Book Reviews

pp.94–100

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The Jurisprudence of Lord Hoffmann: A Festschrift in Honour of Lord Leonard Hoffmann

Paul S Davies and Justine Pila (Eds)

Hart Publishing

2015

ISBN: 978 1 84946 591 5

Nobody ever turned to a Festschrift (German for ‘celebration writing’) for a cool, clear-eyed assessment of the individual being honoured. But even with that in mind, some of the contributions to this volume in honour of Lord Hoffmann are notable for their deference. Thus we have the former Lord of Appeal in Ordinary being described as ‘probably the most creative legal mind to sit on the Judicial Committee of the House of Lords in the last half-century of its existence’; his time as a student at Oxford marking ‘the final advent of complete academic respectability of law as a subject’ at that university; and him ‘salvaging the law of torts.’ Those acquainted with the law on recovery for psychiatric injury in negligence, and particularly the case of White v Chief Constable of South Yorkshire Police [1999] AC 455, may beg to differ with that last statement.

One contributor even goes so far as to describe the unanimous House of Lords decision of Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830, concerning the liability of company directors under the extended Hedley Byrne principle, as an instance where Lord Hoffmann has made an ‘important’ contribution to the law of torts. Here is that judgment in full:

‘My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Steyn. For the reasons he gives I would allow the appeal, and I would make the order as to costs which he proposes.’

With the greatest respect, if that counts as a significant contribution to tort law then every judge can be considered a Lord Atkin.

Such over-egging of the pudding, although to be expected, is unnecessary. For it is undeniable that Lord Hoffmann has had a significant impact on the law. The stylish prose of his judgments alone would be enough to secure his reputation as one of our greatest judges. Born in South Africa he studied law at Oxford as a Rhodes Scholar where, upon graduating, he was elected a fellow of University College. Following this he had a distinguished legal career, including 14 years as a member of the Judicial Committee of the House of Lords from 1995 to 2009. The essays in The Jurisprudence of Lord Hoffmann are a testament to his enormous influence and cover an extensive range of legal topics, from human rights and public law to tax and intellectual property. They are almost invariably of impeccable quality and the editors of this book, Paul S Davies and Justine Pila, are to be commended for the breadth and depth of analysis contained here.

Sarah Green’s contribution is a particular highlight. This should not surprise anyone who has read her masterful, recently-published work on causation in negligence. Here, Green maintains that there are three principal areas where the causal inquiry would look different were it not for the influence of Lord Hoffmann.

First, the tort of negligence would have recovery for ‘loss of a chance’ where no such thing has been lost if Lord Hoffmann had been replaced by a more pro-claimant judge in the House of Lords decision Gregg v Scott [2005] 2 AC 176. In that case the defendant doctor carelessly failed to diagnose the claimant’s cancer with the result that his chances of surviving for more than ten years fell from 42 per cent to 25 per cent. By a 3:2 majority (of which Lord Hoffmann was a part) of the House of Lords rejected Mr Gregg’s claim. Mr Gregg could not show on the balance of probabilities that the defendant’s delay had caused his injury or affected his prospects of survival (there was a 58 per cent chance that he would not survive ten years anyway). The majority believed that damages for merely losing a chance of a successful outcome should not be introduced into personal injury claims. Green explains why this was the correct outcome and how the contrary result would have meant that the ‘tort of negligence would have taken a turn for the worse.’ It is doubtful that anyone reading Green’s analysis will disagree with her assessment that this was a decision where Lord Hoffmann had a positive contribution to the law.

Second, Green argues that the tort of negligence would have had a less constrained Fairchild principle if Lord Hoffmann had not sat in Barker v Corus [2006] 2 AC 572. Barker was the case that held that where employers were found liable on the basis that they had negligently exposed an employee to asbestos and thereby created a material risk of mesothelioma which had eventuated – in other words, where the Fairchild exception to the normal rules of causation could be established – it is fair that they should be severally liable only to the extent of the share of the risk created by their breach of duty. This meant that the defendant employers would be liable on an aliquot basis rather than jointly and severally. The ruling was reversed by Parliament through the Compensation Act 2006 in respect to mesothelioma claims. While there is scope to argue that the majority’s decision in Barker is a rational development of Fairchild, I would dispute whether Lord Hoffmann’s judgment in that case is in fact an admirable one given that it rewrites what the majority actually said in Fairchild (see James Lee, ‘Fidelity in Interpretation: Lord Hoffmann and The Adventure of the Empty House’ (2008) 28 LS 1 and the dissenting judgment of Lord Rodger in Barker).

