TOMLINSON v CONGLETON BOROUGH COUNCIL

Reckless endangerment and the scope of relevant statute, prove the nucleus of a case where the civil liberties of the general public and a local authority’s duty of care ran risk of judicial pollution when a life-altering injury led to a damages claim.

Purpose-built from derelict land, the 14-acre Brereton Heath Country Park was home to a popular lake known as the ‘mere’, and although the appeal of the lake drew over 160,000 visitors a year, the controlling borough and local authorities had prohibited swimming through the presence of warning signs, leaflet distribution, lifebelts, throwing lines and constant supervision by park rangers, despite flagrant ignorance by the a majority of the attending public.

Unfortunately, on this occasion the 18 year-old respondent elected to stand in little over two feet of water before proceeding to dive in, whereupon he struck his head on the sandy bottom and broke the fifth vertebrae in his neck.

Now facing life as a tetraplegic, the respondent sought damages from the local authority under the Occupiers’ Liability Act 1957 and Occupiers’ Liability Act 1984 on grounds that a duty of care was owed as both a trespasser and park visitor.

For clarity section 2(2) of the 1957 Act stated that:

“The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”

Occupiers’ Liability Act 1957

While s.2(4) explained that:

“In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example) (a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe…”

Occupiers’ Liability Act 1957

However, in 1976 the Law Commission gave recommendation to a statutory duty of care for trespassers as was given effect in section 1(1) of the 1984 Act s.1(1) while sections 1(5) and 1(6) further read that:

“(5) Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.

(6) No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).”

Occupiers’ Liability Act 1984

This translated that where no award was found under the first Act, then the same would apply by extension to the second, while leading authority for the conversion from visitor to trespasser was found in Hillen v ICI (Alkali) Ltd; in which, the House of Lords had held that:

“So far as he sets foot on so much of the premises as lie outside the invitation or uses them for purposes which are alien to the invitation he is not an invitee but a trespasser, and his rights must be determined accordingly.”

Hillen v ICI (Akali) Ltd

And so, given the fact that swimming was overtly and historically prohibited, the respondent sought remedy as a trespasser with claims that the water had muddied his view of the bottom, whereupon mention was made to Whyte v Redland Aggregates Ltdin which the Court of Appeal had explained that:

“[T]he occupier of land containing or bordered by the river, the seashore, the pond or the gravel pit, does not have to warn of uneven surfaces below the water. Such surfaces are by their nature quite likely to be uneven. Diving where you cannot see the bottom clearly enough to know that it is safe to dive is dangerous unless you have made sure, by reconnaissance or otherwise, that the diving is safe, ie, that there is adequate depth at the place where you choose to dive. In those circumstances, the dangers of there being an uneven surface in an area where you cannot plainly see the bottom are too plain to require a specific warning and, accordingly, there is no such duty to warn…”

Whyte v Redland Aggregates Ltd

In the first instance, the judge held that the lake simply wasn’t dangerous enough to warrant local authority liability; and so, dismissed the claim, before the Court of Appeal extended the occupiers liability beyond one of reasonable limits and awarded damages.

However, under challenge the House of Lords fully considered the accountability of the respondent, before reversing the previous judgment and restoring the original findings  on grounds that the principle that individual risk-taking in the knowledge of visible danger was incumbent upon the owner, was counter-productive inasmuch as failure to acknowledge warnings was not a precursor for liability when the claimant suffers harm, whereupon the House reminded the parties that:

“[L]ocal authorities and other occupiers of land are ordinarily under no duty to incur such social and financial costs to protect a minority (or even a majority) against obvious dangers.”

CAMPBELL v MIRROR GROUP NEWSPAPERS (MGN)

Convention principles and the juxtaposition between public interest and individual  privacy lie central to a clamant’s case when the needs of a known supermodel are considered secondary to the public knowledge of her drug addiction, thus sparking fierce debate as to where the lines of journalistic privilege and private health ought to be drawn.

Following the appellant’s prolonged public denial, she was rushed to hospital for emergency treatment in what was described as an allergic reaction to antibiotics, however a few months later the appellant was photographed outside a known ‘Narcotics Anonymous’ venue before a newspaper article included a number of those images under the title ‘Naomi: I am a drug addict’; in which, the publication revealed that despite  repeated protests, the appellant was in fact a long-term narcotics user, and that in a battle to overcome her addiction, she had enrolled into a self-help programme. 

