shall see, ultimately
finding the government’s arguments unconvincing. To explain all of this
properly, however, we need to step back and explain, in legal terms, what the
issue in Belmarsh was.
The detainees took the government to court, alleging that, by imprisoning
them under the Anti-terrorism Act, the government was denying them their
rights under the European Convention on Human Rights (ECHR). The ECHR is
an international agreement, or treaty, under which many European countries,
including the UK, have committed to respect basic human rights and freedoms.
And, under international law—ie the system of law which regulates the
behaviour of countries—there is a legal obligation upon countries to abide by
their treaty commitments. We explain in the following section exactly how the
ECHR, as a piece of international law, is relevant as a matter of national
constitutional law. But for now our focus is simply on the question whether the
detainees were right—was the government doing something forbidden by the
ECHR?
The detainees’ principal argument was that detention on the say-so of a
government minister was contrary to the right to liberty under Article 5 of the
ECHR. Article 5 says that ‘[e]veryone has the right to liberty and security of
person’ and that ‘[n]o one shall be deprived of his liberty’ except in certain
limited circumstances spelled out in Article 5 (eg detention following
conviction of a criminal offence). None of those circumstances applied to the
detainees, and so it was clear that they were, as they asserted, being denied their
rights under Article 5. The House of Lords had no difficulty in reaching this
conclusion, which was later confirmed by the European Court of Human Rights
when, in A v United Kingdom, it considered the case of the Belmarsh detainees.
(The European Court of Human Rights is based in Strasbourg: we will simply
call it the ‘Strasbourg court’ in this chapter.)
However, the case was more complex than this. The government had
anticipated that precisely this sort of argument might be made—and that it

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might be accepted (as indeed it was) by the courts. The government had
therefore sought to take advantage of other provisions of the ECHR to allow the
detainees to be denied the right to liberty which they would otherwise have been
entitled to under Article 5. It had done so by attempting to invoke the special
power contained in Article 15 of the ECHR, the first two paragraphs of which
read as follows:
(1) In time of war or other public emergency threatening the life of the
nation any [State] Party may take measures derogating from its obligations
under [the ECHR] to the extent strictly required by the exigencies of the
situation, provided that such measures are not inconsistent with its other
obligations under international law.
(2) No derogation from Article 2, except in respect of deaths resulting from
lawful acts of war, or from Articles 3, 4(1) and 7 shall be made under this
provision.
Even though it uses technical language, the general thrust of Article 15 is
reasonably clear: it confers a ‘derogation power’, meaning that, in certain
circumstances, it allows things to be done even though they would normally be
forbidden by the ECHR. With this in mind, two more specific points should be
noted.
First, Article 15 only applies to some rights. One of the rights to which it
does not apply is the right to be free from torture and inhuman and degrading
treatment under Article 3. This explains why the UK government could not
simply derogate from Article 3 and then return foreign terror suspects to their
home countries irrespective of whether they would face a real risk of torture
there. In contrast, Article 15 does allow the right to liberty under Article 5 to be
derogated from.
But, secondly, even if a right can in principle be derogated from under
Article 15, it will only be lawful to derogate if the two conditions laid down in
Article 15 are satisfied: (1) there must be a ‘war or other public emergency
threatening the life of the nation’; but (2) even if there is such a war or
emergency, this does not enable the government to do whatever it likes: it can
do things which would otherwise be incompatible with the right in question
only to the extent that this is necessary. Deciding whether these two conditions
had been satisfied was the main question which the court had to answer in the
Belmarsh case.
First, then, was there a ‘war or other public emergency threatening the life

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of the nation’? The government’s case, in effect, was that, bearing in mind the
close and long-standing relationship between the two countries, the 9/11 attacks
in the USA indicated a heightened risk of a devastating terrorist attack in the
UK. One of the judges, Lord Hoffmann, refused to accept that this gave rise to a
‘public emergency’ in the Article 15 sense. The ‘life of the nation’, he said, is
not to be equated with ‘the lives of its people’: only a threat of violence so
serious as to threaten ‘our institutions of government or our existence as a civil
community’ would be sufficient to trigger the derogation power. In a scathing
critique of what had been done in relation to the Belmarsh detainees, Lord
Hoffmann said:
The real threat to the life of the nation, in the sense of a people living in
accordance with its traditional laws and political values, comes not from
terrorism but from laws such as these. That is the true measure of what
terrorism may achieve.
The other eight judges disagreed. (Panels of five judges normally decide cases
at this level: the fact that nine judges sat in the Belmarsh case underlines its
importance.) They did so mainly because they took a broader view of what
might constitute a ‘public emergency’, accepting that that category was wide
enough to include the threat of a large-scale terrorist attack even if it did not
jeopardise the existence of civil society. Those eight judges went on to hold that
the government had been entitled to conclude, on the basis of the 9/11 attacks
and the intelligence information to which it had access, that the terrorist threat
was sufficient to fall within the definition, as they saw it, of ‘public emergency’.
In reaching this conclusion, the eight judges in the majority on this point
accepted that, under the separation of powers, it was not for courts to second-
guess delicate decisions made by the executive government drawing on expert
advice from the intelligence services. (Lord Scott, however, could not resist
pointing out that the latter had hardly acquitted themselves with distinction in
their assessment of the threat posed by Saddam Hussein’s regime in Iraq.)
So far—Lord Hoffmann’s approach excepted—this hardly looks like a
radical assertion by the courts of their constitutional duty to protect individuals’
fundamental rights. However, the court’s assessment of the second question
raised by Article 15 proceeded along very different lines. That question (which
was considered by the eight judges who accepted the existence of a public
emergency) was whether the government’s response to that emergency was
‘strictly required by the exigencies of the situation’. In other words, was the

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indefinite detention of foreign terror suspects really necessary—or could the
government have achieved its objective of protecting public safety in a way that
would have involved restricting suspects’ rights to a lesser degree, or even not
at all? In the past, whenever the government had pleaded that something needed
to be done in the interests of national security, the courts had generally been
willing to take it at its word. Not so in the Belmarsh case. Seven of the eight
judges who considered this point held that the government had failed to
establish that imprisonment without charge or trial was a necessary response to
the terrorist threat. Here, two crucial points need to be made, concerning,
respectively, the House of Lords’ general approach to the necessity question
and the consequences of that approach when applied to the specific facts of the
case.
The court’s general approach was to dismiss unthinking judicial deference
to the government’s views on such matters as national security as a relic of the
past. While courts would attach appropriate respect to the opinions of the
government when it was particularly well-qualified in relation to the given
matter (eg gathering and assessing intelligence so as to predict the level of the
terrorist threat), such deference was no longer to be the norm. The Human
Rights Act 1998—to which we turn shortly—required courts to examine
precisely the sort of matters raised in the Belmarsh case, meaning that it was no
good arguing that such issues were somehow inappropriate for judicial
consideration. ‘The 1998 Act,’ said Lord Bingham, ‘gives the courts a very
specific, wholly democratic, mandate’ to determine the legality of government
action that interferes with human rights. Moreover, the right to liberty, which
was at stake in the Belmarsh case, was an absolutely fundamental right—
meaning, as Lord Hope put it, that ‘any interference with [it] must be accorded
the fullest and most anxious scrutiny’.
How, then, did this approach play out in the particular circumstances of the
case? The judges noted that it would only be necessary to take a particular step
if the goal being pursued could not be achieved in some other way. The question
was therefore whether the objective of protecting the public could be secured in
a way that did not involve taking the draconian step of locking people up
without giving them anything resembling a fair trial. For two reasons, the House
of Lords was not satisfied that the government had established that the answer
to that question was ‘yes’.
First, Lord Bingham noted that there were many other ways in which

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terrorist activity might be disrupted. For example, the government could have
introduced a system whereby suspects would be monitored in the community
through the use of such measures as electronic tagging, curfews, bans on
associating or otherwise communicating with other suspects, and so on. The
government had not demonstrated to the court that such measures—which
would of course seriously interfere with suspects’ freedoms but not as gravely
as outright deprivation of liberty—would fail adequately to contain the threat
allegedly posed by the suspects.
Secondly, as explained above, the detention regime provided for by Part 4 of
the Anti-terrorism Act applied only to foreign nationals. No comparable
provision was made in that Act or elsewhere for the detention of UK nationals
suspected of involvement in terrorism. This fatally undermined the
government’s claim that the detention powers contained in Part 4 were
necessary. As Baroness Hale acerbically pointed out:
The conclusion has to be that it is not necessary to lock up the nationals.
Other ways must have been found to contain the threat which they present.
And if it is not necessary to lock up the nationals it cannot be necessary to
lock up the foreigners. It is not strictly required by the exigencies of the
situation.
All but one of the judges who considered this aspect of the case agreed that Part
4 of the 2001 Act had not been shown to be necessary. This led to the
conclusion that the conditions for suspending the right to liberty were not
satisfied. Given the traditional timidity of British judges in the face of
government claims of national security, the significance of this decision is hard
to overstate. It showed a new boldness on the courts’ part, and a new
willingness to hold the government to account. This aspect of the Belmarsh case
therefore goes some way towards allaying fears that might otherwise be justified
by the close relationship between Parliament and the executive. Earlier, we
noted the concern that the executive’s control over the legislature risks an
overconcentration of power which makes it possible for the executive to have its
own way too easily. Belmarsh, however, highlights the fact that the courts are
capable of being—and are willing to be—a real counterweight to the other
branches of government.

The Second Question: So What?

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This is all very well. But it begs an obvious question: ‘So what?’ If the UK
Parliament is sovereign, meaning that it can enact any law it likes, what
practical relevance, if any, could the Belmarsh ruling have? The detention of the
suspects was sanctioned by an Act of Parliament— and, as we already know,
courts must, because Parliament is sovereign, accept and apply the legislation it
produces. What, then, was the point of the court in Belmarsh pronouncing on
whether the anti-terrorism legislation breached the detainees’ human rights?
In order to answer this question, it is necessary to be clear about exactly
what the court was being asked to do in Belmarsh—which, in turn, requires an
explanation of the constitutional status of human rights in UK law. We noted
earlier that the UK is bound, as a matter of international law, by the ECHR. This
means that if the Strasbourg court finds that UK law is inconsistent with one or
more of the rights contained in the ECHR, the UK is required by international
law to remove the inconsistency by amending national law—unless, that is, it
decides that it would prefer to cease being a party to the ECHR. However,
international treaties like the ECHR do not automatically become part of UK
law. Essentially, this means that they are only enforceable by national courts to
the extent (if any) that national law provides.
What, then, does national law have to say on this matter? Until quite
recently, it said nothing, meaning that people who wanted to bring legal
proceedings alleging a breach of their rights under the ECHR generally had to
pursue their case in the Strasbourg court. However, the Labour government
which assumed office in 1997 regarded this state of affairs as unacceptable. It
felt that people should be able to enforce their rights in national courts, and
therefore enacted the Human Rights Act 1998 in order to ‘bring rights home’.
The Act pursues that objective in a variety of ways, but for current purposes
sections 3 and 4 of the Act are the most important. Section 3 says that,
whenever it is possible to do so, UK courts must interpret national law in a way
that is compatible with the ECHR. Meanwhile, section 4 provides that if this
cannot be done—ie if UK law is flatly inconsistent with the ECHR—certain
courts may issue a ‘declaration of incompatibility’. Such a declaration has no
legal effect in that the incompatible national law remains in force and has to be
applied by the courts. Rather, its effect is simply to draw the existence of the
incompatibility to the attention of the other branches of government (as well as
the wider public), leaving those branches to decide whether, and if so how,
national law should be amended so as to remove the incompatibility.

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 In the Belmarsh case, the House of Lords, as we have seen, decided that Part
4 of the Anti-terrorism Act was incompatible with the right to liberty. It also
held that while there was a public emergency that might in principle be capable
of justifying laws at odds with that right, the government had not shown that it
was necessary to infringe the right to liberty to the extent that Part 4 did. What
this boils down to is that Part 4 was flatly inconsistent with the ECHR. As a
result, the House of Lords issued a declaration of incompatibility. In doing so, it
did not seek to disguise the fact that such a declaration is not a legally potent
remedy. As Lord Scott freely acknowledged, ‘The making of such a declaration
will not … affect in the least the validity under domestic law of the impugned
statutory provision.’ The detainees therefore won a moral but not a legal
victory: the House of Lords condemned their detention as a breach of their
fundamental rights, but could not order their release because they were detained
under an Act of Parliament whose legality was untouched by the declaration of
incompatibility.
This limitation on the courts’ powers under the Human Rights Act should
not take us by surprise. Indeed, it would have been constitutionally impossible
to assign any greater powers to the courts. We saw above that in many countries
constitutional laws have a special, higher legal status, meaning that other, lesser
laws will be invalid if they are incompatible with the constitution. But that is not
the position in the UK, where laws dealing with constitutional matters—for
instance, legislation like the Human Rights Act which sets out individuals’
fundamental rights—only have the status of ordinary law. Because all Acts of
Parliament are equal in legal status, even an Act dealing with important
constitutional matters can always be overridden by a subsequent Act. From this,
it follows that it would have been impossible when the Human Rights Act was
enacted in 1998 for Parliament to have given it a special legal status allowing it
to override subsequent legislation that was inconsistent with human rights. Put
simply, unless the fundamental principles of the UK constitution change (and no
one can even agree on how that might be done), it is impossible to create a
legally superior body of constitutional law that has precedence over other Acts
of Parliament. The Human Rights Act could not therefore give the courts a
power to strike down subsequently enacted legislation, and so Parliament went
as far as it could by authorising courts to issue declarations of incompatibility.

