Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015 1
Corsi di Laurea Magistrali in Relazioni Internazionali e Scienze dell’Amministrazione a.a. 2014-2015
Legal English
Dispensa per il lettorato di Matthew Ridger
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MODULE 1- INTRODUCTION TO LEGAL ENGLISH ………………………..3
MODULE 2 - THE TERMINOLOGY AND LINGUISTIC PECULIARITIES OF LEGAL ENGLISH …………………………………………………………………9
MODULE 3 – KODAK, A CASE STUDY IN ENGLISH CONTRACT LAW – INVITATION TO TREAT ……………………………………...... 19
MODULE 4 – LORD DENNING - CASES AND LANGUAGE ………………25
MODULE 5 – TWO EXAMPLES OF ENGLISH CASE LAW ………………35
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MODULE 1- INTRODUCTION TO
LEGAL ENGLISH
THE DEVELOPMENT OF MODERN ENGLISH
The English language contains elements from many different European languages and has also borrowed words from a wide variety of other languages. It is impossible to grasp how these influences affect the language without understanding a little about the history of the British Isles. Prior to the Roman invasion in 55 BC, the inhabitants of Britain spoke a Celtic dialect. Latin made little impression until St. Augustine arrived in AD 597 to spread Christianity. Latin words are regularly used in English, particularly in professional language. In the legal profession, Latin phrases like inter alia (among others) and per se (in itself) remain in current use. Subsequently, the Angles, Saxons and Jutes invaded the British Isles from mainland northern Europe. The language they brought with them forms the basis of what is known as Old English. This gives us the 100 most commonly used words in the English language (words like God, man, woman, child, love, live, go, at, to). The Vikings began to raid the northeast of England from Scandinavia from the eighth century onwards. At a later date, a significant number of Vikings settled in this area, bringing with them their own linguistic contribution (which can be seen for example in the numerous place names in the northeast of England (and Scotland) ending in -by or -thorpe, -wick, -ham and in words such as egg, husband, law, take, knife). In 1066 the Normans invaded from northern France and conquered England. Words such as court, parliament, justice, sovereign and marriage come from this period.
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Later, the English helped themselves initially to further words from French, such as chauffeur, bourgeois, elite. As the British Empire expanded, further opportunities to borrow words arose – words such as taboo and pukka came into the English language from that period. The result of this multiplicity of linguistic influences is a rich and diverse language with a complex grammar and many synonyms. For example, a coming together of two or more people could be a meeting or gathering (Old English), assignation or encounter (Old French), a rendezvous, rally or reunion (French), a caucus (Algonquin), pow-wow (Narragansett) or a tryst (Old French).
SOURCES OF LEGAL ENGLISH
Legal English reflects the mixture of languages that has produced the English language generally. However, modern legal English owes a particular debt to French and Latin. Following the Norman invasion of England in 1066, French became the official language of England, although most ordinary people still spoke English. For a period of nearly 300 years, French was the language of legal proceedings, with the result that many words in current legal use have their roots in this period. These include property, estate, chattel, lease, executor and tenant. During this period, Latin remained the language of formal records and statutes. However, since only the learned were fluent in Latin, it never became the language of legal pleading or debate. Therefore, for several centuries following the Norman invasion, three languages were used in England. English remained the spoken language of the majority of the population, but almost all writing was done in French or Latin. English was not used in legal matters. In 1356, the Statute of Pleading was enacted (in French). It stated that all legal proceedings should be in English, but recorded in Latin. Nonetheless, the use of French in legal pleadings continued into the seventeenth century in some areas of the law. In this later period, new branches of – in
4 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015 5 particular – commercial law began to develop entirely in English and remain relatively free of French-based terminology. As the printed word became more commonplace, some writers made a deliberate effort to adopt words derived from Latin, with the aim of making their text appear more sophisticated. Some legal words taken from Latin in this way are adjacent, frustrate, inferior, legal, quiet and subscribe. Some writers also started to use a Latin word order. This led to an ornate style, deliberately used to impress rather than inform. Even today, Latin grammar is responsible for some of the ornateness and unusual word order of legal documents. It also lies behind the frequent use of shall constructions in legal documents. English was adopted for different kinds of legal documents at different times. Wills began to be written in English in about 1400. Statutes were written in Latin until about 1300, in French until 1485, in English and French for a few years, and in English alone from 1489.
WHAT MAKES ENGLISH DIFFICULT?
It is said of chess that the game takes a day to learn, and a lifetime to master. In similar vein, English is reputed to be an easy beginner’s language in which it is nevertheless very hard to achieve native-level fluency. Why is this? There are probably four main factors that make English difficult to master. These are: 1 Lack of clear rules of grammar. We have seen how English is a product of various different linguistic traditions. One of the results of this is a comparative lack of consistent grammatical rules. Prepositions are a clear example of this. 2 Extensive vocabulary. There are many different ways of saying the same thing in English. This is again due to the fact that English draws upon different linguistic traditions. For example, if you wanted to say that something was legally permissible, you could use the Old Norse
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(Scandinavian) -derived word, lawful. Alternatively, you could use the Latin-derived word, legitimate. Or, if you wanted a more emotive word, you could use the Old English word, right. To take another example, when talking about employment do you say calling, career, profession, employment, job, work, occupation or vocation? 3 The use of phrasal verbs in English (and legal English). For example, you put down a deposit, and you enter into a contract. These combinations must be learned individually because they involve using a verb with a preposition or adverb or both; and, as noted above, prepositions do not follow clear grammatical rules. 4 The use of idioms. Idioms are groups of words whose combined meaning is different from the meanings of the individual words. For example, the expression over the moon means ‘happy’. Idioms are frequent in ordinary English – they are a distinctive element of the way native English speakers use the language. They are found less often in legal English, but exist in some legal jargon. For example, the expression on all fours is used to refer to the facts of a case that correspond exactly to the facts of a previous case.
WHAT MAKES LEGAL LANGUAGE DIFFICULT?
One of the main reasons why legal language is sometimes difficult to understand is that it is often very different from ordinary English. This comprises two issues:
1 The writing conventions are different: sentences often have apparently peculiar structures, punctuation is used insufficiently, foreign phrases are sometimes used instead of English phrases (e. g. inter alia instead of among others), unusual pronouns are employed (the same, the aforesaid, etc), and unusual set phrases are to be found (null and void, all and sundry).
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2 A large number of difficult words and phrases are used. These fall into three categories, brief details of which are given below. a) Legal terms of art Legal terms of art are technical words and phrases that have precise and fixed legal meanings and which cannot usually be replaced by other words. Some of these will be familiar to the layperson (e. g. patent, share, royalty). Others are generally only known to lawyers (e. g. bailment, abatement). b) Legal jargon
Terms of art should be differentiated from legal jargon. Legal jargon comprises words used by lawyers, which are difficult for non-lawyers to understand. Jargon words range from near-slang to almost technically precise words. Well-known examples of jargon include boilerplate clause and corporate veil. Jargon includes a number of archaic words no longer used in ordinary English. These include annul (to declare that something, such as a contract or marriage is no longer legally valid) and bequest (to hand down as an inheritance property other than land). It also includes certain obscure words which have highly specialised meanings and are therefore not often encountered except in legal documents. Examples include emoluments (a person’s earnings, including salaries, fees, wages, profits and benefits in kind) and provenance (the origin or early history of something). Jargon words should be replaced by plain language equivalents wherever possible. c) Legal meaning may differ from the general meaning
There is also a small group of words that have one meaning as a legal term of art and another meaning in ordinary English. One example is the word
7 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015 8 distress, which as a legal term of art refers to the seizure of goods as security for the performance of an obligation. In ordinary English it means anxiety, pain or exhaustion. Here are some further examples.
