The Devil’s ADVOCATE
ISSUE 7 | November 2013
Interview special
Chairman of the Bar Council
Maura McGowan QC
Justice of The Supreme Court The Right Honourable Lord Reed 1
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Illuminating opportunities for lawyers With expertise in crime & litigation, international criminal law & procedure and international human rights & development, LSBU is a popular choice for London lawyers looking to specialise.
Brighter reasons to study at LSBU – A local Southwark campus with excellent transport links; – Full-time and part-time course delivery offered; – LLMs delivered by experienced academics and guest leading practitioners including Imran Khan Solicitor (acted for family of Stephen Lawrence), Joel Bennathan, Solicitor and Roger Smith, former Director of Justice; – An excellent scholarship package for postgraduate students.
Find out more at: lsbu.ac.uk email: course.enquiry@lsbu.ac.uk 2tel: 0800 923 8888 da-law-issue November 2013 [spread].indd 2
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A message from the editor Welcome to our Autumn edition of The Devil’s Advocate, the magazine from LSBU’s Student Law Society. A very big welcome to first year law students and to returning students. Now you are more than halfway through the semester you’ll be gearing up for January exams and to help motivate you, this issue looks to build on the successes of the summer publication. We have some great advice on what it takes to be a barrister from Maura McGowan QC, Chairman of the Bar Council, a how-to guide on using Law Trove from the Law Department and an interview with the Rt Hon Lord Reed. This issue kicks off our new Sports Law section. We take a look at the Street Law project and also welcome back Visiting Professor. Max Weaver with his commentary on the law of Torts. Again, our thanks to the Law Department at London South Bank University, with special thanks to Kim Silver. Their support has ensured that this magazine has been a success and will continue to be so. We do hope you enjoy this issue and that your exams go well. Have a great Christmas! Beverly Sowah, Editor
sowahb@lsbu.ac.uk
In this Issue
Editor, Beverly Sowah
Editorial team: Beverly Sowah Editor, Megan Bennett Columnist, legal commentary Leasha Newman Columnist, Sports Law section Nasir Gray Columnist, Sports Law section Fabricio Godoy Columnist, International section Alexandra Vargo Columnist, International section Bridget Hegyi Columnist, legal commentary
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Roger Henderson Burnett Design & Layout,
News & Events from LSBU student law society. LSBU’s Law Department joins twitter!
Law Trove -A how to guide from the Department of Law
Kim Silver, Senior Law Lecturer Consulting editor,
6-7 Interview special: Chairman of the Bar Council, Maura McGowan QC
8- 9 Interview special: Justice of The Supreme Court, The Right Honourable Lord Reed
10 Celebrating Student Success
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12 - 15 Professor. Max Weaver’s commentary on the law of Torts
16 International watch
17 Student led ‘Street Law’ project
18 Introducing Sports Law and the return of the Student Law Society mentoring scheme
Thanks to those who contributed to this issue: • Maura McGowan QC • The Right Honourable Lord Reed • London South Bank University Department of Law • Professor. Max Weaver • Kim Silver, Senior Law Lecturer • Louise Andronicou, Principle Lecturer in Law • Professor. Sara Chandler • Richard Fenn • LSBU Student Law Society • Fabricio Godoy • Alexandra Varga • Leasha Newman • Megan Bennett • Fereshta Ahmadzi • BPP Law School
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Presenting your student Law Society executives 2013/14
President, Akim Tejan Cole Email: tejancoa@lsbu.ac.uk
Vice President, Mamona Dad Email: Dadm@lsbu.ac.uk
Treasurer Theodora Anah Email: anaht@lsbu.ac.uk
Secretary Gurlin Virk, Email: virkg@lsbu.ac.uk
2014 LSBU Student Law Society
Lecture from Retired General David Howell Topic - Military Law
3 April 2014 -
Key note speech from Justice of The Supreme Court, The Right Honourable Lord Reed
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Editor, Beverley Sowah Email: sowahb@lsbu.ac.uk
Next Edition Spring 2014
• Spring edition of The Devil’s Advocate Magazine • Mooting Competitions • Mentor Scheme • Drop-in sessions • Weekly indoor football • Street Law Project
27 February 2014 -
Lecture from The Right Honourable Lord Justice McFarlane Topic - Family law and the Court of Appeal
Welfare Officer, Ayindo Dalouba Email: daloubaa@lsbu.ac.uk
Ongoing programs
Calendar of events
6 March 2014 -
Welfare Office, Victoria Akinyode Email: Akinyodv@lsbu.ac.uk
The Law Society’s
Drop-in Sessions Monday 2 December 2013 12-1pm Monday 9 December 2013 12-1pm
Venue: Keyworth building, Second Floor, Room K224 in for help and advice Comedrop along
The Welfare Officers Ayindo and Victoria : lsbuwelfarelawments@gmail.com 02/12/2013 21:41:06
zine
LSBU’s Law Department joins Twitter! For news and information on law, careers, the legal profession, activities and events follow @lsbu_law
Lambeth County Court help desk volunteers An exciting scheme has began at Lambeth County Court where law students from LSBU assist members of the public to find the court forms that they need and explain what they have to do with the forms. The Court Service will train the students, and the students will attend Court for half a day per week, to sit at a reception desk, or take a turn in a consulting room (all in pairs). Students will be supervised by a member of the LSBU Law Department staff (Professor Sara Chandler,Visiting Professor in Clinical Legal Education). In addition you will have the opportunity to sit in court with a judge to observe court hearings, and discuss the cases with the judge.
To find out more email sara.chandler@lsbu.ac.uk
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LSBU interview with Maura McGowan QC Chairman of the Bar Interviewed by Beverly Sowah and Megan Bennett for the LSBU Law Society
5 November 2013, 11:00 Beverly, Maura and Megan Maura, firstly can you tell our readers a bit about your own background and your work at the Bar Council?
in applicants, recording 3,099 hopefuls, 1,407 of whom successfully enrolled, and 1,256 received pupillage.
