‘Legal Obligations. Legal Revolutions’: 2016 Cambridge Freshfields Lecture

‘Legal Obligations. Legal Revolutions’: 2016 Cambridge Freshfields Lecture

Articles, Blog , , , , , , , , , , , , 0 Comments


Good evening ladies and gentlemen, judges,
some students, faculty, colleagues. I’m just going to say a few brief words before I hand
over to the main act for this evening. I’m Sarah Worthington and I’m delighted to welcome
you to the law faculty for the 2016 Cambridge Freshfields annual lecture. So this is the
third in a series of lectures that are sponsored by Freshfields, and Freshfields makes that
contribution to the Cambridge private law centre because we wanted to get a series of
interesting engaging, slightly controversial, dynamic speakers to come, primarily to engage
with the students, but what we’ve done this year is move the lecture from lent term to
coincide with this conference, partly to make it a slightly bigger event and to run as part
of Obligations VIII. So we’re delighted to have the support of Freshfields and their
flexibility in moving this along a little bit in the year. It will go up on the website
and we hope that quite a lot of students will watch it there, but, quite to my surprise,
there’s a little cohort of students who are here on an international summer school so,
very special welcome to all of you, I’m delighted that you came. Without more ado, I’ll hand
over to Andrew Robertson, who will introduce our speaker. Good evening, it is my very great pleasure
to introduce The Honourable Michael Kirby. In the space of just a few minutes, it’s a
daunting task to try to introduce a person who has achieved as much as Michael Kirby,
in the law and beyond. So all I can do is to offer a few highlights and a few insights
into a remarkable career and a remarkable life outside the law. Michael Kirby graduated from the University
of Sydney, Bachelor of Laws, Bachelor of Economics and Master of Laws and practised as a solicitor
and then as a barrister for some years before becoming the youngest person appointed to
federal judicial office in Australia at the age of 35 and I think that record still holds,
although Justice.. almost broke it. He went to serve as a judge at the Federal Court of
Australia, president of the New South Wales Court of Appeal for eleven years, president
of the Court of Appeal of the Solomon Islands and, of course, a Justice of the High Court
of Australia from 1996 to 2009. Michael Kirby has been a tireless and influential
campaigner for human rights and against discrimination for many years. He’s a Companion of the Order
of St Michael and St George and a Companion of the Order of Australia. He’s received honorary
degrees, too numerous to mention, though I will mention one, the most important of those
was from the University of Melbourne. He’s been awarded the Australian Human Rights Medal
and the Gruber Prize for Justice. He was named laureate of the UNESCO Prize for human rights
education. The Sydney Morning Herald named him as one of Australia’s top ten public intellectuals,
and before you start making jokes, there is competition in that category. One Australian
magazine named him as one of the 100 most influential Australians ever and included
him amongst Australia’s ten most creative minds. He’s been elected as honorary member
of the American Law Institute and honorary bencher of the Inner Temple in London and
has been declared an Australian living treasure by the National Trust. Michael Kirby’s interests in recent years
have been some distance from the law of obligations, for much of his adult life he’s been heavily
involved in international organisations, playing various roles with the OECD, UNESCO, the International
Labour Organisation and the International Commission of Jurists, including a term as
its president. Since retirement from the bench he’s immersed
himself in work with international organisations having recently, just to give two examples,
lead a committee of inquiry into human rights abuses in North Korea and co-chaired the UN
Secretary General’s high level panel on access to essential medicines. But while his current
interests lie elsewhere, Michael Kirby’s judgements continue to have a powerful influence in our
field, and I can attest to this as a teacher. At Melbourne Law School, Michael Kirby’s judgements
play an influential role right across the obligations curriculum with significant and
influential interventions in the Law of Contract, the Law of Torts, the Law of Unjust Enrichment,
in various equitable doctrines, and in relation to Australia’s important statutory obligations. Michael Kirby’s judgements are beacons of
justice, reason, and good sense for law students. Every year I find large numbers of students
who are so convinced by his reasoning that they want to resolve problems in accordance
with the principles laid down by Justice Kirby, even when he’s dissenting on the law. In fact,
especially when he’s dissenting on the law. So we’re delighted that he’s agreed to take
time away from his demanding work on international causes and turn his attention once again to
the law of obligations. So it’s with great pleasure that I invite the Honorable Michael
Kirby to present the Cambridge Freshfields Lecture for 2016. Thank you very much Andrew, for that introduction
and I’m extremely proud to be asked to deliver this Freshfields Cambridge lecture for 2016,
and I acknowledge the presence here of Mr Philip Richards, who is from Freshfields and
who has the distinction of having interrupted a fishing holiday in Iceland to be here for
this lecture, so thank you very much and thank you supporting the law school and this lecture
series. I’ve been told that many of the people in
this audience who have had my lecture for several weeks have had the opportunity to
read it. The opportunity to read it doesn’t necessarily mean that it is percolated into
the grey matter. When judges told me, when I was an advocate and even later when I was
a judge, ‘Yes yes, we’ve read the written submissions’, I never believed them because
I always thought it was important to get the essence of it orally so that it has a chance
of percolating into the brain from one human being to another by way of diction. And so
I’m going to take you quickly through my paper with a sort of tasting experience of the ten
revolutions that I have experienced in my judicial life of 34 years and in my life of
even longer as a practitioner. I served as a judge in Australia for 34 years.
