‘Equity regards as done that which ought to be done’ while in this instance the maxim is perfectly suited to the exploitative coloration of a business agreement, when in September 1937 a parent company and subsidiary entered into a written lease agreement concerning a newly built block of flats.
Shortly after the outbreak of World War II the buildings became partially occupied due to the risk of bombing, and so in order to keep the relationship profitable and fair the claimants agreed to reduce the rent from 2500l to 1250l per annum, yet while the rent reduction was put in writing it failed to express the end of the revision despite the original lease agreement running for a period of ninety-nine years.
Although the defendants enjoyed the reduced rent up to December 1945 despite the buildings now enjoying full occupancy with many tenants now paying higher rents than those initially agreed, however the death of the parent company’s owner revealed the oversight, whereupon the claimant and surviving business partner sought to recover rent arrears to the sum of 625l for the period between 29 September 1945 and 25 December 1945, while the defendants argued that the letter containing the reduced rent constituted a legally binding and thus enforceable contract for the remainder of the lease.
Referring to the binding effects of a promise, the court of the King’s Bench quickly balanced the probability of a breach where an agreement to reduce rents was challenged, however on this occasion the court upheld the claim on grounds that when agreeing to the reduce the rent it had been undertaken with mind to the onset of war, therefore no reasonable person would have entered into an arrangement where one party would unlawfully profit at the expense of another, while further reminding the parties that:
“[A] promise intended to be binding, intended to be acted on and in fact acted on, is binding so far as its terms properly apply.”
In a case that was to result in a reduction of the Ghosh two-step dishonesty test, a professional card player is left with no choice but to pursue his winnings in the courts when the gaming establishment liable for the payout, cries foul on the pretence of cheating, which itself proves a concept that continues to elude judicial narrowness due to its mutable interpretation and seemingly countless applications.
Having established himself as reputable ‘advantage’ poker player in his home country of the United States, the appellant had spent a considerable number of hours playing Punto Banco at the respondents gambling house in Mayfair London, when at the point of his retirement, he had amassed winnings in excess of £7.7m, after which the respondents refused to release the funds on the premise that when playing against the house, the appellant had resorted to a number of techniques that were considered violative of the rules of play.
With no option other than to litigate, the appellant appeared before the Court of the Queen’s Bench, claiming recovery of his winnings while the respondents held that in short, the appellant had ‘cheated’ under s.42 of the Gambling Act 2005, which reads in part that:
“(1) A person commits an offence if he (b) cheats at gambling….”
While the Act also notes that:
(3) Without prejudice to the generality of subsection (1) cheating at gambling may, in particular, consist of actual or attempted deception or interference in connection with (a) the process by which gambling is conducted….”
In the first instance, the court noted that there was uncertainty as to whether the element of dishonesty was applicable to a claim of cheating, or if by definition, the act itself denoted dishonest intent, regardless of objective or subjective jury opinion, all of which left the court unable to determine if s.42 had in fact been breached, and so instead concluded that such claims would be best remedied in a civil court, thus the claim was dismissed, while the court held that:
“What precisely is condemned as cheating by section 42 of the 2005 Act and what must be proved to make out the offence is not, in my view, clear and it would be unwise if it is unnecessary, as it is, for me to attempt to determine what that might be.”
Whereupon the appellant pursued his claim in the Court of Appeal, who conversely held by a majority that the Ghosh test had no place in a cheating scenario, and was thus inapplicable to s.42 of the 2005 Act, although it was held by Lady Justice Arden that:
“[A] person may be liable to a criminal penalty for cheating if he deliberately interferes with the process of a game so that the game is then played to his or another’s advantage in a way which was never intended by the participants.”
And so when presented to the Supreme Court, the appellant continued his line of argument, while the court attempted to establish if dishonesty as defined by Ghosh, was to become an integral part of cheating under the 2005 Act, and if so, whether the appellant was guilty, and thereby liable for sentencing.
For clarity, the Ghosh test for dishonesty was based on the principle that:
“It is no defence for a man to say “I knew that what I was doing is generally regarded as dishonest; but I do not regard it as dishonest myself. Therefore I am not guilty.” What he is however entitled to say is “I did not know that anybody would regard what I was doing as dishonest.””
Thus having provided a thorough examination of the case itself, along with the mottled history behind the Ghosh test, the court took the liberty of simplifying the dishonesty test through the removal of the subjective element, and so while finding the appellant liable for cheating through his manipulation of the croupier, the court dismissed the appeal, while revising their standing on dishonesty by holding that:
“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”
Professional negligence and the balance of probabilities were, at the time of this hearing, key ingredients to the maxim ‘novus actus interveniens’, which is used to determine whether the actions (or inactions) of a third party can be held liable for the cause of death, even when the primary act or event was of such magnitude that nothing could have reasonably prevented a fatality.