I decided to become a barrister when I was still at school, following a debating competition, and have never looked back. I studied law at Manchester University and was called to the Bar in 1980. I am a criminal practitioner, and since I took silk in 2001 my work almost exclusively deals with cases of murder, drugs, violent and sexual assault and child abuse. I have been the Chairman of the Bar since January 2013, and my term will end in December. My year to date has been heavily influenced by the dramatic proposed changes to the legal aid budget, which have been subject to two separate consultations and are currently under Government review, but I have also been carrying out the ongoing international work which publicises the Bar abroard and focussing on the Bar Council’s continuing work to improve social mobility, social responsibility and diversity and retention within the profession.
As a small profession of around 15,500 members, which is expected to shrink in size, the competition is higher than it has ever been. The quality of students is also very high, and to succeed at the Bar requires dedication and drive, as well as a strong academic record and demonstrable proactive experience. To make it you have to be the best. Pursuing a career at the Bar is something that should be considered carefully. Students at all stages of the process are amounting huge debts from tuition fees and living expenses while studying. It is one of the most stimulating, varied and exciting careers that there is, but it should not be a decision that is taken lightly. I worry about people who do the Bar exams without fully understanding how difficult it is to get started afterwards. Without the government grants which were available when I was a student, the uncertainties of success at the Bar must be considered in relation to the big debts associated with training to become a barrister. The Bar Council has produced a range of useful resources which can be found here: www.barcouncil.org.uk/ becoming-a-barrister.
The ratio between applicants and pupillages available is disproportionate. What advice would you give to students to ensure that they stand out? There are now 12 BPTC providers, which is 11 more than when I was a student. The figures demonstrate the competitive nature of a career at the Bar; in 2003/4, there were 2,570 applicants, only 1,449 of whom were granted a place on the course, and just 1,251 of that number received pupillage. Jumping to the latest cohort we have figures for, in 2010/11, the BPTC providers saw a steep increase
What should aspiring barristers like myself and Beverly be concerned about with regards to legal aid cuts and our future prospects? The Bar is going through significant change, much of which is irreversible. Cuts to the legal aid budget will have long-lasting effects on any number of issues, for example
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diversity, and will see the Bar contract in size, meaning fewer pupillages and tenancies will be available. With many areas of law having been removed from the scope of legal aid, for example a lot of family law, most employment law, much of housing law and a lot of immigration law, the volume of work is reducing. Students not only have to achieve high academic results; a top 2:1 or a 1st class degree from a good university, but they will also need to stand out against the competition. It is important that you can demonstrate your dedication to a career at the Bar on your CV. Working with a legal charity or a law advice clinic, like the one at London South Bank University, is advisable, as is carrying out mini pupillages or work-shadowing barristers. The PSU, the Personal Support Unit, and the Free Representation Unit (FRU) are both exceptional charities which students should look towards for experience. The PSU provides support to litigants-in-person – those without legal representation – and as law students, who have a level of understanding of the legal proceedings and the terminology used in courts, you could offer valuable support. It is also fantastic training if you are looking to enter into criminal, family or other civil areas of law which deal with people who are often very emotional and in a state of intense stress and fear, as it gives you firsthand experience of dealing with the type of clients that barristers work for. How do you think the cuts will affect women and ethnic minorities? The legal aid cuts will likely affect women and BME barristers disproportionately due to the publicly-funded practice areas, like crime and family law, attracting the highest volume of female and BME candidates. The Bar Council is working hard to encourage and promote women and BME barristers to consider other practice areas, and I would like to see a time when men and women are going into company and chancery law in equal numbers just as they are into crime and family. We have equal numbers of men and women entering the profession, if not slightly more women in some years, and around the national demographic of BME candidates. However, there is an issue of female retention at the Bar. Barristers can be away from home for 12 to 14 hours a day, and at the junior end of the profession, you don’t always know where you’re going from one day to the next. That makes combining the type of work a barrister does with raising a family very difficult for both men and women, but many women, particularly, are leaving the Bar. In order to tackle this, the Bar Council opened a nursery earlier this year which looks to help parents at the Bar with childcare that suits their working life, adn we hope to open further ‘Bar Nurseries’ in the future. Moving away from legal aid, what are the other challenges which will face the Bar over the next 12 months? In an increasingly global working environment the Bar Council must continue to work hard to promote the Bar’s services abroad as well as at home. We undertake a comprehensive programme of international work to sell the Bar’s services and to promote the English and Welsh legal system to the rest of the world. It is a key goal of the Bar Council’s to grow our international network in order to widen the pool of potential instructions, and although we stride from strength to strength
in this area, there is always more we can do. Also, through our Member Services Department we offer a wide range of training programmes for barristers, and run the accredited Public Access course, which means that barristers over three years Call are able to take direct instructions from the public for certain types of cases. We promote the course and its benefits to our members and advertise it to the public as an efficient and cost-effective means of dealing with their legal problems, but there are some significant challenges involved in raising public awareness that one can now go directly to a barrister, which we are working hard on. BARCO is another growth area for us. It is a new escrow account service which allows the Bar to manage its financial relationship with clients without handling client money, which is prohibited in the Bar’s Code of Conduct. It has also meant that the Bar can work more easily with those who need their services without a solicitor. As a new scheme for the Bar, it represents a learning curve which the Bar Council is helping to educate barristers on. It has had great initial feedback, and our challenges now lie with rolling it out more expansively across the profession, where appropriate. What is a typical day like for you and how do you manage your work/life balance? This year, as the Chairman of the Bar, the cuts to the legal aid budget have dominated my agenda, and I have been working hard on a representational basis to ensure that the views and advice of the Bar is communicated strongly and effectively to Government and to the public. As the Chairman of the Bar I have also undertaken a lot of international travel to promote the Bar’s interests abroad, and I have spoken at a range of industry conferences and events. I will return full time to my practice come January 2014, where the majority of my cases deal with murder, drugs, violent and sexual assault and child abuse. In terms of work-life balance, to make it pay as a criminal practitioner you need to be in court almost all the time which inevitably means you have a lot of preparation work to do out of court; often in the evenings and at the weekends. As a senior member of the Bar I have increasing security around where I will be because the cases tend to be longer, which makes planning non-work life easier. There are still periods of time where I will have to work every night to get a case ready for the next day - there is a limit to how much a barrister can prepare in advance as there are often new witnesses, and you can’t write your closing speech until you’ve heard the evidence! Who was your role model when you were growing up? Baroness Hale, who is the only female Judge in the Supreme Court, is certainly a role model. She was my tutor at university, and is a brilliant academic as well as a top judge.
