• Lord Bridge felt no doubts about the decision of the Court of Appeal over statute. • Lord Bridge refers to an earlier point in para 15 that it is wise to ‘refrain from interference’ in matters of legitimate judicial difference (see Appendix 1, p 313, para 15). • ‘If I were making the original decision, I should conclude without hesitation that it would not be fair or reasonable to allow the appellants to rely on the contractual limitation of their liability.’ • Appeal dismissed. A quick review of the paragraphs begins to show the patterns of argument delivery. Re-reading the paragraphs looking at the statutory diagrams (Figures 4.16 and 4.17, above) allows the argument to be reviewed whilst looking at the entire provision. The paragraph approach has also allowed the common law issue and the statutory issue to be isolated. Reviewing Figure 4.12, above, dealing with the facts, issues and procedural history enables the appreciation of the differences between the reasoning in the Court of Appeal and the House of Lords, although both courts reached the same decision. It should be possible at this stage to identify the precise rationale behind the court’s view of the common law issue and the statutory issue. In relation to the statutory issue, it should be possible to pinpoint precisely the statutory areas of relevance and how the court dealt with the issue. A summary of this information has been put into diagrammatic form in Figure 4.18, below. As proficiency is developed, it is possible to read carefully and move straight away to a diagrammatic representation, although, ultimately, a brief conventional textual note should be made to supplement the diagram. Brief, of course, as you will have seen, does not mean easy or simple!

In DPP v Morgan, the House of Lords correctly concluded that an accused who entertained a genuine belief that a woman was consenting to carnal knowledge of her person could not be convicted of the common law crime of rape as such a belief and the requisite mens rea to convict were mutually exclusive of one another. Though England and Wales have resiled from this position by virtue of the Sexual Offences Act 2003, s. 1(b), which allows for conviction upon proof that the accused did not reasonably believe that the complainant was consenting, the Morgan principle has retained its vitality at common law as well as under the various statutory crimes of rape that exist throughout Australia, most notably the provisions of s. 38 of the Crimes Act 1958 (Vic). Despite a long line of Victorian Court of Appeal decisions which have reaffirmed the Morgan principle, the court has construed s. 37AA(b)(ii) of the Act as leaving open the possibility of an acquittal despite the fact that the accused acted with an awareness that one or more factors that are statutorily deemed as negating consent under s. 36(a)–(g) of the Act were operating at the time of his or her sexual penetration; specifically, the court held that the foregoing factors do not necessarily preclude a jury from finding that the accused acted in the genuine belief that the complainant was consenting. This article endeavours to explain how the accused could be aware of such circumstances at the time of penetration, yet still entertain such a belief. The article ultimately concludes that such an anomaly can only be explained through a combination of the poor drafting of s. 37AA(b)(ii) and the court's apparent refusal to follow the longstanding precept that ignorance of the law is never a defence to a crime, ostensibly prompted by its adherence to the cardinal precept that legislation is not to be construed as superfluous.

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Restrictive covenants, use of land, and the restraint of trade doctrine

Northern Ireland Legal Quarterly ◽

10.53386/nilq.v72i1.925 ◽

2021 ◽

Vol 72 (1) ◽

pp. 132-140

Author(s):

David Capper

Keyword(s):

Northern Ireland ◽

Common Law ◽

Commercial Activity ◽

Restrictive Covenants ◽

House Of Lords ◽

The Supreme Court ◽

The Common ◽

Article 5 ◽

Court Of Appeal ◽

Restraint Of Trade

The common law doctrine of restraint of trade has a well-established presence in relation to contracts of employment and contracts for the sale of a business. Beyond those specific areas it reared its head from time to time, but the legal test for its applicability was not a model of clarity. Where the covenantor ceded a pre-existing freedom to engage in commercial activity, the decision of the House of Lords in Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd [1968] AC 269 brought it within the doctrine, but the recent decision of the Supreme Court in Peninsula Securities Ltd v Dunnes Stores (Bangor) Ltd [2020] UKSC 36, on appeal from the Northern Ireland Court of Appeal [2018] NICA 7, has discarded that test in favour of one based on the structure of a trading society. Peninsula Securities was a case concerned with the applicability of the restraint of trade doctrine to covenants affecting the ability of a landowner and its successors in title to use the land in a way that potentially competed with the business of an adjoining occupier. The decision that the restraint of trade doctrine was not engaged in these circumstances was set against the power of the Lands Tribunal to modify or extinguish covenants affecting land under article 5 of the Property (NI) Order 1978.