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THE COURTS’ ROLE: BROADER
CONSIDERATIONS
This explanation helps us to understand why the Human Rights Act does not
give the courts more potent powers—but it does not establish that the
necessarily weaker powers given to the courts by that Act are useful. If the most
that could be done was to authorise courts, in effect, merely to say that
legislation is incompatible with human rights, was passing the Human Rights
Act a worthwhile endeavour? The answer is ‘yes’. What, then, is the positive
case for giving courts the type of powers conferred upon them by the Human
Rights Act?
A helpful way of approaching this question is to consider what happened
after the House of Lords gave judgment in the Belmarsh case in December
2004. Even though, as explained earlier, the declaration of incompatibility
issued by the court had no legal teeth—it did not require anybody to do
anything—the detainees had been released, and Part 4 of the 2001 Act repealed
(scrapped, in other words), by March 2005. Why? The beginnings of an answer
lie in an observation made by Lord Scott in his judgment in Belmarsh. The fact
that declarations of incompatibility issued under the Human Rights Act are not
legally binding does not make them irrelevant: their significance, he pointed
out, is ‘political not legal’. The government’s strategy of subjecting terror
suspects to imprisonment without trial was already a highly controversial one
before the House of Lords’ ruling: but the judges’ decision in the Belmarsh case
redoubled the pressure under which the government found itself to put an end to
the Part 4 detention system. Indeed, whenever a declaration of incompatibility is
issued, the government is placed under pressure to remove the incompatibility
by amending the legislation in question. There are two reasons for this.
The first is a legal one. Although, as we know, UK courts are powerless to
compel the government to do anything when an Act of Parliament is found to
conflict with the ECHR, the same is not true of the European Court of Human
Rights. If that court finds UK law to be deficient, the UK, as noted earlier, is
obliged as a matter of international law to put things right. Crucially, if someone
‘wins’ a case in the UK courts, in the sense of getting a declaration of
incompatibility, it is likely that, unless the government caves in and amends the
relevant law, the person concerned will take their case to the Strasbourg court.
And it is likely that, armed with a declaration of incompatibility, they will win:

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while the Strasbourg court is in no way bound by national courts’ opinions, it
generally takes account of them. There is therefore little point in the government
refusing to act in response to a declaration of incompatibility, given the
likelihood that it would lose in Strasbourg. This is no doubt a large part of the
reason why the government habitually legislates in response to declarations of
incompatibility, even though it is under no national legal obligation to do so.
Secondly, independently of the prospect of being taken to, and losing in, the
Strasbourg court, a declaration of incompatibility piles political pressure on the
government to remove the incompatibility. In the Belmarsh case, the declaration
was issued, by a majority of eight to one, by the UK’s highest court. It signalled
very clearly that, in the opinion of that court, UK law fell short of the minimum
human rights standards guaranteed by the ECHR in 50 European countries,
stretching from Ireland and Portugal in the west to Russia and Turkey in the
east. Why, people unsurprisingly asked, was the UK peculiarly unable or
unwilling to adhere to such standards? It would be going too far to say that the
political pressure created by a declaration of incompatibility is always
irresistible—but it is certainly hard for a government to justify a refusal to
accord to people in the UK the minimum human rights standards that operate
across Europe. Against this background, the Home Secretary told Parliament
that he ‘accept[ed] the Law Lords’ declaration of incompatibility’ in the
Belmarsh case. He later stated that the legislation introduced to replace Part 4 of
the Anti-terrorism Act was ‘designed to meet the Law Lords’ criticism that the
previous legislation was both disproportionate and discriminatory’. The new
legislation sought to contain the threat posed by both British and foreign terror
suspects by allowing the government to subject them to ‘control orders’ (eg
providing for curfews and preventing association with other suspects). Such an
order can undoubtedly constitute a major limitation upon a suspect’s freedom to
live his life as he wishes—as one judge put it, the cumulative effect of the
restrictions imposed by such an order may result in a situation ‘not far short of
house arrest’—although the control order regime is at least less draconian than
the detention without trial system which it replaced. Many of the Belmarsh
detainees were subjected to control orders as soon as they were released from
prison.

Legal and Political Constitutionalism

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What does all of this tell us? It suggests that the fact that nothing in the UK is
set in legal stone—because any law, even one concerning fundamental rights or
basic constitutional principles, can be undone or changed by a subsequent law—
should not lull us into thinking that the government can therefore do as it
pleases. In countries which adhere to the more normal sort of constitutional
model sketched earlier in this chapter, the emphasis is on legal
constitutionalism. The constitution lays down hard and fast lines which the
branches of government are legally impotent to cross. And if they try to do so—
for instance, by enacting laws that seek to take away people’s constitutional
rights—the courts can intervene by striking down such laws. The position in the
UK is different. The UK approach relies more heavily on the notion of political
constitutionalism: that is, on the capacity of political considerations to prevent
or at least dissuade those in authority from using their powers oppressively or
abusively. Often, the simple fact that British governments periodically have to
submit themselves (in the rather indirect way considered above) for re-election
will be enough: politicians’ instincts for self-preservation will generally lead
them to avoid doing things which will upset large numbers of people.
More problematic are situations in which a government is inclined to do
something that disadvantages a small group of people—suspected foreign
terrorists, for instance—in order to benefit everyone else. Here, other things
being equal, the electoral calculus may favour behaving in precisely such a way.
It is in such circumstances that political constitutionalism risks failing—if, that
is, we judge success in terms of treating everyone fairly and equally. Crucially,
however, the UK’s constitution is not a purely political one. Legal standards
exist (for instance in the form of the ECHR) and there are courts which can
adjudicate on whether those standards have been adhered to. The UK system,
then, is an amalgam of legal and political constitutionalism. Politicians—
because they control Parliament, and because Parliament is sovereign—
ultimately have the upper hand. But the business of politics is conducted within
a system that possesses legal benchmarks and courts that are prepared to say
whether they have been met. Belmarsh is a case in point. The House of Lords’
ruling that Part 4 of the Anti-terrorism Act fell short of the legal standards laid
down by the ECHR made a decisive contribution to the political debate about
whether it was acceptable to detain suspects without trial—and ultimately
resulted in the government giving in to pressure to put an end to that system. It
is, therefore, in the interaction of law and politics that the immense powers of

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the British government are subjected to a generally effective form of control.

SOME CONCLUSIONS
The main conclusion which our discussion points towards is that the UK’s
constitution is unusual because it is contained in ordinary laws that can be
changed or scrapped simply by enacting further such laws. This means that
everything is up for grabs in a way that is not so in a legal system with a
constitution that is very hard to amend. It means, too, that such things as
fundamental rights, which would normally be protected by provisions in a hard-
to-change constitution, are not legally secure. Like any other part of the British
constitution, such rights can be limited—even removed in their entirety—by
enacting ordinary legislation. Yet, while these things are true and important to
anyone trying to understand what the UK constitution is and how it works, they
are only part of the story. There are, as we have seen, powerful reasons, both
political and legal, which explain why people in the UK generally enjoy basic
rights and freedoms notwithstanding the government’s ultimate constitutional
freedom to remove them.
The question that remains is whether this situation is acceptable. Here, there
is a wide variety of views. Some people argue that the UK is still too reliant on
politicians exercising self-restraint, and that fundamental constitutional matters,
such as the protection of human rights, should be placed on a more secure legal
footing. The most obvious way in which this could be done is by adopting a
written constitution that adheres more closely to the model sketched near the
beginning of this chapter. Others contend that British courts already have too
much power—in particular, that the Human Rights Act 1998 has given judges a
licence to interfere in matters that should be left to politicians. It has been
argued, for instance, that the House of Lords overstepped the mark in the
Belmarsh case: that the judges should have respected the government’s view
about what steps were necessary to try to make people safe.
This is not the right place to examine the merits of these different
perspectives. Rather, for current purposes, the point is simply that the choice
represented by these divergent views is an important one. It goes to the heart of
how we are governed by determining who ultimately has the final word: judges
or politicians. What is better: a constitution that leaves politicians free to do

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whatever they like (even if that involves sacrificing the fundamental rights of
minorities in order to protect, or secure the votes of, the majority) or one that
allows unelected judges to strike down such laws (even if they are supported by
the vast majority of people)? Questions of this sort are undoubtedly big ones,
and may appear rather abstract. But, in reality, they are of acute practical
relevance. They ultimately determine (for example) whether it is legally
possible for people to be left to rot in jail because a politician thinks they might
present a risk to public safety or, putting the same matter in different terms,
whether the government is free to take what it regards as necessary steps to
prevent suspected terrorists from flying airliners into skyscrapers.
It is questions such as these with which constitutional law is concerned—
and, as we have seen in this chapter, the answers which British constitutional
law supplies are in many ways atypical. This does not mean that people in the
UK do not enjoy comparable rights and freedoms to those in similar countries
around the world—but it does mean that those rights and freedoms rest on a
legally fragile foundation thanks to the unusual flexibility of the British
constitution. To some, a constitution which can be changed with the
breathtaking ease with which the British constitution can be altered is a
contradiction in terms—is not the whole point of a constitution to safeguard
fundamental, enduring values and principles? For others, its malleability is the
UK constitution’s principal virtue, not least because it allows the government to
act in the public interest free from constitutional constraints that may be
outdated or otherwise inappropriate. Whether the much-vaunted flexibility of
the UK constitution is its greatest strength or its biggest weakness is not a
question with a right answer: like many of those you will encounter should you
decide to study law, it is one about which you will ultimately have to make up
your own mind.

Cases
A and others v Home Secretary [2004] UKHL 56, [2005] 2 AC 68
A v United Kingdom (2009) 49 EHRR 29

Further reading
Bogdanor, The New British Constitution (Oxford, Hart Publishing, 2009)
Elliott and Thomas, Public Law (Oxford, Oxford University Press, 2011)

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Feldman, ‘None, One or Several? Perspectives on the UK’s Constitution(s)’
[2005] Cambridge Law Journal 329
Leyland, The Constitution of the United Kingdom: A Contextual Analysis
(Oxford, Hart Publishing, 2007)

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8

European Union Law

Catherine Barnard

INTRODUCTION
I bet you aren’t neutral about the European Union: you are bound to be either
(strongly) for or against it. And perhaps ‘against’ is more likely, given the often
hostile media coverage in this country about the EU. You might have heard that
the EU has tried to ban prawn-cocktail crisps, home-made jam, round cheese,
donkeys from beaches, and darts from pubs—none of which is true. You might
also have heard that the EU lets foreigners claim social security benefits and
receive free healthcare when they come to the UK—some of which is true. And
you might have heard that the institutions of the EU (the Commission, the
Council, the European Parliament, the European Council, the Court of Justice)
are full of people feathering their own nests but who are incapable of organising
a party in a brewery let alone a major international organisation which affects
the lives of nearly half a billion people.
But what you do not often hear about are the EU success stories: that thanks
to EU intervention we can travel (and live) in the 27 different countries of the
EU with virtually no restrictions, that we can get there cheaply with low-cost
airlines such as Ryan Air and EasyJet, that using your mobile phone abroad is
now a lot cheaper, and that pasta and café latte have become the standard fare of
the British high street. Most importantly, thanks in part to the creation of the
European Union, states like France, Germany, Spain and the UK, which have
been enemies for much of the past 1,000 years and which fought two world
wars in the last century, have not been to war with each other since the EU was
founded over fifty years ago.

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 Love it or loathe it, the EU is a fundamental part of our daily existence and
European Union law has a profound effect on every aspect of national law,
since EU law is part of our law and takes precedence over our law. This so-
called doctrine of supremacy of EU law is what Eurosceptics rail against. For
example, the Referendum Party, campaigning to secure Britain’s withdrawal
from the European Union in 1996, took out a full-page advert in a national
newspaper filled with the words ‘John Major is impotent’. This referred not to
the sexual health of the then British Prime Minister but to the fact that he was
‘completely powerless in the face of diktats from unelected European
bureaucrats’. The advert continued: ‘Yet again it demonstrates that Brussels [the
seat of most of the European Union institutions], not Westminster [the seat of
the British Parliament], now decides how we must lead our lives.’ A similar
point is made in the cartoon on page 189. It is an issue which has bedevilled the
British relationship with the EU.
But EU law is not just about economics, politics and constitutional issues.
Like contract, tort, and equity, it is also about individuals who have suffered
some harm and want the courts to give them a remedy. But what makes EU law
exciting for lawyers is the fact that the doctrine of supremacy of EU law, so
mistrusted by Eurosceptics, gives lawyers a trump card to win their case. If a
point of EU law is successfully raised it will defeat arguments based on national
law, where the two laws conflict. This is exactly what the lawyers did in
Bosman, the case discussed in this chapter. Jean-Marc Bosman was a Belgian
footballer, not a very good one, but a footballer with the sense to hire good
lawyers to challenge the rules of URBSFA (the Belgian football association)
and UEFA (the Union of European Football Associations) which prevented him
from playing for a French club, as being contrary to EU law. The legal case he
fought—which ended up before the Court of Justice of the European Union—
tells us much, not only about the rather murky world of professional football,
but also about the nature of EU law, its relationship with national law, the legal
reasoning of the Court of Justice and the broader political context in which the
Court operates. These issues form the heart of this chapter. But first the facts of
Bosman.

THE DISPUTE

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Bosman was a Belgian national employed by the Belgian first-division club RC
Liège. When his contract expired he wanted to play for the French second-
division club US Dunkerque. However, UEFA and URBSFA had two rules
which stood in the way of Bosman playing for US Dunkerque.
The first, the so-called ‘3+2 rule’, said that national football associations
could allow each first-division team to field up to three foreign players and two
‘acclimatised’ foreigners (players who have played in the country for an
uninterrupted period of five years) in domestic league matches, but no more
than five foreign players in total.
The second concerned transfer fees. According to these rules, on the expiry
of a contract with club A (RC Liège), a professional footballer could not play
for club B (US Dunkerque) until club A (RC Liège) had released his
registration. This would be done only on the payment of a transfer fee. Since
RC Liège did not think that US Dunkerque would be able to pay the high
transfer fee it had put on Bosman’s head, Bosman found himself without a club
for the following season. He did eventually manage to sign two short contracts
with French clubs before ending up at Olympic de Charleroi, a Belgian third-
division club. There was strong circumstantial evidence that Bosman was being
boycotted by all the European clubs that might have engaged him because, as a
result of the litigation he brought, he was seen as a trouble-maker.