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INTERVIEW
with the RT. Honourable Lord Reed Date: Wednesday October 30 Time : 17:00 PM Venue : Supreme Court Building Interviewers: Akim Tejan-Cole and Faye Charlotte-Carford Lord Reed I wish to start with quite possibly the most important question- Do you think Celtic will win the champions league? laughs.. Well they beat Ajax in their last game, it’s a
tough group, but I am hopeful.
Why did you decide to study and then practise law?
At sixth form, I went to a criminology lecture that I found fascinating, that encouraged me to study law. A visit to court proceedings also encouraged me. I sensed a sort of camaraderie, glamour and thought it would be an exciting career. After my law degree I thought I would like to be a legal academic. Whilst doing research I taught part-time and did some work in a court. That experience convinced me that I would enjoy court work more, and so I decided to go to the Bar.
What was your first case like and which one stood out?
I started prosecuting crime for the Crown. It was a real eye opener. Cases that seemed airtight would fall apart during trial, as the defence picked holes in the cases, and witnesses would prove to be unreliable.
Which cases stand out for you when you were a barrister?
There was a case that was to do with a Scottish Sheriff who had been dismissed from office. It went all the way to the House of Lords. I did lots of interesting cases for the government in Strasbourg. I also spent three years prosecuting serious crime. It was a very enjoyable and useful experience. Criminal advocacy differs from civil as you are dealing with a jury and is requires you to put a lot of personality into it, to hold the jury’s attention.
Why did you apply to become a Supreme Court Judge?
In the past when you were invited to become a judge, you were generally expected to say yes, and so I accepted appointment as a High Court Judge, when I was initially invited. I found the job to be more interesting the more senior it became. I believed the Supreme Court job would be even more interesting as I would be dealing with important questions of law. I would have time to consider the issues properly , and be addressed by the best counsel. It is an ideal job for someone who finds law interesting and likes getting their teeth into legal problems
What is being a judge about ?
It’s about doing justice, dealing fairly with people who appear before you, and making sure that people go away feeling they had a fair hearing, even if they lose the case.
Do you think you do justice all the time?
Well we apply the law and some people might think that the law is not right, but that is not usually for the court to judge. In terms of the common law, we try to move it forward , and adapt it to modern society, as and when we think it is necessary. This is bearing in mind the overall effect on society, and the possibility that actions could have been planned on the basis of our previous rulings.
Do you think judge’s make law? It comes down to language, and one’s perspective.
Judges certainly develop legal concept. Earlier generations thought of judges decision as an application of the law. Nowadays, where you have textbooks that set out legal propositions said to be established by earlier decisions if you decide a case that departs from previous
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authority, then people might say you are making law. Even so we do it is within fairly narrow limits, and it is very unusual for us to depart from our own previous decision.
How do you go about writing a judgment?
I take a lot of care and try to make them clear, short, and interesting. If the judgment is long then I usually give a summary at the beginning. It’s quite a process, that involves several drafts. I then pass my final draft to my colleagues, who usually make comments and suggest improvements, and finally the law reporters check the judgment for grammar and citation mistakes. Judgments are the main product in my line of work, and we do our best to make sure they are of high standard.
You have sat in the Supreme Court, the Court of Appeal, and the European Court. can you describe any discernible differences? At the Supreme Court we get to choose the cases
we hear, and we do not hear a lot of cases. In contrast, you hear a great number of cases in the Court of Appeal, and it is chiefly concerned with correcting mistakes. In the European Court, there can be up to 17 judges from different countries, with different mentalities, and languages. Naturally, you are then forced to adapt.
Why do you think ethnic minorities and women do not hold more high ranking posts? I would certainly welcome greater diversity on the
Supreme Court. With ethnic minorities, the reality at present in relation to some minorities is that there may not be many potential applicants who would be realistic candidates for the job. I am not sure but believe that the highest ranking judges at present from black or Asian ethnic backgrounds are in the High Court. In relation to women, there are certainly very highly qualified people who in my view could do the job. I would hope that more women will be encouraged to come forward and apply.
Do you envisage an ethnic person becoming a Supreme Court judge in your lifetime?
Well, I will probably be here for another 13 years if I am spared so I hope it will happen. These things take time. At one time the largest ethnic minority in England was probably Jewish, and now there are many Jewish judges on the bench. In time, I am sure there will also be many judges from other minority communities.
Do you think the legal aid cuts affect access to justice?
use of public resources, for which they are accountable to the public who elected them. It’s a complicated issue with no easy answer.
Do you think scrapping the Human Rights Act will have any impact?
Yes- the Act gives the Convention domestic legal effect. If it was scrapped, then we would only be obliged to have regard to the Convention in the same way as we would any other treaty.