Consideration in legal English means an act, forbearance, or promise by one party to a contract that constitutes the price for which the promise of the other party is bought. Consideration is essential to the validity of any contract other than one made by deed.
Consideration in ordinary English means; (1) careful thought, (2) a fact taken into account when making a decision, (3) thoughtfulness towards others.
Construction in legal English means interpretation. ‘To construe’ is the infinitive verb form of the term.
Construction in ordinary English means: (1) the action of constructing [e. g. a building]; (2) a building or other structure; (3) the industry of erecting buildings.
Redemption in legal English means the return or repossession of property offered as security on payment of a mortgage debt or charge.
Redemption in ordinary English usually means Christian salvation.
Tender in legal English means an offer to supply goods or services. Normally a tender must be accepted to create a contract.
Tender in ordinary English means: (1) gentle and kind; (2) (of food) easy to cut or chew; (3) (of a part of the body) painful to the touch; (4) young and vulnerable; (5) easily damaged.
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MODULE 2 - THE TERMINOLOGY AND LINGUISTIC PECULIARITIES OF LEGAL ENGLISH
Terms of art
Legal English, in common with many other professional languages, employs a great deal of terminology that has a technical meaning and is not generally familiar to the layperson. These are sometimes referred to by lawyers as ‘terms of art’. Examples include waiver, restraint of trade, restrictive covenant and promissory estoppel.
Foreign terminology
In addition, a number of Latin and French words and phrases (such as inter alia, mutatis mutandis, ad hoc and force majeure) are in regular use in legal English. While these should not be overused, a number of them are regarded as indispensable by lawyers because they express a legal idea much more succintly than could be achieved in English. For example, the phrase inter alia is sometimes rendered in English as ‘including but not limited to’.
Doublets and triplets
There is a curious historical tendency in legal English to string together two or three words to convey what is usually a single legal concept.
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Examples of this include null and void, fit and proper, perform and discharge, dispute, controversy or claim, and promise, agree and covenant. These are often called ‘doublets’ or ‘triplets’. These should be treated with caution, since sometimes the words used mean, for practical purposes, exactly the same thing (null and void) ; and sometimes they do not quite do so (dispute, controversy or claim). Modern practice is to avoid such constructions where possible and use single word equivalents instead. For example, the phrase give, devise and bequeath could be replaced by the single word give without serious loss of meaning. However, the pace of change in legal usage is slow, and as a result it is still quite common to see certain typical doublets and triplets in certain legal documents. Some of the most common of these are listed below (with suggested equivalents in brackets).
Doublets Able and willing (=able) Agree and covenant (=agree) All and sundry (=all) Authorise and direct (=authorise OR direct) Cancelled and set aside (=cancelled) Custom and usage (=custom) Deem and consider (=deem) Do and perform (=perform) Due and owing (=owing) Fit and proper (=fit) Full and complete (=complete) Goods and chattels (=goods) Keep and maintain (=maintain) Known and described as (=known as) Legal and valid (=valid) Null and void (=void)
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Object and purpose (=object OR purpose) Order and direct (=order) Over and above (=exceeding) Part and parcel (=part) Perform and discharge (=perform OR discharge) Repair and make good (=repair) Sole and exclusive (=sole OR exclusive) Terms and conditions (=terms) Touch and concern (=concern) Uphold and support (=uphold)
Triplets Cancel, annul, and set aside (=cancel) Communicate, indicate or suggest (=communicate) Dispute, controversy or claim (=dispute) Give, devise and bequeath (=give) Hold, possess, and enjoy (=hold) Pay, satisfy, and discharge (=pay) Possession, custody, and control (=possession OR custody OR control) Promise, agree, and covenant (=promise OR agree) Repair, uphold and maintain (=repair OR uphold OR maintain) Way, shape or form (=way)
Here-, there- and where- words
Words like hereof, thereof, and whereof (and further derivatives ending in - at, -in, -after, -before, -with, -by, -above, -on, -upon, etc.) are not often used in ordinary English. They are still sometimes used in legal English, primarily as a way of avoiding the repetition of names of things in the document – very often, the document itself.
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For example: the parties hereto instead of: the parties to this contract or the provisions contained hereinafter instead of: the provisions contained to later on in this contract
However, in most cases the use of such words is strictly unnecessary or can be rendered unnecessary by the use of definitions. For example, if there is likely to be doubt about the matter, the parties can be defined, in a definitions section, as ‘the parties to this contract’. In most cases, however, the meaning of words and phrases can be gathered from the context in which they are placed. Here-, thereand where- words persist in modern legal usage largely as a consequence of legal tradition rather than usefulness. Here is a list of some of these words and the way in which they are used. It should be noted that the list is not exhaustive.
Hereafter means ‘from now on or at some time in the future’. For example, ‘the contract is effective hereafter’. Hereat means (1) ‘at this place or point’ or (2) ‘on account of or after this’. For example, ‘hereat the stream divided’. Hereby means ‘by this means; as a result of this’. For example, ‘the parties hereby declare’. Herefrom means ‘from this place or point’. For example, ‘the goods shall be collected herefrom’. Herein means ‘in this document or matter’. For example, ‘the terms referred to herein’. Hereinabove means ‘previously in this document or matter’. For example, ‘the products hereinabove described’. Hereinafter means ‘later referred to in this matter or document’. For example, ‘hereinafter referred to as the Company’). Hereinbefore means ‘previously in this document or matter’. For example, ‘the products hereinbefore described’.
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Hereof means ‘of this matter or document’. For example, ‘the parties hereof’. Hereto means ‘to this place or to this matter or document’. For example, ‘the parties hereto’. Heretofore means ‘before now’. For example, ‘the parties have had no business dealings heretofore’. Hereunder means ‘later referred to in this matter or document’. For example, ‘the exemptions referred to hereunder’. Herewith means ‘with this letter or document’. For example, ‘I enclose herewith the plan’. Thereof means ‘of the thing just mentioned’. For example, ‘The contract was signed on 1 May 1999. The parties thereof . .. ’ Thereafter means ‘after that time’. For example, ‘The products shall be transported to The Grange. Thereafter, they shall be stored in a warehouse. ’ Thereat means (1) at that place or (2) on account of or after that. For example, ‘thereat, payments shall cease’. Thereby means ‘by that means; as a result of that’. For example, ’the parties thereby agree’. Therein means ‘in that place, document or respect’. For example, ‘The parties shall refer to the contract dated 1 May 1999. It is agreed therein that . .. ’ Thereinafter means ‘later referred to in that matter or document’. For example, ‘thereinafter, it is agreed that . .. ’ Thereof means ‘of the thing just mentioned’. For example, ‘Reference is made in paragraph 5 to the contract dated 1 May 1999. The parties thereof agreed that . .. ’ Thereon means ‘on or following from the thing just mentioned’. For example, ‘The machine rests on a wooden block. There is placed thereon a metal bracket . .. ’ Thereto means ‘to that place or to that matter or document’. For example, ‘the parties thereto’.
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Therefor means ‘for that’. For example, ‘the equipment shall be delivered on 13 September 2003. The Company agrees to pay therefor the sum of $150,000’. Therefor should not be confused with ‘therefore’ which means ‘for that reason’. Thereupon means ‘immediately or shortly after that’. For example, ‘delivery shall take place on 13 September 2003. Thereupon the equipment shall be stored in the Company’s warehouse’. Whereabouts means ‘the place where someone or something is’. For example, ‘the Company shall be kept informed as to the whereabouts of the products’. Whereat means ‘at which’. For example, ‘The seller attempted to charge extra interest on late payment, whereat the buyer objected’. Whereby means ‘by which’. For example, ‘the contract dated 1 May 1999, whereby the Company agreed to purchase the products’. Wherefore means ‘as a result of which’. For example, ‘the buyer breached the contract, wherefore the seller suffered damage’. Wherein means (1) in which, or (2) in which place or respect. For example, ‘the contract dated 1 May 1999, wherein it is stated that . .. ’ Whereof means ‘of what or of which’. For example, ‘the Company one of the directors whereof is a foreign national’. Whereupon means ‘immediately after which’. For example, ‘The sum of $15,000 shall be paid by the buyer to the seller on 13 September 2003, whereupon the buyer’s liability to the seller shall be discharged’.