For good measure, I was commissioned in Solomon Islands concurrently for 3 years. The earliest
purchases I made of a published legal series was typical of a young antipodean law student
venturing on legal studies in 1958. The red buckram Australian Law Journal contained much
news on legal developments in Australia, England and occasionally elsewhere. It also provided
detailed reports of decisions of the High Court of Australia and of Australian appeals
to the Judicial Committee of the Privy Council. The black buckram, 3 volumed Weekly Law Reports
brought to my home a constant stream of the authentic voices of the English law, expressed
in the Privy Council, the House of Lords (HL), the Court of Appeal of England and Wales and
other English courts. This was how it was in those days in Australia,
50 years after the establishment of nationhood by our Constitution. If I wanted to know anything
about the law of obligations (the judge-made law of contracts and of tort) I had it at
my fingertips. Statute law, whether Australian, English, or from anywhere else, was not deemed
worthy of my time; or at least of the investment of my meagre resources. I still have those volumes on my shelves;
brought up to date in the intervening years. Later the Commonwealth Law Reports, the New
South Wales Law Reports were added. I even later condescended to statutes as time went
on. Nowadays, if I think of the law of obligations,
my mind tends towards the obligations imposed by international law. By this I mean treaty
and other binding international law, such as the Charter of the United Nations and the
great treaties that have established the international law of human rights. Although not laid down
by treaty, there are other obligations that are now accepted as part of international
law; certainty as influential and persuasive. Since my judicial retirement in 2009, I have
been preoccupied with the obligations of nation states, intergovernmental bodies, international
agencies, institutions and even corporations. The obligations of the Commonwealth of Nations
and its officials and citizens to comply with international law and to eradicate domestic
laws that deprive Commonwealth citizens of equality and fundament human rights. The obligations
of United Nations member states to take effective measures against the HIV/AIDS epidemic, including
as a price imposed for financial and other international aid. The obligations of a particular
state (North Korea) to comply with United Nations human rights treaties on human rights,
most of which treaties that country has ratified but ignores. These are what now occupies me, rather than
the red and the black buckram of my ealier times. I have called my survey a survey of revolutions.
And I am very pleased that we are honouring tomorrow morning the 50th anniversary of Goff
and Jones. I came to know Robert Goff very well in the 1980s and 1990s. He was a wonderful
human being, and a great judge and scholar. He is shown in a photograph on the walls of
my chambers in Sydney, at a conference which we both attended in Canada, in which we were
honoured by the native people of the region. Each of us was given a huge head dress of
native peoples feathers. Robert in a typical English way looks extremely uncomfortable
and embarassed by the head dress. I on the other hand having had a lifetime getting used
to the clothing in which we were bedecked in the tradition of the British Empire was
completely at home and felt it was only fitting that we should both be there in that year. Although lawyers trained in the English law
played a great part in many legal revolutions (the United States, Ireland and India spring
to mind) for most of us in the old dominions the word ‘revolution’ congers up unpleasant
notions. Revolutions mark not the continuity of law but the severance of what was and will
be indefinitely. However, if I look back to the legal discipline in which I have participated
since the 1950s – a space of 65 years – no other word seems suitable to describe the
radical changes. So what are the ten ‘revolutions’? The first
is the decling role of the judicial committee of the Privy Council (JCPC) and the growing
disunity of the common law. The representatives of the Australian settlers
did not provide for a continuance of the JCPC in their original draft of the federal constitution.