INTRODUCTION TO KEY PRINCIPLES OF

EUROPEAN UNION LAW

The Relevant Rules

The Treaties
But what did European Union law have to do with Mr Bosman’s tale of woe?
Well, quite a lot. He argued before his national court that UEFA and URBSFA’s
rules contravened Article 45 TFEU, giving workers the right to move freely
around the EU, and Article 101 TFEU prohibiting anti-competitive agreements
(these are agreements between companies and/or individuals which restrict the
free operation of the market in some way).
Both Articles 45 and 101 can be found in the (inelegantly named) Treaty on

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the Functioning of the European Union (TFEU). The TFEU is the renamed
successor to the European Community (EC) Treaty, which, in turn, was the
renamed version of the original European Economic Community adopted in
1957. The EC Treaty, together with the Treaty on European Union (TEU) which
was adopted at Maastricht in 1992, were to all intents and purposes the
‘constitution’ of the European Union, as the Court of Justice has acknowledged
(see eg Kadi and Al Barakaat, paragraph 281). Indeed, the fact that the Treaties
were no longer simply international agreements but formed the constitutional
backbone of the EU was recognised by the ‘Treaty establishing a Constitution
for Europe’ (sometimes referred to as the ‘Constitutional Treaty’), agreed by the
heads of the EU states in 2004. This Treaty was intended to simplify the
complex arrangements laid down by previous Treaties. However, many people
thought that the express reference to a ‘constitution’ went too far and made the
EU more like a state than it actually was. Eventually, the French and Dutch
voters rejected the Treaty in 2005 and so it never came into force.
However, the Lisbon Treaty of 2007 emerged from the ashes of the
Constitutional Treaty. The Lisbon Treaty was largely a carbon copy of the
Constitutional Treaty, albeit shorn of many of its ‘constitutional’ trappings (eg
the reference to the EU flag, the EU day and the EU anthem). Confusingly, the
Lisbon Treaty amended the two pre-existing Treaties, the EC Treaty and the
TEU, renamed the EC Treaty the Treaty on the Functioning of the European
Union (TFEU), and declared the TEU and the TFEU to have equal value.
Nevertheless, read together, the two Treaties are still a constitution of sorts.
And, as with any ‘federal’ constitution, state laws or the equivalent, such as the
rules of other public bodies such as UEFA, can be checked against the
constitution to see if they are compatible with it. This is what happened in
Bosman: the Court of Justice checked the compatibility of UEFA and
URBSFA’s rules with the EU Treaties, in particular the Treaties’ rules on free
movement of workers.

The Four Freedoms

The free movement of workers is one of the ‘four freedoms’ at the heart of the
European Union. The others are the free movement of goods, services and
capital. Together, these freedoms form the core of the ‘common’ or ‘single’
market project, begun by the European Economic Community (EEC) Treaty in
1957.

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 The four freedoms share a common feature—that goods, persons, services
or capital moving from one Member State of the European Union to another
should not suffer discrimination simply because they are foreign. In other
words, it should be as easy to trade or move between London and Budapest as it
is between London and Birmingham. So, the big idea behind the single market
is market integration: the removal of barriers to trade and to migration between
states. But what are the advantages of market integration? In the case of free
movement of persons, there are benefits both for individual migrant workers
and the ‘host’ state where they go to work. From the host state’s point of view,
workers coming from other Member States often take up jobs which cannot be
filled by national workers. Migrants also bring new talents and skills which the
national workforce cannot offer. For the individual migrants, moving to a new
job in another Member State means escaping from possible unemployment at
home, bettering their personal circumstances and broadening their range of
experience.
So far, so win–win. When times are good, workers from other Member
States do help to fill a skills gap, as we saw in the UK with the arrival of
hundreds of thousands of Polish, Hungarian and other Eastern European
workers when those countries joined the EU in 2004. But when times are bad,
migrant workers are seen to threaten jobs for nationals (see, eg: Milland,
‘Jobless up 92,000 as Poles flood in’, Daily Express, 17 August 2006, 1;
Whitehead, ‘92,000 East Europeans Milk Our Benefits’, Daily Express, 23 May
2007, 1, Little, ‘Migrants Rob Young Britons of Jobs’, Daily Express, 19
August 2010) and it is then that host governments, bowing to domestic political
pressure, may decide to make life more difficult for migrant workers. They
might, for example, limit the number of foreigners who can do a particular job
(as with the 3+2 rule in Bosman). Or they might ban foreigners from working in
the host state altogether. A famous example of this was the call by Gordon
Brown, then British Prime Minister, at the Labour Party conference in
September 2007, for ‘British jobs for British workers’. His words came back to
haunt him: on the picket line at the Lindsey oil refinery in Lincolnshire
protesters used his words to justify their strike in January 2009 over the fact that
IREM, an Italian company, had brought Italian and Portuguese construction
workers in to fulfil a contract on the site. This is where European Union law
comes into play: Article 45 TFEU can be invoked by migrant workers or Article
56 TFEU can be invoked by service providers (such as IREM) to challenge such

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unjustified barriers created by laws and practices of the host Member State.

Pickets protesting at the Lindsey oil refinery.

©Anna Gowthorpe/Press Association Images

But removing barriers (sometimes referred to as negative integration) may

not be enough to achieve free movement of goods, persons, services and capital.
Sometimes additional rights are needed to achieve free movement (referred to as
positive integration). These additional rights take the form of legislative
measures adopted by the institutions of the European Union to help facilitate
free movement. Most commonly, these measures take the form of Regulations,
which automatically form part of domestic law, or Directives, which must be
implemented by Member States by passing legislation in their own national
systems. Regulations and Directives are proposed by the European Commission,
the executive arm of the European Union (the officials in Brussels who run the
Union day to day), and then adopted (usually) by a combination of the Council
of Ministers (meetings of Ministers from each of the Member States) and the
European Parliament (the only directly elected body in the EU).
One such legislative measure, Regulation 1612/68 on the free movement of
workers in the EU, was agreed as early as 1968 to allow workers to move freely
with their families. The Regulation says that workers have to enjoy an equal

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chance with nationals of getting a job and to benefit from equal treatment once
employed. It also says that the worker’s family members should be able to join
the worker in the host state and work there themselves. These latter provisions
have been replaced by the Citizens’ Rights Directive 2004/38 which has, more
fundamentally, overhauled the system of free movement rights. We shall return
to this Directive later. For now remember that, as he began to challenge the 3+2
nationality rules, Bosman relied on not only the Treaty provision, Article 45
TFEU, but also on the provisions of the legislative measure, Regulation
1612/68.

The Principles of Supremacy and Direct Effect

The Principles
But how can these EU rules be raised in a national court given that you might
expect that national courts to apply national law only? The Court of Justice of
the European Union answered this question in two seminal cases decided in the
1960s, Van Genden Loos and Costa v ENEL. In these cases the Court, adopting
a teleological approach to interpretation (looking at the purpose of the Treaties
rather than the literal meaning of the words used), developed two key principles:
direct effect and supremacy. Direct effect means that unconditional and precise
European Union law rules, including provisions of the Treaties, can be enforced
by litigants before their national courts. Supremacy or primacy of European
Union law means, as we have already seen, that EU law takes precedence over
any conflicting national law. The two principles go hand in hand: without
supremacy there is no point in having direct effect (otherwise national law
would trump EU law) and, conversely, without direct effect there is no point in
having supremacy (otherwise supreme EU law could not actually be enforced in
national courts).

Criticism of the Principles

The upshot of the principles of direct effect and supremacy is that Mr Bosman
could rely on the provisions of the Treaties to challenge the football authorities’
rules in his local (Belgian) court and, if the local court found in his favour, EU
law would prevail over the conflicting UEFA/URBSFA rules.
This is what makes the Eurosceptics angry: why should national rules give

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way to European Union law? Well, the answer is that the Member States agreed
to this on accession to the EU. Take the case of the UK. The British government
signed up to the EEC Treaty when it acceded to the EU in 1973 and the EEC
Treaty, as interpreted by the Court of Justice, implicitly included the principles
of supremacy and direct effect. The UK incorporated these principles, together
with the rest of EU law, into British law by the European Communities Act
(ECA) 1972. In principle, this Act, like any other Act of Parliament, is subject
to the doctrine of parliamentary sovereignty considered in chapter 7. This means
that it can be repealed (ie reversed) by the British Parliament at any stage,
thereby freeing the UK of its obligations under European Union law. The
doctrine of parliamentary sovereignty should have helped to put the
Eurosceptics’ minds at rest. In practice, however, the ECA 1972, like the
Human Rights Act 1998 incorporating the European Convention on Human
Rights into UK law, has assumed a special constitutional status, and will not be
repealed lightly. So perhaps the Eurosceptics have a point.
Critics of the EU also complain about the Court of Justice’s activism. What
right did the Court have to ‘invent’ principles, such as direct effect and
supremacy, which are not actually written down in the Treaties? The Court of
Justice argues that it is empowered by the EU Treaties to ensure that ‘the law is
observed’, which, to the Court of Justice, means making sure that EU law is
effective in practice and that Member States comply with their Treaty
obligations. Other federal systems where power is divided between the central
(federal) and local (state) levels have equivalent rules to ensure their systems
can operate; the Court of Justice has introduced these principles to make sure
that the European Union system, while not a federal system in the German or
US sense, can function effectively too. There is no point in individuals (ie
people and companies) seeing EU law as remote and inaccessible. For it to work
they must be able to rely on it before their local courts: in Riga, Rimini and
Rotherham.

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This cartoon by Gaskill illustrates the concerns expressed by Eurosceptics about
the loss of UK parliamentary sovereignty to ‘Brussels’.
© David Gaskill, The Sun.

Express reference to the principle of supremacy (but not direct effect) was in
fact made in the Constitutional Treaty in 2004. However, the Lisbon Treaty
removed the reference to supremacy but referred to it in a (non-legally binding)
declaration. Nevertheless, it is widely accepted that, because the principles of
direct effect and supremacy are firmly established and central to the operation
of EU law, they will continue to apply.

The Article 267 Reference Procedure

If they feel able, local courts can decide cases such as Bosman’s for themselves;
if not, as in Bosman, they can refer questions to the Court of Justice under the
so-called Article 267 TFEU preliminary reference or preliminary ruling
procedure. Under this procedure national courts ask the Court of Justice
questions about the interpretation of European Union law. This process, while
apparently complex and certainly time-consuming, is one of the great strengths
of the European Union legal system. At its best, it sees the national courts and
the Court of Justice working in co-operation: the Court of Justice gives a ruling

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on the meaning of European Union law and the case returns to the national court
to apply this ruling to the facts of the case. In the UK the rulings of the Court of
Justice form part of the system of precedent and, in recognition of the
supremacy of Union law, take precedence over the rulings of all British courts,
including the Supreme Court.
The Court of Justice’s ruling should always be clear enough for the national
court to follow. It helps that there is only ever one judgment—there are no
dissents—and each judgment contains a dispositif (closing section) at the end
summarising the Court’s findings. However, the downside of a single judgment
is that it is often hard to get all the judges to agree on its wording. Whether the
Court of Justice sits as a Full Court (all 27 judges, a rarity), as a Grand Chamber
(13 judges), or as a Chamber of three or five judges, the judgment must be
agreed by all the judges. The judgment is drafted in French (the working
language of the Court) by the juge rapporteur (reporting judge). At times,
controversial paragraphs on which agreement cannot be secured are removed
from the final version, with the result that the judgment may be difficult to
follow in places.
Originally, the decisions of the Court of Justice were short, following the
French model which sees cases as merely expounding the law, not justifying or
developing it. However, in recent years the decisions of the Court of Justice
have grown in length and, reflecting the increasing common law influence
(following the accession of the UK and Ireland to the EU in 1973), discuss and
distinguish other cases more fully. Unlike common law, though, there is no
doctrine of precedent in EU law, although in practice the Court of Justice does
tend to follow its earlier decisions.
More detail can often be found in the Advocate General’s opinion. The
Advocate General, a judge at the Court of Justice, writes an advisory opinion to
assist the Court. This reads more like a common law judgment (and so is
generally much longer than the Court of Justice’s decision). The Court of
Justice is not obliged to follow this opinion but, in many cases, it does so. In
Bosman the Court of Justice did reach the same conclusion as its Advocate
General but, while the Advocate General placed much emphasis on the
challenge to the football associations’ rules as being anti-competitive under
Article 101 TFEU, the Court’s sole focus was on the free movement of workers
provisions under Article 45 TFEU.
Having introduced you to some of the nuts and bolts of EU law, it is now

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time to consider what the Court of Justice actually said in Bosman.

THE COURT OF JUSTICE’S DECISION

The 3+2 Rule

The Judgment
You will remember that Bosman’s first claim was that the 3+2 rule (ie that there
could only be five ‘foreign’ players in a team at any one time) directly
discriminated against him contrary to Article 45 TFEU on the free movement of
workers and Regulation 1612/68; had Bosman been French there would have
been no limit on his right to play. The Treaties prohibit discrimination on the
grounds of nationality because such discrimination is irrational: employers,
including football clubs, must make selection decisions based on the rational
criterion of merit, rather than on the irrational criterion of nationality. With the
opening up of the single market, this means that employers have a much bigger
pool of candidates to choose from; using nationality as a criterion to narrow that
pool undermines the purposes of the single market.
The Court of Justice recognised this point in Bosman. It said that the 3+2
rule related to the essence of the activity of professional players: if EU law did
not apply to this situation, then Article 45 TFEU would be ‘deprived of its
practical effect and the fundamental right of free access to employment which
the [Treaties confer] individually on each worker in the [Union] rendered
nugatory’. The 3+2 rule was therefore unlawful.
Three points are worth noting about the Court of Justice’s observations.
First, the Court relied on the ‘effectiveness’ argument (the argument used by the
Court to develop the principles of direct effect and supremacy) to buttress its
reasoning (Article 45 TFEU would be ‘deprived of its practical effect’ if it did
not apply to Bosman’s case). Secondly, the Court said that Article 45 satisfied
the criteria to be direct effective (the ‘right of free access to employment which
the [Treaties confer] individually on each worker’).
Thirdly, this right of free access to employment was described as
‘fundamental’. Traditionally, the epithet ‘fundamental rights’ is attached to civil
and political rights such as the right to life and freedom of expression. It is not

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usually attached to economic rights such as the right to free movement.
However, it will be recalled that the European Union was originally established
as the European Economic Community: economic freedoms—the free
movement of goods, persons, services and capital— lay at the core of the EEC
and therefore achieved ‘fundamental’ status. In the past this has led to a certain
imbalance between economic freedoms and other fundamental rights. However,
as the EEC has evolved from European Economic Community to European
Union, greater recognition has been given to fundamental civil and political
rights. The adoption of the Charter of Fundamental Rights 2000, which put both
civil/political rights and economic/social rights into a single document has
helped to redress the initial imbalance. The Charter is now legally binding since
the Lisbon Treaty came into force in December 2009.
So, the Court of Justice held that the 3+2 rule was directly discriminatory: it
overtly discriminated against non-nationals such as Mr Bosman. Direct
discrimination is considered the worst type of discrimination— because it is so
obviously connected with the prohibited ground of nationality. However, the
Treaties do provide defences for the defendant Member States/sporting
associations. These defences, known in EU law as ‘derogations’, concern public
policy, public security and public health. These derogations are all narrowly
interpreted and it is only in the rarest of cases that the defendant successfully
relies on one of them. Bosman was not such a case.
The football associations also tried to defend themselves by pointing out that
the European Commission had been involved in the drafting of the 3+2 rule:
surely, they argued, if the EU’s own Commission had said the 3+2 rule was
acceptable, that amounted to a good defence. But the Court of Justice said ‘no’,
dryly observing that the Commission did not have the power ‘to authorise
practices which are contrary to the [Treaties]’.