In the Bank Mellat v HM Treasury case the Supreme Court heard the case in closed court for the first time in British History. It later described as a sad day for British justice. Do you think it’s the start of a slippery slope. I don’t see us descending down the slippery slope. All of us who took part in the case have expressed our regret that it had to be done that way. In retrospect, it was disappointing to find that the closed material was of very little significance. I think we will be more cautious in the future before accepting what government lawyers say to us . At the end of the day we do what parliament tells us to do, but with regards to the government we listen , and then make our own judgement.
Do you think Turkey will ever join the European Union?
They have made enormous progress with regard to human rights issues, but there are also political issues such as Cyprus that will have to be dealt with. To become a member requires a unanimous vote. This will make it difficult, but it remains to be seen.
What skills do you think are most important for a law student?
Personal skills are very important. You must be able to look people in the eye, and be courteous. These skills are necessary for any career, unless you want to work in the basement of a university library . Lawyers work with documents all the time, so the ability to write accurate and grammatical English, and to express your ideas lucidly and in a logical order, is also very important. It is probably the most important skill that a university degree can give you. There are many different types of lawyers and different types of careers out there. Think carefully about what you want to do, follow what you enjoy and be realistic.
www.supremecourt.gov.uk
I think it is vital to protect access to justice, and it
would be deplorable if proper justice could not be done because of a lack of legal representation. That said the government has to make a judgement about the best
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Celebrating student success from left to right, Fereshta and Megan
Introducing Fereshta Ahmadzi, a second year Law Student at LSBU. Fereshta talks to us about her triumph over Taliban rule to pursue her studies in the UK. By Beverly Sowah and Megan Bennett What made you want to study law? I want to learn more about my own rights in this country. Ordinary people do not understand about the law and what their rights are. After my background in Afghanistan, I wanted to learn the law in England and know where I stand here. Studying law should one day open doors for me to achieve my future goals of becoming a fully qualified solicitor or barrister. You mention your background in Afghanistan, what experiences did you have? I had very little education growing up. I moved here from Afghanistan when I was thirteen, in 2003. I had never been to school and was not able to start college in England until I was sixteen. English is not my first language and I could not speak any English at all when I first came into the country. I could not even say hello!
So you did not attend school in Afghanistan? No. I was living in Kabul, the capital city of Afghanistan, which is under Taliban regime. Females were not allowed to go outside of the house. We were expected to stay inside and therefore could not go to school to get an education. Was that why you left Afghanistan? Well, my family did not speak the language of the Taliban and so there was a lot of racism. My father was a very successful businessman and was killed by the Taliban because of his money, and because he could not speak their language. My family had to leave the country otherwise we would have also been killed. We left all of our belongings behind and left for our own safety.
Since you’ve been in England, you’ve had the opportunity to go to school, how did you adjust? I tried to attend a school in England as soon as I moved here, but as I could not speak English they would not allow me. I was eventually admitted to college where I learned English. I began by learning my ABC’s and then completed my GCSE’s and gained a BTEC National Diploma in Business. You’ve had quite difficult experiences it seems but despite it all you achieved a 2.1 in your first year at University. Well done. Did you find it challenging? Yes, it was really difficult and challenging. I was working as a full-time beautician throughout my first year so I had to juggle that with my studying. I also support my mother who is ill, and I have a young daughter to look after. It was very hard to manage all of this alongside my university work and revising for exams. I was studying until 5am during the two weeks building up to the exam period! It was very hard work and at times I wanted to give up, but I kept at it and managed to achieve a 2.1!
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Law Trove A how to guide from the Department of Law Law students can use Law Trove to access electronic versions of their core reading. This guide introduces students to the website and is designed to help you read and work through content on the site using your iPad mini. Students can also use the site with any PC or smart phone with an internet connection. Use the Safari web browser on your iPad and go to: www.oxfordlawtrove.com/ By default the site will automatically send you across to the Mobile site (See below). By selecting the full site option at the bottom right side of the screen you can access all of the sites functionality.
Using Law Trove on-campus If you’re using the site on campus the system will automatically log you in. This will allow you to start viewing content straight away. To use the site off campus you need to login with Athens/Access Management Federation on the left hand side of the home screen. This will then ask you for details of your University and login information, which is your LSBU Username and Password.
Setting up a profile From the main page tap on the Create option at the top right of the screen. Enter your details, making sure that you use your LSBU email address.