Unfortunately, one of the images had captured the sign of a well-known café, which allowed readers to know where she may be found and the article text revealed how often she might be attending, while prior to its release, the newspaper editor had contacted the appellant’s agent, whereupon they were told that the images proved a violation of the appellant’s right to privacy and confidentiality in relation the anonymous nature of her chosen therapy, and yet the respondents ran the story and litigation followed soon after. 

In the first hearing, the appellant claimed for breach of confidence and sought damages under the Data Protection Act 1998, whereupon she was awarded a total of £3,500, after which the Court of Appeal reversed and discharged the award before the House of Lords examined article 8(2) of the Human Rights Act 1998, which reads that:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, of for the protection of the rights and freedoms of others.”

Human Rights Act 1998

And article 10(2), which reads that:

“The exercise of these freedoms since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalities as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protections of the reputation or rights of others, for preventing the disclosure of information received in confidence, of for maintaining the authority and impartiality of the judiciary.”

Human Rights Act 1998

While noting how in Attorney-General v Guardian Newspapers Ltd (No 2) they had held that:

“[A] duty of confidence arises when confidential information comes to the knowledge of a person . . . in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the e­ffect that it would be just in all the circumstances that he should be precluded from disclosing the information to others.”

Attorney-General v Guardian Newspapers Ltd (No 2)

Before the House further noted how clause 3(i) of the Editors’ Code of Practice of the Press Complaints Commission provides that:

“(iii) It is unacceptable to photograph individuals in private places without their consent. Note – Private places are public or private property where there is a reasonable expectation of privacy.”

However, the House also referred to Bladet Tromsø and Stensaas v Norway, in which the European Court of Human Rights had held that:

“Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart in a manner consistent with its obligations and responsibilities information and ideas on all matters of public interest.”

Bladet Tromsø and Stensaas v Norway

Which was a position concurrent with section 12(4) of the HRA 1998, which reads that:

“The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to (a) the extent to which (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the pubic interest for the material to be published; (b) any relevant privacy code.”

Human Rights Act 1998

And so, by embracing both elements to the argument, the House upheld the appeal on grounds that clandestine nature of ‘Narcotics Anonymous’ protected the needs and identities of those attending, thus when the respondents gained unauthorised access to the appellant’s treatment, they did so in the knowledge that it represented no less than a violation of her article 8 rights, whereupon the House reminded the parties that:

“Any interference with the public interest in disclosure has to be balanced against the interference with the right of the individual to respect for their private life. The decisions that are then taken are open to review by the court.”

COUNCIL OF CIVIL SERVICE UNIONS v MINISTER FOR THE CIVIL SERVICE

Executive powers and national security form the footing of this call for judicial review under the argument that changes to civil servant working conditions were executed without due consideration of those affected.

In a relationship with a chequered history, it was decided by the Minister of the Civil Service (aka Prime Minister Mrs Thatcher) that since the previous strike actions of key staff within the Government Communications Headquarters (GCHQ) had proven destructive, it was necessary to execute instructions to ban any affiliation by government employees with trade unions of any sort.

While this unprecedented move was carried out under legitimate sovereign powers, it directly conflicted with the principle that governmental decisions were first offered to consultation with the trade unions as an inherent duty to exercise fairness when carrying out executive function.

On this occasion, the instructions were carried out under article 4 of the Civil Service Order 1982, but orally released within the House of Commons; and so greeted with natural anger and confusion, while the aim of this sudden prohibition was simply to circumvent open discussion in lieu of avoiding future strike actions now considered a significant threat to national security.

When heard at court level, the presiding judge had held that the instructions were issued on grounds demonstrating no effort toward consultation and were therefore invalid in their application.

Under challenge, the Court of Appeal had held that the executive action itself was not exempt from judicial review because the order came from prerogative powers rather than statute, and that despite the latter source forming the premise for most reviews, the Court saw no distinction between a self-executed order and that of an act of Parliament.

In response, the defence used by the Minister for the Civil Service relied upon operational safety measures, and how under those circumstances it was felt that the same people responsible for the previous compromises were right to be excluded from using consultation as leverage to create further damage; while it was further argued that any discussions between trade unions and Government would have amounted to the same outcome, regardless of protests by those affected. 

This position was further supported by the fact that sections (a) and (a)(ii) of article 4 of the Order in Council 1982 allowed the Minister to create regulations controlling the conduct of those employed, therefore denial of trade union membership lawfully fell within those remits.