The Implications
In light of the Court of Justice’s ruling in Bosman, how then do national sports
teams (ie England, France, Germany) get away with fielding a team of only
national players? This question had been addressed in the earlier case of Donà v
Mantero where, in respect of national teams, the Court of Justice essentially
created a new exception to the rule prohibiting non-discrimination. Relying on
the rather contentious justification that national games are not commercial in
nature, the Court said that Union law did not prevent the adoption of rules

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‘excluding foreign players from participation in certain matches for reasons
which are not of an economic nature’. Therefore, in the context of matches
which are of sporting interest only, such as matches between national teams (eg
England v Germany), Union law does not apply and so discrimination is
permitted.
The upshot of Bosman and Donà is that clubs (eg Manchester United and
Chelsea) are subject to Union law in respect of the nationality of players that
can be fielded, while national sides (eg England and France) are not. The
decision in Donà v Mantero shows that the Court of Justice has rather well-
tuned political antennae and decided not to make itself, and EU law, a laughing
stock by requiring national teams to field a mixed nationality squad (no matter
that some national sides would benefit from the injection of some foreign
blood).
One final question. Given that Article 45 TFEU stops sports associations
from limiting the number of EU nationals that can play for club sides, what is
the position in respect of nationality rules for players coming from non-Member
States of the European Union, so-called ‘third-country nationals’ (TCNs)? Well,
if the EU has an agreement with the third country, and that agreement contains a
non-discrimination clause, then discrimination can be prohibited. This can be
seen in Simutenkov. The Spanish football association had a rule limiting to three
the number of TCN players who were allowed to participate at any time in the
Spanish first division. Following Bosman, Simutenkov, a Russian footballer
who played for a Spanish club, challenged this rule as being contrary to Article
23(1) of the European Communities–Russia Partnership Agreement which
prohibited discrimination against Russian nationals legally employed in the
territory of a Member State. He won his case. Had there been no such
agreement, discrimination against TCNs would be a matter for national and not
EU law.

The Transfer Fee Rule

Establishing a Breach of European Union Law

Jean-Marc Bosman challenged not only the 3+2 rule but also the requirement to
pay transfer fees. As we discussed earlier, on the expiry of a contract with club
A, a professional footballer could not play for club B until club A had released
his registration. This was usually conditional on club B paying a transfer fee to

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club A. Did this rule breach EU law?
The problem facing the Court was that this rule, unlike the 3+2 rule, was not
discriminatory on the grounds of nationality because it applied equally to
transfers between clubs belonging to different national associations within the
same Member State (eg between Manchester United and Celtic) and was similar
to the rules governing transfers between clubs belonging to the same national
association (eg between Manchester United and Chelsea). Nevertheless, the
Court of Justice concluded that the transfer rules did breach Article 45 TFEU
because they ‘directly affect[ed] players’ access to the employment market in
other Member States’ and were ‘capable of impeding freedom of movement for
workers’.
This was an important ruling because the Court of Justice now recognised
that Union law was no longer simply about removing discrimination (as the
Treaties provide) but it was also about ensuring that goods and people from
other Member States enjoyed access to the market of other Member States, even
where the rule was non-discriminatory. The Court said that Bosman should have
had free access to the football market in other Member States unless there were
‘objectively justifiable’ (ie good) reasons why he should not.
The Court of Justice’s new approach has serious implications for the
Member States. Under the discrimination model, Member States/sporting
associations had the freedom to set their own rules and these rules would not be
challenged under EU law unless they were discriminatory either directly (such
as the 3+2 rule in Bosman) or indirectly (a rule which on its face applies to all
workers but which in fact imposes a particular burden on the migrant, such as a
residence requirement). By contrast, under the market access approach, nearly
all national rules risk being challenged as interfering with the Union rights to
free movement because, by their nature, most national rules interfere with trade
or free movement in some way.
The difference between the discrimination and market access approaches
can be seen in the following example. Greek law prohibited qualified opticians
from operating more than one optician’s shop. This rule was challenged by the
European Commission as being contrary to EU law because the rule interfered
with the right of opticians from other Member States to set up a chain of
opticians in Greece. If the Court of Justice had applied the discrimination model
the Commission would have lost its case because Greek law treated Greek and
foreign opticians the same: nobody could set up a chain of opticians shops. The

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rule therefore would not have breached the Treaties and was therefore lawful.
In fact, the Court of Justice applied the market access approach and found
the Greek rule did breach the Treaties because the rule interfered with the right
of opticians from other Member States to set up a chain of opticians’ shops in
Greece. The fact that Greek opticians also could not set up a chain of opticians’
shops was irrelevant. The Court’s focus was instead on the restrictions
experienced by traders and entrepreneurs from other Member States trying to
break onto the Greek market. Because such restrictions existed, they breached
the Treaties and were thus unlawful unless they could be justified which they
could not be on the facts. So it followed that the national rule had to be set aside
so that opticians from other Members States could set up a chain of opticians’
shops in Greece.
This choice between the discrimination and the market access approaches as
the underpinning theory regulating free movement has troubled not only the EU
but also other international organisations such as the World Trade Organisation
(WTO). While, on the one hand, the market access test risks doing more
damage to social, environmental and consumer legislation enacted by
democratically elected national governments, on the other hand, it is more likely
to achieve market integration (ie the creation of a single market) since it strikes
down—often antiquated—provisions such as the Greek single optician’s shop
rule. By contrast, the discrimination approach is less likely to interfere with
national regulation but it is also less effective in achieving market integration.
In the field of free movement of persons, the Court of Justice has opted very
much in favour of the market access approach, now increasingly referred to as
the ‘obstacle’ or ‘restriction’ approach. In many cases the Court simply asks the
question ‘Does the national rule being challenged constitute an obstacle or
restriction on free movement?’ If, as in Bosman, the answer to this question is
‘yes’, then the national rule breaches the Treaties. The burden then shifts to the
defendant state to come up with a good reason to justify the existence of the
rule.

Justification, Proportionality and Fundamental Human Rights

What, then, are these justifications? They are an open-ended list of ‘good’
reasons for the rule developed by the Court of Justice on a case-by-case basis.
These justifications (or public interest requirements as they are sometimes
called) supplement the express derogations (defences)—public policy, public

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security and public health—laid down by the Treaties. The price for adopting
the broad market access test is that the Court has had to recognise an ever-wider
range of justifications (including consumer protection, environmental protection
and worker protection) available to the Member States to prevent the wholesale
dismantling of national rules.
However, Member States cannot just point to a good reason for the
existence of the rule. They must also show that any steps taken to achieve one
of the derogations or justifications are proportionate (ie the measures must be
suitable for securing the attainment of the objective and must not go beyond
what is necessary to attain it), and the measures must respect fundamental
rights. The case of Carpenter provides a good illustration of how these
principles work together.
Mrs Carpenter, a Filipino national, overstayed her entry permit to the UK.
She then married a British national. The UK tried to deport her for overstaying
her visa. In contesting her deportation, Mrs Carpenter came up with an
ingenious argument. Since she was Filipino (a so-called TCN) she could not
invoke EU law herself. However, she said that if she was deported this would
restrict her British husband’s ability to carry on business as a service provider in
other Member States since she looked after his children while he was away. Her
deportation therefore contravened Article 56 TFEU on freedom to provide
services. The Court of Justice accepted Mrs Carpenter’s argument and said that
her deportation would in principle constitute an obstacle to Mr Carpenter’s
ability to provide services under EU law.
In its defence, the UK argued that Mrs Carpenter’s deportation could be
justified on grounds of public policy. While recognising that the UK had a
point, the Court of Justice said that the UK had to balance the public interest in
deporting Mrs Carpenter with the fundamental rights of Mr and Mrs Carpenter,
in particular the right to family life under Article 8 of the European Convention
on Human Rights (ECHR) (the Court of Justice of the European Union
regularly refers to the ECHR to guide its own case law and the Lisbon Treaty
now requires the EU to accede to the ECHR). While the right to family life is
not itself unlimited, the Court said that the decision to deport Mrs Carpenter was
disproportionate: even though Mrs Carpenter had infringed UK immigration
laws (by overstaying her entry visa) she did not constitute a danger to public
order and safety. Therefore, as a result of European Union law, Mrs Carpenter
was entitled to stay in the UK.

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Establishing Justification and Proportionality in Bosman
So how did the principles of justification, proportionality and human rights
apply in Bosman? Well, the Court of Justice began by recognising that transfer
fees might be justified. It said:
In view of the considerable social importance of sporting activities and in
particular football in the [Union], the aims of maintaining a balance between
clubs by preserving a certain degree of equality and uncertainty as to results
and of encouraging the recruitment and training of young players [the
transfer fees] must be accepted as legitimate.
In other words, the Court of Justice recognised that sport was special and
different because it was based on a notion of mutual interdependence. To help
explain the significance of the Court’s observation, one academic commentator,
Stephen Weatherill, contrasts the sport ‘market’ with the ‘widget’ market (the
term ‘widget’ is used in legal texts to denote non-specific products). On the
‘widget’ market, producers aim to gain the largest market share, if necessary by
driving their rivals off the market. By contrast, in sport, opponents are there to
be beaten but the whole point of the endeavour is destroyed if opponents are
beaten out of sight.
Having recognised that sport was special, the Court of Justice said that there
were good reasons to justify the existence of transfer fees: as a way of
transferring funds from rich clubs to poor clubs and as a way of providing
incentives to clubs to invest in the training of young players. This seemed to
suggest that the football associations were going to win.
However, the Court of Justice then turned to the question of the
proportionality of the transfer fee rules and found them to be disproportionate (it
never got to the question of fundamental rights). It said that the transfer fee rules
were not an adequate means of maintaining financial and competitive balance in
the world of football because they neither precluded the richest clubs from
securing the services of the best players nor did they prevent the availability of
financial resources from being a decisive factor in competitive sport. It also said
that the prospect of receiving transfer fees was neither a decisive factor in
encouraging the recruitment and training of young players nor an adequate
means of financing such activities. The Court of Justice therefore concluded that
the transfer fee rules, like the 3+2 rule, breached EU law and so were unlawful.
Jean-Marc Bosman had won his case.

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THE IMMEDIATE CONSEQUENCES OF THE
BOSMAN RULING

The Consequences for Mr Bosman

So, what happened next? Well, the Belgian football authorities paid Jean-Marc
Bosman £312,000 in damages and he in turn agreed not to pursue the case any
further. This happened in December 1998, more than eight years after the expiry
of his contract with RC Liège. But in reality Bosman did not benefit from the
litigation. He was left heavily in debt as a result of his legal fight with the
football authorities and, with his professional career over and his marriage in
tatters, he moved back in with his parents. In early 1997 some of the world’s top
players planned a testimonial for him involving Barcelona and a Europe XI.
However, the Spanish FA and FIFA objected to the match, blaming Bosman for
the large number of foreign players in the Spanish league (Oliver, ‘Sport
Around the World: Bosman out in the cold in Spain’, Daily Telegraph, 1 March
1997, 18). The match did eventually go ahead but Bosman’s name was not
officially connected with the event.

Jean-Marc Bosman at home with his career over.

© Gary Carlton, 2006.

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The Consequences for Football

The Bosman ruling had ramifications for the world of professional football
going way beyond the immediate circumstances of Jean-Marc’s case. With the
abolition of the 3+2 rule, the nationality composition of many teams has
changed dramatically (look at who now plays for teams such as Chelsea,
Arsenal and Liverpool). With the abolition of transfer fees for players whose
contracts have come to an end, clubs have responded by hiring stars on longer
contracts, with money previously used for transfer fees being diverted into wage
packets. This has made multi-millionaires out of many European players. The
football industry has also revised its rules on transfers of players. These new
rules include a system of training compensation to encourage and reward the
effort of clubs, especially small clubs, in training young players, as well as the
creation of a restricted transfer period prior to each season, and a further limited
mid-season window, with a maximum of one transfer per player per season.
Furthermore, UEFA has introduced a ‘home-grown player rule’ which
applies to games in the Champions League and the UEFA cup. Clubs competing
in these competitions must include in a 25-man squad 8 locally trained players
(ie players who, regardless of their nationality, have been trained by their club
or by another club in the same national association for at least three years
between the age of 15 and 21). Clubs are not obliged to play these home-grown
players in any match. UEFA sees this rule as one step towards addressing the
problem created by the Bosman ruling, namely that ‘the richest clubs have been
able to stockpile the best players, which makes it easier for them to dominate
both national and European competitions’.
The home-grown player rule, while potentially indirectly discriminatory (ie
it disadvantages in practice those from other Member States), is more carefully
tailored than the 3+2 rule. The Commission has therefore indicated that it thinks
the rule can be justified. It has said that the objectives of the rule, namely
promoting training for young players and consolidating the balance of
competitions, seem ‘legitimate objectives of general interest, as they are
inherent to sporting activity’ and are proportionate.
However, there remains considerable disquiet in the world of football that
EU law should apply to it at all. There is a strong feeling of resentment that EU
law rules which were intended to apply to ‘public’ laws of the Member States
(eg Acts of Parliament and statutory instruments) have been extended by the
Court of Justice to the ‘private’ world of football. Those in charge of football

196
argue that, because sport is special, it should be exempted from the EU’s free
movement rules altogether (Blitz, ‘EU labour movement rules threaten football,
says Platini’, Financial Times, 21 May 2007). Football, they argue, should be
left to footballers and not ‘unelected bureaucrats’ such as European
Commissioners (those in charge of the European Commission) and the Court of
Justice who have ‘never played sport’.

