Decision-making in civil cases

From Dobson v Griffey [2018] EWHC 1117 (Ch):

[26] I must shortly consider the evidence adduced in this case in support of the parties’ respective cases. However, before I do so, I will say something shortly about how judges in civil cases decide cases of this kind. The lawyers involved will know all this. But the parties themselves may not. First of all, an obvious point. Judges are not superhuman, and do not possess supernatural powers. They listen to the evidence and other materials presented to them and the arguments made, and then make up their minds. However, they decide according to certain important procedural rules. I will mention three of them here.

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Evidence based on recollection

Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), per Leggatt J

15. An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.

16. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.

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Lord Reid on ‘Parliamentary intent’

We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said.per Lord Reid, Black-Clawson International Ltd v Papierwerke Waldhoff-Anschaffenburg AG [1975] AC 591, 613

The Usual Order

It is a predicament that any lawyer with courtroom experience will recognise.

In England, for example, many lawyers will have their own story about when they are instructed to go to court to apply for the ‘usual order’ only to be asked by the judge as to what order that might be and the hapless lawyer did not know.

It is an experience that should only happen once to a lawyer, if it happens at at all.

This is because the basic requirements of any court room advocacy are to know (a) exactly what order or other remedy you are asking for and (b) the applicable test to be applied by the court in granting that order or other remedy.

If you know nothing else, that is what you should always know before you open your mouth as an advocate.David Allen Green, ‘A bad day in court for Rudolph Giuliani’ davidallengreen.com

Lord Hoffman on the Intrinsic Value of Free Speech

A classic statement of the importance of the value of freedom of expression:

 Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self fulfilment of individuals in society. Secondly, in the famous words of Mr. Justice Holmes (echoing John Stuart Mill), “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”: Abraham v. United States 250 U.S. 616, at 630 (1919), per Holmes J. (dissent). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country: see Stone, Seidman, Sunstein and Tushnett, Constitutional Law, 3rd ed., (1996), 1078-1086. It is this last interest which is engaged in the present case. The prisoners argue that in their cases the criminal justice system has failed, and that they have been wrongly convicted. They seek with the assistance of journalists, who have the resources to do the necessary investigations, to make public the wrongs which they allegedly suffered.

R (Simms) v Secretary of State for the Home Department [2000] 2 AC 115 (Lord Hoffman).

Redmond-Bate v. Director of Public Prosecutions [1999] EWHC Admin 733

Mr. Kealy was prepared to accept that blame could not attach for a breach of the peace to a speaker so long as what she said was inoffensive. This will not do. Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers’ Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power. We in this country continue to owe a debt to the jury which in 1670 refused to convict the Quakers William Penn and William Mead for preaching ideas which offended against state orthodoxy.

[1999] EWHC Admin 733, per Sedley LJ at [20]

To be cited whenever anyone suggests that being offensive is a reason to suppress free speech.

Judgment Summary: Millett v Corbyn [2020] EWHC 1848 (QB)

This is a judgment on meaning in a libel claim between the blogger Richard Millett, and Jeremy Corbyn MP, former leader of the Labour Party.

The complaint stems from an interview given on the BBC Andrew Marr Show, when Corbyn was still the leader of the party. A video had surfaced of a meeting from 2013, in which Corbyn had described people who had attended a meeting as “not understanding English irony.” There was a public row about whether this statement was a form of antisemitism, and Andrew Marr asked Corbyn about this. In his response, Corbyn said that he was responding to people who has been “disruptive” and “abusive” in the meeting. Continue reading “Judgment Summary: Millett v Corbyn [2020] EWHC 1848 (QB)”

The Man on the Clapham Omnibus

Lord Reed, in Healthcare at Home Limited v The Common Services Agency [2014] UKSC 49:

1. The Clapham omnibus has many passengers. The most venerable is the reasonable man, who was born during the reign of Victoria but remains in vigorous health. Amongst the other passengers are the right-thinking member of society, familiar from the law of defamation, the officious bystander, the reasonable parent, the reasonable landlord, and the fair-minded and informed observer, all of whom have had season tickets for many years.

2. The horse-drawn bus between Knightsbridge and Clapham, which Lord Bowen is thought to have had in mind, was real enough. But its most famous passenger, and the others I have mentioned, are legal fictions. They belong to an intellectual tradition of defining a legal standard by reference to a hypothetical person, which stretches back to the creation by Roman jurists of the figure of the bonus paterfamilias. As Lord Radcliffe observed in Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696, 728:

“The spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is and must be the court itself.”

3. It follows from the nature of the reasonable man, as a means of describing a standard applied by the court, that it would misconceived for a party to seek to lead evidence from actual passengers on the Clapham omnibus as to how they would have acted in a given situation or what they would have foreseen, in order to establish how the reasonable man would have acted or what he would have foreseen. Even if the party offered to prove that his witnesses were reasonable men, the evidence would be beside the point. The behaviour of the reasonable man is not established by the evidence of witnesses, but by the application of a legal standard by the court. The court may require to be informed by evidence of circumstances which bear on its application of the standard of the reasonable man in any particular case; but it is then for the court to determine the outcome, in those circumstances, of applying that impersonal standard.

4. In recent times, some additional passengers from the European Union have boarded the Clapham omnibus. This appeal is concerned with one of them: the reasonably well-informed and normally diligent tenderer.

Lord Hoffman on legality and interpretation of statute

R (Simms) v Secretary of State for the Home Department [2000] 2 AC 115, 131 (Lord Hoffman):

Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.

Probably useful in the looming debate over the UK’s human rights framework and the extent of judicial review.