However, Joseph Chamberlain, and the British Cabinet, insisted. The result was sec. 74
of the Australian Constitution. It preserved appeals to the JCPC except in specified constitutional
cases and it controlled any process of abolition. Inferentially this was, in part, done to protect
British investments in Australia. But it had the advantage of promoting and overseeing
the consistent development and application of the common law in colonies and dominions,
conformably with understanding of that law as expressed in England. The role of the House of Lords is not mentioned,
still less preserved, in the Australian Constitution. However, for two reasons, up to the middle
1970s, it was treated as, effectively, part of Australia’s judicial hierarchy. The first
reason was the realistic appreciation that the same judges who served in the HL also
sat in the JCPC. Secondly, the leading judges of Australia, for utility and as part of their
view of their own professionalism, repeatedly applied HL authority and declared that the
Australian courts should do likewise. Even where the High Court of Australia had pronounced
on the subject of a case, it was a “wise general rule of practice” that a conflict with authority
of the HL should be resolved by following its statements on “matters of general legal
principle”. The reasoning behind that conclusion was that
the settlers had brought the common law of England to Australia. The HL was the highest
authority on the content of that law in England. Therefore, its rulings should be obeyed. Nobody
bothered much to consider the supervening command of the text of the Australian Constitution
to discern a different autochthonous obligation. This was the era of the assumption of a single
global common law for British societies. The search of the judges was to find and declare
what it was. Those with the most reliable lamp to find the way were the highest judges
of England. The first force for change was political:
a growing realisation, in and after the First World War, of Australia’s separate nationhood
and the adoption, for the dominions, of the Statute of Westminster 1931 which disclaimed
the general power of the Imperial Parliament to enact statute law binding on them without
their request and consent. These steps confirmed the termination of the earlier parallel belief
in a single Crown, with a single allegiance throughout the British Empire. Secondly, the Australian judges who were foremost
in respect and deference to the law lords, began to find decisions that they regarded
as unconvincing and even frankly wrong. Thirdly, Justices were appointed to the High
Court of Australia, who had served as Federal Attorney-General, who were inclined to read
the Constitution with new eyes. Right up to 1985, the Court of Appeal for England and
Wales was almost uniformly described in Australia as “The Court of Appeal”. Yet by 1966 there
were separate courts of appeal in Australia. I was serving on the New South Wales court
by 1984. In fact, repeatedly English authorities are
quoted to shine light upon local legal problems. This is particularly so in the fields of contract
and tort law that remain largely governed by the common law. Professor Andrew Burrows
was astonished to discover, in his empirical survey for Obligations VII, the extent to
which reports from Canada, New Zealand and elsewhere cite and utilise English judicial
reasoning. However, this should not be surprising. It causes no astonishment to someone raised
in common law jurisdictions overseas, outside the United States of America.
The Americans have at least 52 jurisdictions of their own to draw upon. In any case they
are bedevilled by an isolationist and exceptionalist mentality. We, who grew up with the JCPC,
know that drawing in analogous areas upon the writings of highly intelligent and experienced
judges in England is often extremely useful. The JCPC encouraged a mode of comparativist
thinking and working. It is peculiarly suited to the context of global contracts and global
torts. What is perhaps more surprising is that the process is now reciprocal. The reasoning
of the JCPC and HL (and now the Supreme Court of the United Kingdom) increasingly draws
upon decisions from other common law countries. Australian cases still sometimes lead the
way in the area of torts and contracts. Back in my student days, it was comparatively
rare for the JCPC or HL for their part to refer to overseas common law decisions, on
the law of obligations or anything else for that matter. However, on the cusp of the creation
of the Supreme Court of the United Kingdom, two facilitating developments occurred. First,
leading judges appeared who were open to the intelligence and utility of overseas reasoning.
Such open-mindedness was encouraged by a number of considerations. Chief among them was the
advent of electronic legal information. Suddenly advocates were released from control by the
red and black buckram series on their shelves. Research in comparative materials from high
Commonwealth courts was available in black buckram in the form of Law Reports of the
Commonwealth. Information at our fingertips – sometimes too much information – has made
it easier to search and find in electronic sources examples, wisdom and occasionally
inspiration. As chance would have it, I presided in Sydney
in the last Australian appeal decided by the JCPC. The appeal was dismissed and a graceful
ceremony followed. Now the glue that holds together the principles of the common law
is that appropriate to free peoples dealing with their own problems, societies and institutions.