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they are called the appellants, and again lost. They then appealed to the House of Lords, where they also lost. There was a lot of money at stake: the difference between the £201.60 that the seeds cost as awarded by the Court of Appeal or the £90,000+ that the trial judge awarded. Consider, for a moment, what you have read and what you know so far. Does it seem fair to you that George Mitchell won? If so, why? If not, why not? So far we have considered: (a) Procedural history. (b) Facts. (c) The operative rules of law: • It is known that both common law rules and statutory rules are relevant to the case. • Further, it is known that if the common law rules are found to apply in the seller’s favour he still has to jump the hurdle presented by the statutory rules. • Recall, if there is a clash between common law rules and statutory rules, the statutory rules prevail. (d) A verbatim account of the two issues in the case (however, these are probably not fully comprehended yet, despite Figures 4.13 and 4.14, above!): • It is clear that Lord Bridge will argue through each of the issues. • If the appellants succeed in issue 1 they may still fail overall if they fail over issue 2. (Can you understand why? The answer is in the first sentence of text setting out ‘the second issue’. See Figure 4.14, above.) • Logically, one would expect Lord Bridge to commence with the arguments over issue 1, the common law issue, as this is the gateway to an argument over issue 2 which will only take place if issue 1 is decided in the appellant’s favour (and this is contentious limitation clause what he does). (e) Understanding the clause. This is set out in Figure 4.15, below. Until all of these matters are linked and understood it is not possible to fully comprehend the reasoning in the case. Now take time to consolidate the information we have so far and return to the judgment of Lord Bridge, concentrating on his arguments concerning issue 1 (Appendix 1, p 310, para 3). 4.5.2.5 Stage 4: breaking into Lord Bridge’s speech You will have already read Lord Bridge’s speech by now. It is also now appreciated that the arguments in this case are quite complex and the initial method of breaking into the text for understanding is to look at each paragraph. Paragraphs are intended to convey a new idea. So each paragraph represents an idea or a cluster of ideas. Careful ordering of paragraphs is essential in a piece of writing if a sense of progression is to be maintained. Therefore when reading for understanding a précis of each paragraph begins the process of understanding.

Legal Method and Reasoning ◽

10.4324/9781843145103-76 ◽

2012 ◽

pp. 100-100

Keyword(s):

Common Law ◽

Text Setting ◽

Trial Judge ◽

House Of Lords ◽

Stage 4 ◽

The Common ◽

The Difference ◽

Court Of Appeal ◽

Initial Method

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Damages in Equity—A Study of Lord Cairns' Act

The Cambridge Law Journal ◽

10.1017/s0008197300086104 ◽

1975 ◽

Vol 34 (2) ◽

pp. 224-252 ◽

Cited By ~ 7

Author(s):

J. A. Jolowicz

Keyword(s):

Present Status ◽

Common Law ◽

House Of Lords ◽

Court Of Appeal

When, if ever, may a court award damages to a plaintiff whose case sounds only in equity, not in law? In Hooper v. Rogers an award of damages in respect of a nuisance which had not yet resulted in any relevant damage was upheld by the Court of Appeal. In Wrotham Park Estate Co. Ltd. v. Parkside Homes Ltd. Brightman J. awarded substantial damages for breach of a restrictive covenant to the successors in title of the covenantee against the successors in title of the covenantor. In Wroth v. Tyler damages for the non-performance of a contract for the sale of a house were assessed by reference to the value of the house at the date of the hearing, not the date of breach. In none of these cases could the decisions have been justified on common law principles alone and all are in fact founded upon the Chancery Amendment Act 1858, commonly known as Lord Cairns' Act. Yet in Redland Bricks Ltd. v. Morris, while the Court of Appeal considered that an elaborate discussion of that Act was necessary and, indeed, differed in opinion as to the result of its application to the circumstances of the case, the House of Lords, through Lord Upjohn, dismissed the matter briefly and categorically with the observation that Lord Cairns' Act had nothing whatever to do with the principles of law applicable to the case. The time seems ripe for an examination of the meaning and present status of the Act.

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14. Deceit

10.1093/he/9780199591985.003.0014 ◽

2013 ◽

Author(s):

Simon Deakin ◽

Angus Johnston ◽

Basil Markesinis

Keyword(s):

Eighteenth Century ◽

Common Law ◽

Economic Loss ◽

Physical Damage ◽

False Statement ◽

Pure Economic Loss ◽

House Of Lords ◽

The Common ◽

Modern Form

This chapter discusses the tort of deceit. The common-law rules concerning liability for dishonesty were synthesised to create the tort of deceit at the end of the eighteenth century in Pasley v. Freeman, and the tort takes its modern form from the decision of the House of Lords in Derry v. Peek in 1889. Most of the cases concern non-physical damage, that is to say, financial or pure economic loss, although the tort can also extend to cover personal injuries and damage to property. The requirements of liability are as follows: the defendant must make a false statement of existing fact with knowledge of its falsity and with the intention that the claimant should act on it, with the result (4) that the claimant acts on it to his detriment.