When the Court upheld the Minister’s actions, the appellants pressed the issue, whereupon the House of Lords sought to establish whether judicial review was necessary, and whether the respondents had acted in manner that precluded fairness and a duty to follow precedent.

After which it was held that while the avoidance of discussion demonstrated a clear breach of that duty, it was not the responsibility of the courts to determine what constituted a threat to national security; and that the executive itself was empowered to prove or disprove itself as to its own actions; all of which, led the House to conclude that:

“[W]here a question as to the interest of national security arises in judicial proceedings the court has to act on evidence.”

FOSTER v BRITISH GAS

In the same way that Marshall v Southampton and South West Area Health Authority [No.1] determined the rights of female employees under the protections of Directive 76/207/EEC, this class action matter extended its scope to allow damages for dismissal under the guise of retirement.

When six former workers were subjected to forced retirement at the age of sixty, they sought remedy through the industrial tribunals on grounds that the respondent had violated its obligation to observe the Directive’s principles of equality; and so, they were entitled to compensatory payment in lieu of their significant financial losses.

In the first instance, the appellants claims were dismissed on the strength that since 1986, the British Gas Corporation had become a private entity and therefore fell beyond the scope of the Directive, while a subsequent appeal to both the Employment Appeal Tribunal and the Court of Appeal proved futile.

Undeterred, the appellants presented their case to the House of Lords, who sought a preliminary ruling from the European Court of Justice under article 177 EC, whereupon two questions asked: 

1. Whether the manifestation of British Gas Plc (at the time of the claim) was within the terms of the meaning “state”? 

2. And if so, what form the award might take? 

Having evaluated the facts, the House held that when Directive 76/207/EEC first came into force, it was ignored by the United Kingdom and subsequently failed to become part of domestic legislation within the provided timeframe; therefore, the respondents were state owned and subject to the terms of the Gas Act 1972, while the state’s failure to transpose the terms of the Directive left it open to the Community law doctrine that ‘no state can profit from its own failure’.

This resulted in a judgment for the appellants, on grounds that the terms of the Directive were fully applicable to the respondents as they qualified as an emanation of the state and were subject to the effects provided under it, while the Court also reminded the parties that:

“[T]he State may not benefit from its default in respect of anything that lies within the sphere of responsibility which by its own free choice it has taken upon itself, irrespective of the person through whom that responsibility is exercised.”

R v G

Reckless culpability and the innocence of youth, cross swords in a case that both rewrote the powers of legislation and allowed subjective reasoning to prevail, after two young boys aged just eleven and twelve spent the night outside, before playing in the rear storage yard of a Co-operative store.

What began as tomfoolery with matches and newspaper, wound up as criminal damage and arson totalling over £1m in damages; however, with equal consideration of English criminal law and precedent relating to the facts, it also became a matter destined to reach the House of Lords.

Having decided to camp out underneath the stars, the two appellants trespassed into the refuse area of the store and began reading discarded newspapers; after which, they set alight to a bundle of newspapers, before placing them beneath a large plastic dustbin. Without staying to watch the flames extinguish, the defendants later left the yard and presumably returned home. 

Unfortunately, as is the nature of fire, the flames ignited the bin, which subsequently ignited the adjacent bin, until the fire spread to the roof and beyond; and so, when first heard at trial, the judge rightly relied upon the exacting terms of section 1(1) of the Criminal Damage Act 1971, which reads that:

“A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an off­ence.”

Criminal Damage Act 1971

While the term ‘reckless’ remains subjectively difficult to ascertain, the application of this measure failed to discriminate between the range of comprehension created through age, disability, or intelligence.

This absence of evaluation forced the jury to determine the boys’ guilt on the objective reasoning of an adult, as established in R v Caldwell and earlier in R v Cunningham (albeit a case more reliant upon maliciousness than ignorance).

In Caldwell, the defendant had been intoxicated prior to choosing to set fire to his employer’s hotel, thereby putting the guests and staff in great danger, while noting that he had paid little mind to the consequences when starting the fire; hence, it was this case that led to an objective reasoning test that whilst applicable to most mature adults, offered little consideration for children or vulnerable adults in similar circumstances.