Reasoning, persuasiveness and utility, not power in law, now control comparative developments. The second revolution was European and human
rights law, and the impact or non-impact of that movement. Despite the outcome of the Brexit referendum,
it seems inevitable that the laws of England (including in the field of Obligations) will
continue to be affected by the law of the European Union and the human rights law emanating
from Strasbourg. Years ago, as we remember, Lord Denning perceived European law as an
incoming tide. To some extent this prediction has been vindicated. The European Human Rights
Convention, as incorporated by the Human Rights Act (UK) 1999, has influenced many important
decisions on the private law of obligations, although not all. The alternative, as Lord
Bingham pointed out, was that tort law would be left “essentially static, making only such
changes as are forced upon it, leaving difficult and in human terms, very important problems
to be swept up by the Convention”. Well-known decisions in which European Convention
law has influenced the English exposition of the common law of torts include Reynolds
v Times Newspapers Ltd, creating a defence of responsible journalism to liability in
defamation in light of Article 10 of the Convention thereby protecting freedom of speech, and
Campbell v MGN Ltd. Although the Reynolds defence was later abolished by the Defamation
Act 2013 (UK), the relevant provision did not change the law very much because the statute
creates a seemingly similar defence. In the recent decision of the Supreme Court
of the United Kingdom in Michael v Chief Constable of South Wales, an important decision was
reached concerning the approach to be taken to the legal duty of care on the part of a
police authority. In part, the decision involved reconsideration of the earlier reasoning of
the House of Lords in Hill v Chief Constable of West Yorkshire. But, in part, it also concerned
a claim in negligence brought under the Human Rights Act 1998 (UK) for breach of the duties
of police as public authorities to safeguard the deceased’s right to life under Art 2 of
the European Convention. Most countries of the common law are not parties
to the European Convention. Save for Ireland and Malta, only the United Kingdom has signed
up. Most civilised countries, have their own human rights charters, including Commonwealth
countries that are probably closest to the authority and reasoning of the English courts.
(I would single out Canada, New Zealand and South Africa). Australia alone holds out against
this trend. For the law of obligations in Australia, where there is but one national
common law, the likelihood of increased divergence from other common law jurisdictions is considerable,
if not certain. My attempts to construe the Australian Constitution
and statute law in accordance with the international law of human rights were declared by some
judges to be heretical. It has so far made little headway. The embrace by the United
Kingdom of European law, in the form of the Council of Europe, EEC and now the EU, are
viewed, like the border interrogations at Heathrow Airport as a clear signal that the
United Kingdom had embarked on a new and different post-imperial journey. In the post-Brexit
world, it will be important to monitor whether the UK joins Australia in viewing the distinctive
English ways of thinking about law as something deserving preservation and even revival, and
not ellimination. Many Australian lawyers regard this too as
a product of non-English, European natural law thinking. It is not the true doctrine
of traditional English Protestant legal thinking. More than a few judges and lawyers in Australia
regard their country as a distant citadel, protecting the fragile flame of English law
and preserving the true common law down there in the antipodes. They are waiting until English
lawyers come to their senses and abandon this foreign contagion as post-Brexit they may
unexpectedly begin to do – so watch this space. Thirdly, non-equality, discrimination, and
the treatment of people as equals. The common law of England was not always a
great vehicle for the protection of the rights of women to legal equality or the protection
of minorities. Sir Stephen Cretney pointed out, as late as 1923, Lord Chancellor Birkenhead
refused to grant a wife’s appeal against an order declining her the divorce she had sought,
for reasons that would today appear to be mysognistic and even cruel. There are many
decisions in the common law that rejected the notion of equality. The appointment Brenda Hale in 2004 as a Lord
of Appeal in Ordinary was a sharp break with a very old tradition. But why I presume to
ask has there been no follow-up over more than a decade? Only in India and in darkest
Africa do nation states rival England in the low numbers of women appointed to final courts. Reflecting the life experiences of half of
humanity is hardly a surprising feature of an acceptable legal and judicial profession.
This is not a fault, and ought to be seen as a benefit and a strength. In Australia, Justice Gaudron’s values and
approaches in Australia were often similar to those expressed later by Baroness Hale
in the United Kingdom. In Glaidon v Godin-Mendoza Baroness Hale wrote of homosexual relations
in a way that few, if any, male law Lords would have done and which I can affirm. Judges of the current age who are more cosmopolitan
in their legal knowledge and interests, and more willing to look to international and
human rights sources, as influencing in part the context of the law, are more likely to
confront the ignorant and unjust laws inherited from solely male judges and male legislators
of the past on matters related to women, gays, people of different races and other minorities. This was a legal revolution that had to come.
