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THE

CAMBRIDGE LAW JOURNAL

VOLUME

35,

PART 1

APRIL

1976

CASE AND COMMENT

THE CROSSMAN DIARIES

The Diaries of a Cabinet Minister (Volume 1), Richard Crossman's

account of his twenty-two months at the Ministry of Housing
between 1964 and 1966, was finally published in December 1975.
Extracts had appeared in the Sunday Times earlier in the year. It
had been Mr. Crossman's ambition, as he explained in the Introduction to Volume 1, "to write a book which fulfilled for our
generation the functions of Bagehot's English Constitution a
hundred years ago by disclosing the secret operations of government,
which are concealed by the thick masses of foliage which we call the
myth of democracy." He in fact kept a diary from 1952 to the end
of 1970. Priority in publication has been given to the account of his
first, sometimes unnerving experiences as a Minister of the Crown.
Mr. Crossman, who died in April 1974, would have enjoyed witnessing the sequence of events in which the Secretary of the Cabinet
(Sir John Hunt) ruled that publication would be against the public
interest; the first extracts were nonetheless provided in the Sunday
Times without the Secretary's consent (deletions in subsequent
extracts were made to meet his wishes); and the Attorney-General
unsuccessfully applied in the Queen's Bench Division for injunctions
to restrain publication of the book or of extracts from it. Within a
week or so of the judgment of Lord Widgery C.J. in AttorneyGeneralv. Jonathan Cape Ltd. [1975] 3 W.L.R. 606, the AttorneyGeneral announced that he would not appeal.
Lord Widgery's judgment is in some ways a constitutional
lawyer's dream, replete with explanations of the conventions of
ministerial responsibility, comments about what actually happens in
the real world of politics, and passing references to the difference
between legal and moral obligations. There is even a new word"parameters "-to add to the vocabulary of constitutional usage,
though Lord Widgery warned that it is a word which "has been
much abused in the course of this case." The judgment is particularly
noteworthy because of its recognition of the need to balance com1
C.L.J.-1

The Cambridge Law Journal

[1976]

peting facets of the public interest. In several recent cases the English
judges have shown an unaccustomed readiness, which has perhaps
been fostered by growing awareness of the arguments for a Bill of
Rights, to inject this balancing process into their reasoning. "In the
present action .

. " said Lord Widgery, "the Attorney-General

asks for a perpetual injunction to restrain further publication of

the Diaries in whole or in part. I am far from convinced that he
has made out a case that the public interest requires such a
Draconian remedy when due regard is had to other public interests,
such as the freedom of speech. .. "
The emphasis in the Attorney-General's arguments was apparently upon the obligations of secrecy in relation to Cabinet information. Lord Widgery certainly stressed and elaborated upon the
doctrine of collective responsibility which he saw as "an established
feature of the English form of government," adding that the Cabinet
must be in possession of much information which is secret or confidential. His Lordship recognised an obligation on the part of
Cabinet Ministers to respect that secrecy or confidentiality, not
because of any liability arising from the Privy Councillor's oath (an
argument which was effectively discounted) but because it is in the
public interest to maintain the doctrine of joint responsibility. The
strongest supporting argument advanced by the Attorney-General
derived, in the court's view, from "the developing equitable doctrine
that a man shall not profit from the wrongful publication of information received by him in confidence," a principle which Lord Widgery
was prepared to see extended to apply to Cabinet Ministers receiving
information in confidence. It is perhaps ironical that a doctrine
closely related to the protection of privacy-see, for instance, the
Younger Report of 1972-should have been invoked to protect
governmental secrecy, though one can appreciate the logic as well
as the irony of the extension. Mercifully Lord Widgery recognised
problems both of substance (what matters merit protection?) and
of timing (for how long should the protection last?) which are
unlikely to encourage Law Officers to turn to equity with abandon.
The issue of timing was crucial in the case of the Crossman diaries.
Lord Widgery could not believe that after an interval of ten or
eleven years the publication of Volume 1 "would inhibit free discussion in the Cabinet of today, even though the individuals involved
are the same, and the national problems have a distressing similarity
with those of a decade ago." He admitted that there could in some
circumstances be grounds for continuing confidentiality but held
that the courts should, after a lapse of time, intervene only in the
clearest of cases. I his was not a clear case.

C.L.J.

Case and Comment

It is implied throughout the judgment that, where there are no

legal grounds for intervention by the courts, reliance must be placed
on "the good sense and good taste" of the Minister or ex-Minister
concerned. This would particularly apply, it seems, to official information outside the umbrella of Cabinet confidentiality. In Richard.
Crossman's case, the Attorney-General argued that further reasons
for judicial intervention were the fact that the diaries disclosed
advice given by senior civil servants and the fact that they disclosed
observations made by Ministers about individual civil servants. Lord
Widgery denied that there was any ground in law for intervening.
In effect he was denying to individual ministerial responsibility the
legal protection, such as it is, which is offered to collective responsibility. This should not be interpreted, however, as a recognition
of some lowly status for the convention of individual responsibility,
which is, after all, often accorded great respect by judges exercising
judicial review of administrative action. Indeed the Crossman case
provided the impetus for yet another Radcliffe Committee on issues
of secrecy, and the Report of January 1976 proposed internal
measures to strengthen the confidentiality behind both collective
and individual responsibility. This rapid response to the publication
of Mr Crossman's diaries and the equally rapid acceptance by the
Prime Minister of the proposed measures demonstrate the resilience
of constitutional conventions of ministerial responsibility.
One can accept many legitimate arguments for governmental
secrecy. As the Home Secretary said recently (in the Granada Guildhall lecture for 1975), it would be wrong to have the whole process
of decision-making carried on "under a public searchlight." But
despite the Fulton Report, the Sunday Telegraph case of 1971, the
Franks Report, and the Crossman diaries case, we still have no
replacement for section 2 of the Official Secrets Act or even a firm
indication of what sort of replacement is proposed. The decisionadmittedly outside the criminal law-in favour of allowing publication of Volume 1 of the Crossman Diaries may be regarded as a
victory for those who advocate greater open government. But the
gains should not be exaggerated; we are still a long way from
achieving a satisfactory reconciliation of the demands of secrecy and
openness in government.
D. G. T. WILLIAMS.

EXCLUSION OF ALIENS AND E.E.C. LAW

1 January 1973 the local legal systems of the United Kingdom

have co-existed with the system of European Community law
applicable in all the Member States of the Communities. ProSINCE

The Cambridge Law Journal

[1976]

cedurally, this means that our courts now may (and, in the case of
the House of Lords, must) refer questions of Community law to
the Community Court of Justice in Luxembourg for a "preliminary
ruling." Substantively, it means that the rules of our law must now
be interpreted and applied subject to any relevant rules of Community law. The constitutional implications of this new situation are
especially well illustrated by the first case in which a United Kingdom
court requested a preliminary ruling from the Community Court:
van Duyn v. The Home Office [1975] 3 All E.R. 190; [1975] 1
C.M.L.R. 1.
Miss van Duyn, a Dutch national, had sought to enter the
United Kingdom in 1973 to take up a secretarial post at the headquarters of the Church of Scientology at East Grinstead. She was
refused leave to enter the United Kingdom on the ground that "the
Secretary of State considers it undesirable to give anyone leave to
enter the United Kingdom on the business of or in the employment
of [the Church of Scientology]." The power to exclude was
exercised by immigation officers under section 4 (1) of the Immigration Act 1971 in accordance with rules laid down by the Secretary
of State. Rule 65 of the rules applicable to E.E.C. nationals permitted a refusal of leave to enter on the ground that "the exclusion
is conducive to the public good," in particular where it seems to the
immigration officer right to refuse leave to enter "if, for example,
in the light of the passenger's character, conduct or associations, it
is undesirable to give him leave to enter." The immigration officers
in Miss van Duyn's case were acting in pursuance of a Government
policy announced in 1968 by the Minister of Health. He said that the
Government were satisfied that Scientology was socially harmful
and had decided to take all steps within their power to curb its
growth, including the refusal of work permits and employment vouchers to foreign nationals for work at a Scientology
establishment.
Miss van Duyn challenged her exclusion in proceedings against
the Home Office in the High Court on the ground that it was unlawful
under Community law. She relied on Article 48 of the E.E.C. Treaty
which provides for free movement of workers from one Member
State to take up employment in another "subject to limitations
justified on grounds of public policy, public security or public
health." So far as the implementation of this proviso was concerned,
she relied on Article 3 of E.E.C. Council Directive 64/221 which
provided that " measures taken on grounds of public policy or of
public security shall be based exclusively on the personal conduct
of the individual concerned." Her contention was that the Govern-

C.L.J.

Case and Comment

ment's general objection to Scientology was not a ground related to

her personal conduct.
The English court was thus faced with the question which of the
three very different texts (the Immigration Rules, Article 48, or
Article 48 read with the Directive) contains the legal limit of the
official power to exclude and of the individual's right to enter?
Could Miss van Duyn rely on the Community texts as impliedly
restricting the powers under the British text? Translated into the
terms of Community law, the question was: are Article 48 of the
Treaty and Article 3 of the Directive directly applicable? If so,
then they come within the effect of section 2 (1) of the European
Communities Act 1972 under which "all such rights, powers . . .
restrictions from time to time created or arising by or under the
[Community] Treaties . . . as in accordance with the Treaties are

without further enactment to be given legal effect or used in the

United Kingdom shall be recognised and available in law, and be
enforced, allowed and followed accordingly. . .

."

This provision

gives effect to the Community law concept of direct applicability.

It also gives effect to the principle of the supremacy of Community
law, when it is read with section 2 (4) of the 1972 Act (".

. any

enactment passed or to be passed . shall be construed and have

effect subject to the foregoing provisions of this section ") and
section 3 (1) (". . .. any question as to the meaning or effect of any
of the Treaties or . . of any Community instrument shall be ...

for determination ..

in accordance with the principles laid down

by and any relevant decision of the European Court . . ."). The

principles of direct applicability and supremacy have been laid down

in consistent jurisprudence of the Court.
The High Court (Pennycuick V.-C.) accordingly made use of
the power under Article 177 of the E.E.C. Treaty and R.S.C. Order
114 to ask the Community Court for rulings on three questions. Was
Article 48 directly applicable? Was Article 3 of the Directive
directly applicable? Was the plaintiff's case within the concept of
"personal conduct" used in the Directive? In the light of its previous jurisprudence, the Court had little difficulty in ruling that
both Article 48 of the E.E.C. Treaty and Article 3 of the Directive
had direct effect and conferred on individuals rights which national
courts must protect. The latter was clearly intended to limit the
discretionary power of the national authorities for the entry and
exclusion of aliens; it was a limitation on an exception to one of the
fundamental provisions of the Treaty (Article 48, free movement
of workers) and persons concerned should be able to rely on the
obligation even though it was laid down in an instrument which did

The Cambridge Law Journal

[1976]

not as a whole have direct effect (Article 189 of the Treaty provides
for direct applicability only in the case of "regulations "). So far
as "personal conduct" was concerned, a Member State was entitled
to take into account as a matter of personal conduct the fact that
the individual was associated with some body or organisation the
activities of which the Member State considers socially harmful, even
if no restriction is placed on nationals who wish to take up similar
employment with the same body or organisation. Thus the Court
in effect ruled that the powers of the British authorities were subject to
the limitations in E.E.C. law but that their action in a case such as that
of Miss van Duyn would be consistent with the E.E.C. provisions.
Miss van Duyn's case thus demonstrates with admirable clarity
four far-reaching constitutional effects of United Kingdom accession
to the European Communities. (1) The limits of the powers of
British authorities may now be set by external sources of law taking
effect not merely as hitherto under international law but also under
the law to be applied by British courts in the ordinary way. (2) The
legal limits of a discretionary power, a crucial problem at the frontier
between law and policy, will be defined by the Community Court
if they are contained in Community law. (3) Community legislation
may impliedly amend prior United Kingdom legislation (in casu the
1971 Act). (4) Community legislation may prevail over subsequent
United Kingdom legislation (in casu the Immigration Rules made in
1973 insofar as they are given virtual legislative force by the 1971
Act).

PHILIP ALLOTT.

THE TERRITORIAL WATERS OF NORTHERN IRELAND

THE

Northern Ireland Court of Appeal in D.P.P. for Northern Ire-

land v. John McNeill and Others (2 May 1975, presently unreported)

discussed constitutional issues hitherto raised, if at all, only in

academic cloisters. The story began in 1973 when the respondents
were prosecuted by the Northern Ireland Fisheries Conservancy
Board on a complaint charging them with using in the sea a salmon
net in a manner prohibited by the Fisheries Act (Northern Ireland)
1966 of the Stormont Parliament. The location of the alleged offence
was later established to be in the open sea within 150 feet of a
vertical rock-face at Torr Head, County Antrim. The complaint
came before a resident magistrate, Mr. P. Maxwell, who held that
he did not have competence to hear it. He put forward three main
reasons for his decision: (1) The Parliament of Northern Ireland
had jurisdiction over six parliamentary counties and two parliamentary boroughs only and these administrative areas did not include any

C.L.J.