Whatsoever, wheresoever and howsoever
In addition to the words listed above, you may also encounter the words whatsoever, wheresoever and howsoever. These have extremely limited practical meaning and exist as a result of legal tradition only. Whatsoever means ‘whatever’, i.e. ‘no matter what’ in contractual contexts.
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Wheresoever means ‘wherever’, i.e. ‘in or to whatever place’ in contractual contexts. Howsoever means ‘however’, i.e. ‘in whatever way or to whatever extent’. These words are occasionally used together; for example, in the following sentence: This limitation shall apply in any situation whatsoever, wheresoever and howsoever arising. The word whosoever may also be encountered. This simply means ‘whoever’.
Hence, whence and thence
The words hence, whence and thence, and the derivatives henceforth and thenceforth are all archaic forms in ordinary English, which are however still occasionally seen in legal English. Their meanings are briefly outlined below. Hence means (1) for this reason; and (2) from now on. Henceforth means from this or that time on. Whence means (1) from what place or source; (2) from which or from where; (3) to the place from which; or (4) as a consequence of which. Thence means (1) from a place or source previously mentioned; (2) as a consequence. Thenceforth means from that time, place or point onwards.
-er, -or and -ee names
Legal English contains a large number of names and titles, such as employer and employee in which the reciprocal and opposite nature of the relationship is indicated by the use of -er/-or and -ee endings. These endings derive from Latin. In the example given here, the employer is the one who employs the employee. Hence, the employee is employed by the employer. Here are some further examples that you may have encountered:
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Assignor is a party who assigns (transfers) something to another party. Assignee is the party to whom something is assigned. Donor is a party who donates something to another party. Donee is the party to whom something is donated. Interviewer is a person who is interviewing someone. Interviewee is a person who is being interviewed by the interviewer. Lessor is a party who grants a lease over a property. He or she is therefore the landlord. Lessee is the party to whom a lease over a property is granted. He or she is therefore the tenant. Mortgagor is a lender who lends money to a property owner (the mortgagee) in return for the grant by the mortgagee of a mortgage over the property as security for the loan. Mortgagee is the property owner to whom money is loaned by the mortgagor in return for the grant of a mortgage over the property. Offeror is a party who makes a contractual offer to another party. Offeree is the party to whom a contractual offer is made. Payer is a party who makes a payment to another party. Payee is the party to whom payment is made. Promisor is a party who makes a promise to another party. Promisee is the party to whom a promise is made. Representor is a party who makes a contractual representation to another party. Representee is the party to whom a contractual representation is made. Transferor is a party who transfers something to another party. Transferee is the party to whom something is transferred.
Note that these words are not always used in the way the examples given above might lead one to expect. For example, a guarantor is someone who provides a guarantee. However, the person to whom a guarantee is given is known technically as the principal debtor, not the guarantee. The
16 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015 17 guarantee is the document by which the secondary agreement that constitutes the guarantee is made.
Unfamiliar pronouns
Unfamiliar pronouns represent an archaic usage in legal English, and include such formulations as the same, the said, the aforementioned, etc. The use of such pronouns in legal texts is interesting since very frequently they do not replace the noun – which is the whole purpose of pronouns – but are used to supplement them. For example, the said John Smith.
Ordinary words in unusual contexts
Apparently ordinary words are sometimes found in unusual contexts in legal English and have different meanings in those contexts. For example, the familiar term consideration refers, in legal English, to contracts, and means ‘an act, forbearance or promise by one party to a contract that constitutes the price for which the promise of the other party is bought’ (Oxford Dictionary of Law). Other words found in unusual contexts in legal English include: construction (interpretation) ; redemption (used in relation to the repayment of debts secured on property) ; furnish (to provide e. g. documents) ; hold (the application of a legal principle in court proceedings, by a judge) ; and find
Deeming
The word deem is frequently used in legal English. In its legal sense it means to treat a thing as being something that it is not, or as possessing
17 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015 18 certain characteristics that it does not in fact possess. This meaning is employed in contracts and in legislation to create the idea that something mentioned in the contract is deemed (treated) to be something else. Consequently, although it would seem absurd to a layperson, from the point of view of common law drafting practices it would be perfectly acceptable to write in a contract: In this agreement dogs shall be deemed to be cats. More typically, one might find deemed being used in this sort of clause: Notice shall be deemed served 72 hours after having been posted. The purpose of such a clause is to indicate that for the purposes of the contract the parties agree to regard a notice as having been served once 72 hours has passed after the notice was posted. In ordinary language, deem is simply an old-fashioned term meaning to consider in a specified way. It is a synonym for think or judge.
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MODULE 3 – KODAK, A CASE STUDY IN ENGLISH CONTRACT LAW – INVITATION TO TREAT
The case brought against Kodak which had mistakenly underpriced a digital camera package highlights the importance of having effective online contracting procedures. In December 2001 Kodak's Web site offered a digital camera package for £100. It was advertised as a "special deal" and within days thousands of customers placed orders online and provided their credit card details for payment. They received an automated online confirmation that urged them to keep the message both as proof of purchase and for claiming under warranty. Then Kodak discovered that the price of £100 was an error - the price should have been £329. Kodak initially claimed that the orders for cameras had not been accepted so no contract was formed. It said the confirmatory e-mail was only sent to follow industry practice and was not an acceptance of an offer. A contract is formed where there is an offer, an acceptance, consideration and an intention to create legal relations. An offer is distinguished from an "invitation to treat" because the latter lacks that intention to be legally bound. Although Kodak's Web site did not make it clear, the relevant pages were probably an invitation to treat. By filling out the order form and giving
19 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015 20 credit card information, the customer responded by making an offer to buy the package. The difficulty for Kodak, however, was that the automated response suggested that the orders had been accepted. It not only acknowledged the order but also talked about "this contract". Although the response was no doubt designed to enhance the user experience, it gave customers the impression that their orders had been accepted. So to avoid difficulties it is essential to ensure that your Web site is structured to reflect the way you want to do business. If Kodak wants to be certain that an automated e-mail in response to an order does not amount to acceptance of the order, this should be made clear so that the customer is in no doubt about the position. The Web site should also specify when acceptance does occur. This will be necessary in any case to comply with the latest EU laws on e-commerce. Kodak argued that the customers must have realised the £100 price tag was a mistake. The courts have long accepted that a contract is unenforceable where the offer does not express the true intention of the seller, if the purchaser must have realised that a mistake has occurred. The Internet, however, is seen as a medium for great bargains so online customers might have difficulty distinguishing between a price error and a promotion. A product advertised online as a "special deal" during post- Christmas sales had obviously been taken seriously enough by Kodak's customers. An e-tailer looking to protect itself should set up systems to ensure that mistakes are picked up before product details and prices are loaded on to a live Web site. Kodak may also have been accused of committing the offence of giving a misleading price indication. To defend this allegation Kodak would have had to show that it acted diligently and took all reasonable steps to avoid misleading the consumer. In the event Kodak agreed to honour the orders, whether as a public relations consideration or after a reassessment of the legal position is not
20 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015 21 clear. However, it undoubtedly has proved an expensive experience for the company. How to get Web contracts right: • Ensure that Web sites are set up as invitations to treat, not as offers • State clearly in your terms and conditions when acceptance occurs • Clarify any conditions which affect the basis of accepting the order • Have reliable systems in place to stop errors happening or at least identify them before it is too late ******* Case Law Below are the most relevant principles and leading cases regarding Offers vs other steps in the negotiation process: 1. Storer v Manchester City Council: An offer is an expression of a willingness to contract on certain terms upon acceptance. 2. Gibson v Manchester City Council: Negotiations to enter into a contract are invitations to treat but not offers 3. Carlill v Carbolic Smoke Ball Co: Advertisements for unilateral contracts can amount to offers even when addressed to the general public if the advertisement objectively person making the advertisement intends to be bound by it. 4. Partridge v Crittenden: Advertisements in printed publications of goods at certain price are normally considered invitations to treat and are not offers. 5. Fisher v Bell: Price-marked goods on display on the shelves or on windows or shops are normally considered invitations to treat and are not offers. 6. Pharmaceutical Society of GB v Boots Cash Chemists: Goods sold on self-service basis are invitations to treat, the customer makes the offer to buy at the cash register. 7. Walford v Miles: Agreements to negotiate are invitations to treat and do not amount to a binding contract, instead they are regarded as pre-contractual negotiations.