In many places it is still unfolding. The changing composition of the courts will rightly
influence the changing content of the law they administer. Fourthly the move from formalism to greater
realism. The subject matter of law is constantly in
a state of flux. Nevertheless, there are some comparative certainties, more I suggest in
contract than in tort law. In contract law as Sir Bernard Rix reminded us in a recent
case, one of his last, the first rule “is that contracts are made to be performed, not
broken”. This is in fact what Michelle Obama said was a guiding principle for her: “Keep
your promises”, and what Mrs Trump in amazingly similar language, but I am here tonight to
tell you that they are all copying Sir Bernard Rix, who said it first and clearest. In the field of tort, the common law is generally
struggling to advance from a solution expressed in terms of a category or classification to
a broader genus that after all, was the genius of Lord Atkin’s rationalisation of the earlier
law in Donoghue v Stevenson. It was this idea that led, in turn, to the suggested elemental
requirement of “proximity”, in an endeavour to confine somewhat the class to whom an enforceable
legal duty was owed. But that single word was no better than Atkin’s multiple word description. In Australia (as in Canada, New Zealand and
other countries of the common law) many judicial decisions have been delivered in the hope
of providing greater precision to civil obligations. Some general rules were stated, such as that
“the law does not impose duties of care to take positive action”. The House of Lords
in Caparo Industries PLC v Dickman propounded a “three way test”. I felt the attraction of the Caparo approach.
I said as much in many decisions. The approach attracted academic favour in Australia. I
persisted. But my judicial colleagues were never convinced. I think that many of them
were unwilling to admit so candidly a role for policy and judicial line drawing that
a candid examination of the cases would have demanded. The recent decision of the United Kingdom
Supreme Court in Michael v Chief Constable of South Wales suggests that the judicial
divisions in that court are similar to those that earlier emerged in Australia in that
respect. As an alternative to judicial law reform one
of the most notable ‘revolutions’ that has occurred in the law in the United Kingdom,
Australia, and other common law countries over the past 50 years has been the result
of the work of full-time, professional law reform bodies. I as you have heard played
a part in this development in Australia, when the Federal Parliament and Government followed
the lead of Lord Scarman’s Law Commission of 1965 and created the Australian Law Reform
Commission in 1975. On both sides of the world, the work of professional
law reform bodies has proved highly influential, including in the field of private law. To
some extent, the borrowing of legal ideas through the decisions of the courts has been
replaced or supplemented by the exchanges between law reform agencies. If the funding
and implementation of law reform reports has not always been as wholehearted and substantial
as was expected in Lord Scarman’s day, the work of international law reform goes ahead.
A conference celebrating the achievements of the law commissions in the United Kingdom
over 50 years has concluded recently and I understand the papers will be available to
participants at this conference. Fifthly, there’s comparative law and the struggle
against isolation. Although comparative law borrowing was always
a feature of the common law, enforced throughout the British Empire by the decisions of the
JCPC and the HL, it remains the fact that most of the comparisons were borrowed from
England. Nevertheless, even in the 19th century, English
scholars and writers were willing to praise “comparative jurisprudence” in the “maturer
systems”. Today, there are many scholars, and some judges,
who espouse the value of comparative law scholarship. Lord Bingham was another. Many, especially
jurists from the antipodes far away, are cautious or even hostile. Amongst other problems of
doctrine they often cite the perils, of unprincipled “cherry picking” and the dangers of embracing
legal approaches that are imperfectly understood by common lawyers. Nevertheless intellectual isolationism is
scarcely a viable stance for lawyers to take in the age of the internet, Skype; international
trade and torts; global media; intercontinental travel and even conference series such as
the Obligations conferences. The field of comparative law borrowing is
large and ever growing, from within and beyond common law jurisdictions. One can be confident
in saying that this process will continue to expand. The barriers of resistance and
hostility towards the legal categories and reasoning of lawyers in non-English speaking
jurisdictions are breaking down. Somewhat belatedly globalism has met the common law,
and common law has met globalism. Again it remains to be seen how the counter-revolution
of Brexit might affect this trend. Sixthly, the revolution in legal realism. In olden days, judges indulged in the fairy
tales of the declaratory theory of the judicial function. Over the past 50 years, however,
there has been a growing candour in expositions about the judicial role, including the acknowledgment
of the creative functions of the judges, especially in the highest courts. As the duty of care
cases demonstrate, many judges feel anxious about asserting too directly their function
in creating new principles. But on the whole, the greater judicial transparency about what
is actually going on in the courts has been fairly well accepted. Certainly this is so
amongst the knowing members of the legal profession and the academy. In the field of tort law, the growing influence
of leading academic scholars has promoted a greater willingness on the part of judges
to tackle problems realistically and from a practical standpoint. Thus, from the first