Having deliberated on the certainty of a fair conviction, the judge and jury were left finding guilt, although not without concern for the limitations of the  1971 Act; and so, with their challenge dismissed by the Court of Appeal, the appellants were granted leave to present to the House of Lords, where greater attention was placed upon the disparity of the Criminal Law Act 1977 and article 40(1) of the European Convention on Human Rights (Public hearings and access to documents), which expressed that:

“States parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”

European Convention on Human Rights

It was then with appreciation of the narrowness that recklessness previously enjoyed, that the House examined the relevance of continuing to broaden the scope of reckless behaviour, in order to avoid the need for deliberate and considered forethought to the mindset of those accused.

Upon revisitation of the case history preceding the Criminal Damage Act 1971, it became clear that overlooking the objective test had prevented fair and reasoned judgment; and that this particular case was the perfect vehicle upon which to amend that error, thus the House (by majority) declared the boys’ innocence and upheld the appeal, while clarifying that:

“[I]f the law is to operate with the concept of recklessness, then it may properly treat as reckless the man who acts without even troubling to give his mind to a risk that would have been obvious to him if he had thought about it.”

For further reading around both this case and a brief history of recklessness, please read the paper below.

GHAIDAN v GODIN-MENDOZA

Smith, Philip Henry; Flats, 1960; Williamson Art Gallery & Museum; http://www.artuk.org/artworks/flats-1960-67888

Same-sex relationships and the discrimination of landlords under death of secured tenants, provokes the wisdom of the judiciary when the progressive interpretation of existing statute is the only salient answer to a claim for devolved rights by the freeholder.

After living together in a committed homosexual relationship for over thirty years, the respondent had been left facing continued occupancy of the flat under the terms of an assured rather than secure tenancy following the death of his partner and secure tenant, thus by falling subject to the lesser of the two tenancies, the respondent had become vulnerable to potentially increased rents and no legal rights to challenge repossession should the freeholder decide to remove him.

Having sought enforcement under schedule 2 paragraph 1 of the Rent Act 1977 the appellant landlord argued that same-sex relationships were precluded from the enjoyment of direct succession of statutory tenancy as prescribed, however those surviving death could remain in occupation under an assured tenancy, as was held in Fitzpatrick v Sterling Housing Association Ltd.

Whereupon the respondent argued that as that case was raised prior to the Human Rights Act 1998 (HRA), devolution of rights through the application of the 1977 Act constituted a direct violation of articles 8 (Right to respect for private and family life) and 14 (Prohibition of discrimination) of the European Convention on Human Rights (ECHR), therefore he was free to remain in occupation under the same rights bestowed those in schedule 1 paragraphs 1, 2 and 3 of the 1977 Act, which stated that:

“1.Paragraph 2 or, as the case may be, paragraph 3 below shall have effect, subject to section 2(3) of this Act, for the purpose of determining who is the statutory tenant of a dwelling-house by succession after the death of the person (in this Part of this Schedule referred to as “the original tenant”) who, immediately before his death, was a protected tenant of the dwelling-house or the statutory tenant of it by virtue of his previous protected tenancy.

2. If the original tenant was a man who died leaving a widow who was residing with him at his death then, after his death, the widow shall be the statutory tenant if and so long as she occupies the dwelling-house as her residence.

3. Where paragraph 2 above does not apply, but a person who was a member of the original tenant’s family was residing with him at the time of and for the period of 6 months immediately before his death then, after his death, that person or if there is more than one such person such one of them as may be decided by agreement, or in default of agreement by the county court, shall be the statutory tenant if and so long as he occupies the dwelling-house as his residence.”

Rent Act 1977

Historically the courts viewed paragraph 3 of the Rent Act 1977 as designed to treat unmarried women as family members in order to allow assured tenancies to permit continuous occupancy when no marriage or family previously existed; however, Fitzpatrick widened the scope of entitlement when the House of Lords had held that:

“[T]wo people of the same sex can be regarded as having established membership of a family, one of the most significant of human relationships which both gives benefits and imposes obligations.”

FITZPATRICK v STERLING HOUSING ASSOCIATION LTD

In the first hearing, the court awarded for the respondent on principle that overt discrimination was not a virtue welcome in English law, while the Court of Appeal upheld the previous judgment, before the matter wound up before the House of Lords.

Here, the facts were given equal attention before the House dismissed the appeal on grounds that the time was right to embrace the universal nature of close and loving bonds and the freedoms of the Convention without a need for Parliamentary involvement, while further holding that:

“[T]he social policy underlying the 1988 extension of security of tenure under paragraph 2 to the survivor of couples living together as husband and wife is equally applicable to the survivor of homosexual couples living together in a close and stable relationship.”