THE LONGER-TERM CONSEQUENCES OF BOSMAN:

THE DEVELOPMENT OF UNION CITIZENSHIP

The Position of the Non-economically Active and Union Citizenship

For better or for worse, Bosman has changed the face of European football.
Bosman was also an important staging post in another more fundamental
political transformation occurring in the European Union. As we saw in the
earlier part of this chapter, the original EEC Treaty gave rights to those who
were ‘economically’ active (such as workers) who could move from one
country to another to take up a job. By contrast, those who were not
economically active had no rights to move to another Member State. In a
European Economic Community this distinction made sense: those who were
economically active were able to contribute to the economy of the host state,
largely through paying taxes. They would therefore be a benefit, not a burden,
to the economy of that state. The same would not be true for those who were not
economically active (eg the unemployed). These individuals risked becoming a
financial burden on the social welfare system of the host state.
However, the Court of Justice began to erode the distinction between the
economically and the non-economically active by extending the Treaty rights to
those who were not economically active, in the traditional sense, such as work-
seekers and tourists. This led some to suggest that the Court of Justice was
developing a concept of EU ‘citizenship’, ie giving rights of free movement to
anyone holding the nationality of a Member State regardless of their economic
status. This in turn reflected a changing attitude by the Court of Justice towards
the EU: the EU was no longer just a glorified free trade area but it was also a
political body assuming state-like qualities. One key aspect of any state is
having a ‘people’, ie its own citizens; and citizens have human rights which

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need to be protected. Cases such as Carpenter can be understood as part of this
development.
The adoption of the Maastricht Treaty in 1992 helped reshape the
understanding of what ‘Europe’ was about. Not only was this Treaty responsible
for the name change from European Economic Community to European
Community, but it also introduced the concept of the European Union. This
shift from a purely Economic Community to a European Union, with a political
as well as an economic dimension, was given real substance by the inclusion at
Maastricht of new Articles on EU citizenship. These provide that all those
holding the nationality of one of the Member States of the Union are Union
citizens, which, according to Article 21 TFEU, gives them the right to move to,
and reside in, another Member State, subject only to the limits laid down by the
Treaties (such as the public policy, security and health derogations) as well as
the right to vote and stand as a candidates in municipal and European elections
in the host state under Article 22 TFEU.
The Bosman case was an important marker in this changing perspective
from economic community to political union. Mr Bosman was relying on his
economic rights as a worker. Yet the Court talked of him not just as a worker
but also as a citizen. For example, it said that the provisions of the Treaties
relating to freedom of movement for persons were intended ‘to facilitate the
pursuit by [Union] citizens of occupational activities of all kinds throughout the
[Union], and preclude measures which might place [Union] citizens at a
disadvantage when they wish to pursue an economic activity in the territory of
another Member State’ (emphasis added).
But what is now the position of those who, unlike Bosman, are not
economically active? Are they entitled to enjoy the rights of free movement
too? And, if so, are they entitled to enjoy social welfare benefits in the state they
move to (the host state) on the same terms as nationals? In the leading case of
Grzelczyk the Court suggested that the answer was a qualified yes.
Grzelczyk was a French student studying at a Belgian university. Having
supported himself financially for the first three years of his studies he applied
for a minimex (a Belgian social security benefit guaranteeing a minimum
income) at the start of his fourth and final year. While Belgian students could
receive the benefit, migrant students could not, and so Grzelczyk complained
that he was being discriminated against, contrary to European Union law.
However, the difficulty with his claim was that, under the relevant EU law rules

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on students, he was supposed to have sufficient resources to support himself
during his studies and so not become reliant on the Belgian social welfare
system.
The Court did a remarkable thing. It elevated Union citizenship to ‘the
fundamental status of nationals of the Member States, enabling those who find
themselves in the same situation to enjoy the same treatment in law irrespective
of their nationality, subject to such exceptions as are expressly provided for’.
Those ‘exceptions’ included the need to have sufficient resources. However,
having elevated the status of Union citizenship, the Court used this to justify a
narrow reading of the exceptions. So the Court said that the requirement to have
sufficient resources had to be read subject to the principle of proportionality,
and that it would be disproportionate to deport Grzelczyk during his fourth and
final year of study. Furthermore, and more controversially, the Court said, given
the ‘solidarity’ (ie the sense of common feeling) that now exists between
migrant students (such as Grzelczyk) and the Belgian taxpayer, due to the
existence of a common EU citizenship, the Belgian authorities should pay him
the minimex for so long as he did not become an unreasonable burden (a phrase
which was not explained) on Belgian public finances. As a result, Grzelczyk, a
migrant EU citizen, did enjoy a certain amount of equal treatment in respect of
social security benefits in Belgium.

Citizens’ Rights Directive

The position of individuals such as Grzelczyk has been strengthened by the

adoption of the Citizens’ Rights Directive 2004/38. In part this Directive
consolidates the secondary measures, like the Workers’ Regulation 1612/68,
adopted in the 1960s to encourage free movement. However, the Directive goes
further than these earlier measures because it expressly gives rights to those
who are not economically active. For example, the Directive provides that any
national can move to another Member State for up to three months, whether
they are economically active or not, and that they will enjoy equal treatment
with nationals in the host state once there. However, the Directive contains an
important limitation: they will not enjoy equal treatment in respect of social
welfare or student benefits. This helps to reduce immediate concerns about
‘welfare tourism’.
For periods beyond three months, migrants also enjoy the right to move but

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only if they are engaged in economic activity in the host state as a worker or a
self-employed person; or they have sufficient medical and financial resources
for themselves and their family members; or they are students. These
individuals also enjoy the right to the same treatment as nationals of the host
state, including in respect of social assistance but not student support. After five
years, Union citizens do not need to show they are workers, self-employed,
students or adequately resourced. Thus, after five years, the link with economic
activity is truly severed. These migrants are deemed to be sufficiently
assimilated into the life of the host state that they are considered, for all
practical purposes, to be nationals, with the result that they enjoy equal
treatment not only in respect of social assistance but also as regards student
maintenance in the form of grants or loans.
Developments in the field of citizenship prompt further, more fundamental,
questions: where is the EU to go from here? Should it continue down the path of
further integration, giving the EU ever more state-like qualities (a defence force,
a foreign policy, a social security system?). Should the EU stand still, draw
breath and take stock? Or should the EU look to retrench and focus again on the
four freedoms? The period of reflection following the rejection of the
Constitutional Treaty by the Dutch and French voters was supposed to give the
prime ministers and presidents of the Member States time to think these
thoughts but the Lisbon Treaty indicates there was little appetite to engage with
these difficult issues.

CONCLUSIONS

Bosman is an important case. At a legal level, its importance lies in the shift
from a non-discrimination model to a market access approach and in the Court
of Justice’s willingness to embrace ‘Union citizenship’. At a practical level,
Bosman is important for Jean-Marc himself, in that the Court of Justice sent out
a very strong message that he had been wronged, and for the world of
professional football where the rules on nationality and transfer fees have been
radically overhauled. For the purpose of this book, the case is important because
it shows us how Union law works and it tells us about the method of reasoning
of the European Court of Justice.
The EU is a political entity and a legal system that you may—or may not—

200
agree with but it is exciting, dynamic and transformative. The debates about the
EU matter, not least because so much is yet to be decided. As lawyers, we have
an important role in the continuation of this debate.

Cases
Case C-415/93 Union Royale Belge des Sociétés de Football Association ASBL
v Bosman [1995] ECR I-4921
Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen
[1963] ECR 1
Case 6/64 Costa v ENEL [1964] ECR 585
Cases C-402/05P and C-415/05P Kadi and Al Barakaat [2008] ECR I-6351
Case 13/76 Donà v Mantero [1976] ECR 1333
Case C-265/03 Simutenkov v Ministerio de Educaión y Cultura, Real
Federación Española de Fútbol [2005] ECR I-2579
Case C-140/03 Commission v Greece (opticians) [2005] ECR I-3177
Case C–60/00 Mary Carpenter v Secretary of State for the Home Department
[2002] ECR I–6279
Case C-184/99 Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-
La-Neuve [2001] ECR I-6193

Comment
S Weatherill, ‘“Fair Play Please”. Recent Developments in the Application of
EC law to Sport’ (2003) 40 Common Market Law Review 51

Websites
The EU’s own website is at http://europa.eu.
European Union legislation can be found at http://eur-
lex.europa.eu/en/index.htm
The European Court of Justice’s website is at www.curia.europa.eu.
UEFA’s website is at
www.uefa.com/uefa/footballfirst/protectingthegame/youngplayers/index.html

Further reading

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Introductory reading:
Rosas and Armati, EU Constitutional Law: An Introduction (Oxford, Hart
Publishing, 2010)
Ward, A Critical Introduction to European Law, 2nd edn (London, Lexis Nexis
Butterworths, 2003)
Weatherill, Law and Integration in the European Union (Oxford, Clarendon
Press, 1995)

More detailed reading:

Barnard, The Substantive Law of the EU: The Four Freedoms, 3rd edn (Oxford,
Oxford University Press, 2010)
Chalmers, Davies and Monti, European Union Law: Text and Materials, 2nd
edn (Cambridge, Cambridge University Press, 2010)
Craig and De Búrca, EU Law: Text, Cases and Materials, 4th edn (Oxford,
Oxford University Press, 2007)

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9

Conclusions: Drawing Some Threads

Together

Janet O’Sullivan, Catherine Barnard and Graham Virgo

So, what about law? You should, by now, have a pretty good idea of the sorts of
issues studied by students in an academic law course at a good university. This
chapter aims to take a step back and reflect on some of the themes and ideas that
you will have encountered throughout the rest of the book. Its aim is to provide
some further insights into legal problems and legal reasoning, and ultimately to
help you decide what your answer is going to be to our title question, what
about law?
First of all, you have probably spotted that, like it or not, there is no getting
away from the fact that you have to acquire the building blocks of the subject.
Studying law involves a lot of hard work, reading, understanding and learning
difficult rules, and much of this will be the result of independent study. Law
will not be spoon-fed to you in bite-sized pieces. A good analogy is perhaps
with the study of architecture. An architect must spend years learning the basics
of his profession—rules about materials, geometry, mathematics, the history of
design and so on. But, like architecture, there is so much more to mastering the
law than merely learning the rules and assembling building blocks. In this
chapter, we will give you a taste of some deeper, more creative ideas and
questions that await you, once you have mastered the basics of law.
For example, you may have noticed something surprising throughout this
book about the sort of process judges are engaged in when applying the law to
decide a case. Students often think mastering the law is all about learning all the
laws, like memorising lots of encyclopaedias. They assume that, having learnt
them all, they will be able to scroll through their mental index and produce the
‘right’ answer to any legal problem: a bit like putting the facts into the top of a

203
vending machine and expecting the ‘right’ answer to pop out of the bottom. As
you will have realised by now, happily, the process of legal reasoning is much
more complex and much more interesting than this, particularly in a common
law system built on precedent. Simmonds explains the point very clearly in the
first edition of his book, Central Issues in Jurisprudence:
But if the law consists of rules which have been positively established and
which can be ascertained without difficulty, how does it come about that
expert lawyers frequently disagree? Rival QCs or law professors may
disagree about what the existing law is. Many appellate decisions adjudicate
between rival views of the existing law. But how can this be if the law is so
unproblematic? When Professor X and Professor Y disagree about the law
of tort, does that show that one of them has not done his homework, and has
overlooked some statute or case that the other one has discovered? But we
know that in most disputes all the statutes and cases are, as it were, on the
table and known to both parties. So why can they not just see what the rules
are?
Perhaps our notion of a doctrine of precedent lulls us into a false sense of
confidence that the law will always be clear-cut and easy to identify: surely new
cases are simply to be decided in accordance with past authority, in other words,
decided following an earlier binding decision on the same facts? But there’s the
problem: it is extremely rare for the facts of a case to be exactly the same as the
facts of an earlier precedent. This rarely matters at all, because usually the
differences between a new case and the earlier precedent are obviously
irrelevant when it comes to applying the earlier legal rule. The following
example illustrates this point.
In 1975 the Court of Appeal established in Froom v Butcher what should
happen when a car driver is injured in a head-on collision caused by the
defendant’s negligent driving, but whose injuries are exacerbated because the
driver was not wearing a seat-belt. The court decided that, where the driver sued
the defendant in tort, the driver’s damages should be reduced by 20 per cent
because of the driver’s contributory negligence (a partial defence under the Law
Reform (Contributory Negligence) Act 1945). This became a precedent for what
should happen in such cases in future. Now, in Froom the victim’s car happened
to be a Jaguar, but it is obvious that the rule Froom established (about deducting
20 per cent for contributory negligence) does not apply only to unbelted Jaguar
drivers, but to unbelted drivers of any sort of car. So obvious, in fact, that after

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Froom, cases involving drivers of Fords, Volvos and Toyotas whose injuries
were exacerbated because they failed to wear seatbelts were straightforwardly
treated as governed by the same precedent. More to the point, the question
would never have been argued in court in those cases, because the lawyers
acting for both parties would know precisely what the applicable law said about
contributory negligence and would readily agree to a 20 per cent reduction in
damages.
However, sometimes it is nowhere near this obvious whether an earlier
precedent should apply or not. In such a case, the judge has to decide whether
the differences between the facts of the earlier precedent and those of the new
case are insignificant or important. Sticking with the seatbelt example, a judge
might have to decide whether the Froom rule should apply if the unbelted driver
was pregnant or suffering from a medical condition that made wearing a seatbelt
dangerous. What if the driver was obese and so found wearing a seatbelt
uncomfortable? And what if the unbelted victim was a passenger not the driver?
It is quite plausible that different judges might come to different conclusions
about the significance of these distinctions. One judge might regard them as
significant enough to distinguish Froom, while another judge might decide that
Froom should apply because the difference did not really matter. Sometimes,
both points of view will surface in the same case, with decisions reversed on
appeal or with an appellate court divided into majority and minority views. Yet
all the judges reached their views in accordance with and using the same legal
texts and rules.
You will have noticed many instances throughout this book of judges having
to decide whether to apply or distinguish an existing legal rule, based on their
view about the importance of factual differences between the precedent and the
case in front of them, as well as many examples of judges disagreeing about
what the law is in a given situation, what it means and how it should be applied.
The potential for disagreement is not confined to judges—commentators and
law students often disagree too. The following two examples will give you a
sense of where the disagreements might lie when facts differ, even slightly. The
first involves the serious criminal offence of rape. Most people know what
‘rape’ means and could make a good attempt at working out what the essential
elements of the criminal offence are likely to be (the actus reus and the mens
rea, to recap from chapter 2). In essence, the offence of rape involves sexual
intercourse with a victim without the victim’s consent. You probably imagine