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8. Harvela Investments Ltd v Royal Trust Co of Canada Ltd: Generally tenders are invitations to treat unless explicit language to accept the offer is stated (e.g., Harvela). 9. Blackpool Fylde Areo Club v Blackpool Borough Council: Invitations to tender include an implicit offer to consider all tenders correctly submitted but not necessarily to accept one. 10. Tiverton Estates Ltd v Wearwell Ltd: The statement “subject to contract” creates a strong presumption against there being a contract at the particular stage of contractual negotiations. ******* Case Number 3 - Carlill v Carbolic Smoke Ball Co Facts: The Carbolic Smoke Ball Company made a product called the "smoke ball" which claimed to be a cure for influenza and a number of other diseases. The Company published advertisements claiming that it would pay £100 to anyone who got sick with influenza after using its product according to the instructions set out in the advertisement. "£100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks, according to the printed directions supplied with each ball. £1,000 is deposited with the Alliance Bank, Regent Street, showing our sincerity in the matter". Mrs. Carlill saw the advertisement, bought one of the balls and used it three times daily for nearly two months until she contracted the flu on 17 January 1892. She claimed £100 from the Carbolic Smoke Ball Company. They ignored two letters from her husband, a solicitor. On a third request for her reward, they replied with an anonymous letter that if it is used properly the company had complete confidence in the smoke ball's efficacy, but "to protect themselves against all fraudulent claims" they would need her to come to their office to use the ball each day and be checked by the secretary. Carlill brought a claim to court. The barristers
22 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015 23 representing her argued that the advertisement and her reliance on it was a contract between her and the company, and so they ought to pay. The company argued it was not a serious contract. Issue: • Can one make a contract with the whole world? • How does one interpret vague terms? • Was the ad a "mere puff"? • Does performance of the conditions advertised in the paper constitute acceptance of an offer? • Was there consideration? Decision: • Appeal not dismissed. Reason: Bowen, writing for the majority, held that the contract was not with the whole world, but rather with those who fulfill the stipulated conditions. He held that the terms were not vague if read in their plain meaning; entitled to reward (that is, a contract is formed) if one used the ball for two weeks, three times a day and got the flu. However if one used the ball before the ad and got the flu there would be no contract created due to no reliance interest. As for mere puffery, the language of the ad indicating that they had £1,000 in the bank directly contradicts that claim. Performance of the condition of the ad was sufficient acceptance and it was not necessary that Carbolic Smoke Ball Co. be notified of the intention to be bound. He further ruled that the inconvenience of Carlill was sufficient consideration. Lindley wrote that notification of acceptance need not precede performance, in this case acceptance was contemporaneous with performance. Further, the offeror showed by their words and the nature of transaction that he did not require notice of acceptance to be bound. Ratio: • An advertisement can constitute a unilateral contract, which can be accepted by fulfilling the conditions of the contract; no formal acceptance required.
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• The determination of a serious offer will be determined from the words and actions. • The terms of the contract (if vague) will be interpreted purposively from the contract. • The offeror can determine how acceptance of offer will be made.
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MODULE 4 – LORD DENNING - CASES AND LANGUAGE
Lord Denning (1899-1999) was a man of monumental influence over the devlopment of English law, both in its substance and style. Born in the 19th-century, commonly nominated as the most influential judge of the 20th-century, Lord Denning had a substantial impact across many areas of law. Once described as "Ambassador-at-Large for the common law”, he delivered more than 2,000 reported judgments and delivered more lectures and talks than any other judge ever has, nationally and internationally.
Lord Denning, known to his friends as Tom, was a mathematical scholar at Oxford and maths teacher at Winchester before he embarked on a distinguished career as a barrister. During his 38 years in high judicial office - he retired at 83 - he reformed areas of law such as law of contract, unmarried partners and judicial review. By the end of his career, experienced barristers were appearing before him who hadn't been born when he became a judge.
Lord Denning famously often took the side of the socially weaker party against the stronger. He backed deserted wives, wounded soldiers battling the Govrnment over pensions, customers arguing against banks. His strongly argued dissents in the Court of Appeal - where his judgment was outweighed by the opinions of the two other judges with whom he was sitting - were the stuff of legend. In several cases his dissenting opinion even won out, leading to the law being changed in line with his view. This happened in the case of the law of negligence applied to words, under which people can be made liable for their negligent misstatements.
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One commonly held assessment of Lord Denning’s jurisprudence is that he was more concerned to "do justice according to the parties in a case" than slavishly to follow precedent. His tendency to make new legal principles, or to apply old ones in novel ways, caused consternation among conservtive judges. In a family law case from 1953, he said:
What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both.
For many lawyers and law students, one of the most memorable things about Lord Denning is his words. His style of writing was his own. He communicated effectively. In short sentences. Sometimes two words. Sometimes only one. His presentation was unvarnished. He did not waste words. His writings are refreshing. They are not merely stuffed with ‘legal details’. They speak of his love for literature. Shakespeare seems to be part of his daily vocabulary. His judgments themselvs are pieces of literature. His writings make the law accessible to lay people. In his autobiography, the Family Story, Denning described his approach to judgment writing as follows:
I start my judgment with a prologue - as the chorus does in one of Shakespeare’s plays - to introduce the story... I draw the characters as they truly are - using their real names... I avoid long sentences like the plague, because they lead to obscurity. It is no good if the [reader] cannot follow them... I refer sometimes to prevous authorities - I have to do so - because I know that people are prone not to accept my views unless they have support in the books. But never at much length. Only a sentence or two. I avoid all reference to pleadings and orders - They are mere lawyer’s stuff. They are unintelligible to everyone else. I finish with a conclusion - an
26 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015 27 epilogue - again as the chorus does in Shakespeare. In it I gather the threads together and give the result.
Many of his judgments began in a colourful way:
"It happened on April 19, 1964. It was bluebell time in Kent. Mr. and Mrs. Hinz had been married some 10 years, and they had four children, all aged nine and under. The youngest was one. Mrs. Hinz was a remarkable woman. In addition to her own four, she was foster-mother to four other children. To add to it, she was two months pregnant with her fifth child.”
Or
"Broadchalke is one of the most pleasing villages in England. Old Bundy, the defendant, was a farmer there. It was his only asset. His family has been there for generations. But he did a very foolish thing. He mortgaged it to the bank.”
Due to his unique storytelling style, the reader immediately understands the setting for the lawsuit. And we can safely predict that the "remarkable woman” and the "old farmer” are going to win.