Case and Comment

part of the open sea; (2) the 1921 Agreement between Great Britain
and Ireland (later scheduled to the Irish Free State (Agreement)
Act 1922) had the effect of vesting the territorial waters of the
whole of Ireland in the Government of the Irish Free State; (3) the
1966 Stormont Act could not derive validity from the Fishery Limits
Act 1964 of the Westminster Parliament since the latter had no
longer any rights of legislation in the waters concerned.
The magistrate's ruling was taken to the Northern Ireland Court
of Appeal on a case stated. The court was asked to decide whether
the magistrate was correct in holding (1) that the United Kingdom
Parliament had no power to legislate for fisheries in the seas around
Northern Ireland; (2) that the Northern Ireland enactment of 1966
was ultra vires in respect of sea fisheries.
The respondents offered no argument before the Court of Appeal
where the issues raised by the magistrate were nevertheless fully
argued by the Director of Public Prosecutions who had taken over
the case on the instructions of the Attorney-General in view of its
constitutional importance. Lowry L.C.J. and Jones L.J. gave written
reasons for answering "No" to both questions; Curran L.J. simply
concurred in the judgments of both his brethren.
Lowry L.C.J. held at the outset that a statute of the United
Kingdom Parliament was incapable of challenge in any United
Kingdom court. He cited Mortensen v. Peters (1906) 8 Fraser 93,
101, Croft v. Dunphy [1933] A.C. 156, 164 and I.R.C. v. Coilco

Dealings Ltd. [1962] A.C. 1, 19. Thus the 1964 Westminster legislation and consequently the 1966 Stormont enactment were not ultra
vires. This was enough in the Chief Justice's opinion to decide the
appeal but he felt obliged to consider the other issues raised. He
pointed out that the 1964 Act was passed to implement the European
Fisheries Convention to which the Government of Great Britain and
Northern Ireland and the Government of Ireland were separate
parties. In becoming a party, the latter Government had not indicated that it was thus intending gratuitously to concede to the former
exclusive fishing rights in part of its own territorial sea. The Chief
Justice' considered that although the parliamentary counties and
boroughs of Northern Ireland did end at the low-water mark the
power to make laws for the "peace, order and good government"
of Northern Ireland conferred on its Parliament by the Government
of Ireland Act 1920 included power to legislate over the adjacent
territorial waters and the fisheries therein. He denied that the 1921
Agreement had acknowledged that the territorial waters of the
whole of Ireland were vested in the Free State Government, pointing
out that the Agreement gave Northern Ireland an election, which it

The Cambridge Law Journal

[1976]

later exercised, to exclude itself from the powers of the Free State
Parliament. He concluded: "Once this election was made, it became
inconceivable that waters adjacent to County Antrim could be
regarded as the territorial waters of a State the powers of whose
Parliament and Government no longer extended to County Antrim
in particular and Northern Ireland as a whole." The Chief Justice
considered that the inclusion of the harbour defences at Belfast
Lough in the facilities granted to the British forces by the Free
State Government under the Agreement was made in case the
election was not exercised.
Jones L.J. first asked himself whether under the 1920 Act
Northern Ireland consisted only of the land of the six counties while
Southern Ireland consisted of the remander of the island together
with the territorial waters surrounding the whole island. He interpreted the Act as in effect setting up two subordinate States with
similar types of government and concluded: ".

. Northern Ireland,

as constituted by the 1920 Act, consisted not only of the land mass
thereof but also of the former rights of the United Kingdom in the
waters surrounding Northern Ireland, subject always to the derogations therefrom contained in the Act and the overriding authority
of Westminster. ..

."

He supported this conclusion by citing a Commons reply given

on 27 November 1922 by the Attorney-General which endorsed the
view that the territorial waters "go with" the counties making up
Northern Ireland. Even if this were not the case, held Jones L.J.,
the rights in the territorial waters remained with the United Kingdom
and had not passed to Southern Ireland under the 1920 Act. Finally,
citing the same authorities as the Chief Justice, he held that it was
"quite incompetent for any court in the United Kingdom to
condemn as ultra vires any statute passed by the United Kingdom
Parliament," a proposition on which in his opinion the appeal could
have been shortly decided.
It is significant to note that although Lowry L.C.J. refrained
from considering the status of territorial waters in United Kingdom
constitutional law, Jones L.J. seemed to veer towards the view that
they were an integral part of the Province although his conclusion
was worded in terms of "rights" in the waters rather than in terms
of boundaries or property. One day it may fall to a court to determine
the municipal law status of the waters, sea-bed and subsoil adjacent
to the land of the United Kingdom. If the case of R. v. Keyn (1876)
2 Ex.D. 63 did conclusively decide that the area below low-water mark
was then at common law no part of Her Majesty's realms and dominions, as the Supreme Courts of the United States and Canada and

C.L.J.

Case and Comment

the High Court of Australia have so held, how can the position now
be different? There is nothing in the enacting part of the Territorial
Waters Jurisdiction Act 1878 to effect the change and there has been
no other relevant general enactment. On the other hand, the bed
and subsoil of the sea adjacent to the whole of the United Kingdom
has at least since the beginning of the nineteenth century been
administered by the executive as Crown land and the revenue therefrom paid into the Consolidated Fund. To find legal justification for
this unbroken and almost unchallenged practice it might be argued
that section 7 of the Crown Lands Act 1866 recognised that the bed
of the sea is, or can be, Crown land, Alternatively, it might be
argued that the revenues from the sea-bed and subsoil, at least these
days to a distance of three miles, are hereditary casual revenues of
the Crown and have under the civil list legislation similarly been
surrended to the Consolidated Fund.
But if the territorial waters, sea-bed and subsoil are not at
common law part of England, Scotland or Northern Ireland properly
so called, are they then in the juridical limbo of Crown land held
"in gross," to revive a term used sixty years ago by Sir John
Salmond? In his majority judgment upholding the validity of the
Seas and Submerged Lands Act 1973 of the Australian Federal Legislature, Barwick C.J. declared on 17 December 1975 in the High
Court of Australia that a British Colony, like England itself, did
not at common law extend beyond low-water mark but that any
proprietary, legislative or other rights over the territorial seas or
their subjacent soil "remained with the Imperial Government." In
order to avoid litigation on the same massive scale as that in the
United States, Canada and Australia, it is hoped that the municipal
law status of the United Kingdom's adjacent maritime areas will be
settled once and for all if there is to be any devolution of powers on
regional assemblies.
GEOFFREY MARSTON.

DEALING WITH MENTALLY DISORDERED OFFENDERS

disordered offenders-that is to say, those who have been

formally identified as such-have received, some may think, a quite
disproportionate amount of both public and official attention. For
they present a problem that is statistically insignificant: currently
less than one per cent. of admissions to hospitals which receive
mentally disordered patents come from criminal courts or penal
establishments, while psychiatric disposals account for less than
half of one per cent. of convictions for non-motoring offences. And
yet the recent Report of the [Butler] Committee on Mentally
MENTALLY

The Cambridge Law Journal

[19761

Abnormal Offenders (Cmnd. 6244) is the fourth official report concerning such offenders in less than twenty years. It is also much the
most detailed and comprehensive: there appears to be no relevant
stone which, in the course of twenty chapters, the Committee have
left unturned. Many of its most important recommendations call for
administrative, not legislative, action. The real need, as the Report
makes clear, is not to make great changes in the legal framework
for dealing with these offenders, but to improve, firstly, the chances
of mental disorder being diagnosed; secondly, the quality of medical
reports to the courts; and, thirdly, the flow of information and the
level of mutual understanding and co-operation between courts,
doctors, and the Home Office, and between hospitals and the social
services. For the truth of the matter is that the great problem (which
fully justifies the Committee's labours) is that presented by the very
substantial minority of those detained in prisons and borstals who
are mentally disordered: the Committee guess that they may
amount to as many as a third of the population of the local prisons.
This would not very much matter if the facilities for treatment in
prisons were comparable to those available to the community at
large: but they are not and, in the nature of things, are never likely
to be. Furthermore, the Committee are satisfied that there are too
many offenders detained in special or psychiatric hospitals as a
result of court orders who do not need to remain there.
Some of the Committee's recommendations will, however, be of
primary interest to lawyers: notably those concerning (to use current
terminology) prosecuting policy, fitness to plead, the insanity defence
and the special verdict, diminished responsibility and infanticide,
criminal liability for damage or injury done while voluntarily intoxicated, a new form of indeterminate sentence, and consent to
treatment by persons subject to Hospital Orders.
Prosecuting policy (Chap. 9-II): The Committee rightly urge on
the police and the D.P.P. greater restraint in prosecuting the mentally disordered. "Where any apparent offender is clearly in urgent
need of psychiatric treatment and there is no question of risk to
members of the public the question should always be asked whether
any useful public purpose would be served by prosecution ....

These

remarks apply in cases of homicide or attempted homicide or grave

bodily harm as in less serious cases." As, the Committee point out,
the institution of criminal proceedings may well delay the treatment
which an apparent offender obviously requires.
Fitness to plead (Chap. 10): Several important changes are
recommended. The criteria for determining whether a person is
under disability in relation to trial should, it is proposed, be

C.L.J.

Case and Comment

widened to include whether "he can give adequate instructions to

his legal advisers," and "plead with understanding to the indictment," but (in the view of the majority) there should be no change
in the (Podola [1960] 1 Q.B. 325) rule that amnesia, however serious,
does not amount to such disability. This is odd, and the majority's
reasons are unconvincing. Since the Committee also recommend
that the disability issue should be tried by the judge, not the jury
(unless the defendant requests otherwise-which is not expected to
happen very often), and that the defendant's condition should be
reconsidered not later than six months after the first finding of
disability, and that there should be either an ordinary trial (if the
defendant had recovered) or a "trial of the facts" (if he had not), it
is strange that the majority are not content to leave the question of
the effect of amnesia to be subsumed in the general issue of whether
the defendant "can give adequate instructions to his legal advisers."
It could then be decided on a general basis of fairness, giving due
weight to the severity of the amnesia and the nature of the matters
that will be in dispute.
Other (and very sensible) proposals include ones that on a finding
of disability the court should have a discretion as to disposal (other
than penal measures) and not, as at present, be compelled to make
a hospital order; that magistrates, as well as the Crown Court, should
have jurisdiction to make a finding of disability (though it is not
clear whether committing magistrates are included, as they should
be, in this recommendation); and that findings of disability should,
like hospital orders, require to be supported by the evidence of two
doctors, one of whom must be a specialist.
The defence of insanity and the special verdict (Chap. 18): Here

the Committee recommend root and branch reform. The defence of

insanity (renamed "evidence of mental disorder ") must, as a matter
of principle, and regardless of whether it is much relied on, be
retained, but M'Naghten and mandatory committal to hospital
should go (for all the well-worn reasons), the rules relating to the
burden of proof should be rationalised, and defendants should be
able to plead "not guilty on evidence of mental disorder." To
replace M'Naghten the Committee have gone not to America but
to France: the defence of mental disorder should be available where
either the mental element required for the offence is, by reason of the
evidence of mental disorder (defined so as to exclude transient disorders caused by physical injury, or the abuse of alcohol, drugs and
the like), not proved and the court finds, on the balance of probability, that the defendant was mentally disordered at the time of
the act or omission in respect of which he is charged; or that at the

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[1976]

time of the act or omission charged the offender was, on the balance
of probability, suffering from severe mental ilness or severe subnormality (which is further defined so as to exclude, inter alia,
psychopathic disorders). The first limb thus provides (like the first
limb of the M'Naghten rules) for the case where the prosecution
is unable to establish the mental element of the offence charged,
the second for that where the offence is proved, but there is none
the less evidence of serious mental disorder at the time of its
commission. The proposal has the very great merits of being (in
the first limb) logical and (in the second) simple. No attempt to
establish the impossible is required: no connection between the
offence and the severe mental disorder need be shown. It suffices
to prove that at the time of the offence the defendant was severely
disordered, and, as a matter of plain commonsense, this justifies
his exemption from criminal responsibility. The Committee also
propose that as far as the first limb of their defence is concerned
(i.e., where the prosecution fail to prove the requisite mental
element), the court should have a discretion to record a simple
verdict of not guilty if, as in the case of the elderly and forgetful
shoplifter, the special verdict would be as a sledgehammer is to a nut.
Diminished responsibility and infanticide (Chap. 19): Diminished
responsibility is an easy target for any critic, and the Committee
make no bones about their opinion that section 2 of the Homicide
Act 1957 is a nonsense. As they say, "the case for the plea of
diminished responsibility now rests largely on the fact that precisely
because there is a fixed sentence of life imprisonment for murder
there should be some way for the court to avoid it in cases where
there is evidence of mental disorder." The Committee accordingly
urge the Criminal Law Revision Committee to reconsider their provisional view, expressed in an Interim Report on the Penalty for
Murder (1973) (Cmnd. 5184), that the mandatory penalty should
remain, for "in many murder cases a life sentence is inappropriate
and may be inhumane." The Butler Committee have, beyond question,
the better of half-a-dozen different arguments on this point, and if
it gains the day against the obscurantism of the C.L.R.C. the
diminished responsibility provision can, as they recommend, be
abolished. If, on the other hand, the mandatory life sentence is to
remain, the Committee recommend the replacement of section 2 by
a provision which would parallel their proposed special verdict: no
connection, other than that of contemporaneity, between the mental
disorder and the killing would be required, and the defence would
be available on proof of a wider range of mental disorders than in
the case of the special verdict. Whatever happens, the Committee

C.L.J.

