Case Law On Trial: 1915 – 1945

Posted on 24th Mar 2015 in Historic Cases, ICLR News, Law Reporting

ICLR has been creating case history and supporting the administration of justice for 150 years. In celebration of this we will publish a special Anniversary Edition containing the 15 top cases voted for by you, our readers. We are putting our cases on trial and we need you to give us your verdict.

The second voting period, 1915 to 1945 saw two decades of social upheaval bookended by two world wars whose excesses still haunt us today, up to a century later. The muddy massacre of trench warfare gave way to the frivolous Roaring Twenties and then the Depression and its monstrous political offspring, Fascism on the one side and Soviet Communism on the other. But what effect did any of this have on the common law?

The cases shortlisted for this period include some inspired by wartime exigencies. From the First World War, the case of Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508 involved the requisitioning on behalf of the Royal Flying Corps of an hotel (whose owner, De Keyser, sounds like a mispronounced version of the enemy leader’s title, Kaiser) without bothering to pay compensation. The House of Lords held that the royal prerogative having been replaced by a statutory power, the authorities were limited by the scope of the statute, under which they were required to pay the Keyser bill.

From the Second World War, Liversidge v Anderson [1942] AC 206, concerned wartime regulations giving the secretary of state power to act on the basis of a reasonable belief, in detaining a person believed to be of hostile associations. The House of Lords held, by a majority, that these regulations precluded any inquiry or review of the secretary of state’s belief or whether he had reasonable grounds for it. The case is more famous now for Lord Atkin’s dissenting speech, with its principled refusal to dilute the rule of law in favour of wartime expediency, at p 244:

In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.

I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister.

From peacetime, the decisions chosen range from what would now be called fairly aggressive tax avoidance, approved by the House of Lords in Inland Revenue Comrs v Duke of Westminster [1936] AC 1, to the meaning of “money” in a will in Perrin v Morgan [1943] AC 399. There are cases on points of practice, such as the limitations on the power of the Court of Appeal to depart from its own previous decisions in Young v Bristol Aeroplane Co Ltd [1944] KB 718, and the scope of legal professional privilege in More v Weaver [1928] 2 KB 520, CA. There’s also an important case on privity of contract (Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, HL(E)).

But the two most important cases of this period probably need no further introduction. They are etched into every law student’s consciousness by the colourful imagery associated with them.

The first involves a snail in a bottle of ginger beer and goes by the name of Donoghue v Stevenson [1932] AC 562. What’s interesting about this case is that it came (to the House of Lords) from Scotland, where it concerned the law of delict, but is generally regarded as the foundation stone of the English law of negligence, in the area of what we would now call product liability. In it, Lord Atkin identified what is now known as the “neighbour” principle, as a test for when a tortious duty of care may arise.

I have written about this case before – see my introduction to the ICLR Special Issue of 2001 – and it was also the subject of one of the most popular of the ICLR Annual Lectures, given by  Matthew Chapman, Barrister in 2010: The Snail and the Ginger Beer: The Singular Case of Donoghue v StevensonIt may seem an obvious choice, but with one week left to go, it has secured a clear lead with 50% of the vote.

In second place on the scoreboard (with 14%) is Woolmington v Director of Public Prosecutions [1935] AC 462, another case no law student can afford to forget, nor indeed anyone familiar with the televised courtroom dramas featuring Rumpole of the Bailey, who is fond of quoting the words of Viscount Sankey, Lord Chancellor in the House of Lords, at p 481:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

Next to this case, another ringing endorsement of the English legal system should be set, R v Sussex Justices, Ex p McCarthy [1924] 1 KB 256, 259. It contains a memorable judicial expression of the principle of open justice, in the words of Lord Hewart, Lord Chief Justice, at p 259, that

a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

The opening phrase suggests there may be earlier cases in which this principle has been expressed, but if so they are not cited, and I should be grateful if anyone else can find them. But the phrase Lord Hewart used has passed into common parlance, so much so that it has been riffed into humour, such as to suggest that, in some nations or circumstances, the justice on offer, far from being done, should be “seen to be believed”.

Between them, Lord Atkin (in Donoghue v Stevenson and in Liversidge v Anderson), Lord Hewart (in Ex p McCarthy) and, perhaps most fundamentally Lord Sankey (in Woolmington), expressed principles which I think can fairly be characterised as the fundamental pillars of English, or indeed common law, justice. Up to a century later, we are still fighting to defend these principles against the depredations of careless commerce and a jealous state. Let us remain vigilant to ensure their endurance.

If the snail is bound to win, with the golden thread in second place, there’s still time to influence the decision as to the third of our nominated cases.

Liversidge has got 9% while Ex p McCarthy follows with 7% and De Keyser with 6%. There’s a week of voting still to go, and you can make the difference!

Finally, I should mention that four additional cases were nominated by readers. But first, a reminder: the option is to nominate “another case reported by ICLR during this period of its history”. Unfortunately, three of those nominated so far this month are actually not from this period. Therefore, they will be considered in the context of the period to which they belong. The sole relevant nomination is Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32, which concerned frustration of a contract by reason of the war, and the unjust enrichment potentially arising therefrom.

Nominating this case for ICLR Vote, Low Weng Tchung comments:

Leading case (at the time) on the law of unjust enrichment. Lord Wright’s famous observation [at p 61]: “It is clear that any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the money of or some benefit derived from another which it is against conscience that he should keep.”

If you agree, and you haven’t already voted, you can nominate it yourself. But bear in mind it faces some pretty stiff competition.