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The King Reports and the common law in South Africa

Journal of Global Responsibility ◽

10.1108/jgr-10-2019-0093 ◽

2020 ◽

Vol 11 (2) ◽

pp. 167-172

Author(s):

J. Michael Judin

Keyword(s):

South Africa ◽

Design Methodology ◽

Common Law ◽

Bill Of Rights ◽

Content Type ◽

The Supreme Court ◽

Task Team ◽

The Common ◽

Court Of Appeal

Purpose This paper aims to discuss the King Reports and Codes and the development of South Africa’s common law. The role of developing the common law is explicitly recognised in the Constitution, as is the obligation to give effect to the spirit, purport and objects of the Bill of Rights. With decisions of the Supreme Court of Appeal being based on the King Code, the King Code is now an integral part of South Africa’s common law. Design/methodology/approach When the task team drafting King IV commenced their work, one of the important issues raised with Mervyn King, as Chairman, was the challenge to ensure that King IV was aligned to the now firmly entrenched common law principles taken from King I, King II and King III. It is believed that this has been achieved and it is hoped that King IV (and the subsequent King Reports that will inevitably follow because the corporate milieu keeps changing) continues to enrich South Africa’s common law. Findings The King Reports and Codes have been made part of South Africa’s common law. Originality/value This paper fulfils an identified need to study the King Report and Code, as it relates to South Africa’s common law.

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The Common Law, Reasons and Administrative Justice

The Cambridge Law Journal ◽

10.1017/s0008197300099050 ◽

1994 ◽

Vol 53 (2) ◽

pp. 282-302 ◽

Cited By ~ 5

Author(s):

P.P. Craig

Keyword(s):

Common Law ◽

Case Law ◽

Public Law ◽

Public Authorities ◽

General Duty ◽

House Of Lords ◽

Recent Developments ◽

Private And Public ◽

The Common ◽

Home Department

The capacity of the common law to develop and evolve is well recognised within both private and public law. This is indeed one of its enduring qualities. The objective of the present article is not, however, to contribute to the jurisprudential debate concerning the nature of the adjudicative process at common law. My object is more modest. It is to consider and place in perspective some of the recent developments which have occurred at common law in relation to the duty of public authorities to provide reasons. It is a well known and oft repeated proposition that there is no general common law duty to furnish the reasons for a decision. It is equally well known that this proposition has been the target of regular attack by those who argue that such a general duty should exist. A reconsideration of both of these propositions is timely in the light of case law developments culminating in the House of Lords' judgment in R. v. Secretary of State for the Home Department, ex p. Doody.

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Smith v Chief Constable of Sussex Police; [2008] UKHL; 50

The Denning Law Journal ◽

10.5750/dlj.v21i1.348 ◽

2012 ◽

Vol 21 (1) ◽

pp. 141-152

Author(s):

Carol Brennan

Keyword(s):

Human Rights ◽

Common Law ◽

Law Reform ◽

House Of Lords ◽

Human Rights Act ◽

Human Rights Act 1998 ◽

The Common ◽

The Law ◽

The Relationship ◽

Exclusive Focus

WHO HAS FIRST CLAIM ON “THE LOYALTY OF THE LAW”?Smith v Chief Constable of the Sussex Police (hereafter Smith) was heard by the House of Lords at the same time as Chief Constable of the Hertfordshire Police v Van Colle and another because they had two uniting factors. First, they both concerned the recurring question of the ambit of police liability in the situation described by Lord Bingham thus: “…if the police are alerted to a threat that D may kill or inflict violence on V, and the police take no action to prevent that occurrence, and D does kill or inflict violence on V, may V or his relatives obtain civil redress against the police, and if so, how and in what circumstances?”2 Secondly, considering the cases together highlighted the wider issue of the relationship between decisions under the Human Rights Act 1998 (hereafter the HRA) and the development of the common law. The Law Lords embarked on a more extensive examination of these issues in Smith and thus that case will be the exclusive focus of this note. In addition, the study of Smith raises questions regarding proposals for law reform as well as about judicial perceptions of policy priorities.

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Brief Investigatory Detentions: A Critique of R. v. Simpson

Alberta Law Review ◽

10.29173/alr1314 ◽

1969 ◽

pp. 935 ◽

Cited By ~ 1

Author(s):

Tim Quigley

Keyword(s):

Ethnic Identity ◽

Minority Groups ◽

Common Law ◽

Case Law ◽

Real Possibility ◽

American Experience ◽

Police Powers ◽

The Common ◽

British Case ◽

Court Of Appeal

In this article, the author examines the brief investigative detention power created by the Ontario Court of Appeal in R. v. Simpson and challenges both the Court's reasoning and the way in which the decision has been followed in other Canadian jurisdictions. The common law power to detain an individual, based upon prominent U.S. and British case law, is inconsistent with the previous Supreme Court jurisprudence on police powers. The author demonstrates this by analyzing several cases involving police powers and joins the list of commentators who have urged the country's highest court to re-examine the Simpson doctrine. The author also argues that there has been a tendency for U.S. courts to grant increased discretion to the police even when such powers are unwarranted. There is a real possibility of a similar accretion of police powers in Canada. Moreover, the American experience also indicates that members of minority groups are frequently subjected to the rigours of brief investigative detention, often only because of their ethnic identity. Recent studies show that the same trend exists in Canada, serving to challenge democratic and egalitarian values that the Charter is designed to protect. The solution, according to the author, lies not with the Courts, but with Parliament taking the opportunity to define the extent and limits of brief investigative detentions.

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