Perhaps his most famous case was Miller v Jackson, or as it is far better known, "the Cricket Case”, Denning started his story like this:
"In summertime vllage cricket is the delight of evryone. Nearly every village has its own cricket field where the young men play and the old men watch. … They hav played these last 70 years. They tend it well. The wicket area is well rolled and mown. … Now after these 70 years a judge of the High Court has ordered that they must not play there any more. …”
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Denning was able to see matters from a realistic, common-sense perspective, often that of the man-on-the-street, which gave his opinions a "real-world" application. For instance, in Thornton v Shoe Lane Parking, the plaintiff drove a car park and was given a ticket by an automatic machine, which stated that it was issued subject to conditions displayed inside the car park. The conditions inside the car park were in small print, and one of them excluded liability for damages to vehicles or injury to customers. The plaintiff was injured due partly to the defendant's negligence. The plaintiff was not held to be bound by the notice displayed inside the premises, as its existence was not made aware to the defendant prior to paying. Lord Denning wrote:
"The customer pays his money and gets a ticket [from a machine]. He cannot refuse it. He cannot get his money back. He may protest to it, even swear at it; but it will remain unmoved."
He also stated that this particular clause was so wide and destructive of rights that
"In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling."
The world renowned High Trees case: Central London Property Trust Ltd v High Trees House Ltd was a milestone in English contract law and made Denning's name early on in his career as an innovator in legal reasoning. The case is said to have revived the doctrine of equitable estoppel or 'promissory estoppel'. However, Denning's doctrine has been criticised by some legal academics, who argue that he paid little regard to the existing law and that the doctrine is the result of his attempt to find a resolution that equated to his personal notion of "justice." Other legal academics and jurists have defended 'High Trees' as being founded on conventional equitable principles drawn from 19th Century cases. The doctrine
28 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015 29 rediscovered by Lord Denning has been applied throughout the common law world.
Lord Denning was a decidedly controversial figure. He sometimes argued in favour of hanging and said that no parent would entrust their child to the care of a female teacher who had slept with her boyfriend; and thought homosexuality should be punished, lamenting that "Hell fire and damnation held no terrors nowadays”. On another occasion he said that if the Birmingham Six had been hanged "we shouldn’t have had all these campaigns to get them released”.
Although he did much good work for African and Asian legal education, he made comments about black people in 1982 that were clearly racist. He said that "black, coloured and brown" people did not have the same standards of conduct as whites. It was that incident, and its condemnation in a leading article in The Times, that triggered his resignation. He retired at the age of 83 saying: "I want to go while I’m still at my peak.”
As a passenger in his neighbour's car one day, Lord Denning was admonished for not wearing a safety belt. "Lord Denning, you know it's the law," his driver advised. With a characteristic chuckle Lord Denning replied: "I am the law". The doctrine of precedent means that, in effect, he still is the law in a great many ways.
Indeed, it was his personal value system which defined his entire life and accounts for his greatness in the areas already mentioned. Denning was a serious and committed Christian believer. He served as president from 1950-1987 and until his death as patron of the Lawyers’ Christian Fellowship in the United Kingdom. In his 1953 book, The Changing Law, under the title "The Influence of Religion”, he wrote: "If religion perishes in the land, truth and justice will also. We have already strayed too far from
29 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015 30 the path of our fathers. Let us return to it, for it is the only thing that can sav us."
Denning died a few months after his 100th birthday, the celebrations for which he was too frail to attend. At the event, Law Society President Michael Matthews said: "He was a towering figure in the law who made an enormous contribution to the law of this century, probably the major contribution."
Eulogising Denning's death, Lord Hailsham said that Denning would go down in history as "one of the great and controversial judges of the 20th century". The obituary of Denning as printed in "The Guardian" Newspaper started with the following sentence: "The death of Lord Denning marks the passing of one - perhaps the last - of a sparse succession of major judicial figures who have succeeded in shaping areas of the law into conformity with a strongly-held world view.”
The Command of Language - Lord Denning in the Discipline of Law
1. The tools of trade To succeed in the profession of the law, you must seek to cultivate command of language. Words are the lawyer's tools of trade. When you are called upon to address a judge, it is your words which count most. It is by them that you will hope to persuade the judge of the rightness of your cause. When you have to interpret a section in a Statute or a paragraph in a Regulation, you have to study the very words. You have to discover the meaning by analysing the very words - one by one - to the very last syllable. When you have to draw up a will or a contract, you have to choose your words well. You have to look into the future - envisage all the contingencies that may come to pass - and then use words to provide for them. On the words you use, your client's future may depend.
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The reason why words are so important is because words are the vehicle of thought. When you are working out a problem on your own - at your desk or walking home - you think in words, not in symbols or numbers. When you are advising your client - in writing or by word of mouth - you must use words. There is no other means available. To do it convincingly, do it simply and clearly. If others find it difficult to understand you, it will often be because you have not cleared your own mind upon it. Obscurity in though inexorably leads to obscurity in language.
Sometimes you may fail - without your fault - to make yourself clear. It may be because of the infirmity of the words themselves. They may be inadequate to express the meaning which you wish to convey. They may lack the necessary precision. 'Day' and 'Night' are clear enough at most times. But when does day begin and night end? Some may say at sunrise. Others would say at dawn. Then when does 'dawn' begin? No one can tell exactly. Or a word may mean one thing to one person and another thing to another. Take 'punctual payment' or 'prompt payment'. To one it may mean immediate payment. To another it may permit of a little latitude and it may suffice if payment is made within a day or two. The difference between the two will remain unless it is settled by the House of Lords. Yet again a word may one thing in one context and another thing in another context. Thus 'money' may be limited to the money in your purse and cash at bank or it may include money owing to you for dividends or rents. Yet again a word may mean one thing in one situation and another in another. Take Centre Court at Wimbledon may be 'insulting behaviour'; but blowing it at the Cup Final at Wembley would not. It depends on the meaning which you yourself choose to give to 'insulting'. The difference is not to be settled by authority, but by individual choice. Constantly you will find ordinary people giving different meanings to the same word. This gives full scope to the lawyer.
2. Acquiring skill
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How then can you acquire this command of language to much to be desired? Forgive me here if give of my own experience. When I was young, I did not think much in words. At Oxford I studied Mathematics. No need for words there. The tools I used then were numbers, letters and symbols. They were lifeless things without meaning or sound - the necessary tools of the scientist but not of the lawyer. But when I was called to the Bar, I had to become proficient with words. I did it by drawing on my reserves of English literature. There I had acquired at the Elizabethan Grammar School to which I went daily. I had read much of Shakespeare and many of our poets and novelists whilst still at school. All my prizes from the age of 11 were for English. I have them still, bound in handsome leather, with the school crest and the date AD 1569. The titles in succession are the Great Authors, Macaulay, Carlyle and Milton. Reading these and others provided the essentials: a wide vocabulary of words, and an understanding of the meaning attached to them by the masters of the language. Come to think of it, that is how the makers of the great Oxford Dictionary set about their task to discover meanings. They compiled it from over five million quotations derived from English works of literature and records of all kinds'. Then glance at the Dictionary itself to see the result. It shows that the meaning of a word may change from decade to decade, from place to place, even from one person to another. It may depend on the subject- matter under discussion or the context in which it is used. So you have a challenging task ahead if you are to acquire command of language: and to say what meaning any particular word has in any particular case.