Case and Comment

would abolish the separate offence of infanticide. It is unnecessary,

it enshrines a legal fiction, and it has undesirable consequences by
drawing an unrealistic distinction between those mothers who kill
children just over, and those who kill children just under, twelve
months old, and between those mothers who kill and those who
severely batter or neglect their babies.
Criminal liability for damage or injury done while voluntarily
intoxicated (Chap. 18-IV): Liability for being drunk and dangerous, which has for long been advocated by Professor Glanville
Williams as the best solution to the problem presented by the
defendant who manages to secure an acquittal by producing evidence
of intoxication (whether by drink or drugs) which casts doubt on
whether he had the mental element required for an offence, meets
with the Committee's approval. The liability would be strict, would
arise whenever a defendant is shown to have committed the external
elements of a dangerous offence while voluntarily intoxicated, and
would attract twelve months' imprisonment on a first, and three
years on a second, or subsequent, conviction. Although the Committee include homicide among their "dangerous offences," their
new crime would not, so long as the law of manslaughter remains
unchanged, have any effect in cases where death was caused, for
the voluntarily intoxicated offender may already be convicted of
that offence: Lipman [1970] 1 Q.B. 152; Howell [1974] 2 All E.R.
806.
The Committee also recommend that, as in the case of alibi
evidence, notice of intention to introduce evidence of mental disorder or intoxication should be required of the defendant: an
interesting example of doing good by stealth.
A new indeterminatesentence (Chap. 4-111): To meet the problem both of the mentally disordered offender who is currently given
a determinate prison sentence (usually because, not being considered
treatable, a hospital order is unsuitable and a life sentence is technically impossible or otherwise thought by the judge to be inappropriate), and of the psychopathic offender who is sometimes subjected
to a hospital order though there is nothing a hospital can do for
him, the Committee propose a new indeterminate sentence: "the
reviewable sentence." Those eligible for it would be mentally disordered offenders who (a) had committed (or attempted or threatened
to commit) offences involving personal harm, in respect of whom
.(b) the court is satisfied that there is a substantial probability
that such offences will be repeated (i.e., that the offenders are
"dangerous "), and where (c) either the offences, if completed, carry
life imprisonment, or the offenders have previously been convicted

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of offences carrying (but have not been sentenced to) life. Review
would be at two-yearly intervals and by the Parole Board: the
offenders being detained until the Board thought that they had
ceased to be "dangerous." It may, however, be doubted whether
this proposal is well calculated to overcome the present judicial
reluctance to impose indeterminate sentences on the mentally disordered-a reluctance which probably springs partly from the dual
function of the life sentence (it is also used simply as a severe
penalty for grave crimes) and partly from a belief that the system
of reviewing life sentences is unsatisfactory. For while requirement
(c) reflects the Committee's laudable wish to ensure that the
mentally disordered are not liable to more severe measures than
ordinary offenders, (b) requires judges to make a formal prediction
as to the future which (unless they change their spots) they are
likely to be extremely unwilling to do. Acting on hunches is one
thing: telling the world what you have seen on peering into a crystal
ball is another (and very unjudicial). Given that the sentence is to
be reviewed every two years, would not requirements (a) and (c)
be sufficient?
Consent to treatment by persons subject to Hospital Orders

(Chap. 3-11): Has society the right to impose psychiatric treatment

on offenders either for their own good or for its own protection?
The Royal Commission on Mental Illness of 1954-57 thought so
(Cmnd. 169, para. 316): the Committee think not (exceptional cases
apart) (paras. 3.50-3.56). The fact that the Committee do not stop
to argue the philosophical point with the Royal Commission is some
indication of the change that has, in less than twenty years, taken
place in public attitudes both to psychiatric treatment and to individual rights-even of prisoners and the mentally disordered. The
Royal Commission took the view that the fact of their conviction,
even though their offence may not have been connected with their
mental disorder, meant that they were liable to the coercive powers
of the State. Consultant psychiatrists should, accordingly, not be
"too hesitant" to impose treatment on unwilling offenders: the
Hospital Order provided what might be the only opportunity of doing
what would be for their own, or the country's, good. It is far from
clear whether Parliament gave effect to the Royal Commission's
view, though the legal advisers of the Department of Health and
Social Security have, -as one would expect, assumed that it did.
Section 60 (1) of the Mental Health Act 1959 merely provides for
Hospital Orders authorising an offender's "admission to and detention in such hospital as may be specified." Once there the detainee
must obviously receive basic nursing care (which is within the Act's

C.L.J.

Case and Comment

definition of "medical treatment ") for that is what warranted the

making of the Order. But the Act does not expressly authorise the
doing of anything else to him. The Committee therefore recommend
that it should be amended to make crystal clear the very restricted
circumstances in which, in their view, he may, to prevent injury
to himself or others in the hospital, be subjected to treatment to
which he objects.
Those of the Committee's recommendations which require legislation would clearly make the law governing the criminal liability of
the mentally disordered much more rational. It is to be hoped that
there will be no delay in implementing them.
P. R. GLAZEBROOK.

CRIMINAL LAW-'CAUSATION

AT first sight the decision in Blaue [1975] 1 W.L.R. 1411 may seem
unexceptionable, because it simply follows old authority to the effect
that if D inflicts serious injury on V, and V refuses, however
unreasonably, to receive medical treatment and so dies from the
injury, D is responsible for the death. Here V was a woman who,
being a Jehovah's Witness, refused to have a blood transfusion that
would probably have saved her life. The judge directed the jury that
they would get some help from the decided cases to which counsel
had referred in their speeches, and said that they might think they
had little option but to reach the conclusion that the stab wound
inflicted by the defendant was the operative cause of death-or a
substantial cause of death. The jury convicted of manslaughter, and
the conviction was affirmed on appeal.
Although the case follows the precedents, preferring them to
opinions expressed in "textbooks intended for students or as studies
in jurisprudence," it fails to-notice that all of them dated from a
time when medical science was in its infancy, and when operations
performed without hygiene carried great danger to life. It was therefore open to the court for the benefit of the defendant to consider
the question afresh, and there were several reasons for doing so.
It had been held in Roberts (1971) 56 Cr.App.R. 95 that the
test of imputable causation (wfiere the victim had sustained injury
in an attempt to escape) was one of reasonable foresight. It is a
useful test, and one might have hoped that it would be generalised;
yet we are now told that it does not apply to the circumstances in
Blaue. Why not?

It had been held in the law of tort that the test of reasonable foresight applies to facts like those in Blaue, but the court refused to bring

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the criminal law into line. The criminal law should avoid the appearance of harshness, and to make it more stringent than the civil law
in the matter of causation is surprising. Lawton L.J., speaking for
the court, explained the difference between crime and tort by saying
that "the criminal law is concerned with the maintenance of law
and order and the protection of the public generally." This overlooks
that Blaue was in any event punishable severely for wounding with
intent. What social purpose is served by giving an attacker extra
punishment because the person attacked unreasonably refused
treatment?
On the point of principle the court thought it sufficient to say
that the stab wound inflicted by Blaue caused the death. Of course it
was a cause of the death, but the victim's refusal of treatment was
an additional but-for cause. The court described the defendant's act
as "the phsyical cause of death," and regarded that as conclusive.
But in cases of multiple causation it is unconvincing to select one
cause as " the " cause.

The best reason for the decision, though not one given in the
judgment, is that Blaue would have been guilty of unlawful homicide
if the victim had had no chance of obtaining medical assistance, and
therefore (it may be said) should be equally guilty if the victim chose
not to avail herself of such assistance. Still, there is a difference.
The decision means that if the death penalty for murder were
restored, the attacker might be hanged purely as a result of the
unreasonable decision of the victim not to accept proferred medical
help.
On one point the decision is to be welcomed. During the nineteenth century judges would robustly tell the jury whether or not
the defendant was responsible for the consequences on given facts.
At the present day the question is sometimes left to the jury without
real guidance; to ask them whether the consequence "flowed from"
the defendant's act, or was substantially caused by the defendant's
act, is no guidance at all. In Blaue, the Court of Appeal said: "The
issue of the cause of death in a trial for either murder or manslaughter is one of fact for the jury to decide. But if, as in this case,
there is no conflict of evidence and all the jury has to do is to apply
the law to the admitted facts, the judge is entitled to tell the jury
what the result of the application will be. In this case the judge
would have been entitled to have told the jury that the defendant's
stab wound was an operative cause of death." This is an amelioration
of the present position, but the improvement could go further. The
first sentence in the passage quoted is surely wrong: whether the
defendant's act was a but-for (factual) cause of death is a question

C.L.J.

Case and Comment

of fact, but whether, being a but-for cause, it was an imputable

(legal) cause must be one of law-as the court proceeded to admit
when it spoke of applying the law to the facts. If imputable causation
is not a question of law, why did the court allow the citation of
precedents on the question? It is fine that the jury can now be given
a clear direction where the facts are undisputed. But why should not
the jury be given a clear direction on hypothetical facts where the
facts are disputed?
GLANVILLE WILLIAMS.

PRECEDENT AND

THE JUDICIAL FUNCTION IN THE HOUSE OF

LORDS-DEBT IN FOREIGN MONEY OF ACCOUNT

THE decision of the House of Lords in Miliangos v. George Frank
(Textiles) Ltd. [1975] 3 W.L.R. 758 deals with the problems raised
by the decision in Schorsch Meier GmbH v. Hennin [1975] Q.B.
416 (C.A.) (see [1975] C.L.J. 215).
The instant case involved a contract for the sale of polyester
yarn, governed by Swiss law, the money of account and of payment
of which was Swiss francs. The Swiss respondent and unpaid seller
was granted leave to amend his statement of claim so as to claim
payment in Swiss francs in the light of the decision in Schorsch
Meier at a time when the appellants had agreed to submit to judgment. Bristow J. ([1975] 2 W.L.R. 555) considered the decision in
Schorsch Meier irreconcilable with that of the House of Lords in
Re United Railways of Havana and Regla Warehouses Ltd. [1961]
A.C. 1007; he turned to Broome v. Cassell & Co. Ltd. [1972] A.C.
1027 (H.L.(E.)) for help, held that Schorsch Meier had been decided
per incuriam and followed Re United Railways of Havana instead;
he was reversed by the Court of Appeal [1975] Q.B. 487.
The unanimous view of the Court of Appeal in Schorsch Meier
that Article 106 of the Treaty of Rome obliged an English court
to give judgment in foreign currency to a creditor resident in an
E.E.C. country when the currency of that country was the currency
of account was criticised in [1975] C.L.J. 215, 217 et seq., and it
would appear that Lord Wilberforce (with whom Lords Simon of
Glaisdale and Cross of Chelsea agreed) had either read that note or
had arrived, independently, at the same, sound conclusion.
On the other hand, the majority of their Lordships (Lord Simon
dissenting) approved the result in Schorsch Meier by abandoning
the "breach date conversion rule" and holding that an English
court could give judgment in a foreign currency where the contract
in question was not governed by English law and where the currency
of account was that of the country the law of which governed the

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[1976]

contract (or, possibly, that of any country other than the United
Kingdom). Conversion date, which is the crucial date (see [1974]
C.L.J. 11, 14; [1975] C.L.J. 215, 216) would be that date on which the
court authorised the enforcement of the judgment in terms of
sterling.
Apart from a nice question of the debt/damages distinction (compare Lord Wilberforce at p. 771C-H with Lord Simon at p. 788C)
which must be left for another time, the speeches, and in particular
that of Lord Simon, raise some familiar and some important issues
about precedent and judicial law-making.
One ought by now to be familiar with the strictures of their
Lordships in Broome v. Cassell & Co. Ltd. (supra) on the subject

of attempts by the Court of Appeal to avoid decisions of the House

by describing them as decided per incuriam. While their Lordships
stated per curiam that only they might reconsider their decisions,
thus restating the express terms of the Practice Statement [1966]
1 W.L.R. 1234, it is interesting that Lord Simon thought that
Bristow J. had adopted the wrong approach in not following Schorsch
Meier on the ground that it had been decided per incuriam. In his
Lordship's opinion (p. 780D-E):
A court should only hold a judgment to have been given per
incuriam if it is satisfied that such judgment was given in
inadvertence to some authority .. .and, secondly, that, if the

court giving such judgment had been advertent to such

authority, it would have decided otherwise than it did-would,
in fact have applied the authority.
In other words, Bristow J. should have assumed that the Court of
Appeal had dealt satisfactorily with Re United Railways of Havana

in Schorsch Meier; otherwise a costly appeal, in which the outcome

was certain, was inevitable. Had Bristow J. done as he ought, his
Lordship thought that the "leap-frog'" procedure under the
Administration of Justice Act 1969, Pt. II might have been invoked
to save unnecessary expense. What the Court of Appeal cannot do
to the House of Lords, puisne judges cannot do to the Court of
Appeal; Broome v. Cassell & Co. Ltd. (supra) applies at both levels
of the hierarchy .. .what is sauce for the goose is sauce for the

gosling.
There is a neat comparison here with one of the skirmishes in
the fundamental breach saga; in Kenyon Son & Craven Ltd. v.

Baxter Hoare & Co. Ltd. [1971] 1 W.L.R. 519 Donaldson J. was
faced with the task of trying to reconcile the Suisse Atlantique case
[1967] 1 A.C. 371 with Harbutt's Plasticine Ltd. v. Wayne Tank

Co. Ltd. [1970] 1 Q.B. 447 (C.A.) and did so by presuming that the
latter decision must be consistent with the former, an application of

C.L.J.

Case and Comment

it, in fact, and then distinguishing the case before him from that
application. Lord Simon's points about constitutional propriety and
costs were both met in that there was no appeal, but in view of
the Master of the Rolls' somewhat forceful opinion in Schorsch
Meier that the reasons for the rule in Re United Railways of Havana

(supra) had ceased to exist ([1975] Q.B. 416, 425B) it is easy to

sympathise with Bristow J. in his misgivings.
Lord Simon also criticised improper resort to the maxim cessante
ratione legis, cessat ipsa lex as an argument for not following pre-

cedent. There is a difference between ducking a binding precedent

and declining to extend one analogically even though its verbal
formulation may suggest that it could be extended logically. Doubtless, to characterise a decision one way or the other may involve
judgment-refusal to analogise may amount to ducking-but it
remains the case that it is in no sense desirable to have the lower
courts ignoring precedent by the bogus use of Latin tags.
Much more important was his Lordship's view, expressed at
great length, that Re United Railways of Havana should not be

overruled, which demonstrates that, against the background of a

generally cautious approach to the power asserted in the Practice
Statement (supra), there are nevertheless important differences of
opinion about the "judicial function." Lord Simon has said a good
deal about this in a number of cases: see, e.g., Knuller v. D.P.P.
[1972] 3 W.L.R. 143; Jones v. Secretary of State for Social Services

[1972] 2 W.L.R. 210 (both noted in [1972A] C.L.J. 232); Blathwayt

v. Cawley (Baron) [1975] 3 W.L.R. 684, 698H-699A; D.P.P. for
Northern Ireland v. Lynch [1975] 2 W.L.R. 641, 670C-E and 671H-

672B (see also per Lord Kilbrandon at p. 674B-D); D.P.P. v.

Withers [1974] 3 W.L.R. 751, 762H-763B; D.P.P. v. Shannon
[1974] 3 W.L.R. 155, 193F-H; Taylor v. Provan [1974] A.C. 194,
221B-C.
In a nutshell his Lordship's argument in the instant case was
that the question was too complicated to be left to the Law Lords.
He thought that the judicial motto ought to be, "I am not trained
to see the distant scene: one step enough for me" (p. 784B) and
quoted with approval the statement of Lord Kilbrandon in Lynch
(supra):

If there is one lesson which has been learned since the setting
up of the Law Commission it is this, that law reform. by lawyers
for lawyers (unless in exceptionally technical matters) is not
socially acceptable. An alteration in a fundament doctrine of
our law ...

could not properly be given effect to save after the

widest reference to interests, both social and intellectual, far

transcending those available in your Lordships' House.