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that working out whether a particular set of facts falls within this definition is
unlikely to be problematic (although proving those facts is often extremely
difficult). But in 1923 the Court of Criminal Appeal had to consider the case of
R v Williams. Williams was a singing teacher, who was giving singing lessons
to a naïve 16-year-old girl. He told her that she had problems with her breathing
and that he could improve it by using his body to ‘make an air passage’. He then
had sex with her. She consented to what he was doing, not realising that it was
sexual intercourse. Was Williams guilty of rape?
His barrister argued that as the girl had consented to penetration, Williams
could not be guilty of rape (although he might be guilty of a less serious
offence). This forced the court to confront exactly what the word ‘consent’
means in the definition of rape and, unsurprisingly, found that Williams was
indeed guilty of that serious crime, despite the fact that his actions were not
quite as obviously within the definition as the stereotypical situation of rape by
a stranger on an obviously unwilling victim. But would the same apply if a
slightly less naïve woman consented to penetration, knowing the ‘facts of life’
but having been led to believe that intercourse would nevertheless improve her
singing voice? This is even further away from the stereotypical rape situation,
and subtly different again from the facts of Williams. So has such a victim given
consent within the definition of rape or not? (There is a similarity here with the
victims who were infected with HIV in Dica, discussed in chapter 2.) It is
entirely plausible to imagine two lawyers disagreeing about whether Williams
should be applied or distinguished in such a case, yet both views might be
equally consistent with existing law and logically reasoned. As you will
discover, lawyers frequently read majority decisions of the appellate courts and
find, disconcertingly, that the dissenting speech is just as convincing as the
majority speeches and it is very difficult to decide which side to support.
Interestingly, nowadays the offence of rape is defined in a statute (the
Sexual Offences Act 2003) and its provisions deal with the problem in Williams.
The victim will not be considered to have consented to sex where ‘the defendant
intentionally deceived the complainant as to the nature or purpose of the
relevant act’ or where ‘the defendant intentionally induced the complainant to
consent to the relevant act by impersonating a person known personally to the
complainant’. But this statutory wording brings its own grey areas about
interpretation. What if a defendant agrees to have sex with a prostitute,
intending not to pay her? Has he intentionally deceived her as to the nature of

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the act? What if the defendant is desperate to have sex with the victim, who tells
him that she will only agree to have sex with him if he says that he loves her?
He does not love her but tells her that he does in order to have sex with her. Has
he intentionally deceived her as to the nature of the act? What if the defendant
pretends to be a famous pop star and he has sex with the victim? Has the
defendant impersonated somebody ‘known personally’ to the victim? What does
‘personally’ mean here? For example, what if she has met the pop star on a
number of occasions or merely attended all his UK concerts?
The second example of reasonable disagreement is much more recent and,
as the House of Lords’ 3:2 decision shows, much more difficult to resolve.
Moore Stephens (a firm) v Stone & Rolls Ltd (in liquidation) concerned Mr
S, a fraudster, who set up a one-man company (in other words he was
effectively its sole shareholder and director) called S&R. He then used S&R to
defraud various banks out of large sums of money. Eventually the fraud was
detected and the banks sued S&R and Mr S for damages (using a tort called
‘deceit’). The banks’ claims were successful, but the problem was that neither
Mr S nor his company S&R had any money left to pay what the judgment
demanded. So the banks had achieved a hollow victory.
Shortly afterwards, S&R went into liquidation—this is the equivalent for a
company of an individual going bankrupt, meaning it had no assets or money to
pay all the debts it owed. When a company goes into liquidation, professional
insolvency practitioners (‘liquidators’) take over control of the company, with
the task of gathering in all the company’s assets and paying out as much as
possible to the people who are owed money by the company (known as
‘creditors’). The liquidators act in the name of the company, but with the sole
purpose of maximising the amount available to pay the creditors.
What happened next was that S&R (being controlled by its liquidators of
course) sued a firm of accountants called Moore Stephens. Moore Stephens had
been S&R’s auditors for many years, which means every year they checked
S&R’s accounts and produced an audit report. The gist of the claim brought
against them was that they had negligently failed to spot the fraud being
perpetrated by S&R and therefore allowed it to rack up huge liabilities to the
banks—in other words, the allegation was that if Moore Stephens had done its
job properly, it would have spotted the fraud sooner and nipped it in the bud.
If you take a step back, you might be struck by the audacity of S&R’s claim,
which is effectively, ‘I want damages from you to compensate me for the

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financial consequences of my own fraud’! But S&R argued that it was also the
victim of the fraud—the real perpetrator was Mr S—and that part of the
auditors’ role was to be on the lookout for the controller of a company using it
for fraud.
What does the law have to say? There are two important principles of
relevance here. First, the law does not allow someone to rely on their own
illegality in legal proceedings. This is a vital principle of public policy, usually
expressed in Latin as, no cause of action can arise ‘ex turpi causa’. The easiest
example is to imagine someone who has paid an assassin to murder his wife—if
the assassin pockets the fee but does not go ahead with the murder, the
husband’s attempt to sue the assassin for breach of contract will be prevented by
the principle of illegality. He will not be allowed to plead or enforce his own
illegal contract. Unfortunately, most examples are not so clear cut and illegality
is a difficult concept, not least because by declining to assist a claimant whose
claim is tainted with illegality, the effect of the principle is often to leave the
other (equally culpable) party, like our assassin, having made a profit from the
illegality. But as the courts sometimes say, preventing someone relying on their
own illegality is a principle of public policy not of justice.
The second principle that arises on the facts of Moore Stephens concerns
companies and how they are treated by the law. Crucially, a company is an
entirely separate ‘person’ in the eyes of the law from the individuals who set it
up and run it. A company can make contracts, borrow money and buy things
itself; more to the point, it can incur liabilities and debts which do not bind the
people actually running the company. Now that is all very well in theory, but a
company is just a legal notion, existing on paper—what the law needs is a set of
rules to determine which acts by the people running the company are deemed to
be the acts of the company and which are not, known as principles of
attribution. These also tell us whether wrongdoing by the people in the
background who control the company is treated as wrongdoing by the company
or against the company.
Anyhow, back to the litigation. Moore Stephens applied to strike out the
company’s claim at a preliminary stage, on the basis of ex turpi causa—S&R
could not benefit from its own fraud. The majority of the House of Lords agreed
and struck out the claim, explaining that Mr S’s fraud was attributed to S&R
since it was a one-man company and thus was effectively the perpetrator and
not the victim of the fraud. This meant that S&R was attempting to rely on its

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own illegality, something prohibited by the ex turpi causa principle.
Whilst this at first glance might appear self-evidently the right answer, the
two Law Lords in the minority were troubled by the fact that, since S&R was
already insolvent, Mr S would not gain a penny from an award of damages. So
if Moore Stephens could plead ex turpi causa to defeat the claim, the real losers
would be S&R’s innocent creditors, including of course the defrauded banks!
As Lord Scott, one of the two dissenters, said:
In a case, such as the present, where the company is insolvent and will stay
so whatever damages are recoverable from the auditors, the need to ensure
that the delinquent director does not benefit from the damages does not
present a problem. There is no possibility of Mr S benefiting from any
damages recoverable from Moore Stephens. So, I repeat, why should the ex
turpi causa rule, a rule based on public policy, bar an action against the
auditors based on their breach of duty? The wielding of a rule of public
policy in circumstances where public policy is not engaged constitutes, in
my respectful opinion, bad jurisprudence.
Once you appreciate that all five Law Lords in Moore Stephens agreed on the
applicable legal rules and principles, you are forced to think carefully about why
those judges disagreed about the result in the case. Essentially, the answer is
that they had to make value judgments about whether those rules should be
applied or distinguished, and how they should be interpreted, as lawyers
invariably have to do when faced with a new factual situation.
When doing so, some of the considerations taken into account are obviously
legal (such as whether extending an existing rule to this new situation would
‘flood’ the courts with too many new claims or disrupt existing legal rights too
drastically), but many other sorts of question are relevant too, such as
considerations of morality, economic theory and ethics. For example, you will
recall from chapter 2 that all the judges in R v Brown made certain assumptions
about the moral framework underlying the criminal law—if the judges hadn’t
made a value judgment (one way or the other) on that non-legal issue, it would
not have been possible to decide the case ‘according to the law’. In chapter 3 we
saw that economic assumptions underpin much of the law about remedies for
breach of contract, based on the functioning of a market in a capitalist economy.
And in the failed sterilisation cases discussed in chapter 4 the courts came face-
to-face with ethical judgments about the value of human life and questions of
distributive justice in a society such as ours with a publicly funded health

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service.
Precisely the same sorts of disagreements arise about the proper
interpretation of European Union law and other international legal texts. In this
context other issues also come into play—such as the multilingual environment
in which the texts were drafted and different cultural norms. Some of these
issues can be seen in P v S, a decision of the Court of Justice where the Court’s
interpretation was swayed less by a literal reading of the text and more by
underlying values. P, a male-to-female transsexual, was dismissed on the
grounds that she was undergoing a sex change (or ‘gender reassignment’ as it is
properly known). Because, at that time, English law did not prohibit
discrimination on grounds of gender reassignment, P argued that European
Union law, in particular the Equal Treatment Directive 76/207 (now Directive
2006/54), did cover her situation. The question for the Court of Justice was
whether the word ‘sex’, in the phrase ‘there shall be no discrimination
whatsoever on the grounds of sex’ used by the Directive, was broad enough to
include ‘change of sex’. The Court of Justice said yes. Its judgment was
influenced by the passionate opinion of the Advocate General who urged the
Court to take a ‘courageous’ decision and interpret the word ‘sex’ to include
change of sex because such an interpretation is ‘undeniably based on and
consonant with the great value of equality’. The result was that P won her case
and her victory benefited many other transsexuals, because the UK government
adopted the Sex Discrimination (Gender Reassignment) Regulations (now
found in the Equality Act 2010) amending British law to prohibit discrimination
against transsexuals.
The realisation that judges are often making value judgments prompts the
question: are unelected lawyers, judges in particular, the best equipped and most
appropriate people to decide these sorts of issue and to mould the law by
reference to them? Some people suggest that since judges are predominately
from an elite social and educational background, they are not sufficiently
representative of the community. To make matters worse, stories about High
Court judges not understanding references to pop groups serve only to
undermine further the public’s trust in them. On the other hand, most people’s
experience of the judicial system in operation is extremely positive (at least in
so far as the intelligence, sharpness and impartiality of the judges is concerned).
Some people have argued that recent legislation, especially some of the recent
reforms to the criminal law, suggest that our elected representatives cannot

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always be relied on for common sense and independence and be guaranteed to
protect citizens’ fundamental rights.
You have probably also noticed throughout this book that some judges are
more willing than others to be creative when moulding the law. Perhaps the
clearest example was the 2003 case of Rees v Darlington Memorial Hospital
Trust discussed in chapter 4, in which the House of Lords invented a new
£15,000 damages award to be given in future to parents of ‘unwanted’ babies, a
remedy that appeared to be plucked out of thin air and with no precedent to
support it, as astonished commentators have pointed out.
More recently, the House of Lords disagreed openly about whether another
new tort rule could be developed by the judges at common law or whether it
was too radical and should therefore be left to Parliament. The case involved an
unusual tort called conversion which covers taking someone else’s property
(roughly speaking it is the tort equivalent of the crime of theft, but does not
require the same level of fault as the criminal offence). Conversion usually
applies to tangible goods, but the House of Lords was pondering whether it
should be extended to cover intangible ‘things’ like contractual rights (see the
discussion of ‘choses in action’ in chapter 6). Under the existing law,
conversion does apply if the intangible right is embodied in a physical
document like a cheque or a share certificate. So, for this reason, Lord Nicholls
thought that the common law could and indeed should extend the law to purely
intangible rights. In his view:
The time has surely come to … recognise that the tort of conversion applies
to contractual rights irrespective of whether they are embodied or recorded
in writing. I would so hold. This would be a modest but principled extension
of the scope of the tort of conversion.
In contrast, Lord Walker took entirely the opposite view:
Lord Nicholls makes a powerful case for extending the tort of conversion so
as to cover the appropriation of choses in action. But in my opinion his
proposals would involve too drastic a reshaping of this area of the law of
tort…. It would have far-reaching consequences which this House is not in a
position to explore or assess fully. This is an area in which reform must
come from Parliament, after further consideration by the Law Commission.

Perhaps the most famous (some would say notorious) exponent of judicial

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creativity was Lord Denning, a brilliant lawyer who reached the Court of
Appeal just after the Second World War at the remarkably young age of 49 and
did not retire until the 1980s. His attitude to inconvenient precedents standing in
the way of reaching the ‘right’ result is seen in the following characteristically
sweeping passage from Hill v CA Parsons Ltd, a 1971 case about whether a
court could, in exceptional circumstances, order an injunction to prevent an
employer from wrongfully dismissing an employee:

The judge said that he felt constrained by the law to refuse an injunction.
But that is too narrow a view of the principles of law. He has overlooked the
fundamental principle that, whenever a man has a right, the law should give
a remedy…. This principle enables us to step over the trip-wires of previous
cases and to bring the law into accord with the needs of today [emphasis
added].
In stark contrast, other judges take a much more conservative approach to what
they can do when faced with a ‘problematic’ precedent or statute. This is well
illustrated by the decision of the House of Lords in Hicks v Chief Constable of
South Yorkshire, another tort case which arose (like Alcock, discussed in chapter
4) from the Hillsborough football stadium disaster in 1989. Almost 100
Liverpool fans were crushed to death against barriers separating the crowd from
the pitch when the police negligently opened gates at the rear of the stand,
allowing more fans to surge in. Sarah and Victoria Hicks, aged 19 and 15, were
among those killed and their parents sued the police for damages in the tort of
negligence; they did this, not for financial motives, but as Lord Bridge
explained, ‘to mark the anger of these parents and other bereaved relatives as to
what occurred’ (although you will remember that an award of damages is not
intended to be punitive).
The Fatal Accidents Act 1976 provides for bereavement damages of £7,500
to be awarded if a claimant’s spouse or minor child was killed by the
defendant’s negligence, so this sum was awarded in respect of Victoria’s death.
(Does it surprise you that a bereaved mother whose young child is killed by the
defendant’s negligence receives only half the amount of damages that Rees
gives to the mother of a child who would not have been born without the
defendant’s negligence?) But Sarah was over 18 and so this provision did not
apply in her case. However, an entirely separate statute also provides that if a
legal claim has accrued to a deceased person during his or her lifetime, most