IN RE BADEN’S DEED TRUSTS NO.2

In what was to become an overly protracted and yet hotly debated case, the question of trust instrument validity and the limiting scope of trust powers, fell upon the English courts to answer, when what appeared at the time was judicial wisdom, later proved a confused doctrine that polluted similar cases in the years following its declaration.

Having become the director of a highly successful M&E company first established in 1927, and as a man of inherent providence, the deceased had taken it upon himself to draft a trust deed in 1941, that would allow his current and former employees to benefit from financial gifts on a potentially recurring basis, while in addition to this their immediate relatives were also to enjoy similar windfalls, as was contained in clause 9(a) of the trust, which read that:

“The trustees shall apply the net income of the fund in making at their absolute discretion grants to or for benefit of any of the officers and employees or ex-officers or ex-employees of the company or to any relatives or dependants of any such persons in such amounts at such times and on such conditions (if any) as they think fit and any such grant may at their discretion be made by payment to the beneficiary or to any institution or person to be applied for his or her benefit and in the latter case the trustees shall be under no obligation to see the application of the money…”

However upon his death in 1960, the appointed executors notified the trustees that the trust was void for uncertainty, as it would be almost impossible to distinguish one employee from another, never mind any relatives known to exist at the time of his passing, which was a position adopted in light of the company’s growth from 110 to 1,300 employees during the preceding years.

Commencing by way of an originating summons in 1967, the trustees argued that clause 9(a) merely represented a power to distribute funds to a class of beneficiaries, while the executors held that the use of the word ‘shall’ created instead, a mandatory trust that once unable to be fully executed, would nullify itself and thus fall within the residual estate.

In the first instance, the Court of Chancery examined the construction of the deed, and found that due to discretionary nature of clause 9(a), the trust conferred a power upon the trustees, and not an immutable instruction that once unfulfilled, rendered the trust void for uncertainty; a statement upon which the executors challenged the findings in the Court of Appeal.

Here, the court referred to In re Gestetner Settlement, in which Harman J had held that when ascertaining the exactness of a trust deed beneficiary class:

“[T]he trustees must worry their heads to survey the world from China to Peru…”

In re Gestetner Settlement

Which was to suggest an immense undertaking for trustees, unless it could be proven that the deed conferred a mere power, in which case, reasonable certainty of the beneficiary class ought then be shown. In light of this precedent, the court subsequently held that as before, the context of clause 9(a) was such that the trustees were afforded discretionary powers, and so held that:

“[C]lause 9 of the deed may properly be construed as the judge did, by holding that it creates a power and not a trust…”

At which point the executors along with the deceased’s widow, pursued their argument before the House of Lords on grounds that clause 9(a) represented a mandatory trust, and that as such, the ruling in the recent Inland Revenue Commissioners v Broadway Cottages directed the decision of the court when it held that:

“[A] trust for such members of a given class of objects as the trustees shall select is void for uncertainty, unless the whole range of objects eligible for selection is ascertained or capable of ascertainment…”

Inland Revenue Commissioners v Broadway Cottages

Which it was argued, was now impossible due to the vast number of both former and existing employees, causal employees and extended family members; a contention that left the House allowing the appeal by way of reference back to the Chancery Court for greater clarification, while also holding that in their opinion:

“[T]he trust is valid if it can be said with certainty that any given individual is or is not a member of the class.”

Once again in 1972, the court reviewed the position on the wording, and thereby meaning of trusts and powers, along with the validity of the trust in relation to section 164 of the Law of Property Act 1925, which stipulated that:

“1. No person may by any instrument or otherwise settle or dispose of any property in such manner that the income thereof shall…be wholly or partially accumulated for any longer period than one of the following…(a)the life of the grantor or settlor; or (b) a term of twenty one years from the death of the grantor, settlor or testator…” 

Law of Property Act 1925

And so with a thoughtful, albeit exhaustible, examination of the deed, the court held that a discretionary trust did exist, and that despite the 31 years since its execution, such an instrument was valid when called into purpose, which echoed the sentiment of the House when the court further held that the trust was valid on the principle that there were sufficient company records to show, and thereby establish, who was reasonably eligible for the benefit of the funds when distributed by the trustees, upon which the executors challenged the judgment before the Court of Appeal one final time.