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[1976]

It does seem that despite criticism (see, e.g., Freeman (1973) 16

Current Legal Problems 166, 190-191) at least some of their Lordships are inclined to subscribe to the late Lord Reid's distinction
in Pettit v. Pettit [1970] A.C. 777, 794-795 between "lawyers' law"
and "cases which directly effect the lives and interests of large
sections of the community and on which laymen are as well able
to decide as lawyers." It is worth considering in this context the
possibility that the reason for some so-called "inflexible" decisions
(e.g., on the Race Relations Acts) reflect a feeling on the part of
some at least of the judges that they are being asked to deal with
contentious issues without enough help from Parliament and that
this is a constitutionally improper division of labour. This may be
far wiser than critics realise; against a background of a written constitution and Bill of Rights the United States Supreme Court did
a great deal of judicial legislating whilst Earl Warren was Chief
Justice without, in the judgment of many, asking with sufficient
humility what law could do and what the limits on its functions
might be. The idea that anything that one chooses to characterise
as a problem can be "solved" by the law is alarmingly naive.
Finally, one should note Lord Simon's suggestion that the House
consider sitting en banc," at least where the overruling of a recent
decision of your Lordships' house is in question" (p. 792C) and his
reiteration of his idea in Jones v. Secretary of State for Social

Services (supra) that prospective overruling be considered so as to

mitigate the effects of a change in the law.
DAVID FLEMING.

JOINT TENANCIES-SEVERANCE

IN Burgess v. Rawnsley [1975] 3 W.L.R. 99 the Court of Appeal

had the opportunity to consider and clarify the law relating to

severance of joint tenancies, recently the subject of a reserved
judgment of Walton J. in Nielson-Jones v. Fedden [1974] 3 W.L.R.
583 commented upon in [1975] C.L.J. 28.
Mr. Honick, the 63-year-old sitting tenant of a house divided
into two flats, became friendly with Mrs. Rawnsley, a 60-year-old
widow, having met her at a scripture rally in Trafalgar Square. He
had the opportunity to buy the house for the very favourable price
of 850 and, upon talking it over, he and Mrs. Rawnsley agreed to
put up the purchase price equally; she would have the upper flat and
he would retain the lower flat. In January 1967 the house was conveyed to them jointly upon trust for sale for themselves as joint
tenants. Mr. Honick's reason was that he was minded to marry Mrs.
Rawnsley and have the house as their matrimonial home, though

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Case and Comment

he had not mentioned this to her. As the trial judge found, she had
never contemplated marriage.
After the purchase of the house Mrs. Rawnsley made it clear
that she would not marry Mr. Honick so he refused to let her move
into the upper flat. In July 1968 he offered orally to buy her out for
750 and she orally agreed. She then went back on her agreement. In
1971 Mr. Honick died and the plaintiff, as his administratrix, claimed
a half share in the 5,000 proceeds of sale of the house to which
Mrs. Rawnsley claimed she was wholly entitled under the ius
accrescendi.
The plaintiff first based her claim on a resulting trust. Lord
Denning held that, since Mr. Honick's purpose in buying the house
jointly with Mrs. Rawnsley was to provide a matrimonial home for
them and since Mrs. Rawnsley's purpose was to have the upper flat
to live in, the object of each party had failed. If the object had been
a common object which had failed there was no doubt that a resulting trust for each party in half shares would have arisen: the fact
that each had a different object which had failed should make no
difference. Thus the plaintiff was entitled to half the proceeds of
sale under a resulting trust.
Lord Denning's brethren disagreed on this point. Browne L.J.
and Sir John Pennycuick considered that a resulting trust could only
have arisen if both parties had had a common object which had
failed and, in any case, considered that Mrs. Rawnsley's object was
not just to obtain the upper flat to live in but to take an interest in
the whole house as a beneficial joint tenant, as expressed in the
conveyance, incidentally sharing the house in a particular manner.
Her object had not, therefore, wholly failed.
With respect, Lord Denning's view, placing the emphasis on
substance rather than form, seems preferable. However, all three
judges were able to hold that the plaintiff was entitled to half the
proceeds of sale on the footing that the oral agreement for Mr.
Honick to purchase Mrs. Rawnsley's interest for 750 amounted to
a severance of the beneficial joint tenancy expressed in the conveyance: it showed that they considered each other entitled to a
distinct undivided share. All the judges agreed it was immaterial that
such oral agreement was unenforceable by virtue of section 40 of
the Law of Property Act 1925.
The judges then went on to make some interesting observations
upon the judgment of Page-Wood V.-C. in Williams v. Hensman
(1861) 1 John. & H. 546, 557-558 and the effect of section 36 (2) of
the Law of Property Act 1925. Page-Wood V.-C.'s classic statement
of the law is:

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A joint tenancy may be severed in three ways: (1) an act of

any one of the persons interested operating upon his own share
may create a severance as to that share [e.g., gift, sale,
exchange, mortgage] . . . (2) A joint tenancy may be severed

by mutual agreement [as was the case in Burgess v. Rawnsley].

(3) There may be a severance by any course of dealing sufficient
to intimate that the interests of all were mutually treated as
constituting a tenancy in common. Where the severance depends
on an inference of this kind without any express act of severance, it will not suffice to rely on an intention, with respect to
the particular share, declared only behind the backs of the
other persons interested. You must find in this class of cases a
course of dealing by which the shares of all the parties to the
contest have been affected.
All three judges agreed that the third head in Page-Wood
V.-C.'s judgment was to be treated as distinct from the second head
despite the fact that some puisne judges such as Stirling J. in Re
Wilks [1891] 3 Ch. 59 and Walton J. in Nielson-Jones v. Fedden
[1974] 3 W.L.R. 583 had treated the third head as being part of
the second head, though concerned not with an express mutual
agreement but with an implied mutual agreement. Lord Denning
and Sir John Pennycuick made it quite clear that no concluded
agreement is required for the third head and that negotiations, not
otherwise resulting in any agreement, could indicate a sufficient
common intention that the joint tenancy should be regarded as
severed. It followed that Nielson-Jones v. Fedden was incorrectly
decided, as Lord Denning specifically pointed out and as seems
implicit in Sir John Pennycuick's judgment, though he expressly
refrained from applying his statements of principle to that case. In
that case there were protracted negotiations between divorcing
spouses which never resulted in a final agreement, owing to the
husband's sudden death, and from the negotiations it was clearly
possible to infer a common intention to sever their joint interest in
the matrimonial home and proceeds thereof, though, as Sir John
Pennycuick pointed out, "One could not ascribe to joint tenants an
intention to sever merely because one offers to buy out the other
for EX and the other makes a counter offer of Y."
Lord Denning went so far as to say, "It is sufficient if there is
a course of dealing in which one party makes clear to the other
that he desires that their shares should no longer be held jointly
but in common." There must be a course of dealing so that it will
not suffice for one merely to say to the other, "I desire our shares
to be in common and not joint," when his offer to buy out the
other for LX is completely rejected, the other refusing to deal with
him at all. Indeed, pace Lord Denning, even where there are pro-

C.L.J.

Case and Comment

tracted negotiations constituting a course of dealing, it does not

seem that one party making the above statement to the other can
thereby sever the joint tenancy if the other does not agree, preferring to keep the joint tenancy alive till some final agreement is
reached. If such a statement could effect a severance the absurd
position would be that a unilateral declaration of severance would
suffice if occurring during a course of dealing, when it is clear that
such a declaration made in the absence of a course of dealing is
completely ineffective: where there is a course of dealing between
joint tenants in whom land is vested beneficially, section 36 (2)
(discussed below) would thus be unnecessary. Lord Denning's dictum
is thus contrary to basic principle, first enunciated by Lord Hardwicke L.C. in Partrichev. Powlet (1740) 2 Atk. 54, and flies in the
face of the emphasis on mutuality and common intention in the
third head enunciated in Page-Wood V.-C.'s judgment. As Sir John
Pennycuick points out, "A mere verbal notice by one party to
another clearly cannot operate as a severance." Dicta to the contrary
of Plowman J. in Re Draper'sConveyance [1969] 1 Ch. 486, following dicta of Havers J. in Hawksley v. May [1956] 1 Q.B. 304 based
on a fundamental misunderstanding of Page-Wood V.-C.'s first head,
are clearly incorrect.
In respect of written unilateral declarations of intention communicated to the other joint tenant further interesting points emerge
from Burgess v. Rawnsley. Before 1926 it was generally accepted
that, for realty and personalty alike, the only methods of severance
were those within Page-Wood V.-C.'s three heads, so that oral or
written unilateral declarations did not suffice for severance: Re
Wilks [1891] 3 Ch. 59, Williams on Personal Property, 18th ed.,
pp. 524-525, Williams on Real Property, 4th ed., p. 294, note q.

Accordingly, if a joint tenant unilaterally wished to sever he could

only take advantage of Page-Wood V.-C.'s first head and assign his
interest e.g., to trustees; if two out of a larger number of joint tenants
wished to sever they could assign their interests to each other on
successive days, problems arising if they simultaneously exchanged
their interests: Wright v. Gibbons (1949) 78 C.L.R. 313.
Section 36 (2) of the Law of Property Act 1925 radically altered
the previous law: "Where a legal estate (not being settled land) is
vested in joint tenants beneficially, and any joint tenant desires to
sever the joint tenancy in equity, he shall give to the other joint
tenants a notice in writing of such desire or do such other acts or
things as would, in the case of personal estate, have been effectual
to sever the tenancy in equity." Thus it was considered that where
land (not being settled land) was vested in joint tenants beneficially

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a joint tenant could sever by a written unilateral declaration or

otherwise do such acts or things as fell within Page-Wood V.-C.'s
three heads, the reference in section 36 (2) being to "personal
estate" since beneficial joint tenancies took effect behind a trust for
sale under sections 34, 35 and 36 (1) and thus were personal estate
by virtue of the doctrine of conversion. In other cases (e.g., pure
personalty and settled land) it was considered that the only available
methods of severance were those falling within Page-Wood V.-C.'s
three heads (see e.g., Re Draper's Conveyance [1969] 1 Ch. 486,
Nielsen-Jones v. Fedden [1974] 3 W.L.R. 583).

Lord Denning, in discussing section 36 (2) takes the apparently

startling view that a unilateral written declaration suffices in the
case of personal estate. His reasoning is that the words in section
36 (2), "give ... a notice in writing ... or do such other acts or things

as would in the case of personal estate have been effectual to sever,"

imply that notice in writing would, before 1926, have been effectual
to sever a joint tenancy in personal estate and so continues effectual
after 1925. Browne L.J. agreed with this implication whilst Sir John
Pennycuick left the matter open, though stating that if there were
a difference between real and personal estate this was an indefensible
anomaly.
It is submitted that section 36 (2) ought not to bear the interpretation given to it by Lord Denning. It was so clearly assumed
before 1926 that notice in writing was impossible for severing joint
tenancies of personal property (as well as real property) that no
pre-1926 authority is directly in point though Nielson-Jones v.
Fedden [1974] 3 W.L.R. 583 is in point; Re Wilks [1891] 3 Ch. 59
is indirectly in point, and the practice of conveyancers of old in
always framing elaborate assignments rather than a simple declaration to effect a severance is very much in point. The very fact that
the method of notice in writing is specifically mentioned in section
36 (2) is indicative of the revolution in allowing a written notice to
effect severance: otherwise, the draftsman would surely have provided, "Where a legal estate (not being settled land) is vested in
joint tenants beneficially, and any tenant desires to sever the joint
tenancy in equity, he shall do such acts or things as would, in the
case of personal estate, have been effectual to sever the joint
tenancy." The proper construction of section 36 (2) is thus to treat
it as if it finished, "he shall give to the other joint tenants a notice
in writing of such desire or otherwise do such acts or things as
would "etc.
It will be interesting to see whether Lord Denning's views are
followed, remedying an indefensible anomaly, just as his views in

C.L.J.

Case and Comment

Bull v. Bull [1955] 1 Q.B. 234 on section 34 (2) of the Law of

Property Act 1925 and section 36 (4) of the Settled Land Act 1925
were followed, plugging an unjustifiable loophole in the 1925 legislation. Would it not, however, be better to interpret section 36 (2)
in the traditional manner and to leave reform to Parliament which
could, at the same time, tackle the even more anomalous position
of settled land held by joint tenants and land not vested in joint
tenants beneficially but vested in others upon trust for sale for joint
tenants beneficially?
One useful clarification of the law on section 36 (2) emerges in
the judgments of Lord Denning and Sir John Pennycuick. They both
took the view that the commencement of legal proceedings by writ
or originating summons or the swearing of an affidavit in those proceedings can constitute a notice in writing within section 36 (2), thus
preferring the view of Plowman J. in Re Draper's Conveyance to
the view of Walton J. in Nielsen-Jones v. Fedden. Such a document
amounts to an irrevocable severance even though the proceedings
may subsequently be discontinued. Thus Re Wilks would now be
decided differently if joint tenancies in personal property can be
severed by written notice in the light of section 36 (2).
DAVID HAYTON.