To find out more, visit Blackboard or visit the display board at the Law Department for handouts. 11 da-law-issue November 2013 [spread].indd 11
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Prof. Max Weaver, visiting professor at London South Bank University talked to Kim Silver, Law Lecturer about the law of torts since the 1960s, the role of policy in judges decisions and his favourite judge(s) and case. Interview 22 April 2013 during the regular Monday Tort workshop 1. So, Professor Weaver, when did you first become interested in the law of torts and why? The LSE was an exciting place to be in the 1960s. Influenced by refugees from Nazism and alert to the rich world of US scholarship, it brought some of the best minds together: Otto Kahn-Freund, Bill Wedderburn, Stanley de Smith, John Griffith (author of The Politics of the Judiciary), Bill Cornish, Cyril Grunfeld, Toby Milsom. They did not hide away from undergraduates and concentrate on research and writing. They taught us. I also remember that my year group was the first to have a compulsory course in economics, replacing the traditional course in Roman Law. Economics was thought—perhaps mistakenly—to explain the world. In my second undergraduate year (1964-65), I studied torts as one of the four subjects in the London LL B. We used Harry Street’s new book, which focused on the way tort law protects interests. And our casebook was a UK edition of a book assembled by a Canadian, Cecil Wright. In the following year, I studied labour law with Bill Wedderburn. He had recently come to the LSE from Cambridge (which was in those days still a rather stuffy place) and had just written The Worker and the Law, a brilliant ‘law in context’ book published by Pelican, and produced the first Labour Law cases and materials. These books were dramatically different to the standard, dry, text books that dominated UK legal education at that time. Here too, torts were vital, inducing breach of contract, conspiracy and intimidation. Crucially, they could not be studied just as ‘legal doctrine’ or ‘legal science’. When strikes, boycotts and picketing are at stake, the law is very obviously ‘in action’ in the real world. If judges were creative, they would be shifting the balance between organised labour and capital one way. If they dug their heels in, they would be backing another kind of result. Many of torts legal concepts are to be found in everyday discussion; responsibility, blame, cause, contributed, reasonable, etc. But they are manipulated in the cases in ways that have (i) some of the fascination of a game of chess and that also have (ii) really important practical consequences for safety, compensation and human dignity. And in the 1960s the law was patently developing
Professor Max Weaver before our very eyes. It was not simply there to be discovered and applied. It was changing. Judges had discretion and were gaining in the confidence to use that discretion to change things rather than simply to endorse the status quo. A confident House of Lords produced Hedley Byrne and a confident Lord Denning was talking quite openly about judicial discretion—the way in which the law does not dictate everything that the judge in the case does. For example, in Roe v MoH [1954] 2 Q.B. 66, 85-86, having justified his decision by applying legal concepts in the traditional way, he felt it appropriate to add this: ‘One final word. These two men have suffered such terrible consequences that there is a natural feeling that they should be compensated. But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.’ This is a long way from ‘law in the books’. It is about law ‘in action’—practical, affecting people’s lives and driven by judges. I was much taken by this passage from a Canadian case (it was cited in Harry Street’s book) Nova Mink Ltd v Trans-Canada Airlines [1951] 2 DLR 241, 244-255, a case in which aircraft noise was alleged to have caused mink by to eat their young. The claim failed, even though the mink farm advertised its presence in a way that was visible from the air. But the point is not the outcome, it was the sense of the judges’ role and discretion that impressed me then and fascinates me still. Per MacDonald J (emphases added): ‘When upon analysis or the circumstances and application of the appropriate formula, a court holds that a defendant was under a duty of care, the court is stating as a
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conclusion of law what is really a conclusion of policy as to responsibility for conduct involving unreasonable risk…. there is always a large element of judicial policy and social expediency involved in the determination of the duty-problem, however it may be obscured by the use of traditional formulae.’ Lord Wilberforce cited the last sentence in McLoughlin [1983] 1 A.C. 410, 426. 2. We talk in the course of teaching torts about the expansion of the duty of care in Anns and the subsequent retreat from that decision. When I started learning law, Anns had just been decided - but for you, it must have made a big impression. What was the academic reaction to Anns and the cases which followed it? Anns reflected the sense of rising judicial confidence a consumerist trend that gathered momentum in the 1960s. The Consumer Association (Which?) started in 1957. Borrie and (also at the LSE) Diamond’s Consumer, Society and the Law was first published by Penguin Books (Pelican) in 1964. In the USA, Ralph Nader’s Unsafe at Any Speed: The Designed-In Dangers of the American Automobile was published in 1965. The tort of negligence was seen by many of us as a tool to provide compensation for those who had been damaged through no fault of their own. If there was a defendant with a deep enough pocket (or insured) the risk of unfairness to the defendant was manageable and not unacceptable— or so we thought. So Dorset Yacht seemed a helpful way of looking at things. Hedley Byrne had emphasised reasonable reliance as a justification for protecting claimants. Eyebrows had been raised by the Court of Appeal’s decision in Dutton v Bognor Regis [1972] 1 Q.B. 373 (on facts very similar to Anns, which came only five years later) but, for some of us at least, it looked like progress. And for someone fascinated by what motivates judicial decisions when judges have discretion, this passage from Lord Denning MR at 397 was a gem (emphases added). ‘In previous times, when faced with a new problem, the judges have not openly asked themselves the question: what is the best policy for the law to adopt? But the question has always been there in the background. It has been concealed behind such questions as: Was the defendant under any duty to the plaintiff? Was the relationship between them sufficiently proximate? Was the injury direct or indirect? Was it foreseeable, or not? Was it too remote? and so forth. Nowadays we direct ourselves to considerations of policy.’ Of course, there were those who took a different view. The doctrines for them had more power than the claims of consumers and so on. And judges became more cautious in the 1980s and 1990s. So we now have a more cautious attitude: ‘incrementalism’, developing established categories and reluctance to invent new categories. I think that the human rights perspective is beginning to change that and that the invention of a Supreme Court has boosted judicial confidence a good deal.
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The more cautious Caparo test reflects this incrementalist attitude. The Anns test encouraged judges to find liability unless there was a strong reason not to do so. But it did not abolish the concepts of foreseeability and proximity. Indeed the first stage of the two stage test requires them. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise…. The current Caparo formula—sufficient proximity? foreseeability? and then ‘Is it fair, just, and reasonable to impose a duty on the defendant in the circumstances?’— does not eliminate judicial discretion. Essentially, as Lord Hoffman put it in Stovin v Wise [1996] 3 All ER 801, 824, it changes the perceived ‘default position’. Indeed, an Anns type case could be decided in the claimant’s favour using the Caparo formula. If a judge really wanted to impose liability, if that was the policy that the judge favoured, she could say: 1. The relationship between a local council approving the building plans and the purchaser of the building is a close one. The local authority knows that the purchaser will not be able to inspect the foundations and relies on the local authority to make sure that poor designs are not approved. 2. Harm to the purchaser cannot be said to be unforeseeable and, in this case, the local council ought to have foreseen it and taken greater care. 3. There is no strong reason of fairness against liability. Local authorities can insure. If this becomes routine, purchasers will be spared the more complicated business of finding self-insurance. 3. So, is ‘policy’ the same thing as ‘judicial discretion’? I don’t think so. Judicial discretion simply tells us that judges have choices whenever the law is not so clear and their authority so limited that they have no choice. The hierarchy of authority matters here. Clearly the Supreme Court has the greatest discretion. Next the Court of Appeal. Least the judge of first instance. And there is also a spectrum of legal clarity. At one end, no judge could not hold you liable in trespass if you were to picnic on my lawn without my permission. At the other end of the spectrum are open-textured, interpretive, concepts like ‘reasonable care’. Policy is not discretion but discretion allows judges to make policy.