Next, I had to practise continually. As a pianist practises the piano, so the lawyer should practise the use of words, both in writing and by word of mouth. Again, forgive a personal reminiscence. In chambers, if asked to advise, I took infinite pains in the writing of an opinion. I crossed out sentence after sentence. I wrote them again and again. Seek to make your opinions clear at all costs. Make them positive and definite. Not neutral or
32 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015 33 vacillating. My pupil master told me early on of the client's complaint: 'I want your opinion and not your doubts', and of Sir George Jessel's characteristic saying: 'I may be wrong and sometimes am, but I am never in doubt.'
3 Addressing the Court
Apart from writing, there is addressing the Court. Speaking needs even more practice: and even more experience. I was no good at first. I was too shy; also too nervous. Others are different. Many friends of mine - who have since become eminent - started as President of the Union at Oxford or Cambridge. At Oxford I joined the Union but never spoke there. I only learnt by actual experience - by addressing a jury, for whom you must make things simply and clear - like a dock brief at Quarter Sessions at Winchester with only half-an-hour before the case comes on - or a two- guinea brief in the Marylebone County Court before a very testy judge. He could be very rude if you made the slightest mistake. Remember also that, whatever the tribunal, you must give a good impression. Your appearance means a lot. Dress neatly, not slovenly. Be well-groomed. Your voice must be pleasing, not harsh or discordant. Pitch it so that all can hear without strain. Pronounce your consonants. Do not slur your words. Speak not too fast nor yet too slow. All these things are commonplace but they so often forgotten that I warn you against the mistakes I see made daily. No hands in pockets. It shows slovenliness. No fidgetting with pencil or with gown. It shows nervousness. No whispering with neighbours. It shows lack of respect. No 'ers' or 'ums'. It shows that you are slow-thinking, not knowing what to say next. Avoid mannerisms like the plague. It distracts attention. Don't be dull. Don't repeat yourself too often. Don;t be long-winded. All these lose you your hearers: and once you have lost them, you are done for. You can never get them back - not so as to get them to listen attentively.
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One thing you will not be able to avoid - the nervousness before the case starts. Every advocate knows it. In a way, it helps, so long as it is not too much. That is where I used sometimes to fail. My clerk - as a good clerk should - told me of it. I was anxious to win - and so tense - that my voice became too high-pitched. I never quite got over it, even as a King's Counsel. No longer now that I am a judge. The tension is gone. The anxiety - to do right- remains.
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MODULE 5 – TWO EXAMPLES OF ENGLISH CASE LAW
CASE 1
Hinz v Berry [1970] 2 QB 40 Court of Appeal Lord Denning M.R., Lord Pearson and Sir Gordon Willmer
Headnote
In April, 1964, the plaintiff drove out for the day with her husband, their four children and four foster-children in a Dormobile van. On their way back they stopped in a lay-by to have a picnic tea. The plaintiff crossed the road with one child to pick bluebells. A car, driven by the defendant, which was out of control, came along and crashed into the van where the husband was making tea. Hearing the crash, the plaintiff turned round and saw the disaster. Her husband was lying by the van so seriously injured that he died a few hours later. Most of the children suffered injuries.
Prior to the accident the plaintiff had been happy and robust; a remarkable woman of great courage and ability who was extremely fond of children. The shock of witnessing the tragedy caused her to suffer prolonged morbid depression.
On the plaintiff's claim on behalf of herself and her children under the Fatal Accidents Acts and for the personal injuries which she had sustained,
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O'Connor J. awarded the plaintiff £15,107 under the Fatal Accidents Acts and £ 4,000 damages in respect of her personal claim for damages for nervous shock.
On appeal by the defendant on the ground that the sum of £4,000 was too high. Held, dismissing the appeal, that the plaintiff was entitled to recover damages for the recognisable psychiatric illness caused by the shock of witnessing the accident resulting from the defendant's breach of duty. In the exceptional circumstances the judge's award could not be said to be wholly erroneous. Decision of O'Connor J. affirmed.
The Judgment
LORD DENNING M.R.
It happened on April 19, 1964. It was bluebell time in Kent. Mr. and Mrs. Hinz had been married some 10 years, and they had four children, all aged nine and under. The youngest was one. Mrs. Hinz was a remarkable woman. In addition to her own four, she was foster-mother to four other children. To add to it, she was two months pregnant with her fifth child.
On this day they drove out in a Bedford Dormobile van from Tonbridge to Canvey Island. They took all eight children with them. As they were coming back they turned into a lay-by at Thurnham to have a picnic tea. The husband, Mr. Hinz, was at the back of the Dormobile making the tea. Mrs. Hinz had taken Stephanie, her third child, aged three, across the road to pick bluebells on the opposite side. There came along a Jaguar car driven by Mr. Berry, out of control. A tyre had burst. The Jaguar rushed into this lay-by and crashed into Mr. Hinz and the children. Mr. Hinz was frightfully injured and died a little later. Nearly all the children were hurt. Blood was streaming from their heads. Mrs. Hinz, hearing the crash, turned round and
36 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015 37 saw this disaster. She ran across the road and did all she could. Her husband was beyond recall. But the children recovered.
An action has been brought on her behalf and on behalf of the children for damages against Mr. Berry, the defendant. The injuries to the children have been settled by various sums being paid. The pecuniary loss to Mrs. Hinz by reason of the loss of her husband has been found by the judge to be some £ 15,000; but there remains the question of the damages payable to her for her nervous shock - the shock which she suffered by seeing her husband lying in the road dying, and the children strewn about.
The law at one time said that there could not be damages for nervous shock: but for these last 25 years, it has been settled that damages can be given for nervous shock caused by the sight of an accident, at any rate to a close relative. Very few of these cases have come before the courts to assess the amount of damages. O'Connor J. fixed the damages at the sum of £4,000 for nervous shock. The defendant appeals, saying that the sum is too high.
I would like to pay at once a tribute to the insurance company for the considerate and fair way in which they have dealt with the case. In English law no damages are awarded for grief or sorrow caused by a person's death. No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life. Damages are, however, recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant.
There are only two cases in which the quantum of damages for nervous shock has been considered. One is Schneider v. Eisovitch [1960] 2 Q.B. 430. The other, Tregoning v. Hill, The Times, March 2, 1965. But they do not help us here. Somehow or other the court has to draw a line between
37 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015 38 sorrow and grief for which damages are not recoverable, and nervous shock and psychiatric illness for which damages are recoverable. The way to do this is to estimate how much Mrs. Hinz would have suffered if, for instance, her husband had been killed in an accident when she was 50 miles away: and compare it with what she is now, having suffered all the shock due to being present at the accident. The evidence shows that she suffered much more by being present.
I will consider first the grief and sorrow if she had not been present at the accident. The consultant psychiatrist from the hospital in Maidstone said: "It is common knowledge that there is a 'mourning period' for all of us, and that normally time dispels this. In the average person it might be a year, but in a predisposed person it can be greatly prolonged. ..." Mrs. Hinz was not predisposed at all. She was a woman of great capacity, level-headed, hard working, happily married. She would have got over the loss of her husband in, say, a year.
Consider next her condition, as it is, due to being present at the accident. Two years after the accident, the consultant psychiatrist said: "There is no medical doubt at all that she is suffering from a morbid depression; she is now officially ill." He went on to give some of the symptoms. She said to him: "It does not seem worth going on. I feel I cannot cope at all. I get so dreadfully irritable with the children too. It is wrong but I feel like killing him," that is, the posthumous child. The consultant went on: "She feels exhausted, has frequent suicidal ruminations and at the same time is covered with guilt at being like this." The posthumous baby "now saddens her even more because it cries 'Dad, Dad,'" and one of the elder children persists in saying "You have not got a Dad"; and then the other fatherless children join in the chorus." The consultant concluded: "In other circumstances I would probably have brought her into hospital, at least for a rest, but possibly for electrical treatment and it may come to that yet."