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such claims will survive for the benefit of the deceased’s estate— in practice,
this means that the deceased’s personal representatives are permitted to bring a
claim if the deceased could have done so just before their death. The sisters died
without leaving a will, but their parents became their personal representatives
(known as administrators) and sued the police on behalf of their deceased
daughters’ estates, to recover damages for the pain and suffering experienced by
the girls before they died.
The problem with this claim lay in existing case law, which said that a
distinction had to be drawn between pain and suffering experienced before
death and the pain and suffering of death— the deceased accrued a right of
action in respect of the former during his or her lifetime, but (by definition) not
the latter, so only the former survived for the benefit of the estate to be claimed
by the deceased’s personal representatives. The judges in Hicks felt compelled
to decide that this existing case law prevented any damages being awarded in
respect of the deaths, despite expressing ‘regret’ at this conclusion. Had he been
judging the case, Lord Denning would almost certainly have found a way to
avoid the ‘tripwires’ of those existing precedents so as to give damages to the
bereaved parents. Very few lawyers and commentators would have objected had
that (opposite) result been reached in Hicks, but more generally justice is not
necessarily better served by judicial creativity— there are sometimes
considerable advantages in judicial conservatism, at least where that means that
the law is certain and predictable.
In fact, you will have noticed throughout this book that there is invariably
tension between two inconsistent characteristics, both of which can claim to
make ‘good’ or ‘just’ laws, namely certainty and flexibility. It is very important
that legal rules are clear, predictable and consistently applied, but too much
certainty can bring inflexibility and injustice. On the other hand, although it is
vital that the law is flexible enough to produce fair results tailored to the
individual merits of a given situation, too much flexibility can bring uncertainty
and unpredictability. Getting the balance right is not easy and different areas of
law will strike that balance in different ways. For example, the law of contract
operates for the most part in the commercial sphere, where businesses need
predictable, clear rules so that they can enter into transactions knowing
precisely where they stand and what the law’s response will be if things go
wrong (remember Lord Hobhouse’s convincing dissenting speech in the Blake
case considered in chapter 3). Too much emphasis on tailoring results to the

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individual merits of a case would be highly undesirable in commercial contracts
(less so, perhaps, in consumer transactions). In criminal law, on the other hand,
where the liberty of citizens is at stake, flexibility is very much more important
—the same sentence for everyone who commits the same offence would be
extremely clear and easy to apply, but it would not do justice to the individual
defendant for whom there may have been mitigating—or indeed aggravating—
factors. But even in criminal law, too much discretion would be a bad thing—
no decent legal system could function if, for example, the law gave judges
discretion to ‘tailor’ the elements of offences or the rules of evidence to match
the ‘merits’ of a case.
This tension was particularly evident in chapter 6, when we considered the
role of equitable principles in modern society. Equity began as a flexible,
discretionary jurisdiction to do justice by reference to the conscience of the
parties, in response to the obvious harshness of the early common law’s strict,
‘letter of the law’ attitude. But in the twenty-first century, equitable principles
have very important functions in commercial and property transactions, both of
which need certainty to ensure the security of investments and proprietary
rights.
The same tension is apparent in the tort of negligence considered in chapter
4, especially in setting the standard of care against which the defendant’s
conduct is judged. You will remember that English law sets an objective
standard, comparing the defendant’s conduct with that of the hypothetical
reasonable person placed in the same situation. This makes for certainty and
ease of application— imagine how hard it would be to administer a subjective
standard of care requiring evidence of whether the defendant fell short of his or
her own normal standard of care— but can lead to apparent unfairness, as when
a person of below-average intelligence or ability is judged against a standard
that they could not possibly be expected to attain. This is acceptable as a civil
law standard of ‘wrongdoing’, but would be much more controversial if used as
a criminal level of fault.
Indeed, if we step back from the detail of the law we can see the same
tensions at a more general, theoretical level. It is vitally important for any
decent legal system to have clear, publicly ascertainable rules, so that the public
can know in advance what they may or may not do, what rights they have and
how their disputes will be resolved. This goal is best served by a small number
of very basic, rigid rules, not complicated by exceptions or discretionary

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qualifications, yet this is inconsistent with doing justice in the individual case,
also a vitally important goal of a decent legal system. Think, for example, about
whether it would be feasible for a western, capitalist legal system to operate its
law of contract on the basis that a promise must be kept unless the welfare of
the majority of the citizens would be maximised if it were broken. You will
briefly have considered this notion of utilitarianism in chapter 2. Lawyers really
ought to consider general issues of this sort, unless they are content to accept the
existing legal regime without questioning it at all.
We are starting to see that identifying, understanding and applying the law
involves all sorts of considerations and values that are not straightforwardly
legal issues. This should prompt us to ask even deeper, jurisprudential questions
about the law: for example, do non-legal considerations and values form part of
the law or not? There are echoes here of the discussion in chapter 7 about the
fundamental notion of the rule of law. What would happen if English judges
started to decide difficult cases by reference to unacceptable values or
prejudiced considerations? Would those decisions have the status of ‘law’ or
not?
From what you have read in chapter 7, are judges required to apply an
obviously immoral statute (eg one which allows the state to lock up citizens
without any access to courts) just because it was ‘properly’ enacted by
Parliament? Given the supremacy of Parliament, would it be consistent with the
rule of law to apply or refuse to apply such a statute?
Related issues arose in chapter 8, with consideration of what membership of
the EU means for parliamentary sovereignty in the UK, and are apparent
whenever English courts apply the European Convention on Human Rights.
You might be interested to hear the final twist in the tale of George Blake, the
notorious traitor we met in chapter 3 whose autobiography provided the
opportunity for the House of Lords to introduce the controversial remedy of the
‘account of profits’ into the English law of contract. Blake subsequently took
the UK to the European Court of Human Rights (ECtHR) and succeeded in his
claim that the UK breached his human right to have a fair hearing because it
took an inordinately long time to resolve the litigation about the profits from his
autobiography (over nine years from start to finish). Blake was awarded
damages of 5,000 euros by the ECtHR—can you imagine the House of Lords
reaching that conclusion if the question had been raised in the domestic courts?
The fundamental question of whether non-legal considerations and values

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form part of the law takes us to some very difficult debates about the meaning
of law and, in particular, its relationship with morality. What does ‘law’ mean?
Is it separate from morality or inextricably linked? Chapter 2 provides a good
introduction to some of the different views on this important relationship. Until
the nineteenth century, most legal philosophers (influenced by Aristotle)
believed that there was an underlying body of natural law with a moral content
and that the role of lawyers was to unearth and expound it. Later commentators
sought to separate the question of whether a particular rule or principle counts
as a valid law from the equally important question of whether that law is a good
law— an approach known as positivism. Positivists say that it is possible to
identify that something is ‘law’ by reference to its source and whether that
source is recognised as legitimate by the population, without making any claim
about its moral authority. After all, the Nazi government in Germany
scrupulously enacted laws to give dubious authority to its barbarous regime. But
positivism still doesn’t tell us precisely what is going on when a judge is
interpreting a given law, in the light of his or her moral, ethical and other
values, so as to decide whether the law should be applied to a new situation or
distinguished.
Finally, you will have noticed throughout this book that you can never
ignore the context in which a particular legal problem has arisen. The common
law system of precedent sometimes tempts us to look for higher levels of
generality than are actually appropriate; common lawyers are always keen to
identify general principles that connect diverse situations. Yet, very often, a rule
cannot simply be transplanted into a different factual context—the same answer
may not be appropriate, even where apparently the same principles apply. For
example, you may well have been surprised in chapter 3 to read that a a
nineteenth-century case about a fire department from Louisiana failing to
provide the contractually agreed level of service was cited to support the
creation of an exceptional new remedy for a treacherous breach of a government
contract of employment. Lawyers are so used to generalising that they
sometimes fail to notice how odd it is to cite and rely on such diverse cases in
this way. The same point was made in chapter 8, when discussing the extent to
which EU laws made in one context (the promotion of the single market via the
free movement of workers) should apply in the very different, rather special,
context of sport. You will probably have appreciated too that predicting how
precedents will be applied in the future also requires a keen sensitivity to

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context. For example, was the Blake ‘account of profits’ remedy appropriate
only because of the noncommercial, espionage context of the decision itself, or
is its rationale potentially wide enough to catch all contracts, even those in a
wholly commercial context? Only time will tell.
Context is sometimes the most important aspect of a decision. Think again
about Chhokar v Chhokar, discussed in chapter 5, with its wholly unusual,
indeed shocking, storyline involving collusion between the legal owner, Mr
Chhokar, and the third-party purchaser, Mr Parmar. How far do you think the
judges in Chhokar were influenced by this exceptional factual context when
considering the meaning of the crucial statutory phrase ‘actual occupation’? If
you are not sure, ask yourself how an analogous case should be decided
involving an equally wicked husband who, while his wife is temporarily away
from the family home, hides most of her obviously feminine possessions, then
purports to sell the house to a wholly innocent, if naïve, purchaser who knows
nothing about the wife’s interest in the house. This time there is no
reconciliation between wife and husband (he has disappeared with the proceeds
of sale), just a dispute about whether the innocent purchaser is bound by, or free
of, the innocent wife’s beneficial interest. It would be much harder for a court to
justify a conclusion that the wife remained in actual occupation in this situation
by virtue of the symbolic presence of her belongings. Indeed, a court might well
decide in favour of the naïve purchaser here, perhaps by pointing out that the
statutory word ‘actual’ must mean something, arguably the opposite of
‘symbolic’? And, in turn, the reasoning chosen to support this conclusion might
well depend, as we saw in chapter 7, on whether the judge wants the precedent
being set by the case to be confined to its precise facts or to be potentially
relevant in a broader context.
In conclusion, as a law student you will spend many hours reading, learning
and understanding details, principles and techniques. But, as we have tried to
show in this book, you will also spend a lot of time on more creative endeavours
—making connections and thinking about the implications of one legal rule
(whether from a statute, a case or some other source) in other areas, recognising
similarities and drawing distinctions, considering arguments and ideas from all
sorts of disciplines outside the law. If you find this an exciting challenge and are
ready for lots of reading, thinking and questioning, then we think you will relish
studying law at university.

217
Cases
Blake v UK, Application No 68890/01 [2006] All ER (D) 126 (case law of the
European Court of Human Rights can be found at www.echr.coe.int/echr)
Froom v Butcher [1976] QB 286; [1975] 3 All ER 520
Hicks v Chief Constable of South Yorkshire Police [1999] 2 All ER 65
Hill v C A Parsons Ltd [1971] 3 All ER 1345
Moore Stephens (a firm) v Stone & Rolls Ltd (in liquidation) [2009] 4 All ER
431
Case C-13/94 P v S and Cornwall County Council [1996] ECR I-2143
R v Williams [1923] 1 KB 340

Further reading
N Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights, 3rd edn
(London, Sweet & Maxwell, 2008)
JAG Griffith, The Politics of the Judiciary, 5th edn (Bodmin, Fontana Press,
1997)
HLA Hart, The Concept of Law edited, with a postscript, by Penelope A
Bulloch and Joseph Raz, 2nd edn (Oxford, Clarendon Press, 1997)

218
Epilogue

Now that you have been introduced to some of the key principles of the law,
why not take another look at the image on the front cover and see how many
legal issues you can identify? (Of course, it is an American street scene, but
imagine that it is set in the UK for this purpose.)
Most obviously, it looks as if a criminal offence is being committed in the
foreground, where a businessman is being held up and robbed at gunpoint. The
robber, if arrested and subsequently prosecuted, is likely to be sent to jail for a
substantial period. Can the businessman recover the money which was stolen?
What if the money had been paid into the robber’s bank account? Does it matter
that the robber acquired the money illegally?
Meanwhile, on the left-hand side of the picture, a postman is collecting
letters from a postbox. Perhaps one of the letters is a reply to a contractual offer,
in which the writer agrees to enter into a contract to buy a rare painting. This
reply subsequently gets lost in the post and the painting is sold to someone else.
Where, in contract law, does that leave the sender of the letter?
In the background there has been a road traffic accident. This accident may
also raise criminal issues (perhaps one or both of the drivers were driving
carelessly or dangerously), but the law of tort may also be relevant. Anyone
injured might sue the drivers for damages in the tort of negligence. If it was a
passenger who was injured, but she wasn’t wearing a seatbelt, her damages
might be reduced in proportion to her contributory negligence. A relative of the
injured passenger might even have a claim for damages, if he or she suffered a
recognised psychiatric illness caused by shock on seeing the accident happen or
coming upon its immediate aftermath. There appear to be photographers taking
pictures of the aftermath of the crash. Are they under any duty to help those
who may have been injured? And what about the pedestrians who appear to be
ignoring what has happened?
Plenty of people are out and about, but as a matter of land law who owns the
highway, the pavement and the land beneath? Not the drivers and pedestrians,
that’s for certain, yet they have rights of way over the land, to use it for passage

219
to and fro. In fact, there appears to be a gathering of people in the middle of the
picture. Is this a protest? If so, it raises issues of constitutional law as well. The
European Convention on Human Rights, incorporated into domestic law by the
Human Rights Act, protects freedom of assembly and freedom of expression.
But these rights are not unlimited. If the protest gets out of hand, the police can
intervene to prevent breaches of the peace and other public order offences from
being committed. And what if the police discover that some of the protesters are
nationals of other EU Member States? As EU citizens they have a right to be in
the UK. And EU law will provide them with protection against any police
decision to put them on a plane and deport them simply because they have been
involved in a breach of the peace.
On the right-hand side of the picture there is a stand where newspapers and
magazines are for sale. Perhaps the publications contain sensational and untrue
—or true—stories relating to a celebrity’s private life. Would the subjects of
such stories have any claims against the publishers? Can they do anything to
stop publication?
Finally, the picture itself raises important questions of property law. Who
owns the picture (and for our purposes the photograph of the picture)? This
involves a special type of property law, called intellectual property law, and, in
particular, the law of copyright. For your information, the publisher of this book
has entered a contract with the copyright holder to reproduce the picture. And
you have entered into a contract with the bookseller to buy this book or with the
publishers if you ordered the book directly from them. Law is all around you—
and that makes it fun and rewarding to study.