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4. So, judges make value judgements. Is that what ‘policy’ is? Policy choices are certainly value judgements. However, they are very different from the belief that something is inherently (of itself ) morally and legally right (or wrong). For example, Kant’s view that lying is always morally wrong. And from moral codes that depend on divine authority for their justification. Policy is about which states-of-affairs-in-the world are to be preferred. If the way things are now is preferred the policy will be to keep things as they are. If the status quo is thought defective and not as desirable as an alternative, the policy might be to introduce the alternative. For example, in Roe v MoH in 1954, the claimant failed to recover damages because the defendant could not be said to be ‘at fault’. It is of course improbable that the claimant carried significant self-insurance. A claimant who suffered loss through no fault of his own did not recover. One might prefer a state-of-affairs in which such claimants did recover damages. Such preferences are value judgements about consequences (states-of-affairs-in-the world). So we need reasons for preferring one set of consequences to another. This is where the value judgements occur. What sorts of reasons might we have? We might think that the total sum of happiness in the world would increase if Roe (and people like him) were compensated. We might think of this in terms of overall welfare. More people will flourish for more of the time. Or, we might think that to burden hospitals with compensation obligations will increase public expenditure unduly and that the smaller the ‘nanny state’ the better for economic growth and, eventually, overall welfare. Or we might believe that Roe has a right to compensation. Or that it is important to compensate Roe because he has young children who will be disadvantaged. So we make value judgements about the consequences of doing A rather than B. And hence we make value judgements about what policies ought to be pursued/implemented. But how to decide what changes to make? Imagine you believe that Roe and people like him should be compensated (i.e. that is the best policy). Your hunch is that it will improve overall welfare to do so. You also believe that people injured through no fault of their own have a right to compensation and that hospitals will take more care if they have to pay out. If you are a judge, you might be able to implement that policy in particular cases as they come before you. So in Nettleship v Weston, the defendant was held liable even though she could not be said to be ‘at fault’ in moral terms. We can justify this unfairness to the defendant by having regard to the insurance position. The defendant will not have to pay the compensation, just increased insurance premiums for several years.
5. Are you arguing that judges can introduce big reforms? Change through caselaw is opportunistic stuff and it cannot be pushed too far. It might be better if there were a social insurance system covering all the victims of accidents (as has been tried in Saskatchewan and New Zealand). But it is beyond the power of judges to create that system. It’s too ‘institutional’ for them. Parliament can look into all the implications and create the institutional machinery. But it often does not. It cannot agree about what should be done. It parks issues in Royal Commissions. It sucks up to the Daily Mail. So judges will sometimes make the going, when the institutional implications are not too great. Hedley Byrne, Nettleship, Donoghue , McLouglin. 6. But what evidence base do judges have for their policy decisions? how do they know that things will be better if….. This is a real problem. I have to say that Parliament shares it too. Finding out what policies will work and why is a demanding business (see Cartwright and Hardie, Evidence-based Policy, 2013) that is often skimped by legislatures and by judges. In Haley v LEB there was a brief look at the percentage of blind people in the population. ‘There is evidence in this case about the number of blind people in London and it appears from Government publications that the proportion in the whole country is near one in 500.’ (per Lord Reid [1965] AC 778, 790). By contrast, in Griffiths v Brown a taxi driver (Lindsay) was not obliged to take any more care of a drunk than of a sober person where the drunk claimant had not ‘plainly reached such a state of intoxication that he was clearly incapable of taking care for his own safety’. The judgment involves no analysis of statistics but relies instead on the judicial experience (probably vicarious) that ‘many people regularly walk out of public houses and safely negotiate the highway even when they have had a lot to drink’. In the USA, the courts sometimes receive much fuller information about the practical consequences of allowing or rejecting the claim––in the Brandeis brief. This began in Muller v Oregon in 1908. Louis Brandeis, then an advocate but later a judge, submitted a very substantial written document to the court. The case was about the regulation of hours of work. The document submitted had several chapters. For example, chapter IV is called ‘Economic aspects of shorter hours’. The first section in it is called ‘the effect on output’ and begins, ‘The universal testimony of manufacturing countries tends to prove that the regulation of the working day acts favourably upon output. With long hours, output decline; with short hours, it rises’. The heightened efficiency of workers, due to the shorter day, more than balances any loss of time. Production is not only increased, but improved in quality.’