Here, the executors argued that unless an individual could not be proven as falling outside the scope of the trust, the trust must fail, while the court reasoned that while operating within the bounds of practicality, the trustees had shown that they were equipped to trace staff records back to the inception of the company, and thereby allocate the majority of employees and their immediate relatives, whereupon the court conclusively dismissed the appeal, while simply holding that:

“[A] trust for selection will not fail simply because the whole range of objects cannot be ascertained.”

R v M’NAGHTEN

Jury instruction for the defence of insanity dates back as far as the common law of England; however, in 1843 the time had arrived for a revision and clarification of what qualified as insanity, and how best to grant the jurors scope to reach a credible conclusion, as was shown in this now landmark case.

In January of that year, Daniel M’Naghten was indicted before the Middlesex Central Criminal Court on grounds that he had wilfully and with malice aforethought, murdered another man when shooting him in the back with a pistol.

During the trial, medical evidence presented was such that suggested a man was of unsound mind when afflicted with morbid delusions capable of rendering him unable to determine right from wrong at the time his act was committed, to which the defendant claimed such weakness as a defence.

When instructing the jury in The Queen v M’Naghten, Tindal LJ expressed that:

“The question to be determined is, whether at the time the act in question was committed, the prisoner had or had not the use of his understanding, so as to know that he was doing a wrong or wicked act. If the jurors should be of opinion that the prisoner was not sensible, at the time he committed it, that he was violating the laws both of God and man, then he would be entitled to a verdict in his favour: but if, on the contrary, they were of opinion that when he committed the act he was in a sound state of mind, then their verdict must be against him.”

The Queen v M’Naghten

Upon which, the jury returned a not guilty verdict and the matter was escalated to the House of Lords in order to explore both the existing legal position on insanity, along with the optimal and most effective use of jury instruction where cases required it.

By addressing a number of esteemed judges, the House requested clarification on the following five questions:

  1. What was the common law position on crimes involving insane delusions under a variation of circumstances ranging from simple offences to revenge or acts of public interest?
  2. What were the correct jury instructions in such matters?
  3. How much freedom should be given to jurors when assessing the defendant’s state of mind?
  4. Should a defendant shown to be delusional be acquitted of whatever crime is under discussion?
  5. Can a medical professional provide a credible and measured opinion of a defendant whose acts occurred both out of sight and mind of those providing such testimony?

To which, the judges tentatively answered:

1. “To render a person irresponsible for crime on account of unsoundness of mind, the unsoundness should, according to the law as it has long been understood and held, be such as rendered him incapable of knowing right from wrong.”

2. “[E]very man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”

3. “[T]here are no terms which the Judge is by law required to use. They should not be inconsistent with the law as above stated, but should be such as, in the discretion of the Judge, are proper to assist the jury in coming to a right conclusion as to the guilt of the accused.”

4.  “[I]f under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.”

5. “[T]he medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide, and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right.”

To which, the House expressed its sincere gratitude at placing the judges in such a position that might otherwise precluded them from venturing an answer to questions as broad as they were narrow.

 

JOSEPH CONSTANTINE v IMPERIAL SMELTING CORP.

ITALY – DECEMBER 10: Steamship on the seashore, by Vittorio Avondo (1836-1910). Italy, 19th century. (Photo by DeAgostini/Getty Images)

While the doctrine of frustration relies upon the existence of an unforeseen and so unexpected event, its design is not one that requires any element of blame in order to apply, as was seen in this case between a corporation and shipowner.

In August of 1836, the now appellants contracted to supply one of their steamships to the respondents for the purposes of transportation to a number of international sea ports by way of commercial enterprise.

Having been used for the reasons agreed, the ship was later anchored over the Christmas period, while awaiting further use until its return in January 1837.

Unfortunately, while dockside the ship suffered an enormous explosion that sent the auxiliary boiler over one hundred and sixty four feet from its original position, while the primary boilers were forced backwards by the blast; all of which, rendered the vessel inoperable and thereby unable to complete its journey to the respondents.

Having cited frustration of contract, the appellants looked to leave matters as they were; however, the respondents argued that the explosion had arisen by way of negligence and so damages were owed for the loss accrued. 

First heard in the Court of the Kings Bench, the judge held that the appellants were merely unwitting victims of unforeseen circumstances, particularly when a Board of Trade Enquiry had failed to establish any liability in relation to the cause of the explosion, or any possible negligence shown by those working on the ship at the time.

And so, in closing the court held that:

“It is plain that it has not been established that they were guilty of negligence and there is no finding of any negligence. The worst finding against them is under the one heading of possibility of negligence.”