IMPLIED OBLIGATIONS OF LANDLORDS-HIGH-RISE BLOCKS

blocks of flats or maisonettes have become commonplace

in many of our larger cities in recent years in an attempt to solve
current housing ploblems. The main question in Liverpool City
Council v. Irwin [1975] 3 W.L.R. 663 was whether a landlord of a
high-rise block owes any, and if so what, implied contractual obligation to his tenants to repair and maintain the common parts of the
premises: and a further question arose on the construction of section
32 (1) of the Housing Act 1961, which provides that in any lease of
a dwelling-house for less than seven years (see s. 33):
there shall be implied a covenant by the lessor-(a) to keep
in repair the structure and exterior of the dwelling-house ...;
and (b) to keep in repair-and proper working order the installations in the dwelling-house-(i) for the supply of water, gas and
HIGH-RISE

electricity and for sanitation ( .... but not ...

fixtures, fittings

and appliances for making use of the supply of water gas or

electricity).
The defendants were tenants of a ninth-floor maisonette in a
fifteen-storey tower block (owned by the Liverpool City Council),
which was constantly subject to violent and recurrent acts of

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[19761

vandalism. In particular the lifts were continually out of order and

lighting on the staircase was virtually non-existent; and as soon as
repairs were carried out by the council, at considerable expense, the
damage was repeated. Overflow from the lavatory cisterns in the
maisonettes also caused standing water to accumulate in the passages
as Well as flooding of the dwellings below. The tenants' maisonette
suffered severely from damp, which caused electrical fittings to
come away from the ceiling: and the whole water supply in the
block failed from time to time.
In protest against the living conditions in this block, which were
described by the county court judge as " appalling," the tenants
withheld their rent: and in an action by the landlords for possession,
which was successful, they counterclaimed, by way of test action, for
damages for breach of the landlords' alleged implied repairing
obligations.
With regard to the conditions inside the tenants' maisonette the
Court of Appeal held unanimously that no breach of the implied
covenant imposed on landlords by the Housing Act 1961 had been
proved. There was no evidence of any failure by the landlords to
repair the structure and exterior of the premises: and the only
duty of landlords in relation to the installation is to keep the existing
system in proper working order. "The lavatory cisterns gave
trouble," said Lord Denning M.R. (at p. 669), "because the whole
system was unsuitably designed. The council were bound to keep
the existing system, inefficient as it was, in proper working order:
but they were not bound to put in a new system." Moreover, in the
view of Roskill L.J. (at p. 679) the electrical fittings, which had come
away from the ceiling, were fittings for making use of the supply
of electricity and therefore outside the scope of section 32 (1). This
part of the decision, with respect, seems clearly right and no further
comment is made on it.
On the main question, however, opinions were divided. Roskill
and Ormrod L.JJ. held first, after an extensive review of the
authorities, that in the present state of the law the obligations of a
landlord to his tenant arise either under statute, i.e., the Occupiers'
Liability Act 1957 or the Housing Act 1961; or in tort on the
principles applicable to adjoining occupiers and not otherwise.
Secondly they held that it is not possible, in the present state of the
law, for the courts to extend the law by implying a covenant by a
landlord to maintain the common parts of premises, even in the
light of modern social conditions relating to high-rise blocks of flats.
Any such change in the law, in their view, can only be made by
Parliament.

C.L.J.

Case and Comment

In reaching their conclusion on the first point they finally disapproved dicta of Lord Esher M.R. and Bowen L.J. in Miller v.
Hancock [1895] 2 Q.B. 177, 179, 181, upon which the tenants' case
depended, to the effect that there is an implied obligation on a
landlord, apparently in contract, to keep a common staircase in a
safe condition. These dicta, though never expressly overruled, had
been doubted and much criticised in later cases (see pp. 676, 680-681)
and in any event confined to a duty to take reasonable care (Dobson
v. Horsley [1915] 1 K.B. 634; Dunster v. Hollis [1918] 2 K.B. 795).

Moreover in Cockburn v. Smith [1924] 2 K.B. 119 the Court of

Appeal, whilst recognising the duty of a landlord to take reasonable
care that parts of the premises kept under the landlord's control do
not cause damage to a tenant's property (which had been treated as
a contractual duty by Lush J. in Dunster v. Hollis) expressly declined
to decide whether this obligation arises in contract or in tort. In
these circumstances and in view of the fact that the actual decision
on Miller v. Hancock, which was in tort, has since been overruled,
Roskill and Ormrod L.JJ. concluded that the dicta in that case
can no longer be regarded as an authority for the existence of any
implied covenant of any kind.
On the second point the majority of the Court adhered to the
generally accepted principle that the courts can only imply a term
into a contract if it is necessary as well as reasonable to do so in
order to give business efficacy to the contract. Roskill L.J. applying
a test laid down by Scrutton L.J. in Re Comptoir Commercial
Anversois v. Power, Son and Co. Ltd. [1920] 1 K.B. at pp. 889-900

that an implied term "must be such a necessary term that both

parties must have intended that it should be a term of the contract
and only not expressed it because its necessity was so obvious that
it was taken for granted," found it impossible to believe that the
necessary intention existed in this case (at p. 979): and both he and
Ormrod L.J. relied on a statement by Lord Goddard C.J. in R. v.
Paddington and St. Marylebone Rent Tribunal, ex p. Bedrock

Investments Ltd. [1947] K.B. at p. 990 that "no covenant ought

ever to be implied unless there is such a necessary implication
that the courts can have no doubt what covenant or undertaking
they ought to write into the agreement." In the present case counsel
for the tenant had suggested five alternative implied terms. Upon
what criterion was the court to choose between them?
Lord Denning M.R., however, though "with some trepidation,"
ventured to question this principle on the ground that it does not
truly'represent the way in which the courts act (at p. 669). After
citing a number of cases in which the courts have implied a term

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[19761

into a number of widely different kinds of contract, he expressed the

view that in all these cases the court asked not whether both parties
intended the implied term, nor whether the implied term was necessary in order to give business efficacy to the transaction, but only
whether it was reasonable in all the circumstances that a term should
be implied (at p. 670). In his opinion, in cases where the landlord
retains control of the common parts of the premises, "the landlord
is under an implied contractual obligation to the tenant in respect
of those common parts" (Miller v. Hancock), although it is not an
absolute obligation (Cockburn v. Smith) but only an obligation to
take reasonable care (Dunster v. Hollis): and with regard to the
extent of that obligation he concluded that "it is clearly the duty
of the landlord, not only to take care to keep the lifts and staircase
safe, but also to take care to keep them reasonably fit for the use
of the tenant and his visitors " (at pp. 671-672).
It is submitted with respect that the decision of the majority is
more in line with the principle that the courts will give effect to the
contract which the parties have made as well as with the authorities
as a whole. Nevertheless in the particular circumstances of this case
there is something to be said for the view that the parties must have
contracted on the assumption that the landlords would undertake
some responsibility for the common parts. Indeed the majority
decision was given with some reluctance, since both learned judges
felt that the rights of the tenants ought to have been more clearly
defined: and it should also be noted that in their recent report on the
codification of the law of landlord and tenant (Law Com. No. 67)
the Law Commission have recommended that a landlord should in
future be under a statutory obligation to keep in good order and
condition any parts of the building under the control of the landlord
which the tenant is entitled to use and to ensure that any facilities
provided by the landlord are maintained unless the parties agree
otherwise (para. 149).
DONALD MCINTYRE.

THE ALARM BELLS RING AGAIN-WHERE

" SUBJECT TO CONTRACT"

IS MEANINGLESS

Tiverton Estates Ltd. v. Wearwell Ltd. [1975] Ch. 146 may be taken

to have settled that writing expressed to be "subject to contract"

cannot satisfy the requirements of section 40 (1) of the Law of
Property Act 1925 (but cf. [1974] C.L.J. 42). However, in Michael
Richards PropertiesLtd. v. Corporationof Wardens of St. Saviour's
Parish, Southwark [1975] 3 All E.R. 416, Goff J. has held that

if, in a particular context, the words "subject to contract" are

C.L.J.

Case and Comment

meaningless, they may be ignored and the writing may satisfy the
statute.
The St. Saviour's case concerned sale of land by tender. The
transaction proceeded quite normally until the vendor's agent's
secretary took it upon herself to subscribe the vendor's formal letter
of acceptance with the words "subject to contract." It appeared that
she failed to appreciate that the words (which were always used by
her employers in private treaty cases) were wholly inappropriate in
the case of a sale by tender, where the written acceptance is
invariably taken, without more, to conclude the contract. When,
sometime after the date of the letter of acceptance, the purchasers
wished to withdraw from the transaction, they issued a writ claiming
return of their deposit on the basis that the letter, being "subject to
contract," was no acceptance, and so, there was no contract.
The defendants' first contention was that the words "subject to
contract" should be expunged because the plaintiffs must be taken
to have realised that they had been inserted by mistake. The judge
had indeed found that the defendants' agents had used the words,
"by mistake" (p. 419e): on this basis, if the mistake had been shared
by both parties and there had been a prior agreement between them,
the defendants might have obtained rectification. Since there was no
such agreement, rectification was not available.
The defendants argued alternatively, and successfully, that "the
words ' subject to contract' should be rejected as meaningless in the
context, and . . . relied on Nicolene v. Simmonds [1953] 1 Q.B.
543 . . ." (p. 424a). Nicolene v. Simmonds is a difficult case. S, in
writing, accepted N's offer to purchase a quantity of steel bars at a
stated price and added: "I assume that we are in agreement that
the usual conditions of acceptance apply." The Court of Appeal
found that there were no "usual conditions of acceptance" and
held that since the words were meaningless they might be ignored
in construing what was otherwise a clear, formal commercial agreement. In the St. Saviour's case Goff J. held that although Nicolene
v. Simmonds was different on the facts from the case before him,
"the principle" applied (p. 242d): the words "subject to contract"
were, in the context of a written acceptance of a written tender,
meaningless and so might be ignored.
Goff J. emphasised that his decision was on the particular facts
of the case and he expressed the hope that the "judgment [would]
not ring warning bells in solicitors' offices" (p. 424d, recalling a
phrase of Lord Denning M.R. in Tiverton v. Wearwell (supra)).
Nevertheless, doubts arise on examination of the "principle"
in
Nicolene v. Simmonds, for it is not clear from the judgments in

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[1976]

that case that the decision does rest upon a single principle.
Singleton and Hodson L.JJ. appear to have used the word " meaningless" to mean "inapposite," i.e., etymologically, "out of place" in,
or not integral to, a discourse. So, e.g., if I agree to sell you my
bicycle, it is inapposite, and so, in the context of our agreement,
"meaningless " for me to add that I like steamed pudding; of course,
the latter remark would not be meaningless in a discussion about
gastronomic likes and dislikes. Similarly, some such words as "usual
conditions of acceptance" may, in a particular context, be apposite
(and so, meaningful) although, possibly, ambiguous or imprecise
(see, e.g., Scammell Ltd. v. Ouston [1941] A.C. 251). It is familiar

that if the terms of an alleged contract are imprecisely expressed, the

courts will not, on the whole, cure the imprecision and so make the
parties' bargain for them (ibid.). In Nicolene v. Simmonds, though,

Denning L.J. found the disputed clause "meaningless" in the sense

(different from that found by his brethren (supra)) that it was "so
vague and uncertain as to be incapable of any precise meaning"
(p. 552); and it appears to be on this basis that the textbooks take
Nicolene v. Simmonds as authority that "If there is agreement on
all substantial terms, the courts may disregard-a subsidiary term
which is meaningless" (see Chitty on Contracts, 23rd ed., para. 87;
Halsbury'sLaws, 4th ed., "Contract," para. 268).
It appears, then, that the word "meaningless" was used in
Nicolene v. Simmonds to mean both "inapposite" and "imprecise."
In its latter meaning, it led to a qualification of the general rule that
the courts will not cure an alleged contract of ambiguity. In its
former meaning it illustrated the principle that "If there is in a
contract a word or phrase to which no sensible meaning can be
given.., it may be rejected to carry out the intention of the parties"
(Chitty, para. 632). A difficulty of the St. Saviour's case is that
Goff J. used "meaningless" in a third sense, to mean, in effect,
"irrelevant." So if, in agreeing to sell you my bicycle, I point out
that it has no pedals, the remark is clearly apposite (in the sense, discussed above, that the remark is patently integral to the discourse)
but may or may not be relevant to determining in law the obligations
of buyer and seller. By the same token, to add " subject to contract"
to an acceptance of an offer to buy a house is clearly apposite (as it
was in St. Saviour's, but as the disputed clause in Nicolene was
found by Singleton and Hodson L.JJ. not to be); but, again, whether
or not it is relevant to the legal position will depend upon all the
circumstances of the case. That is to say, a word or phrase can in
principle be seen to be apposite simply by reading the document or
listening to the discourse in which it is used; but its relevance depends

Case and Comment

C.L.J.

not only upon the terms of the discourse but upon all the circumstances (the whole "context ") in which the discourse is uttered. To
say that the words "subject to contract" are meaningless in the
sense that they are irrelevant requires one, in effect, to admit
evidence that the parties cannot have meant what they said: but
there can be no doubt that had they meant it, as well as said it, the
effect would have been to preclude any firm agreement. A question,
then, that Goff J. has posed for us in the St. Saviour's case is: when
will the courts hold that the "context" in which the words "subject
to contract" are used is such that they may be treated as meaningless, and so ignored, on the basis that the parties cannot have meant
what they said? Do we hear a distant tinkle? ...

C. T.

DAMAGES

EMERY.