Catherine Barnard, Janet O’Sullivan and Graham Virgo

220
Index

A and others v Home Secretary see Belmarsh case

‘accounts of profits’ remedy, 224
actual bodily harm (ABH):
offences against the person and, 41
‘actual occupation’:
definition, 119–21
protection, 118–19
actus reus, 37, 212
anti-competitive agreements see TFEU Article 101
Anti-Terrorism, Crime and Security Act 2001, 160–1
Part 4, 151–3, 176
Belmarsh case, 171–2
incompatibility of, 173
appeal:
leave to appeal, 72
arbitration, 16
assault:
offences against the person and, 41
attempted murder, 31–3
elements of, 32
general principles of, 33
policy underpinning, 33
Attorney General v Blake see Blake, George
attribution, 215
autonomy principle:
welfare and, 50–1

bank charges:
case law, 23–4
Belmarsh case, 165–72

221
 Anti-Terrorism, Crime and Security Act 2001 part 4, 171–2, 173
detainees’ human rights, 166–72
European Court of Human Rights and, 167, 168–70
House of Lords’ decision in, 165–72, 178
Human Rights Act 1998, 170
Human Rights considerations, 172–4
post House of Lords’ judgment developments, 174–6
public or war emergencies, 168–70
Belmarsh Prison, London, 152–3
constitutional law and, 150
beneficiary trusts, 131
Blackstone’s Commentaries on the Law of England, 107
Blake, George, 84–6, 222–3, 224
Bosman case:
Article 267 reference procedure, 190–1
case facts, 183
Court of Justice judgment, 191–9
justification and, 198–9
proportionality and, 198–9
reliance on treaties’ provisions, 188
ruling,
football, consequences for, 200–1
general consequences, 199–204
UEFA rules and, 183–4
URBSFA rules and, 183–4
Bosman, Jean-Marc:
consequences of ruling for, 199
breach of contract, 60–3
damages for, 81–6
case law, 83–6
domestic building work and, 63–86
George Blake and, 84–6
building work:
domestic, 63–86

Carpenter case, 197–8

case law, 12–15

222
 citation see citation
reading cases, 14–15
sections of cases, 14
statutory interpretation, 23–6
causation:
offences against the person and, 41
cause of action, 19
change of position defence, 143–5
Charter of Fundamental Rights 2000, 193
Chhokar v Chhokar, 109–25
case facts, 109–10, 113–16
judicial decision in, 116–17
legal and equitable ownership aspects, 111–13
citation:
generally, 12–13
internet’s influence on, 13
neutral citation, 13
Citizens’ Rights Directive see Directive 2004/38
citizenship:
European Union see European Union citizenship
civil law, 11–12
coalition agreement, 158–9
common law:
rules for, 7
sources, 5–6
common law system:
legal reasoning and, 210
compensation:
contractual damages, for, 65–7
deterrence and, 98–9
consent, 212–13
harm, to,
bad reasons, 48–9
good reasons, 47–8
victim’s,
defence, can be, 46

223
 HIV cases, 53–4
post-Brown decision, 48–9
pre-Brown decision, 47–8
constitution:
ordinary law, as, 161–4
roles and powers, 153–5
United Kingdom’s, 155–6
see also specific subjects
constitutional law, 149–79
introduction, 149–53
constructive trusts, 132
consumer surplus, 76
application and interpretation of Ruxley, 79
context of decisions, 224
contract, 59–86
contractual expectation, 67–8
domestic building contract, disproportion approach, 78
generally, 59–60
remedies, 60–3
contributory negligence, 210–11
conversion, 218
‘cost of cure’, 68–71, 73–4
application and interpretation of Ruxley, 79
House of Lords’ Ruxley decision, 74–8
County Court:
Ruxley decision considered, 74–5
Court of Appeal:
R v Brown, 43
Ruxley appeal, 71–2
Court of Chancery, 129
Court of Justice:
Bosman judgment, 191–9
court structure:
England, in, 7–8, 10
courts:
dispute resolution, 15–17

224
 powers,
Human Rights Act and, 173–7
role of, 165–72
Small Claims Court, 16
criminal law, 37–57
criminal conduct, 39–40
defences to crimes, 38
elements of crimes, 37–8
external elements, 37
fault elements, 38
generally, 9, 11

damage claims:
defence to, 19
remedies, 19–20
statutory elements, 19
damages:
aircraft noise, for, 79–80
bereavement, 219–20
breach of contract, for, 61–2, 81–6
case law, 83–6
George Blake and, 84–6
contractual damages, 65–7
domestic building work, for, 63–86
invasion of rights, 102–3
loss and, 92
mental distress or disappointment, for, 76–7
negligence, for, 219
cases, 21–2
remedies,
mitigation, 62
deceit, 213–16
declarations of incompatibility, 174–6
Belmarsh judgment and, 175
defences:
change of position, 143–5
Denning, Lord, 218–19

225
derogation, 168
detention without trial, 151–3
deterrence, 38
case law, 99–100
compensation and, 98–9
tort and, 98–100
direct effect, 187–90
principles, 187–8
criticism of, 188–90
Directives:
definition, 187 2004/38, 187, 204–5
discretionary approach, 135
discretionary trusts, 131–2
discrimination approach, 195–6
dispute resolution, 15–17
distributive justice, 96–7
doctrine of supremacy, 182
Donoghue v Stevenson (1932), 89–90
duty of care:
McFarlane, in, 96
‘fair, just and reasonable’ aspects, 94–5
negligence cases, in, 88, 89–90
‘duty’ question, 91

elections:
Members of Parliament, of, 157–8
Prime Minister, of, 158
UK government, in, 157–8
employment:
racial discrimination in case law, 24–6
Equal Treatment Directive (76/207), 217
equitable interest:
sale of house and, 121
equitable tracing rules, 137–9
Foskett case, in, 136–41
equity, 127–47
development of, 128–9

226
 equitable entitlement, 117–18
generally, 127–8
influence of, 129–31
property ownership, 111–13
European Communities Act (ECA) 1972, 188
European Community Treaty, 184
European Convention of Human Rights (ECHR), 167
Article 5,
Belmarsh case, 167
Article 8, 54–5
Article 15,
Belmarsh case, 168–70
European Court of Human Rights, 17
European Court of Justice, 17
European Union citizenship, 202–5
non-economically active citizens and, 202–4
European Union law, 181–207
direct effect see direct effect
Directive 2006/54 see equal treatment
four freedoms, 185–7
interpretation of, 216–17
introduction, 181–2
key principles, 183–7
legislative measures, 187
multi-lingual environment, 216–17
national law and, 188
national legislative systems and, 188–91
supremacy effect see supremacy effect
treaties, 183–5
‘ex turpi causa’, 214–16
executive government powers, 162, 164–5
express trusts, 131–2

fiduciary relationships, 130–1

fixed trusts, 131
following and tracing rules see equitable tracing rules
Foskett v McKeown, 132–45

227
 case facts, 132–3
defences, 143–5
following and tracing rules in, 136–41
obiter dicta, 145
principles applied by judges in, 135–6
remedy of, 141–3
solutions to dispute, 134
four freedoms, 185–7
fraud, 213–16
free movement of persons, 196
Carpenter case and, 197–8
free movement of workers see Regulation 1612/68; TFEU Article 45

general principle:
legal sources in, 28–30
restitution and, 29–30
generalisation:
legal sources in, 128–30
negligence, in, 29
governmental power:
allocation, 153–4
constitutions and, 153–5
exercise of, 154–5
limitation of, 154
shared value, reflecting, 155
grievous bodily harm (GBH):
offences against the person and, 41–2
Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-La-NeveI, non-
economically active European Union citizenship, 203–4

harm, 91–3
consent to, 47–9
financial, 92–3
generally, 91–2
liability in tort cases, 100
psychiatric, 96–7
HIV case law, 53–4

228
home-grown player rule, 201
House of Commons, 158–60
enacting legislation, 161
House of Lords, 160–1
Belmarsh case decision, 165–72, 178
MacFarlane case and, 95–6
R v Brown, 43–6
authorities considered, 44–5
policy reasons, 45–6
technical considerations, 45
Ruxley appeal and decision, 72–8
Human Rights:
breach of,
Belmarsh detainees, 166–72
Brown decision, 54–5
constitutional status, 172–4
fundamental, 197–9
Human Rights Act 1998, 172–3
Belmarsh case, 170
courts’ powers and, 173–7
hung parliament, 158

illegality:
legal proceedings, in, 214–16
imagination in legal cases, 26
imprisonment without trial:
Belmarsh judgment effect, 174–6
inconsistency, 220–2
injunctions:
definition, 130
see also specific headings
integration:
negative and positive, 186–7
international law:
effect on UK law, 9
internet:
influence on citation, 13

229
judges:
dissenting judges’ judgments, 49–50
powers of, 6
types of, 15–16
value judgments, of, 217–18
judicial decision in Chhokar case, 116–17
justification, 197–9
Bosman case, in, 198–9

‘lack of amenity’, 70–1

land law, 107–26
introduction, 107–8, 109
law:
application of, 18–22
identification of problems, 18–20
definition, 4–5
describing, 17–18
judge-made tort and, 101
philosophy of law, 50–1
policy of, 30–1
principles of approach, 146
sources see sources of law
studying see legal studies
Law Commission:
Brown decision, report on, 55
generally, 6–7
law reform after Brown decision, 55–6
legal and equitable ownership, 111–13
legal constitutionalism, 176–7
legal method, 17–22
principles of approach, 146
legal study:
policy of law, 30–1
legal systems:
England, in, 5–15
Northern Ireland, in, 9
Scotland, in, 8–9

230
legal title and property ownership, 11–13
legislation:
enactment, 160–1
liability:
risk in tort cases, 100
Lisbon Treaty 2007, 184
loss:
damage, and, 92
loss of amenity, 73–4, 75–6
House of Lords’ decision in Ruxley, 77

Maastricht Treaty (1992), 202–3

malice:
offences against the person and, 41–2
Mareva injunction, 130
market access approach, 195–6
Mary Carpenter v Secretary of State for the Home Department see Carpenter
case
matrimonial house:
sale of, 114
transfer of title, 115–16
McFarlane v Tayside Health Authority, 87–104
case facts, 87–9
duty of care and, 96
effect of case judgments, 101–4
overseas case law, 103–4
judges’ speeches, 95–6
Members of Parliament elections, 157–8
mens rea, 37–8, 212
‘middle ground’ award, 70–1, 73–4
application and interpretation of Ruxley, 80
mitigation:
remedies for damages, 62
Moore Stephens (a firm) v Stone & Rolls Ltd (in liquidation) case, 213–16
motive and risk, 51–4

negligence, 221

231
 definition, 88
generalisation and, 29
liability for causing harm, 93
Scottish law, under, 87–9
suing for damages, 21–2
9/11 attacks, 150
response to, 151–3
non-legal considerations, 223
obiter dicta:
Foskett in, 145
generally, 15
offences against the person:
section 20 offences, 41–2, 53–4
section 47 offences, 40–1
sentencing, 42
ordinary law:
consequences of, 162–4
constitution as, 161–4
parliament:
executive control, 157–61
sovereignty of, 163–4
see also specific headings
parliamentary government, 157–61
political constitutionalism, 176–7
positivism, 223
precedent, 13, 210–11
common law system of, 223–4
distinction and, 20–1
making predictions, 21
preliminary reference or ruling, 190–1
principles:
established principles in Foskett, 135–6
private law, 12
property:
beneficial co-owner,
payment of rent, 123–4

232
 equitable interest to, 117–18
introduction, 108–9
ownership aspects, 111–13
registered transfer of title, 117–18
proportionality, 197–9
Bosman case, in, 198–9
proprietary base:
applicable principles in Foskett, 136
public emergencies see war emergencies
public law, 12
punishment:
reasons for, 38

R v Brown, 40–56
case facts, 40
Court of Appeal, appeal to, 43
decision,
final, 46–9
Human Rights and, 54–5
law reform after, 55–6
dissenting judges’ judgments, 49–50
House of Lords, appeal to, 43–4
judicial developments, following, 51–4
key issue, 42
key offences, 40–2
morality of defence, 46
trial procedure, 43
R v Wilson:
Brown decision followed, 52–3
racial discrimination:
employment case and, 24–6
rape, 212–13
ratio decidendi, 14–15
‘reasonable disagreement’, 212–17
Rees v Darlington Memorial Hospital Trust case, 217–18
damage and invasion of rights, 102–3
registered title:

233
 transfer, 117–18
transferees’ entitlements, 118–19
registered transfer, 117–18
Regulations:
definition, 187
1612/68, 187
rehabilitation, 38
remedies:
equitable, 129–30
Foskett in, 141–3
personal remedy, 141–2
proprietary, 141–2
rent:
payment of,
beneficial co-owner of house, 123–4
restitution:
general principle and, 29–30
retribution, 38
risk:
contract and, 61
motive and, 51–4
tort cases, in, 99–100
Ruxley Electronics and Constructions Ltd v Forsyth, 63–86
application and interpretation of, 79–80
case facts, 63–5
County Court judge’s decision, 70–1
Court of Appeal, appeal to, 71–2
House of Lords,
appeal to, 72–4
decision, 74–8
‘middle ground’ award, 70–1

sale of property:
division of proceeds, 121–3
shared residence, 123
Scottish law:
negligence under, 87–9

234
separation of powers, 153–5, 161–2
sex change, 216–17
sources of law:
generally, 5–15
primary, 5
secondary, 5
specific performance 129–30
statutes:
implementation of European law, 7
sources, 5
tort and, 100–1
statutory development and intervention, 6–7
statutory interpretation, 23–6, 119–21
judicial decisions, 25–6
supremacy effect, 187–90
principles, 187–8
criticism, 188–90

third parties:
tort actions’ effect on, 97
three plus two rule, 191–4
abolition of, 200
Court of Justice judgment on, 191–3
definition, 183
implications, 193–4
TEU, 184
TFEU, 183–4
Article 21, 203
Article 22, 203
Article 45, 183–4, 186, 191–2, 194
breach of transfer rules, 195
Article 56, 186
Article 101, 184, 191
Article 267, 190–1
tort, 87–105
conversion, 218
definition, 87

235
 deterrence, as, 98–100
third parties, effect on, 97
transfer fee rule, 183, 194–9
European Law, breach of, 194–8
transfer of title:
matrimonial home, 115–16
Treaty on European Law see TEU
Treaty on the Functioning of the European Union see TFEU
tribunals, 16
trusts and trustees:
equity and, 131
types of trusts, 131–2

UEFA, 182, 183

rules,
European Union law and, 188
Unfair Contract Terms Act 1977, 6–7
United Kingdom constitution, 155–6
absence of hierarchy, 163
flexibility of, 162–3
URBSFA (Belgian football association), 182,183
rules,
European Union law and, 188
Union of European Football Associations see UEFA
Union Royale Belge des Sociétés de Football Association ASBL v Bosman see
Bosman case

value and valuation:

contractual expectations, 67–8
market value,
small building works, 69
swimming pool, 68–70
value measurement, 68
vicarious liability, 68

war and public emergencies, 168–70

welfare principle and autonomy, 50–1

236
World Trade Center, New York:
constitutional law and, 150
wrongful dismissal, 218–19

237