To which the respondents challenged the finding in the Court of Appeals, who awarded in their favour while holding that:

“A party prima facie guilty of a failure to perform his contract cannot escape under the plea of frustration, unless he proves that the frustration occurred without his default. There is no frustration in the legal sense unless he proves affirmatively that the cause was not brought into operation by his default.”

After being denied leave to appeal, the House of Lords Appeal Committee granted it so that the issue of liability could be afforded examined and conclusive clarification, and so the matter was once again given due discussion.

In the first instance, Viscount Simon turned to Taylor v Caldwell; in which, the court held that: 

“[I]n contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance.”

Taylor v Caldwell

While Viscount Maugham noted that in Hirji Muji v Cheong Yue Steamship Co Ltd, the Privy Council held that:

“[W]hatever the consequences of the frustration may be upon the conduct of the parties, its legal effect does not depend on their intention or their opinions, or even knowledge, as to the event, which has brought this about, but on its occurrence in such circumstances as show it to be inconsistent with further prosecution of the adventure.”

Hiri Muji v Cheong Yue Steamship Co Ltd

Before illustrating that in Bank Line Ltd v Arthur Capel & Co, the House of Lords held that:

“I think it is now well settled that the principle of frustration of an adventure assumes that the frustration arises without blame or fault on either side. Reliance cannot be placed on a self-induced frustration; indeed, such conduct might give the other party the option to treat the contract as repudiated.”

Bank Line Ltd v Arthur Capel & Co

And so, it was that a uniform House held how the appeal court judgment was to be reversed on the very simple yet clear principle that: 

“[W]hen frustration in the legal sense occurs, it does not merely provide one party with a defence in an action brought by the other. It kills the contract itself and discharges both parties automatically.”

BLACKWELL v BLACKWELL

Verbal instructions that are then attested and complied with by the named trustees before the death of a testator, fall neatly between the rules of wills and probate and the equitable field of trust law.

On this occasion, the wish of a dying man was such that a large sum of money was to be held upon trust for a party outside of his marriage while unknown to his widow.

Having long agonised over his duty to make provisions for a mother and a child borne out of wedlock, it was decided by the testator to set aside several thousand pounds in the wish that five of his closest friends would act as trustees with the express purpose of investing the funds for the benefit of the two named parties, until such time that the trustees elected to provide them with two thirds of the initial sum, before placing the remaining third back into the residuary estate of his final will.

Upon his death, his widow discovered the bequest, and looked to dismiss its validity upon grounds of fraud and contradiction to the terms of the will where his widow and their son were to benefit from his entire estate.

As was common to domestic legislation, section 9 of the Wills Act 1837 read that no will (or codicil) shall be valid unless set in writing and signed by the testator in accordance with statute.

On this occasion, the instructions given by the deceased were initially verbal, and only put to writing by means of a memorandum drafted by his solicitor, who himself signed as a trustee and submitted it in support of the codicil.

Using the terms contained within the 1837 Act, it was argued that while the trust memorandum was written, the execution of the codicil was oral, and therefore fell outside the powers granted beneficiaries, unless it was in effect, designed to stand for the sole benefit of the widow through the residual estate; in which case the trustees would be acting in fraud should they look to enforce the terms of the codicil.

While decided twice in favour of the trustees, it was later put before the House of Lords, where the rules of equity were scrutinised in conjunction with proven case law.

Having examined the principle that equity will not permit statute to be used as a cloak for fraud, it was found that where a testator propounds a desire to execute a trust, and then proceeds to provide explicit instruction as to its use, any argument that seeks to undermine the intentions of that person through the use of legislation, must then find themselves party to fraud if they would instead stand to benefit from the funds expressly requested for the enjoyment of another.

In circumstances such as these, it was historically preferred that equity imputes the same responsibility as that agreed to by the original trustee, so that they would then act under the same instructions so as to permit the objective of the deceased to be realised, while this transference effectively circumvents the fraud and makes right, that which is prima facie claimed wrong.

Resting upon this proven application of jurisprudence, the presiding Lords established that far from looking to dissect the flaws proposed by the appellants, it was clear that any conflict arising from a lack of signatory validation, was insufficient when looking to overrule the will of the testator against a trust that by all accounts, left no illusions as to its purpose and means of delivery, and so awarded for the trustees while holding that:

“[V]erbal or written instructions communicated by a testator to a legatee and assented to by him create an enforceable trust…”

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