edition of his text The Law of Torts, Professor John Fleming was determined to adopt and justify
this approach. Fleming paid particular attention to aspects
of the operation of tort law that had earlier been neglected, including the assessment of
damages; the shift towards statutory no-fault compensation schemes; and the impact of insurance
on the ambit of tort liability. His aim was to bridge the gulf that frequently existed
between the exposition of tort law in the ‘books’ and ‘law as it was in actual operation’. Certainly, it had a large impact on Australian
practising lawyers and eventually judges. That impact has I think been beneficial. In
one field, however, the call for realism has not been rewarded with as much attention as
it probably deserves. I refer to the significance of insurance (its existence; prevalence; availability;
and significance) for the outcome of litigation. Everyone knows that motor vehicle negligence
claims are paid out of a fund created pursuant to compulsory statutory third party insurance.
Yet solemnly, the litigation, and much else, is carried on as if insurance were completely
irrelevant. Similar considerations affect the attempt
to introduce more empirical economic analysis into reasoning on obligations. In the Court
of Appeal of New South Wales, in Cekan v Haines, I expressed regret at the “failure of the
common law to develop more than a general notion of the economic consequences of asserting
the requirements of reasonable care”. I described this as “one of the chief defects in the law
of negligence as it has developed”. In his comments on Cekan, Fleming drew attention
to the early judicial attempts in the United States to formulate, in almost algebraic terms,
a ratio between the probability of injury and the cost of prevention. Fleming was teaching
the Australian legal profession, and the judges, that the individual case in tort was important
for compensation to the claimant. But it also assumed an additional importance and equally
significant character: that of setting the standards of a civilised society to be of
observed by “neighbours” living together in the same community”. Seventhly, the decline and fall of jury trial. Fifty years ago, in most parts of Australia
and elsewhere, claims in tort and contract were generally decided by civil juries. In
New South Wales, such juries were composed of four citizens, chosen from a panel. The
judge instructed the jury on the law. They returned their verdict and judgment was entered.
Appeal was very difficult, save for material legal misdirections. Cases had to be simplified
down to their bare bones in order to address the jury. It began to be demolished after
1970 in most parts of Australia, although it lingered on in the State of Victoria. It
fell out of favour with intellectuals who questioned the capacity of lay jurors to decide
complex factual questions accurately. They also objected to unreasoned justice which
might be hiding unrevealed errors. Now the civil jury trial is almost extinct
in Australia. For a time, civil juries could still be summoned in defamation cases and
in claims in which fraud had been pleaded. However, even there, the exceptions have been
whittled away now almost to vanishing point. Recently the New South Wales Bar Association
suggested that the reintroduction of civil jury trial should be considered. However,
the suggestion went nowhere because courtrooms for forty years have been built throughout
the state without a jury box or facilities for jurors. The result has been a great lengthening of
trials; the introduction of extremely intensive case management; the proliferation of appeals,
including interlocutory appeals; the explosion of written submissions; a profound increase
in legal costs; and a great expansion of judicial reasons in the attempt to make them ‘appeal
proof’. Similar developments have arisen in the United
Kingdom and elsewhere. It is unlikely that jury trial for cases of
legal obligations will be restored. It is ironic that the system was abolished because
it was thought that jury trial was too slow and cumbersome and that juries were unduly
sympathetic to claimants. The outcome has been a costlier trial system: so costly that
most claims now have to be sent off to mediation before trial. There the resolution is normally
achieved by reference to market forces and the prospective costs of litigation rather
than legal principles or entitlements on the merits. The pressure to channel claims arising out
of legal obligations into alternative dispute resolution may be another instance where an
elite procedure, developed by specialists, ultimately grew so cumbersome that it sapped
life out of the creature and caused it to look elsewhere to survive. Those who ponder
on the serious uncertainty of a body of the law of obligations (such as the law of negligence)
need to reflect on Darwin’s Rule of Variation. According to Charles Darwin, all living things
require an internal capacity to regenerate and alter if they are to survive in a constantly
changing environment. The consequences of the death of the jury trial for the future
elaboration of tort and contract law is a subject worthy of close study. Eigthly, there is the growing predominance
of statute law, and the decline the common law. Those who were taught the law of obligations,
as I was more than 50 years ago, spent most of their time reading very closely and discussing
judicial reasoning. Statutory law did not generally make much of an appearance except
where the Crimes Act or Criminal Code had to be studied. Now, in the United Kingdom too, and elsewhere
in the countries of the common law, the role of judges has generally become that of expounding
the meaning of the written law (statutes, regulations, bylaws, ordinances, rules of
court etc). The role of judge-made law is in rapid decline. This is less so in torts
and contracts than elsewhere. But even there, statute is playing an ever increasing role.