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It then proceeds to summarise 35 separate studies of these questions. Only two pages of the 100 submitted dealt with ‘legal’ issues. The rest was about ‘what policy?’ and ‘what would be the effects in the world of regulations to control working hours that offended the sacred freedom of contract?’ 7. How many students have you taught over the years? What makes a successful law student? Universities and polytechnics were much smaller when I started in 1969 and from the late 1970s I began to spend most of my time on management. I must have given lectures to around 3000 students. I guess the seminar total must be around 2000. The bigger puzzle is what might they have learned. The point of teaching is to stimulate learning. A good law student reads, gets involved in conversations and tries to apply the ideas learned. They invest a good deal in things that seem dull and difficult at first but which pay handsome dividends later. They also realise that most of those people who seem far more competent were not born that way, but got that way through application, learning from their own mistakes and, quite often, a lot of help. 8. If you could reform one aspect of the law of torts (and only one!), which would it be? This is a difficult one. I think I would like judges to pay much closer attention to the meaning of ‘harm’ and to become much more alert to the way in which carelessness can violate claimants’ interests that are worth protecting. We see this happening in Chester v Ashfar and in Rees v Darlington but these cases are seen as oddball cases that do not fit easily with the idea that negligence is primarily about damage for which money awards can somehow provide a substitute. The Human Rights Act is helping but there remains a significant tendency to prevent it changing tort law very much. 9. Which is your favourite case (and why)? Nettleship v Weston. It happened at a time when I was primarily an academic. Writing about the case (in the New Law Journal) made me think really hard about the tensions between: moral fairness to defendants; moral fairness to claimants; and practical policy possibilities (the insurance background). It was part of my ‘growing up’ as a thinker. 10. Who do you think was (or is?) the greatest common law judge? Another tricky one. Is Lionel Messi the best soccer player around today? Would you play him in goal? Is he better than Pele was?
My contenders are Lord Atkin, Lord Reid, Lord Denning, Cardozo J, Holmes J (Oliver Wendell Holmes). All have been frank and thoughtful about the judicial process. I guess I would have to choose Denning because he is the one who has fascinated me the most. But he might also have been wrong more often than some of the others on my list! 11. We are studying causation this week. What role do you think causation plays in negligence cases? It is fundamental. Causation provides the crucial link between tort law and our various ideas of morality. If the law diverges too much from ‘common morality’ it loses some of its legitimacy. We want to know who ought to be responsible and we are very properly reluctant to hold people responsible unless they are causally connected. I think the logic of negligence law demands that we follow this all the way through to the harm in respect of which remedies will be given. If the harm the claimant actually suffers can be said to be ‘fairly within the risk’ against which defendants ought to guard, then the claimant should get a remedy. It does not help claimants to know that a duty was owed and a duty was breached but that the harm for which they claim was not caused by the defendant or that it was too remote. Causation, even in fact, is not mechanistic. It requires judgement to the salient factors from the huge number of factors that pass the ‘but for test’ (ass necessary conditions) in the causal nexus. 12 And which eight discs will you be taking to the desert island? Oh, and your book (other than the bible and shakespeare) and your luxury item? Discs: Miles Davis, Birth of the Cool Bartok, Concerto for Orchestra (Fritz Reiner and Chicago Symphony Orchestra) Winton Marsalis baroque trumpet concertos Ilford SA Band, Holy War Britten, War Requiem Bach Brandenburg Concertos Philip Jones Brass Ensemble (Malcolm Arnold) Hans Werner Henze, Ragtimes and Habeneras Or perhaps I should take eight great works that I do not know Luxury: a Schilke trumpet Book: if I think of influences on me that repay re-reading, Ludwig Wittgenstein, Philosophical Investigations but maybe I should choose something that I have not read but ought to, perhaps some Dickens.
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Lord Reid
Lord Denning
Oliver Wendell Holmes
Cardozo J 02/12/2013 21:41:09
International Watch
Brazil’s legal system The Federative Republic of Brazil has inherited its legal system from the Portuguese legal system, as Brazil was part of Portugal from 1500 until its independence in 1822. Its system has been constructed based on the Roman-Germanic tradition, also known as “civil law”. As such, it has a written constitution which works as the “Top Law”, and all the legislations that come below are enacted by the parliament which always observes the principles and formalities stipulated in the constitution. There are also differences between federal law, which regulates matters regarding the union of all member states and it is hierarchically superior to the others; state law which aims to regulate matters within the states of the federation; and municipal laws and regulations, regarding the cities and councils. The Brazilian juridical system is also divided between the Federal Court and the State Court. The Federal Court is responsible to judge cases where
Hungary: Rule of Law Attacked
the Union and its organizations are parties, or in criminal cases specified by the constitution and other federal legislations, such as money laundry, tax evasion and political crimes. The state court is responsible for the majority of the cases such as those in “civil law”, and in the majority of criminal matters. There are also special organs of justice separated from the ordinary courts, and they judge specific matters not included in the civil or criminal legislation. They are the Labour Court, Electoral Court and Military Court. With regards to the international law, Brazil is a monist country, which means that in order for the country to be bound by an international treaty, it will need ratification by the Brazilian Parliament. A fundamental difference between a civil law system and the common law system, is that civil law systems require that every law be written, including the formalities that must be followed during a judgement. However, in the
Since 2010, when the ruling party, Fidesz, won more than two-thirds of the seats in the Parliament on the last elections, the Hungarian government has adopted and amended a new constitution and created over 600 new laws at a rapid pace and without adequate public consultation. The constitutional and other legal changes have curbed the independence of the judiciary and the administration of justice, forced nearly three hundred judges into early retirement, and imposed limitations on the Constitutional Court’s ability to review laws and complaints. The new constitution stripped hundreds of religious
common law system, jurisprudence is not so important, but it certainly has an important role, guiding decisions in courts around the country, yet, in Brazil there is truth to the quote that “if it is not written, it does not exist”. Fabricio Godoy LLM/International Human Rights and Development
groups of their status as “churches” under domestic law. It discriminates against lesbian, gay, bisexual, and transgender (LGBT) people and restricts the rights of womem. It also prevents people with mental disabilities from voting. The Hungarian government’s actions have brought heavy international criticism, from amongst others, the European Commission, the European Parliament, and independent expert panels at the Council of Europe, as well as by the German and United States governments. The government has dismissed these criticisms as factually incorrect or driven by political motives.