IN CONTRACTS OF CARRIAGE BY SEA

The Albazero [1975] 3 All E.R. 21 concerned three companies, A,

B and C, all subsidiaries of Occidental. Further to a contract of sale
to C, A, the plaintiff company, had a cargo of crude oil sent from
Venezuela on the Albacruz, time chartered from the defendant.
A had the bill of lading sent to B in Paris; being authorised to do
so, B endorsed it generally in A's name and on 13 January posted
it to C in Antwerp. The next day vessel and cargo were lost at
sea. On 15 January the bill was received by C. Action by C on the
bill was not brought within the year as required by the Hague Rules,
so action was brought by A under the charter. The Court of Appeal
held that A's interest in the cargo was released to C on 13 January;
hence that at the date of loss A lacked property in or right to
immediate possession of the cargo, but could nonetheless sue for
substantial damages in respect of the loss by reason of its special
contract with the defendant: Dunlop v. Lambert (1839) 6 Cl. & Fin.
600.
A had ownership of cargo on January 14 only if that ownership
did not pass to C until receipt of the bill on January 15 rather than
on posting two days earlier. In a "normal" C.I.F. contract ownership passes on receipt, even if no payment is required against documents, and this was accepted by the court. The instant case was not
"normal," but did it differ from the norm in a material respect?
Apparently so for Roskill L.J. found an intention to pass ownership
on posting; but he did not indicate the material difference. Nor did
he explain why the buyer should not first inspect the documents; even
companies in the same group often treat at arm's length.
Did A have any right to sue at all? But for the charter, this

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[1976]

would have been a question bedevilled by conflicting cases; as it was,

when ownership passed to C, the company received rights and duties
as if under a contract evidenced by the bill of lading: Bills of Lading
Act, s. 1. The charter, and A's rights thereunder, remained quite
unaffected. But could A sue for substantial rather than nominal
damages? Ormrod L.J. apart, the court did not separate this question
from the previous one; but nor did the Lords in Dunlop v. Lambert,
awarding full damages without comment. This is perhaps why
Dunlop was not cited to the Court of Appeal in Shaw v. Cox (1923)
16 LI.L.R. 216, where suit was admitted but more than nominal
damages denied to charterers because, inter alia, they lacked any
proprietary interest in the damaged goods. Shaw was too easily
brushed aside by the present court which found that a plaintiff who
has contracted to have his goods carried by sea can recover from the
shipowner for the loss of or damage to the goods caused by the
shipowner's breach of contract, whether or not the plaintiff has
himself been damnified. This special rule was applied in the face of
the general rule (see Cairns L.J. at p. 25) that in an action for
damages for breach of contract the plaintiff can only recover such
damages as he has actually suffered.
Of great interest is Roskill L.J.'s review (pp. 40-41) of relevant
commercial and general considerations. Against suit were the following: (1) There is no commercial necessity for action by a time
charterer in such circumstances. He is often a middleman without
direct interest in the goods shipped; and hence, incidentally, while
loss of goods is enough to raise a prima facie case against the shipowner for the consignee, it is usually insufficient for the time
charterer (Scrutton, Charterparties,p. 366; Rodi~re, Droit Maritime,
Nos. 61, 114). (2) Suit is difficult to reconcile with the basic concept
of the C.I.F. contract; and with the language of the Bills of Lading
Act which appears to transfer all rights of suit in the bill to the
consignee. But the Act is easily accommodated where the plaintiff
has, in the charter, a contract quite independent of the bill; and
even when there is no charter, the shipper can surely rely on the
bill to defend an action by the shipowner for freight if the goods
have been damaged at sea. (3) Suit increases the risk of double
recovery against the shipowner, once by the charterer and once by
the consignee. (4) It would be curious that a shipper who was unable
to sue in tort because he lacked ownership (Margarine Union case
[1969] 1 Q.B. 219) could nonetheless sue in contract. But it is not
clear why in any one context a general duty of care in tort should
be co-extensive with duties specially created by agreement.
In favour of suit, said Roskill L.J. (p. 41), were "powerful con-

C.L.J.

Case and Comment

siderations," which can be condensed to one: "it may be thought

unjust that the value of underwriters' subrogation rights should turn
on whether action is brought in the name of one company in the
group rather than another." But those rights depended rather on
whether action was brought in time. The damages recoverable by
A were to be held on trust for C. Cairns L.J. pointed (p. 25) to
parallels elsewhere: the trustee can sue for the loss of his cestui
que trust, the insured for that of his insurer, the agent for that of
his principal. Moreover, in Jackson v. Horizon Holidays [1975] 3
All E.R. 92 a differently constituted Court of Appeal had allowed the
plaintiff, who had contracted a disastrous package holiday in Ceylon,
to recover for the loss of enjoyment suffered by his wife and children.
This was because (Lord Denning M.R. at p. 96) "it is the only way
in which a just result can be achieved." This is true of the "parallel"
situations but not of The Albazero. Consignees in cases like Dunlop v.
Lambert had no action until the Bills of Lading Act made the
decision redundant. Mrs. Jackson had no action. Company C did
have an action but failed to bring it in time. Is it necessary to strain
the law to save consignees from their own carelessness? Is it
desirable to do so if a perfectly sensible time limit in the Hague Rules
is thereby evaded? If it must be done, would it not be juristically
better to break a different rule, to pierce the corporate veil and
recognise that damage to C is damage to A and vice versa? This at
least would confine the anomaly to shipments between branches
of large enterprises.
MALCOLM CLARKE.

CONTRACT-THE BUYER'S RIGHT TO REJECT DEFECTIVE GOODS

ONE

might have thought that a case concerned with the buyer's

right to reject defective goods would be controlled by the Sale of

Goods Act 1893; in Cehave N. V. v. Bremer Handelsgesellschaft mbH

[1975] 3 W.L.R. 739, the Court of Appeal preferred to apply the

general law of contract, and their opinions are consequently of
interest not only to students of that branch of the law but also to
all those amused by the interaction of legislation and judicial
decision.
Pellets of citrus pulp delivered pursuant to a contract of sale
were found on arrival to be quite badly burnt. The buyers, who had
paid in advance, refused to accept them on the ground that they
had not been "shipped in good condition" as the contract expressly
required. The sellers denied this, and refused to refund the price.
While this dispute was brewing, the pellets themselves were sold
by judicial order in Rotterdam; they were purchased for a fraction
C.LJ.-2

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[1976]

of the contract price by the buyers, who then put them to the use
originally envisaged, namely adding bulk to cattle food.
The arbitrators found as a fact that the pellets were not "shipped
in good condition "; they also held that they were not "merchantable" under section 14 (2) of the Sale of Goods Act 1893; the sellers
were consequently ordered to refund the price. This award was
upheld by Mocatta J., but the sellers' appeal was unanimously
allowed by the Court of Appeal, who remitted the matter so that
the arbitrators could quantify the damages to which the buyers were
entitled: the finding that the pellets were unmerchantable was
reversed and the breach of the express term that they were shipped
in good condition was held not to justify the buyers in rejecting the
goods.
If the finding that the pellets were unmerchantable had been
allowed to stand, the appeal would probably have been dismissed:
not only does it stand to reason that one can't have to accept goods
which are no good, but the Act lays down that the buyer is liable
only if (condition) the goods are merchantable. The fact that the
finding was reversed is not very interesting of itself, but it is worth
noting that the pellets were really not as they should have been:
Roskill L.J. said that they were "far from perfect," as must indeed
have been the case, since he expected the damages for the defect
to amount to about a quarter of the value of sound goods. One very
interesting question is raised by this: if the buyer must accept
goods with serious defects because they are nevertheless usable and
merchantable, on what basis can he claim damages for their shortcomings, as surely he must be able to? The Act itself provides that
no warranty of quality is implied other than those stated in sections
14 and 15. It follows that if the courts too readily hold defective
goods to be merchantable, the buyer may be placed in an unfair
difficulty. This particular problem did not arise in Cehave since the
contract contained an express term that the goods be "shipped in
good condition," and the sellers finally admitted that they were in
breach of it.
The contest was whether this breach justified the buyers in
rejecting the goods. The Court of Appeal unanimously held that it
did not: this was not a term such that any breach of it entitled the
buyer to reject; rejection was permissible only if the breach robbed
the buyer of virtually the whole benefit of the transaction, and the
arbitrators had made no such finding. In other words, this term as
to quality in a contract for the sale of goods was not a " condition"
like the terms as to quality implied by the Act, nor yet a warranty
like other terms legislatively implied, but was an innominate term

C.L.J.

Case and Comment

of the common law kind made prominent in Hong Kong Fir Shipping
Co. v. Kawasaki Kisen Kaisha [1962] 2 Q.B. 26, in relation to the

shipowner's obligation as to the seaworthiness of a vessel let on

time-charter.
The doctrine of the Hong Kong case was wholly novel, indeed
revolutionary, and it was welcomed widely and enthusiastically.
This is not surprising since it is perfectly in tune with the spirit of
the times: designed. to repress sharp practice, it operates to reward
incompetence and promote inefficiency. This requires a moment's
attention.
Repressing sharp practice. It is a fact that contractors who find
that their bargain is less good than they expected tend to look
around for some excuse to renege or resile. Unless there has been
some providential disaster redolent of frustration, the only plausible
pretext for resiling is the other party's breach. It follows that many
people put forward their contractor's breach as a ground of release
when they actually want to quit for wholly different, and legally
inadequate, reasons, such as a movement in market or exchange
rate, or a change in their own requirements or resources. This may
be Good Business, but it seems a Poor Show, which must be discountenanced and put an end to by all right-thinking professionals.
Now there is only one case where one can be fairly sure that a
person trying to get out of a contract is not using the other party's
breach as a mere pretext, and that is when the consequences of that
breach are so extreme that no one in his right mind would carry on:
if only a fool would soldier on, the man who runs away is probably
not a knave. This is the reason for the severity of the Hong Kong
doctrine that you cannot resile on the ground of the other party's
breach unless its consequences are so grave that you would have
been released had they occurred without any breach at all. It is

hardly an exaggeration to state that at common law nowadays a

contractor is never discharged from his obligations by the other
party's breach, unless there is a clear stipulation to the contrary,
but only, if at all, by the doctrine of frustration. Contracts must be
honoured in the breach, since breach sounds only in damages.
Rewarding incompetence. If you diminish the rights of one party
to a contract, you automatically increase the rights of the other
party, and before you do the first, you should ask if you want to
do the second. Now it is not surprising that in penalising wickedness
the Hong Kong rule rewards incompetence; like much other
moralism, it operates unfairly. This happened in Cehave itself. The
seller had made what turned out to be a very good bargain, since
the market fell rapidly after the contract was made. Instead of

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[1976]

performing his contract scrupulously as he ought, he shipped goods

which not only were not perfect but could not even be described as
being in good condition. Should he be able to keep the whole of the
profit which was agreed for sound goods? Surely not! But the Court
of Appeal, horrified lest the buyer get the spoilt cargo for less than
its true value, ended up by making the buyer pay not only the true
value of the spoilt cargo but the seller's whole profit as well. It is not
to the point to object that the seller must pay damages, for the
damages cover only the difference between the value (not the price)
of the sound goods which were promised and the spoilt goods which
were sent; the seller will obtain by his action for the price, or will
retain out of the price already paid, every penny of his envisaged
profit. "The guilty party is to get all that he bargained for unless
the innocent party gets no part of what he bargained for." Does this
sound like a fair rule? It is the rule of the Hong Kong case.
Promoting inefficiency. It is of the first importance that the law
be such that commercial men may take quick and sure advice about
the legal consequences of the practical options open to them when
something goes wrong with their transactions. Under the old dispensation, when the right to reject depended on the nature of the
term in the contract which was broken, the innocent party simply
had to go to the filing-cabinet, consult the contractual document
and then decide whether the term broken was a very serious one or
not; this final step admittedly called for judgment, and there could
often be two views, but at any rate the requisite data were immediately and presently available. Now that the right to resile turns on
the gravity of the consequences of the breach, the necessary data
are not words but events, they may be in the China Sea rather
than in the head office where decisions are taken, and one will
probably have to wait for them, since consequences tend to occur
after their causes; nor has the difficulty of assessment been alleviated,
rather the reverse. There has therefore been an undeniable loss
of speed and sureness of decision-making, and the Court of Appeal
is responsible for it. This is a matter for regret not only for commercial men but also for London as a whole, since merchants with
guilders and marks are not bound to hie them to London for
arbitration or adjudication, and they may well stop doing so if the
law goes soft on them.
There is, then, something to be said against any extension of
the Hong Kong doctrine, but even if one preferred the moralism of
the new view to the expediency of the old, one might regret the
stresses which English law is now suffering because the shift in
judicial attitude is unaccompanied by any change in the more formal

C.L.J.

Case and Comment

rules of law. The situation must have been much the same when
the Old Testament with its Ten Commandments was overtaken by
the One Principle of the New Testament: it was not so hard to deal
with the prophets (our nineteenth-century judges), since they
prophesied so much that one could aways find something useful in
Jeremiah or even Nahum, but the Ten Commandments (or Sale of
Goods Act) presented more of a problem. "The Sabbath was made
for man, and not man for the Sabbath" goes some way beyond
conventional construction of the Fourth Commandment.
The more Messianic of our judges are adherents of the One
Principle-Behave Reasonably-and would like it to be the rule
that a contractor can withdraw from his contract only if this is
reasonable in all the circumstances of the case, including the other
party's breach and his consequent liability to pay damages. No
such rule is to be found in the Sale of Goods Act 1893 or even in
the Supply of Goods (Implied Terms) Act 1973. On the contrary:
"Where the seller delivers to the buyer a quantity of goods less
than he contracted to sell, the buyer may reject them . . ." (s. 30);
so, too, where an excess is delivered the buyer ...
may reject the
whole . . ." His right to reject may be subject to contrary trade
usage (and we can expect to find some of these quite shortly), but
there is nothing to make the validity of its exercise depend on its
reasonableness. The situation with regard to title, description and
quality (ss. 12-15) is not quite so unambiguous, but on a normal
reading of the Act, if the seller is in breach of a term described in
the Act as a "condition," the buyer may reject without any further
questions asked, save whether he has waived his right to do so.
Now if the legislature has been perverse enough to create rights
which private citizens may exercise in an unreasonable manner,
what are the judges to do about it? They could have adopted an
extrinsic rule to the effect that all rights must be exercised in a
reasonable manner, but fortunately or unfortunately the existence
of any such rule has been quite recently denied by a majority both
of the House of Lords (White and Carter (Councils) v. McGregor
[1962] A.C. 413) and of the Court of Appeal (Chapman v. Honig
[1963] 2 Q.B. 502). The judges must therefore operate inside the
rights themselves, by redefining them so that they are incapable of
abuse. This is what the Hong Kong case did with the common law
right to resile, and this is what Cehave actually does with the
statutory right to reject for unmerchantability, for it virtually asserts
that goods are unmerchantable only if it would be reasonable to
reject them, even although, as has been mentioned above, this
method of denying the breach in order to prevent rejection has

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[1976]

the drawback of preventing a claim for damages as well. With regard

to the term "shipped in good condition," the Court of Appeal
could not deny the breach, since the sellers admitted it, so they had
to deny the remedy on the basis of Hong Kong, even at the expense
of introducing into contracts for the sale of goods terms of a kind
not envisaged by the controlling statute or, indeed, dreamt of at the
time of its enactment.
This Mocatta J. had refused to do, and one can understand his
being unswayed by the arguments which commended themselves to
the Court of Appeal. The first was that the legislature could not
have meant in a codifying measure to overturn the earlier cases in
which the Hong Kong doctrine was lurking. This is using the prophets,
probably to their dismay, to overturn the law. Secondly, it was said
that the Act preserved compatible common law anyway (s. 61 (2)).
So it does, but if the common law says that more or less the right
quantity will do, this is not compatible with the statute which says
that it must be the right quantity and neither more nor less. Thirdly,
it was said that there was no reason why the rules relating to contracts for the sale of goods should differ from the general law of
contract. This is extremely disturbing. Different transactions call
for different rules, even if they are all contracts, just as lockjaw and
goitre call for different prescriptions though both are diseases. All
civilised legal systems have a special r6gime for the sale of goods.
Even English law does: it is called the Sale of Goods Act. The fact
that the legislature passes enactments related to particular types of
transaction not only shows that their rules may differ, but actually
makes them differ, from the "general law of contract." Assumpsit
was doubtless a single action at law, but there is more than one kind
of transaction in fact, and it is not a merit of the common law to
fail to distinguish what a child can tell apart, who knows better than
to offer "rent" to the bus-conductor or a "premium" to his
barber. This failure has resulted, among other things, in the English
law of contracts already having a General Part which is much too
big. It will not seem so, of course, to adherents of the One Principle,
for if there is One Principle, all distinctions must be as dross, save
only the Ying and Yang of Reasonable and Unreasonable, Fair
and Unfair or What I Like and What I Don't.
TON WEIR,

REDUNDANCY PAYMENTS AND PROMISSORY ESTOPPEL

THE

Court of Appeal's handling of the doctrine of promissory

estoppel in Evenden v. Guildford City Association Football Club

Ltd. [1975] 3 W.L.R. 251 (a case concerning a claim for a redund-

C.L.J.