Where it applies, the statute (so long as it is constitutionally valid where that is
an issue) will still narrow the scope for the operation of the common law. This development has had many side effects.
Some of them concern the rules for statutory interpretation, compared to earlier times.
In 1993, in Pepper v Hart, the HL adopted a principle that the rule excluding reference
to parliamentary material as an aid to statutory construction should be relaxed, providing
the legislation was ambiguous or obscure. In addition to the use of statutory materials,
academic writing is now increasingly received both to assist in the interpretation of the
language used in legislation and promote the achievement of sound policy, understood by
reference to permissible considerations. The evaluative role of the decision-maker
is now increasingly acknowledged. But increasingly it will be sourced to a legislative mandate. The phenomenon of expanded statutory law is
also likely, in the years ahead, to revive once again the hope of expressing the contract
law of England (and of those who live under the same or similar rules) in statutory form. In the United Kingdom, pressure to that end
is likely to come from European and other predominanatly civil law trading partners,
and this notwithstanding Brexit. In Australia, the same pressure is likely to be felt from
the nation’s principal trading outlets: China, Japan and the Republic of Korea. Merchants and business people in such countries,
who ask to see a trading partner’s contract code are astonished to be told that none exists. The golden age of judicial exposition of the
law of obligations is therefore fading. Availability, predictability and relative certainty have
brought us to the age of statute. This revolution too will not be reversed. It seems likely
to be enhanced by increasing pressures for codification. Ninthly, there are statutory restrictions
on liabilty. Once the law begins its journey towards the
exposition of the applicable rules in statutory form, the safety valve of judicial discretion
and merit evaluation is removed or certainly reduced. What remains is simply what the lawmaker
– or investor – has provided in advance of the happening of the cause of action. Nevertheless, over the past 40 years, legislatures
in many jurisdictions have enacted provisions to abolish common law remedies; substitute
statutory entitlements; and then to limit those entitlements sometimes in very unjust
ways. An example of radical statutory reform was
the New Zealand Accident Compensation Act. This followed a report of an inquiry chaired
by Sir Owen Woodhouse, a distinguished New Zealand judge. A similar scheme was recommended
in Australia by the same judicial author. However, it was abandoned in 1975 when the
Whitlam Government in Australia which had promoted it, was dismissed by the Governor-General
(Sir John Kerr) and replaced by a government that did not favour such a change. Views differ about the implementation of the
accident compensation scheme in New Zealand. The aggregate fund for benefits for accidental
injuries has been whittled away by successive governments, strapped for funds. In Australia, having avoided by a whisker
the New Zealand-type reform, the available damages in tort cases soon had to face other
severe restrictions on recovery of another kind introduced by states and territories
throughout the country. The restrictive legislation is complex but its purpose is plain. It is
to cut back very substantially on entitlements of people harmed by others, as declared during
recent decades by the courts of law. The haste, uniformity and radical nature of the imitations
that were introduced probably represented a substantial demonstration of the disapproval
by the politicians of what lawyers and judges had been doing over the precious decades.