The third case Green refers to is Chester v Afshar [2005] 1 AC 134, where a 3:2 majority of the House of Lords held that a neurosurgeon who failed to warn a patient of the small risk of paralysis inherent in surgery, even if properly performed, was liable to the patient when that risk eventuated. This was so even though the risk was not increased by the failure to warn, and the patient had not shown that she would never have had an operation carrying the same risk. Green correctly argues that were it not for Lord Hoffmann’s dissent in that case there would be no sensible foil to the result and it might therefore have had more of a practical impact on the tort of negligence. However, while Lord Hoffmann’s dissent in Chester is undoubtedly superior when placed next to the remarkably poor reasoning of the majority, he too failed to grasp many of the complicated issues contained in that case (his famous roulette example, for instance, is not actually analogous to the facts). As such, and despite numerous penetrative insights, it is hard fully to agree with Green’s positive assessment of his reasoning.

James Goudkamp’s excellent chapter takes a ‘long, hard look’ at Gray v Thames Trains Ltd [2009] UKHL 33, the first case where the House of Lords considered the doctrine of illegality in the tort setting. Gray was a case where the claimant suffered from post-traumatic stress disorder after witnessing the Ladbroke Grove rail crash, which was caused by the defendant’s negligence. The claimant committed manslaughter partly as a result of this psychological disorder and brought a claim against the defendant for general damages and loss of earnings flowing from his crime. The House of Lords rejected his claim on the basis that the doctrine of illegality precluded a person from recovering compensation either for losses suffered in consequence of his own criminal act (the wider form of the doctrine) or for damage that was the consequence of a sentence imposed on him for a criminal act (the narrow form of the doctrine). Goudkamp scrutinises Lord Hoffmann’s speech in that case and argues that, while improving the law, the reasoning was suspect in some respects and that its status is now open to doubt. His contribution is a welcome addition to the literature on this area.

Less convincing is Robert Stevens’s chapter. It is well-known that Stevens is a leading advocate of a rights-based account of tort law. Yet in his previous work he has failed to provide a comprehensive account of what rights we have, convincingly expound the nature of such rights or answer the compelling criticisms that have been levelled at his theory. As such, the theoretical underpinnings of this chapter concerning Lord Hoffmann’s contribution to the law relating to liability of public authorities for omissions in negligence in cases such as Stovin v Wise [1996] AC 923 and Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057 is open to question. Unlike Stevens’s excellent chapter in a collection on defences that I recently reviewed in this journal, this essay will fail to convince anyone who does not already subscribe to a rights analysis of tort law.

On the subject of omissions, anyone scanning the index of this book for the word ‘Pinochet’ or turning to the table of cases for one of the three appeals concerning the arrest warrant for the Chilean dictator will be searching in vain. That, after all, was the notorious incident where Lord Hoffmann failed to declare his links to Amnesty International (a party to the proceedings) and resulted in a House of Lords decision being ‘vacated’ for the first time in history. Although it would be highly unusual if a book of this kind were to draw too much attention to the flaws of the person being honoured, it would have resulted in a more balanced assessment of Lord Hoffmann’s career if a veil were not completely drawn over such an infamous episode. It would also have been useful if the editors had provided a bibliography of Lord Hoffmann’s extra-judicial writings. I know, for example, that one was included in the collection of essays in memory of Lord Rodger.

But those are minor quibbles. Given the focus of this journal I have limited my discussion to the chapters most directly concerned with professional negligence liability. However, this is by no means an exhaustive survey of the first rate scholarship contained here and I would highly recommend this volume. There will be something of interest to legal academics working in any field and every reputable law library should stock a copy of this superb book.

Craig Purshouse School of Law and Social Justice

University of Liverpool

The Europeanisation of English Tort Law

Paula Giliker

Hart Publishing

2014

IBSN: 9 781 84946 319 5

What if the United Kingdom had, right from the beginning of its membership of what is now the European Union (EU), been a fully committed and highly enthusiastic member: how might English legal education look today? This is not exactly the question that Professor Giliker asks in her fine book on the Europeanisation of tort law, but she certainly provides insights into the issue, especially in taking as her focus the law of tort which, as she says, ‘is generally regarded as a clear example of common law methodology’ (p 4). Tort, it seems, epitomises Englishness (p 5).