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At the trial, five years after the accident, she frequently broke down when giving her evidence. She brought the children to court. They were very well turned out. The judge summed up the matter in this way: "I am satisfied that she was of so robust a character that she would have stood up to that situation, that she would have been hurt, sorrowful, in mourning, Yes; but in a state of morbid depression, No."
He awarded her £4,000 on this head. There is no suggestion that he misdirected himself. We can only interfere if it is a wholly erroneous estimate. I do not think it is erroneous. I would dismiss the appeal.
CASE 2
Miller v Jackson [1977] Q.B. 966 (C.A.)
LORD DENNING, M.R.
In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practise while the light lasts.
British Village Cricket Field on a Sunny Day
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Yet now after these 70 years a judge of the High Court has ordered that they must not play there any more. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that when a batsman hits a six the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at week-ends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the judge to stop the cricket being played.
And the judge, much against his will, has felt that he must order the cricket to be stopped: with the consequence, I suppose, that the Lintz Cricket Club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.
I must say that I am surprised that the developers of the housing estate were allowed to build the houses so close to the cricket ground. No doubt they wanted to make the most of their site and put up as many houses as they could for their own profit. The planning authorities ought not to have allowed it. The houses ought to have been so sited as not to interfere with the cricket. But the houses have been built and we have to reckon with the consequences.
At the time when the houses were built it was obvious to the people of Lintz that these new houses were built too close to the cricket ground. It
40 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015 41 was a small ground, and there might be trouble when a batsman hit a ball out of the ground. But there was no trouble in finding purchasers. Some of them may have been cricket enthusiasts. But others, were not. In the first three years - 1972, 1973, and 1974 - quite a number of balls came over or under the boundary fence and went into the gardens of the houses: and the cricketers went round to get them. Mrs. Miller [the second plaintiff] was very annoyed about this. To use her own words: " ... when the ball comes over, they [the cricketers] either ring or come round in twos and threes and ask if they can have the ball back, and they never ask properly. They just ask if they can have the ball back, and that's it... They have been very rude, very arrogant and very ignorant, ... and very deceitful" and that to get away from any problems they made a point of going out on Wednesdays, Fridays and the week-ends.
Having read the evidence, I am sure that was a most unfair complaint to make of the cricketers. They have done their very best to be polite. It must be admitted, however, that on a few occasions before 1974 a tile was broken or a window smashed. The householders made the most of this and got their rates reduced. The cricket club then did everything possible to see that no balls went over. In 1975, before the cricket season opened, they put up a very high protective fence. The existing concrete fence was only six feet high. They raised it to nearly 15 feet high by a galvanised chain-link fence. It cost oe700. They could not raise it any higher because of the wind. The cricket ground is 570 feet above sea level. During the winter even this high fence was blown down on one occasion and had to be repaired at a cost of oe400. Not only did the club put up this high protective fence. They told the batsmen to try to drive the balls low for four and not hit them up for six. This reduced the number of balls that got into the gardens. So much so that the rating authority no longer allowed any reduction in rates.
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Despite these measures, a few balls did get over. The club made a tally of all the sixes hit during the seasons of 1975 and 1976. In 1975 there were 2,221 overs, that is, 13,326 balls bowled. Of them there were 120 six hits on all sides of the ground. Of these only six went over the high protective fence and into this housing estate. In 1976 there were 2,616 overs, that is 15,696 balls. Of them there were 160 six hits. Of these only nine went over the high protective fence and into this housing estate.
No one has been hurt at all by any of these balls, either before or after the high fence was erected. There has, however, been some damage to property, even since the high fence was erected. The cricket club have offered to remedy all the damage and pay all expenses. They have offered to supply and fit unbreakable glass in the windows, and shutters or safeguards for them. They have offered to supply and fit a safety net over the garden whenever cricket is being played. In short, they have done everything possible short of stopping playing cricket on the ground at all. But Mrs. Miller and her husband have remained unmoved. Every offer by the club has been rejected. They demand the closing down of the cricket club. Nothing else will satisfy them. They have obtained legal aid to sue the cricket club. In support of the case, the plaintiffs rely on the dictum of Lord Reid in Bolton v. Stone [1951] A.C. 850, 867: "If cricket cannot be played on a ground without creating a substantial risk, then it should not be played there at all." I would agree with that saying if the houses or road was there first, and the cricket ground came there second. We would not allow the garden of Lincoln's Inn to be turned into a cricket ground.
It would be too dangerous for windows and people. But I would not agree with Lord Reid's dictum when the cricket ground has been there for 70 years and the houses are newly built at the very edge of it. I recognise that the cricket club are under a duty to use all reasonable care consistently with the playing of the game of cricket, but I do not think the cricket club can be expected to give up the game of cricket altogether. After all they
42 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015 43 have their rights in their cricket ground. They have spent money, labour and love in the making of it: and they have the right to play upon it as they have done for 70 years. Is this all to be rendered useless to them by the thoughtless and selfish act of an estate developer in building right up to the edge of it? Can the developer or a purchaser of the house say to the cricket club: "Stop playing. Clear out." I do not think so. And I will give my reasons.
The law in the 19th century
If we were to approach this case with the eyes of the judges of the 19th century, they would, I believe, have seen it in this way: every time that a batsman hit a ball over the fence so that it landed in the garden, he would be guilty of a trespass. If he hit it so that it went under the fence and down the bank, he would be guilty of a trespass. So would the committee of the cricket club, because they would have impliedly authorised it. They cheered the batsman on. If one or two of the players went round and asked the householder if they could go into the garden to find it, the householder could deny them access: "You are not to come in here," he could say, "to get your ball. I am not going to get it for you. Nor will I let you. It is going to stay there." If the cricketers said: "It's a new ball. It cost us over 6 bucks," the householder could say: "That is your lookout. You ought not to have put it there." Of course, if the householder picked up the ball himself and gave it to his son to play with, he would be liable in conversion. But otherwise he would not be liable at all. He could say: "An Englishman's house is his castle. You are not coming in. Nor are you to hit your cricket ball in here. If you go on doing it, I am going to get an injunction to stop you. Once I prove the violation of a legal right, the Court of Chancery will grant me an injunction to prevent the recurrence of that violation" see Imperial Gas Light and Coke Co. v. Broadbent (1859) 7 H.L.Cas. 600. Even if there was any doubt about the plaintiff's right to sue in trespass, he would have a claim in nuisance, once he proved that the
43 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015 44 balls were repeatedly coming over or under the fence and making things uncomfortable for him. To those claims, in the 19th century, either in trespass or in nuisance, the committee of the cricket club would have no answer. They could not claim an easement because there is no such easement known to the law as a right to hit cricket balls into your neighbour's land. It would be no good for them to say that the cricket ground was there before the house was built. The householder could rely on the case a hundred years ago of the physician who built his new consulting-room next to the old established kitchen of his neighbour. The physician was held entitled to stop the working of the kitchen on the ground that the noise was a nuisance to him in his consulting room: see Sturges v. Bridgman (1879) 11 Ch.D. 852.
The only way in which the cricket club could have succeeded in the 19th century would have been by invoking the doctrine of "derogation from grant." We were told that until recently the cricket ground and the neighbouring fields were all owned by the National Coal Board. The coal board let the cricket ground to the cricket club on a long lease for years knowing that the very purpose of the lease was that the club should play cricket on it for the term of the lease. So long as the National Coal Board owned the neighbouring field, they could not complain of the occasional ball being hit out of the ground on to the field: nor could they have got an injunction to restrain the playing of cricket on the ground, seeing that they had leased it to the club for that very purpose. The reason being simply that it would be a derogation from the grant of the lease for them to do so. And if the National Coal Board sold the land to a purchaser (as they did), the purchaser and subsequent successors in title also could not complain of the occasional ball: nor could they have got an injunction: for the obligation imported by the doctrine of "derogation from grant" runs with the land just as do obligations which arise from a restrictive covenant: see Browne v. Flower [1911] 1 Ch. 219, 226, by Parker J. "They bind not only
44 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015 45 the grantor but also all who claim title through him ... It is in this that the importance of the doctrine lies."