This was the more surprising because, in the years immediately prior to the beginning of
this wave of statutory reform in 2002-03, the judicial decisions themselves favouring
claimants came to an abrupt end in the Australian courts themselves. As I would walk into the High Court of Australia
for delivery of yet another judgment, I would say to my colleague Justice Cameron, “another
plaintiff hits the dust”, and he would say “yes, but they had a dream run for too long”! The most disappointing feature of the restrictive
legislation enacted in Australia was the blatant emphasis of its political advocates on simply
reducing the costs of compulsory insurance, at a price that many injured people would
be denied most, or any, damages for wrongs undoubtedly done to them by others. Such people
are now thrown back in Australia on their families or on community or social services
where available. There is little that judges can now do in the affected area of the law
of obligations but apply the statutory law. The perceived justice or injustice is regarded
as immaterial. Affordability and political approbrium is the governing criterion for
the legislatures. Finally, the revolution in the law has involved
the view of the law of itself. The chapter on the law of torts in the analysis
of the history of the House of Lords, by Robert Stevens, proclaimed that the “modern law of
torts is dominated by decisions of the House of Lords”. Although both the praise and the blame in
this opinion laid too much at the door of the senior English judges, it must be remembered
that the focus of Robert Stevens’ context, was the Judicial Board of the House of Lords,
1876-2009. In the 20th and 21st century, some of the credit, and doubtless a disproportionate
part of any suggested blame, has to be shared by judges of the common law “beyond the seas”. Stevens made a good point in arguing for the
advantage of having judges who decide real cases on legal grounds, entrusted with constitutional
as well as private law responsibilities. This is the case in Canada, Australia, New Zealand,
Ireland, India and most common law jurisdictions other than the United States. Stevens’ view
was that resolving “banal issues”, doubtless many in the field of the law of obligations,
was a healthy antidote to judicial grandeur delusions, although he was far too polite
to describe them quite so bluntly. He argued that dealing with ‘boring’ cases
was important for modest judging more generally. Now, constitutional questions, for good or
for bad, are sometimes in their nature incapable of being boring. But so, as I have tried to
show are many cases in the private law of obligations, including the puzzling progeny
that followed the ginger beer bottle purchase in Paisley by poor shockable Mrs Donoghue. In addition to the many legal revolutions
that I have collected, it must be acknowledged that a sea change has come over the institutions
and practitioners of law after our tradition, throughout the world.
In many countries, we are now attempting to ensure a greater diversity in the intake into
the law. We are seeking to support vulnerable lawyers as they study, practise and even become
judges. We are looking afresh at subjects of poverty law. We are encouraging greater
engagement of the law with civil society. We are promoting various forms of legal aid
so that equality before the law will not be an empty ideal. We are increasingly realising
the huge practical importance of the law of costs, which can often be far from boring.
We are more deeply concerned about miscarriages of justice than was sometimes the case in
the past. These concerns give rise to new institutions;
new appeal rights; and innocence clinics. We encourage more reliable empirical research
about the actual question of the law. Learned professors find the outcomes astonishing.
They nowadays say so even more directly than John Fleming did in earlier times. We are
not only more interested in other legal systems. We are even willing to look beyond the law
of England to ‘foreigners’, whom we concede, may occasionally have useful things to say
to us. Including in the law of obligations. Including after Brexit. So long as they translate
it into English. None of the foregoing features of the law
and the modern legal profession was important, or even much mentioned or even mentioned at
all fifty years ago. Yet, these are features that struggle to make our judiciary, practitioners
and scholars today fit for purpose. There is no reason to think that the legal revolutions
will abate in 2016. This prospect is exciting, I think, not boring. To maintain the rule
of law, dressed in the raiments of justice, we must keep it moving. On the basis of past
experience, the true challenge is to foresee the legal revolutions that are just around
the corner for judge, practitioner and scholars alike. In Obligations IV and Obligations V, which
will follow this conference, I think to some extent they already write their own agenda.
First the unexpected, and to many of us shocking and deeply depressing, advent of Brexit, which
seems to demand that English lawyers shrink their minds, just as they were suddenly and
unexpectedly starting to enjoy the expansion which they had been exposed to. And secondly, the unaddressed revolutions
of gender and social changes, and of racial changes in the worldwide family of the common
law, including in the institutions of the common law, including dare I say in the Obligations
conference, through the prism of which we presume to judge the present and to forecast
the future of the law of obligations. On several fronts, Africa, the Carribean, and much of
Asia, remain embracing of the common law. They remain important, and they remain a place
of opportunity for influence and for sharing of experience, especially after Brexit. I
hope that when in due course I am invited to come back to an Obligations conference
in the future, I will see reflected the gender, racial and other variations that I predict
will come in our law and in the Obligations conference accordingly.

Leave a Reply

Your email address will not be published. Required fields are marked *