Actually one has to be rather careful here because the moment one mentions methodology the ‘Englishness’ becomes a little more contentious. What actually is legal method and how does methodology differ – assuming it does differ – between the English common law culture and the continental European tradition? An Australian judge claimed that the difference was to be found in the top-down versus bottom-up approach, but an academic lawyer has shown that this is too simplistic. Indeed no one could accuse the great original source of civil law thinking – Justinian’s Digest – of being dominated by a top-down approach, and one favourite text used to illustrate Roman legal method is a ‘tort’ (delict) case (D.9.2.52.2). If English judges rendered their judgments in Latin, the expression (or something like it) respondi in causa ius esse positum might well appear in many contract and tort cases. Indeed, if the medieval jurist Baldus were to comment upon Bingham LJ’s judgment in the Blackpool case ([1990] 1 WLR 1195), he would surely conclude, as he did when he read Alfenus, ex facto ius oritur. One knows of course what Professor Giliker is getting at; the impact of the mos geometricus jurists during the second life of Roman law destroyed the casuistic tradition that had underpinned the earlier civil law. But it remains the case that there is nothing ‘English’ about deciding liability in terms of nominate categories and the medieval Romanists were experts at reasoning by analogy.

This is not to support the Zimmermann or Markesinis view that there is not that much difference between civil and common law thinking or that in isolating two different mentalités, as Pierre Legrand has done (discussed by Giliker at pp 29-30), one is creating an exaggerated divide. The point is that it might perhaps be more enlightening to ask why there has been little or no interest in English legal education to look at the whole tradition of law within at least Europe if not the wider world community. It is unimaginable that a film degree programme would not spend much of its time studying the great directors of the past. So why do English law degree programmes show no interest in Gaius, Ulpian, Accursius, Bartolus, Doneau, Domat and so on? English tort students might well derive as much profit, when it comes to reasoning about liability, from reading Christian Thomasius as from studying Lord Hoffmann in Congleton ([2004] 1 AC 46) or in some of his causation judgments and it is surely irrelevant to consign one writer to a ‘European’ category and the other to an ‘English’ one. What matters is how one reasons about liability.

To say this is a bit unfair on Professor Giliker. She is writing about a contemporary situation as she (correctly) finds it. Yet it might have been useful to look at why legal education, and legal thinking more generally, has over the last couple of centuries retreated throughout Europe into viewing law from a strictly monist and positivist tradition. Before the 18th century law books had an international, or at least a general European, audience because legal knowledge was considered to be transnational. No doubt the positivists were right to be sceptical of a ‘natural law’, but in destroying dualistic thought a mentality had been created that was not going to be very receptive to the idea of a new European ius commune even if EU law is often more technical and detailed than the ius proprium of each member state. The result is, as Professor Giliker says, the English courts are unlikely to quote from German law textbooks any more than a German court will quote from an English contract work (p 6).

Nevertheless the position is not quite as simple as this in that at a conceptual level there is actually something of a common epistemological structure – or structures – in as much as when a home-grown tort specialist insists, for example, that tort is about rights he or she is actually communicating through a particular reasoning structure which has a whole European history focusing on the expression ius. Rights talk is more European talk than English, as one Chancery judge once came near to recognising ([1986] 1 WLR 1120, 1129). The same is true of remedies talk. This has its own European history attaching to the word actio and while perhaps the civil law is today much less remedies-orientated than the common law it would be misleading to think that there is necessarily something ‘English’ about a visible law of actions. Indeed even to talk in terms of ‘private’ law – which many of the new generation of English obligations lawyers are doing – one is adopting a very European outlook (as in fact is the case when using the expression ‘obligations’). The distinction between public and private law, from an historical viewpoint at least, makes little sense in the common law. Much of our constitutional law – together with administrative liability law – is to be found in the law of tort while, as Professor Giliker recognises, human rights defies the division (pp 12–13). Professor Giliker insists that ‘“Europeanisation” is something which tort lawyers need to understand if they are to participate fully in the debate regarding European influences on English tort law’ (p 14). She may be right. But a good many tort lawyers are more European in their epistemological outlook than perhaps she and others realise.