Case and Comment

ancy payment) should attract the attention of both contract and

labour lawyers.
The appellant was, in 1955, employed as a groundsman by the
supporters' club of Guildford Football Club. In 1968 the football
club took over from the supporters' club as his employers, but he
continued to do the same work as before. At the time he was assured
that this change would not prejudice him, and these assurances were
contractually binding on the football club (see Donaldson P. [1974]
I.C.R. 554, 556). Subsequently the management of the club changed,
they became hard up, and in 1974, after an amalgamation with
another club, the appellant was declared redundant, whereupon, the
club management sought to go back on the assurances made in 1968.
They said the appellant had been continuously employed by the
club only since 1968, not 1955, and offered a redundancy payment
some 300 less than the employee expected. Could they do this in
the teeth of what they had said in 1968?
Dealing first with the common law, it has already been mentioned that the N.I.R.C. thought there was "a quite unanswerable
claim against the football club in contract." Similarly, Browne L.J.
thought there was a "binding contract." But this was little comfort
to the employee, since he was, of course, claiming a redundancy
payment and not damages for breach of contract. Industrial tribunals
are ultimately to be given power to hear actions relating to breach
of the contract of employment, but they do not have it yet, and all
the N.I.R.C. felt itself able to do was to recommend that a separate
action for breach of contract be brought in the county court. The
Court of Appeal, however, was more adventurous in construing the
effect of the representations made by the club in 1968. Browne L.J.
decided that, because these were contractually binding, the club
could not deny that employment was continuous from 1955. He was
" content to put this on the basis of avoiding circuity of actions "
(p. 258). The Master of the Rolls agreed that there was a binding
contract, but both he and Brightman J.rested their decisions in
favour of the employee on the basis of promissory estoppel. "At the
meeting of October 1968 there was a clear representation by the
football club that Mr. Evenden's employment would be treated as
continuous. That representation was intended to be binding and
intended to be acted upon. He did act upon it. He did not claim
from the supporters' club the redundancy payment to which he
would otherwise have been entitled from that club. Six months later
his claim against the supporters' club was barred by lapse of time"
(per Lord Denning at p. 256). Brightman J. thought that to allow the
employer to argue on continuity would be " an abuse of the process

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[19761

of the court, and contrary to the clear understanding upon which

the parties have acted" (at p. 260).
What is innovatory in the application of promissory estoppel here
is the fact that, before 1968, the parties were not in contractual relations with each other. Lord Denning swiftly disposed of this point
by referring to Durham Fancy Goods Ltd. v. Michael Jackson
(Fancy Goods) Ltd. [1968] 2 Q.B. 839, but the circumstances of
that case were rather special. Although promissory estoppel was
there applied in the absence of prior contractual relations, there had
been business dealings between the plaintiffs and the limited company
of which the defendant was one of two directors and shareholders.
In the present case, the pre-1968 relationship between the employee
and the football club was far less close. The supporters' club which
employed him was legally and financially independent from the
football club and, indeed, raised cash to help it. It remains to be
seen whether the doctrine will now be applied to situations where
there is no history at all of association between the parties; Lord
Denning's formulation of the principles leaves no room for any
such limits on its scope.
Of particular interest to labour lawyers is, first, the interpretation
of section 9 (2) (a) of the Redundancy Payments Act 1965 which
was accepted by the Court of Appeal. This provides that "a person's
employment during any period shall, unless the contrary is proved,
be presumed to have been continuous." The N.I.R.C., following
though not acknowledging the views of Lord Parker C.J. in Chapman
v. Wilkinson (1967) 2 I.T.R. 39, thought this presumption had no
application here where there had been a change of employers during
the period 1955-74. Indeed, in their view, it was on this point that
the attempt to introduce promissory estoppel failed. Because there
was no presumption of continuous employment, it was for the
employee to show continuity, and in so doing he could not rely on
promissory estoppel: to allow him to do so would be to permit the
use of the estoppel as a sword and not a shield. This point did not
trouble the Court of Appeal, however, since it was an important
part of their judgments that the presumption applied to the whole
period of employment from 1955, despite the change of employers.
What is more, the presence of promissory estoppel, as has been seen,
made that presumption unchallengeable for it prevented the football
club from leading evidence to show that, in law, there was no
continuity. It should be stressed that, without the benefit of the
presumption, the employee would have had little hope of success,
since the transfer of his services in 1968 almost certainly did not
constitute a "change . . . in the ownership of a business for the

Case and Comment

C.L.J.

purposes of which is a person is employed, or of part of such a

business " within the meaning of section 13 (1) (a) of the Redundancy
Payments Act: see Donaldson P. at p. 557, and Lord Denning at
p. 256.
So much for the settlement of the claim for redundancy payment
made by the employee against the football club. But the interest of
the case does not end there, although the report does. An employer
who pays a redundancy payment will in the normal course of events,
be able to recoup half of this from the centrally-financed Redundancy Fund. Would the football club be able to do this in respect of
that part of the redundancy payment covering the period 1955-68?
A rebate may be claimed only if the employer is "liable " (Redundancy Payments Act, s. 30 (1) (a)) to make the redundancy payment,
and an employer who makes a payment in response to a claim which
has been brought outside the six-month period permitted by statute
will not be reimbursed (Secretaryof State for Employment v. Atkin

Auto Laundries [1972] 1 W.L.R. 507), except, perhaps, where the

employer has by his own conduct encouraged the employees not to
make their claims within the six months. An industrial tribunal in
HullandGravel Co. Ltd. v. Secretary of State for Employment (1969)

4 I.T.R. 110 thought that, if the employer would be estopped from

relying on the six-month time limit, then he could claim rebate in
respect of a redundancy payment made by him in response to a
claim submitted out of time.
What should the position be where, as in the present case, there
is no continuity of employment in law, but the employer is estopped
from making this point? It is suggested that, in principle, the
employer should not be able to recover any rebate. Where, as here,
an employer has blatantly gone back on his word in his dealings with
an employee, there is obvious justice in safeguarding the latter's
position, but there is no reason why the employer should, by his own
misconduct, be able to extend the range of circumstances in which
BRIAN NAPIER.
money is payable to him out of public funds.

THE IMMUNITY

IN

OF ARBITRATORS FROM NEGLIGENCE

Arenson v. Casson Beckman Rutley & Co. [1975] 3 W.L.R.

815, the defendants had been called upon by the plaintiff's uncle to
determine the price of a parcel of shares, which the plaintiff had
agreed to sell to his uncle, and they were sued on the ground that
they had negligently undervalued the shares.
Both Brightman J. at first instance ([1972] 1 W.L.R. 1196) and

the Court of Appeal, Lord Denning M.R. dissenting ([1973] Ch.

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[1976]

346), accepted the defendants' claim that they were immune from
liability, on the ground that everyone Who "undertakes the role
of deciding as between two other parties a question, the determination of which requires the third party to hold the scales fairly
between the opposing interests of the two parties" enjoys an
immunity from liability for negligence similar to that accorded by
the law to judges and arbitrators ([1973] Ch. 346, 370, per Buckley
L.J.).
This proposition however was expressly disapproved by the
majority of the House of Lords in Sutcliffe v. Thackrah [1974] A.C.
727, a similar case involving an architect, decided by the House of
Lords after the Court of Appeal's decision in the instant case. The
defendants could not rely upon this proposition in the House of
Lords and they therefore sought to persuade the House to expand
the rule attaching immunity to arbitrators so as to include cases of
"mutual "valuation.
This, as Lord Simon observed (at p. 821), was to "start the
journey at the wrong place "; "it is wrong in principle," he said,
"to free-wheel by analogy from the arbitrator's immunity, as if it
were not exceptional, and as if the primary rule were not one of
responsibility." With this approach the majority of their Lordships
agreed (see pp. 826, 837 and 841 for the similar views of Lords
Wheatley, Salmon and Fraser).
The majority also found that the so-called immunity of the
arbitrator attaches only to a person appointed to perform a "judicial
function," i.e., one engaged in resolving a "formulated dispute"
between two parties (see pp. 826, 830, 839 and 842). Lord Kilbrandon
actually considered that arbitrators could never claim immunity (p.
832). The appeal of the plaintiff was therefore allowed.
The chief interest of this case lies in the affirmation of the rule
of responsibility for negligence as the anterior, primary rule of
public policy in this field. This means that, as far as negligent statements are concerned, Hedley Byrne should apply unless an exceptionally strong public interest, such as the speedy and final settlement
of disputes, leads to a rule of immunity. Perhaps it can now be
said that Evatt was only a momentary retreat in the course of the
glorious advance of the rule of liability in the terra incognita of
economic loss. This is in fact the third major decision of the House
of Lords since Evatt, the tenor of which runs contrary to the spirit
of that case (see Rondel v. Worsley [1967] 3 W.L.R. 1966 and
Sutcliffe v. Thackrah) and more closely to that of Hedley Byrne.

Furthermore, this new kind of liability has been absorbed by the

professions and the world of business without any great difficulty,

C.L.J.

Case and Comment

notwithstanding the pessimistic forecast following the decision in

Hedley Byrne itself (see the remarks of Lord Salmon at p. 839).
The decision in Arenson is less successful in defining the scope
of the immunity.from liability under Hedley Byrne. The Law Lords
disposed of the "heresy" of the immunity of "quasi-arbitrators ""
and the like, only to introduce a criterion which, because of its
vagueness, will be difficult to apply. What is a "dispute "? When
is a "dispute" " formulated "? If, following Lord Wheatley, the
immunity attaches to a person engaged in resolving "a dispute or
difference" (p. 830), what is a "difference" as opposed to a "dispute "? Surely, if "difference" is included so is "dispute," for
every dispute must be a difference.
A further difficulty arises: since Arenson, the fact that a person
has been formally appointed as an arbitrator under the Arbitration
Acts may no longer imply automatically that he is protected by the
arbitrator's immunity. Two of their Lordships implied that, here
too, the criterion of immunity should be whether or not the
"arbitrator" is discharging a "truly judicial function," although
they were unwilling to give an opinion on that 'point since it had
not been argued (see pp. 840 and 842, per Lords Salmon and Fraser).
The solution of this question and of those raised above should receive
the attention of the House, when it comes again to examine the
immunity of arbitrators.
The interpretation of "formulated dispute" becomes more
difficult after the decision of the majority (Lord Salmon dissenting)
that Finnegan v. Allen [1943] K.B. 624 (C.A.), a case on similar
facts which granted immunity to the valuer of shares, was rightly
decided (see pp. 826, 830 and 842). On the basis of its "special"
facts their Lordships agreed that the valuer in that case had before
him "a formulated point of difference." The "special" nature of
the facts in Finneganis, however, difficult to understand.
The public interest in the final and speedy settlement of disputes
is not the only reason for the immunity of arbitrators. Another,
equally important, is that the genuine arbitrator, like the judge, has
no investigatory powers of his own (see Sutcliffe [19741 A.C. 727,
735-736, per Lord Reid): he must give judgment on the basis of the
evidence and the submissions of the parties and his decision is subject to appeal by way of case stated to the High Court. But even
though an action for negligence against him would have little
chance of success since "there is so much room for difference of
opinion in reaching a decision of a judicial character" (Lord Reid in
Sutcliffe at p. 736), to deprive him of immunity could still have
undesirable consequences on his freedom to handle and decide dis-

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[1976]

putes in accordance with his personal opinion of the needs of the

case. It is therefore submitted that the test for the immunity of an
arbitrator should be one which combines the existence of a
"formulated dispute" with the duty to decide it only in the light
of the evidence presented by the parties (see the remarks of Lord
Wheatley at p. 830).
E. K. BANAKAS.