The law in the 20th century
The case here was not pleaded by either side in the formulae of the 19th century. The plaintiffs did not allege trespass. The defendants did not raise the doctrine of derogation from grant. The case was pleaded in negligence or alternatively nuisance. That was, I think, quite right, having regard to the decision of the House of Lords in Bolton v. Stone [1951] A.C. 850. Miss Stone had just stepped out of her garden gate on to the pavement when she was hit by a cricket ball. She did not sue in trespass to the person. That would be quite out of date. As I said in Letang v. Cooper [1965] 1 Q.B.232, 239: "If [the defendant] does not inflict injury intentionally, but only unintentionally, the plaintiff has no cause of action today in trespass. His only cause of action is in negligence, and then only on proof of want of reasonable care." Miss Stone did seek to put her case on the doctrine of Rylands v. Fletcher (1868) L.R. 3 H.L. 330. She suggested that a cricket ball was dangerous thing which the defendants had brought on to the cricket ground and it had escaped. That suggestion was dismissed by the House of Lords out of hand. Lord Reid said: ". . . there is no substance in this argument": see [1951] A,C. 850, 867. She also suggested that the club were liable in nuisance: but this was not pressed in the House of Lords, because nuisance was not distinguishable from negligence. Lord Porter remarked at p. 860 that "in the circumstances of this case nuisance cannot be established unless negligence is proved."
In our present case, too, nuisance was pleaded as an alternative to negligence. The tort of nuisance in many cases overlaps the tort of negligence. But there is at any rate one important distinction between them. It lies in the nature of the remedy sought. Is it damages? Or an injunction? If the plaintiff seeks a remedy in damages for injury done to
45 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015 46 him or his property, he can lay his claim either in negligence or nuisance. But if he seeks an injunction to stop the playing of cricket altogether, I think he must make his claim in nuisance. The books are full of cases where an injunction has been granted to restrain the continuance of a nuisance. But there is no case, so far as I know, where it has been granted so as to stop a man being negligent. At any rate in a case of this kind where an occupier of a house or land seeks to restrain his neighbour from doing something on his own land, the only appropriate cause of action on which to base the remedy of an injunction is nuisance.
It is the very essence of a private nuisance that it is the unreasonable use by a man of his land to the detriment of his neighbour. He must have been guilty of the fault, not necessarily of negligence, but of the unreasonable use of the land: see The Wagon Mound (No. 2) [1967] 1 A.C. 617, 639, by Lord Reid.
It has been often said in nuisance cases that the rule is sic utere tuo ut alienum non laedas (Use what is yours so as not to harm what is others). But that is a most misleading maxim. Lord Wright put it in its proper place in Sedleigh-Denfleld v. O'Callaghan [1940] A.C. 880,903: "[It] is not only lacking in definiteness but is also inaccurate. An occupier may make in many ways a use of his land which causes damage to the neighbouring landowners and yet be free from liability ... a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society."
I would, therefore, adopt this test. Is the use by the cricket club of this ground for playing cricket a reasonable use of it? To my mind it is a most reasonable use. Just consider the circumstances. For over 70 years the game of cricket has been played on this ground to the great benefit of the community as a whole, and to the injury of none. No one could suggest that it was a nuisance to the neighbouring owners simply because an
46 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015 47 enthusiastic batsman occasionally hit a ball out of the ground for six to the approval of the admiring onlookers.
Then I would ask: does it suddenly become a nuisance because one of the neighbours chooses to build a house on the very edge of the ground - in such a position that it may well be struck by the ball on the rare occasion when there is a hit for six? To my mind the answer is plainly No. The building of the house does not convert the playing of cricket into a nuisance when it was not so before. If and in so far as any damage is caused to the house or anyone in it, it is because of the position in which it was built. Suppose that the house had not been built by a developer, but by a private owner. He would be in much the same position as the farmer who previously put his cows in the field. He could not complain if a batsman hit a six out of the ground, and by a million to one chance it struck a cow or even the farmer himself. He would be in no better position than a spectator at Lord's or the Oval or at a motor rally. At any rate, even if he could claim damages for the loss of the cow or the injury, he could not get an injunction to stop the cricket. If the private owner could not get an injunction, neither should a developer or a purchaser from him.
It was said, however, that the case of the physician's consulting room was to the contrary: Sturges v. Bridgman, 11 Ch.D. 852. But that turned on the old law about easements and prescriptions, and so forth. It was in the days when rights of property were in the ascendant and not subject to any limitations except those provided by the law of easements. But nowadays it is a matter of balancing the conflicting interests of the two neighbours. That was made clear by Lord Wright in Sedleigh-Denfield v. O'Callaghan [1940] A.C. 880, 903, when he said: "A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with."
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In this case it is our task to balance the right of the cricket club to continue playing cricket on their cricket ground - as against the right of the householder not to be interfered with. On taking the balance, I would give priority to the right of the cricket club to continue playing cricket on the ground, as they have done for the last 70 years. It takes precedence over the right of the newcomer to sit in his garden undisturbed. After all, he bought the house four years ago in mid-summer when the cricket season was at its height. He might have guessed that there was a risk that a hit for six might possibly land on his property. If he finds that he does not like it, he ought, when cricket is played, to sit on the other side of the house or in the front garden, or go out: or take advantage of the offers the club have made to him of fitting unbreakable glass, and so forth. Or, if he does not like that, he ought to sell his house and move elsewhere. I expect there are many who would gladly buy it in order to be near the cricket field and open space. At any rate he ought not to be allowed to stop cricket being played on this ground.
This case is new. It should be approached on principles applicable to modern conditions. There is a contest here between the interest of the public at large; and the interest of a private individual. The public interest lies in protecting the environment by preserving our playing fields in the face of mounting development, and by enabling our youth to enjoy all the benefits of outdoor games, such as cricket and football. The private interest lies in securing the privacy of his home and garden without intrusion or interference by anyone.
In deciding between these two conflicting interests, it must be remembered that it is not a question of damages. If by a million to one chance a cricket ball does go out of the ground and cause damage, the cricket club will pay. There is no difficulty on that score. No, it is a question of an injunction. And in our law you will find it repeatedly affirmed that an injunction is a discretionary remedy. In a new situation like this, we have to
48 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015 49 think afresh as to how discretion should be exercised. On the one hand, Mrs. Miller is a very sensitive lady who has worked herself up into such a state that she exclaimed to the judge: "I just want to be allowed to live in peace. . Have I got to wait until someone is killed before anything can be done?" If she feels like that about it, it is quite plain that, for peace in the future, one or other has to move. Either the cricket club has to move: but goodness knows where. I do not suppose for a moment there is any field in Lintz to which they could move. Or Mrs. Miller must move elsewhere.
As between their conflicting interests, I am of opinion that the public interest should prevail over the private interest. The cricket club should not be driven out. In my opinion the right exercise of discretion is to refuse an injunction; and, of course, to refuse damages in lieu of an injunction. Likewise as to the claim for past damages. The club were entitled to use this ground for cricket in the accustomed way. It was not a nuisance, nor was it negligent of them so to run it. Nor was the batsman negligent when he hit the ball for six. All were doing simply what they were entitled to do. So if the club had put it to the test, I would have dismissed the claim for damages also. But as the club very fairly say that they are willing to pay for any damage, I am content that there should be an award of $400 to cover any past or future damage.
I would allow the appeal, accordingly.
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