Professor Giliker, when she makes this remark, is of course thinking more in terms of positive law and civil law methods. Here, she says, differences are perceptible in as much as the common law courts ‘must deal with (and understand) case law and legislation drafted in an unfamiliar form and overcome their natural reluctance to deal with “alien” case law, legal terminology and legislative instruments’ (p 17). Yet given the flexibility at the level of remedies in the common law one might ask whether this is really so difficult. Take privacy which, says Giliker, is ‘undoubtedly the most dynamic area’ when English law meets human rights law (p 169). There is, as is well known, no tort of privacy as such in English tort law, but that does not mean that equity cannot grant an injunction to protect a person’s privacy given that there is now the Convention right directly incorporated into United Kingdom law. To grant an injunction it is arguable that all that a claimant need show is the existence of a right – perhaps even an ‘interest’ – upon which the remedy can be founded. The 1998 Act has unequivocally established this right and so, at the level of the law of actions, European law need not necessarily present technical difficulties (seemingly recognised by Sedley LJ: see Giliker, p 195). Of course a question remains as to whether one is looking at ‘a tort, a principle of equity or some other form of action’ (p 185) and the cases which do grant injunctions might well not give clear guidance as to the limits and boundaries of this right of privacy. In addition there is the question of when one can move from an injunction to damages. Yet one might well say ‘welcome to English tort law’. The real issue is that the right of privacy is itself controversial in a country that values the right of press freedom (cf p 190); and so perhaps the principal difficulty is not so much the divide between ‘tort’ and ‘European law’ but the idea that English tort lawyers are ‘private lawyers’. Much tort is, and never has been, just private law.

Perhaps, then, the problem of ‘European law’ is a more complex legal mind-set than just one that is rooted in the dichotomy between tort and Europe. Ironically it is the adoption of the category of ‘private law’ – a ‘European’ (civil law) notion as has been observed – that exacerbates the whole issue. Genuine tort lawyers need to be publicists as much as privatists and this is one reason why a number of the great tort specialists have equally been administrative lawyers (a position often unthinkable in the civil law). Accordingly it has to be asked whether Professor Giliker’s assertion that, despite Dicey, ‘lawyers tend to think of themselves as public or private lawyers’ (p 205) is actually correct. Perhaps it is today, but one wonders if this was true a century ago. This is not to argue that the distinction between public and private law is unhelpful with regard to the common law; it is to stress that the idea of a pure ‘privatist’ is a civilian and not a home grown one.

To return to the question passed at the outset. Professor Giliker argues that the way forward is through three words, namely openness, education and dialogue (p 203). With regard to education, her main suggestion seems to be that greater emphasis needs to be placed on the evolving nature of tort law which in turn ‘will serve to break down barriers and ensure a clearer understanding of the relevant law’ (p 206). No doubt. But one wonders whether a fully committed UK ought actually to be far more radical and take as its starting point a close examination of the work of the European jurists from Roman to modern times. No doubt the student would not come away with a deep knowledge of the mass of rules and principles of up-to-date positive law – yet do students come away with a ‘deep knowledge’ or do they quickly forget it after the exams? But they might come to appreciate that the methods of lawyers have been fashioned by writers over two millennia. A student who was asked to follow the reasoning that attached, for example, to a particular concept or text from Roman to modern times would probably not forget the reasoning nuances and how they changed from Roman to medieval thinking, from medieval to natural law thinking, from natural law to transcendental thinking and from transcendental to realist thinking. Armed with such scholarship the graduate would surely be able to function not just as well as someone whose time had been spent looking at the Misrepresentation Act 1967 and Animals Act 1971 but as well as any graduate who has used Professor Giliker’s approach to legal education. Bartolus, once read and studied, is never to be forgotten, just as Hitchcock’s Vertigo or Mann’s Man of the West once seen are never to be forgotten. And the point of this comparison is that film studies students do not learn their subject from Verden Fell’s Principles of Script Writing or Lisa Berndle’s Film Editing For Beginners.

Radical thinking with regard to legal education is of course unlikely even if the UK were to be fully committed to the EU project. There is a new generation of ‘private lawyers’ in the common law world for whom, according to one recent call for papers, the first edition of Goff and Jones’ The Law of Restitution is equivalent to the great contributions of Copernicus and Einstein. This does not bode well for the future. Nevertheless one ought not to give up hope and one small step towards a more enlightened view of tort teaching would be to adopt Professor Giliker’s monograph as a basic text in a tort module. It is a fine piece of scholarship from one of the common law’s most competent comparative law of obligations specialists.

Geoffrey Samuel Kent Law School