BELT UP! -THE

WIDENING

SCOPE OF CONTRIBUTORY NEGLIGENCE

to use an available seat belt is contributory negligence for

which a plaintiff's damages may be reduced, even if the collision in
which he was injured was entirely the defendant's fault. This is the
ruling of the Court of Appeal in Froom v. Butcher [1975] 3 W.L.R.
379, a decision which thus settles the seat belt controversy unless
and until the matter comes before the House of Lords.
Lord Denning M.R., in whose judgment his brethren concurred,
began with a brief review of the dozen or so conflicting decisions at
first instance. Then he squarely faced the main legal issue-the point
conceded by the plaintiff and thus largely going by default when
in O'Connell v. Jackson [1972] 1 Q.B. 270 the Court of Appeal
held it to be contributory negligence in a motor-cyclist not to wear
a helmet (see [1972A] C.L.J. 27). Can conduct amount to contributory negligence if it does not help to cause the accident, but
merely augments the damage that results? Lord Denning said that
it can. So it was relevant to go on to consider (a) whether or not
the plaintiff was negligent not to have worn his seat belt, and (b) how
far, if at all, this should reduce the damages recoverable. After
examining a mass of technical evidence, Lord Denning had no
doubt that wearing a seat belt, although it might increase the risk of
injury in some rare cases, on balance greatly decreased the risk of
injury. This fact was widely known and should have been appreciated
by the plaintiff. Overruling the trial judge, Lord Denning said that
it was no answer to the allegation of contributory negligence for
the plaintiff to say that, contrary to the evidence, he believed that
seat belts were useless. His failure to wear his seat belt was therefore negligent. Then by how much should the damages be reduced?
Lord Denning answered this as follows. "Sometimes the evidence
FAILURE

will show that the failure made no difference.... In such cases the

damages should not be reduced at all. At other times the evidence

will show that the failure made all the difference. The damage would
have been prevented altogether if a seat belt had been worn. In
such cases I would suggest that the damages should be reduced by
25 per cent. But often enough the evidence will only show that the

C.L.J.

Case and Comment

failure made a considerable difference. .

. In such cases I would

suggest that the damages attributable to the failure to wear a seat

belt should be reduced by 15 per cent."
Lord Denning's judgment is so clear and so comprehensive that
it leaves little for a commentator to add. However, there are three
unconnected points which deserve to be discussed.
The first of these is the way in which the Court of Appeal tried
to prescribe in advance the percentage by which a plaintiff's damages
should be reduced in this sort of case. As the apportionment of
damages for contributory negligence is usually treated as a matter
for the discretion of the court in question, it is possible to raise
academic objections to this. Nevertheless, in practice this piece of
clear guidance is surely very welcome. The courts have decided that
the apportionment of damages where there is contributory negligence
depends on two main factors: comparative blameworthiness, and
comparative causal contribution to the damage. Because these factors
often pull in opposite directions, and no one knows which of them
is then supposed to trump the other, in such a case as this virtually
any apportionment can, in abstract terms, be logically supported.
In a situation which is likely to recur frequently, therefore, a clear
rule seems highly desirable. Practitioners will thank the Court of
Appeal, and heave hefty sighs of relief that the greyest of all grey
areas has resolved itself into black and white.
The second point for discussion is the practical effect of the
decision. No doubt the consequence will be that many persons
injured in road accidents will receive less compensation than would
otherwise be payable. On this account the decision is likely to be
criticised, especially as the hardship to the victim will not in practice
be balanced by any greater fairness to the defendant. Although in
theory reducing the victim's damages for his contributory negligence
relieves the defendant of the unjust burden of having to pay for
injuries for which the plaintiff is himself to blame, in practice the
defendant could not care less, since it is not the defendant but his
employer or insurer who really foots the bill. As Professor Atiyah
points out, contributory negligence falls much more heavily on
the plaintiff than negligence falls on the defendant, and for this
reason a decision which extends the scope of contributory negligence
will be said to be unwelcome. As a comment on compensation for
road accidents, this criticism is entirely just. However, critics should
remember what the function of the tort of negligence is meant to be.
Compensation alone may be the object of some torts, but torts of
fault liability are surely designed to serve a double function. Thus
the tort of negligence is designed not only to compensate, but also

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[1976]

to discourage unreasonable behaviour by making (in theory) those

who are guilty of it pay for it. It can only be because of this second,
deterrent function that it provides compensation only for those who
are injured by a negligent defendant. It is surely consistent with
this deterrent function to penalise the careless plaintiff by depriving
him of some of his damages where he too is guilty of unreasonable
conduct. Admittedly an unreasonable failure to wear a seat belt,
unlike careless driving, is unreasonable conduct of a kind which
does not obviously endanger other people; but even if a careless
person injures no one but himself, his injury is bound to cause some
undesirable social dislocation, and it is therefore a proper object of
the law to discourage this sort of carelessness as well. Froom v.
Butcher, therefore, is a decision entirely consistent with the composite notions of policy which underlie fault liability in general and
the tort of negligence in particular; and any criticism of the decision
because it limits the compensation which the victims of road
accidents will receive-though just-is surely criticism which ought
to be directed at fault liability as a whole, rather than at one particular decision which is entirely consistent with that concept.
Rugger may be a better game than cricket: but if it is, give up
cricket and take up rugger; do not try to change cricket by playing
it with an oval ball.
Finally, Froom v. Butcher should be noted as an example of a
trend which has developed since 1945-the resurrection and extension
of the concept of contributory negligence. In the very distant past,
contributory negligence was probably just a rule of causation,
invented to provide a harsh but simple solution in a case where one
of the contributory causes of the damage was the plaintiff's own
culpable conduct. Because in those days it meant that the plaintiff
completely failed, the notion of contributory negligence was later
felt to be too harsh, the concept was cut down and qualified, and in
the end contributory negligence became so complex that it appeared
to be a separate notion, an appendage to-rather than part of-the
usual rules of causation. Then the Act of 1945 allowed apportionment for contributory negligence. After that, contributory negligence
re-appeared as a useful device for solving some of the inextricable
problems of causation which arise where the plaintiff's injury is due
to several factors. The courts have therefore removed one by one
the limitations which earlier courts had put upon it, and have given
the concept an ever widening scope. In Davies v. Swan Motor Co.
Ltd. [1949] 2 K.B. 291 they decided that contributory negligence
could be invoked even where the plaintiff's negligence did not consist
of a breach of a duty owed to the defendant. In Froom v. Butcher,

C.L.J.

Case and Comment

the Court of Appeal has now decided that there can be contributory
negligence (and hence apportionment) where the plaintiff's negligent
conduct augmented the damage, although it did not help to cause
the accident. And it now remains to be seen whether or not the
courts will follow the lead given by Brandon J.in The Calliope [1970]
P. 172, and will decide that the concept of contributory negligence
can be invoked even where the plaintiff's careless conduct occurred
after the original negligence of the defendant-so enabling them to
apportion the loss instead of producing an all-or-nothing result
based on a complex discussion of novus actus, chains of causation,
and all the other mystical metaphors with which at present they have
to disguise a test of first impression.
J.R. SPENCER.

GIFT OR LOAN?

CONFLICTING INTENTIONS

Goff J.'s decision in Dewar v. Dewar [1975] 1 W.L.R.

1532 as to the effect of a payment made as a gift but accepted as a
loan conflicts with the uncited decision of the Court of Appeal in
Chancery in Hill v. Wilson (1873) 8 Ch.App. 888.
The dispute concerned distribution of the proceeds of sale of a
house bought in his own name by the defendant as a home for his
whole family and paid for partly in cash received as contributions
by his mother and brother (the plaintiff). Goff J. held that the
plaintiff's contribution was not a loan but "a straight case of a
stranger in law, albeit a brother, helping out with the purchase of
a house in which the two families were to live together" and so
entitling him not to repayment but, under a resulting trust, to an
aliquot share of the proceeds of sale.
The mother's contribution, however, was clearly intended as
a gift but was always considered by the defendant as a loan.
Unfortunately it was not open to his Lordship on the pleadings to
hold it a loan, so it must either be a gift or create a resulting trustperhaps of the sum lent rather than a share of the house or proceeds.
From certain passages in the judgments in Cochrane v. Moore (1890)
25 Q.B.D. 57 and Standing v. Bowring (1885) 31 Ch.D. 282admittedly not directly in point as neither case involved conflicting
intentions-Goff J.concluded that, where an intended donee receives
and keeps the thing given, his indication that he accepts it only as
a loan does not prevent it being.a gift unless the donor then agrees
to it being a loan. Ironically, therefore, by asserting a loan the
defendant had proved a gift, which rebutted any resulting trust.
Consequently he could keep all proceeds of sale except the plaintiff's
aliquot share.
REGRETTABLY

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[1976]

In Hill v. Wilson, however, Mellish L.J. construed such cases

differently:
...in order to make out a gift, it must be shewn, not only that
the cheque was sent as a gift, but that it was received as a gift.
It requires the assent of both minds to make a gift as it does
to make a contract. No doubt you may infer that a person has
assented to that which is obviously for his benefit on slighter
evidence than would be required to shew that he assented to a
contract which may be to his prejudice;
He concluded that such a transaction is a loan, not a gift, unless
the payer in turn tells the payee that he must accept the money as
a gift or not at all and the payee nevertheless keeps it. The payee is
entitled to a reasonable time after receipt of the money in which to
indicate whether he accepts it as a gift or a loan and it is immaterial
whether he meantime uses it, since he is intended to have it one
way or the other.
There Wilson had refused Hill a loan but gave him 500 by
cheque. Hill wrote saying that he would repay it soon and three
months later gave Wilson a promissory note for 500 with interest
at one per cent. per annum (which was paid at least once). On
Wilson's death, his executor sued on the note but Hill pleaded an
oral understanding that the note was only to secure payment of
interest, the 500 being a gift. Mellish and James L.JJ. held the
500 to be a loan, both on the evidence and because the parol
evidence rule debarred Hill from pleading an oral agreement inconsistent with the note. Mellish L.J. held that, although Hill's initial
letter left it open whether he would eventually accept the money as
a gift or as a loan, execution of the promissory note was conclusive
evidence that it was to be a loan.
With respect, this emphasis on the need for ultimate consensus
seems preferable to the conclusion in Dewar. Should not the intended
donee's insistence that he accepts the thing given as a loan be
regarded as the equivalent of a counter-offer, which will be tacitly
accepted by the intending donor unless he in turn insists on a gift?
Perhaps Goff J. would have so held had Hill v. Wilson been cited and
had not the pleadings bedevilled the matter.
J. W. A. THORNELY.

POLYGAMY

AND BIGAMY

R. v. Sagoo [1975] 3 W.L.R. 267 is a most interesting case on the

law of bigamy. The appellant, a Kenyan Sikh, had married Rajinder
Kaur at a Sikh temple in Nairobi in 1959 at a time when polygamy
was permitted by Kenyan law. Polygamous marriage were prohibited

C.L.J.

Case and Comment

for Hindus and Sikhs in Kenya from July 1960. In 1966 he and his
wife came to England. The trial judge decided as a fact that the
parties acquired a domicile of choice in England sometime in 1973.
In 1973, whilst his marriage to Rajinder Kaur was subsisting, the
appellant went through a form of marriage with Ushaben Patel at
Kensington Register Office. The ceremony of marriage to Miss Patel
was the subject matter of the charge of bigamy. The trial judge ruled
that the marriage contracted in Kenya was a valid marriage within
the meaning of the words "being married" in section 57 of the
Offences Against the Person Act of 1861. In consequence, the
appellant changed his plea to one of guilty. He appealed against
the conviction on the ground that it was consequent upon a wrong
decision in law.
The appellant's argument was based on R. v. Sarwan Singh [1962]
3 All E.R. 612 decided at the West Bromwich Quarter Sessions by
the Assistant Recorder who held that the first marriage, which was
potentially polygamous when it took place, could not form a
foundation for a bigamy charge. As a result of the appeal in this
case, the Court of Appeal has taken the opportunity to overrule the
Sarwan Singh decision. The Recorder, in that earlier case, should
have taken account of the fact that a change of domicile or of law
could convert a potentially polygamous marriage into a monogamous
one (Ali v. AU [1968] P. 564; Parkasho v. Singh [1968] P. 233).

James L.J. stated that the relevant time to consider the nature of the
first marriage was at the time of the alleged bigamy, which was
early 1973. By this date the first marriage was monogamous both
because of the change in the Kenyan law and the assumption of an
English domicile of choice.
The decision is to be welcomed, for R. v. Sarwan Singh had
remained an odd inconsistency in this area of the law. Since Baindail
v. Baindail [1946] P. 122, a potentially polygamous marriage which
was still subsisting would prevent a man from contracting a valid
union in this country, notwithstanding his capacity by his personal
law so to do. Status in criminal law and civil law ought surely to
be treated alike. The ratio of the Sagoo decision, however, is limited
to a case where a potentially polygamous union is converted into a
monogamous marriage. Many Muslims who are Pakistanis, Indians
and Bangladeshis remain domiciled in their country of origin notwithstanding lengthy sojourns in this country. In Qureshi v. Qureshi
[1972] Fam. 173 Simon P. (as he then was) said that he could not
pretend ignorance of certain racial tensions and intolerances in this
country of recent years, and their possible repercussions on
domiciliary intention. Although a second marriage solemnised in

The Cambridge Law Journal

[19761

this country in accordance with the provisions of the Marriages Act

1949-70 by a man domiciled in Pakistan is void, it is probable that
the second marriage would not be bigamous.
It is unfortunate that James L.J. did not take the opportunity to
expand on the doctrine of mutation, in particular to consider the
possible situations which might arise when a first marriage is converted from a monogamous union into a potentially polygamous
one (Attorney-General for Ceylon v. Reid [1965] A.C. 720). In Ali
v. Ali [1968] P. 564 Cumming-Bruce J. decided that the assumption
of an English domicile of choice as the husband's personal law
resulted in imposing upon the husband a restriction on his preexisting capacity to marry in a polygamous fashion. It would appear
natural that an assumption of a Pakistan domicile of choice together
with a change of religion (if necessary) to Islam should be sufficient
to permit a former English domiciliary to marry in Pakistan a second
wife whilst still married to his first wife. Furthermore, this second
marriage would be recognised in England as a valid marriage. After
all, as Simon P. (as he then was) remarked in Cheni v. Cheni [1965]
P. 85 ". . . there are no marriages which are not potentially polygamous, in the sense that they may be rendered so by a change of
domicile and religion on the part of the spouses." Bigamy will not
be committed by a husband who remains domiciled in a country
that applies a "personal law system" and who converts from
Christianity to Islam in order to marry a second wife without
divorcing his first wife. Likewise, bigamy should not be committed
when an English domiciliary abandons his domicile and his religion
to become a Muslim domiciled in Pakistan and who marries a second
time. In both cases, the new personal law of the husband permits
him to contract a second and polygamous marriage. Members of the
immigrant communities are often confused about their matrimonial
status in English law. Regrettably, the present decision may well
add to this confusion. A review of the whole area is certainly long
overdue.
DAVID PEARL.