On New Year’s eve of 1965, three college watchmen were self-admitted to the casualty ward of St. Stephen’s Hospital, London, complaining of sickness and associated vomiting. Ironically, one of the men had been admitted only hours earlier, after suffering a blow to the skull by an unknown campus intruder.
Upon their arrival, the duty nurse listened to their complaints, before communicating them by telephone to the medical casualty officer, who was himself at home suffering with a sickness and associated vomiting. Having heard their symptoms, the advice given was that they should return home and wait until feeling better, aside from the victim of the violent attack, who was asked to remain in the ward until his x-ray, which was due later next morning.
Angry that no immediate solutions were offered, the three men left and returned to their place of work. Shortly after arrival at the college, the injured watchman was forced to lay down, where he remained until the college doctor arrived at 1pm on New Year’s day, at which point his condition had significantly deteriorated, and so when arriving at hospital at 2pm he was pronounced dead.
Upon examination, it was revealed that for reasons unknown, the flask of tea shared by the men at 5am that morning, was contaminated with arsenic, which while not enough to kill all three, was present enough to prove fatal to one. It was for this reason that his widow sought damages from the defendants, on grounds that the inability of the hospital staff to both diagnose and treat her late husband, was in fact the primary cause of his death, and that a liability for negligence was clear through an inherent duty of care.
At the trial, the criteria for negligence under a duty of care was first addressed through the words of Denning J in Cassidy v Ministry of Health, when he explained:
“In my opinion authorities who run a hospital, be they local authorities, government boards, or any other corporation, are in law under the self-same duty as the humblest doctor; whenever they accept a patient for treatment, they must use reasonable care and skill to cure him of his ailment…and if their staff are negligent in giving the treatment, they are just as liable for that negligence as is anyone else who employs others to do his duties for him.”
While through p.183 of ‘Winfield on Torts’ 7th ed (1963) the court was reminded that:
“Where anyone is engaged in a transaction in which he holds himself out as having professional skill, the law expects him to show the average amount of competence associated with the proper discharge of the duties of that profession, trade or calling, and if he falls short of that and injures someone in consequence, he is not behaving reasonably.”
A principle that was furthered by the witness testimony of Dr. Stanley Lockett, who enthused:
“In my view, the duty of a casualty officer is in general to see and examine all patients who come to the casualty department of the hospital.”
However, upon close analysis of the timeline between the deceased’s complaints and the event of his death, it was confirmed that despite hypothetically following all the procedural requirements when treating patients, the hospital would not have been able to administer the named antidote for arsenic poisoning (B.A.L), or apply an intravenous drip any earlier than around 12pm New Year’s Day, therefore despite the obvious anguish of the claimant and her anger over her husband’s untimely death, the defendants could not be held legally liable for negligence, despite failing under their requisite duty of care.
While paving the way for a number of similar ‘religious obligations’ versus ‘convention rights’ cases, this protracted legal discourse reveals a number of indiscretions, that in many respects, served to influence legislative and educational policy in the United Kingdom, and illustrate how laws evolve through the integration of cultural norms and progressive state cohabitation.
After working as a supply teacher within the mainstream schools arena for a considerable number of years, the Islamic applicant took issue with the government, upon grounds that his need (or at least doctrinal requirement) to attend a mosque on Friday afternoons was being denied by statute; and that subsequent operational policy created the violation of a number of constitutional rights afforded to all citizens of the United Kingdom.
Citing art.9(1) of the ECHR (freedom of thought, conscience and religion) and art.14 (prohibition of discrimination), the applicant protested that s.30 of the Education Act 1994 stood in immediate conflict with his need to manifest his religious beliefs every Friday between the hours of 1.30pm to 2.15pm. Having been employed by a number of London Borough schools prior to his decision to resign rather than reduce his working hours, the applicant had been given verbal allowances by one school, and shown strict opposition by another, which bore an inconsistent position of unwillingness to accommodate a religious need, which until recently, had never been expressed nor discussed at the time of his original appointment.
When it was submitted that the repeated failure of a Muslim man to attend a mosque (subject to relative distances) would likely result in a beheading in a country such as Saudi Arabia, the applicant expected that the same principles would apply under domestic jurisdiction, and that those grounds, along with previous (albeit unofficial) allowances were sufficient enough to warrant time taken from his contractual duties, despite any inconvenience to teaching staff, pupils or the school as a whole.
After failing to find those arguments upheld in the domestic courts, the matter wound up before the European Commission for Human Rights, where it was unanimously decided that the terms of the Convention were constructed in such as fashion as to allow interpretation and consideration of all religions and beliefs, not just those of the applicant; and yet when willingly accepting a position of employment that brings with it a set of express and implied terms, the accepting individual takes ownership of how that agreement might impinge upon their religious requirements or obligations of faith, and must therefore act accordingly, thus the Commission dismissed the application, while holding that:
“[E]ven a person at liberty may, in the exercise of his freedom to manifest his religion, have to take into account his particular professional or contractual position.”