Alexandra Varga Second year law student Further recommended reading on the topic: www.hrw.org/sites/default/files/reports/hungary0513_ForUpload.pdf
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‘Street Law’ Project LSBU Street Law is a student Law Society student led project that will be run in conjunction with the LSBU law department. The project is designed to engage school/college students in a critical examination of their legal responsibilities and rights. By taking law into the school/college classroom, LSBU law students will engage in discussions with school/college students about practical legal problems, contemporary legal issues, and the ramifications of breaking the law. LSBU law students will train the school/college students to participate in a mock trial within their classroom. LSBU students participating in the project regard this as an opportunity to give something back to their community, whilst at the same time improving their legal skills and employability.
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It is truly fantastic to be part of the LSBU street law project. Being able to use the legal skills I have gained to give something back to my community gives me a great sense of fulfilment. It gives me an opportunity to take on responsibility, and has helped me develop my organisational, personal, and communication skills amongst others. The experience is both fun and invaluable. It has boosted my confidence, improved my employability, and given me something to talk about in interview.
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Akim Tejan-Cole, President Student Law Society
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I am delighted to be involved in directing the ‘Street Law’ Project because our law students are taking law into the school/college classroom and making it more accessible to our community. This project will improve our students’ communication, presentation skills and confidence, thereby providing another opportunity to increase their employability.
Louise Andronicou Principal Lecturer in Law
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Sports Law – Coming Soon! Leasha Newman together with Nazir Gray, second year law students at London South Bank University tell us about their exciting plans to feature a Sports Law section in The Devil’s Advocate. I love watching sports and play football which is what prompted me to explore this area and the legal challenges that face it. Our university offers a sports law option in our final year of study so it will be beneficial to give other students an idea of what sports law is about. I believe that sports law will be an area of law that many people can relate to and it is a good way of illustrating how law is involved in everyday life. After London hosted the Olympics last year, sports consumed the nation and everyone was hooked. With this in mind and the 2014 World Cup fast approaching, I think it will be a good
time to catch our readers’ interest. In future editions of The Devil’s Advocate, together with Nazir Gray, we hope to produce articles on topical issues related to sports and the law surrounding it and feature some guest interviews. A topical issue currently is the growing concerns over the conditions of workers in Qatar, who are due to host the 2022 World Cup. The conditions have been described as ‘modern-day slavery’. Sepp Blatter, the president of FIFA has said he will be going over to Qatar to discuss potential changes and that FIFA will not ‘turn a blind eye’ to the deaths of hundreds of workers. However new legal issues are arising over the suggestion to change the World Cup from a summer event to a winter event. There are now contractual arguments due to concerns from American TV interests who have already secured the rights
to screen the worldwide event in the summer for around £630million. According to the Daily Mail, “industry sources say it is unimaginable that they will accept a switch, not at that price.” There are mixed opinions on this issues but certainly worth monitoring developments closely.
LSBU LAW SOCIETY MENTORING SCHEME Following the success of the previous year, we welcome back the LSBU Student Law Society Mentoring Scheme 2013/14.
The aim of the scheme is to bring together students from different years to form one-to-one mentoring relationships. Mentors are given professional training as to how to best perform their mentoring, and mentees are also given some information on what to expect. We currently have 16 mentors and 16 mentees in the scheme with a surplus of 12 students who will be given priority of place in the second semester (2014).
The scheme aims to target and give support to law students in the following areas;
or those feeling overwhelmed by the sheer load of your studies, home and work balance
for those feeling they could do with some support in order to properly integrate yourself into university life
for those who wants to enhance their knowledge about the course, the department and the university as a whole
for networking and its benefits
to help students gain confidence and skills that will help them throughout their study here at LSBU and beyond.
For more details, please contact the Welfare Officers (Ayindo Dalouba and Victoria Akinyode) @ lsbuwelfarelawments@gmail.com
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BPP Law School For over 35 years, BPP has been helping professionals realise their ambition. Our Law School provides a range of undergraduate and postgraduate degrees, law conversion programmes and diplomas, all of which are designed to get you ready for life in practice. Our track record speaks for itself, as over 25 leading firms choose us as their exclusive training provider. LINKS WITH THE PROFESSION: At BPP Law School, we’re remarkably well connected. Over 25 leading law firms send their trainees exclusively to us, because our programmes deliver what today’s law firms need. We provide networking events with graduate recruiters and professionals, so you’ll gain an insight into the legal world. Our unique programmes, like our LPC Masters degree, the MA (LPC with Business) also give our students a competitive advantage. Whatever programme you choose, you’ll find starting with BPP pays off.
BPP programmes combine high quality learning materials and tutor support, and are designed to fit your needs, not the other way round. Whether you study in the heart of London or at another of our 8 UK centres, you’ll receive the same professional learning experience. If you’re serious about a career in law, you need a serious foundation. BPP is the smart choice for students because it’s the first choice for law firms — they trust us to instil practical, commercially-minded knowledge at any stage of your career. We offer rigorous and inspiring teaching combined with flexible delivery — parttime, full-time, online or accelerated, with plenty of support throughout. However you learn, we make sure you get a fantastic education. Your success is our success.
TEACHING APPROACH: You need the knowledge and skills. But you also need to be able to put them into practice. Our tutors are an impressive mix of legal practitioners and experienced academics who get outstanding feedback from their students. With high levels of face-to-face teaching, an interactive approach featuring discussion and debate, and plenty of learning by doing, you’ll end up gaining not just the knowledge you require but the commercial acumen to apply it day to day.
INNOVATION: We’re renowned for our cutting edge. We pioneered the fully online GDL, the accelerated LPC and the first practice facing LLB. We’re committed to providing firstclass education no matter how it’s delivered — and to making it fun and interactive too. On most of our programmes you can learn faceto-face, online, or both, and take your pick of morning, afternoon or evening classes. In addition, our downloadable tutorials and lectures mean you can study just about anywhere.
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Getting in touch Are you interested in contributing to The Devil’s Advocate? Perhaps you have an interesting article relevant to the law or have useful advice for your fellow law students?
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