Today's Solicitor Issue 12

SPRING 2013 ISSUE 12

I’LL HUFF AND I’LL PUFF...

ROBERTS V JOHNSTONE Domicile and the revocation of wills An English approach to a UK Bill of Rights

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Todays Solicitor | Issue 12

TODAY’S SOLICITOR Welcome to the latest issue of Today’s Solicitor magazine by Sweet & Maxwell.

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in this issue:

In this issue Will Waldron and Ian Gunn advocate changes to the traditional Roberts V Johnstone approach to housing claims, Alison Regan looks at domicile and the revocation of wills and Louis Blom-Cooper QC discusses an English approach to a UK Bill of Rights.

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I’ll huff and I’ll puff... :Roberts v Johnstone

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Case Comment | Domicile and the revocation of wills

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The Commission on a Bill of RIGHTS: an English approach to a UK Bill of Rights

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I’ll huff and I’ll puff... :Roberts v Johnstone

By Will Waldron QC & Ian Gunn

Will Waldron QC1 Ian Gunn2

Subject: Personal injury Other Related Subjects: Damages Keywords: Future loss; Measure of damages; Periodical payments orders; Personal injury; Special accommodation Case: Roberts v Johnstone [1989] Q.B. 878 (CA (Civ Div)

1

Will Waldron QC practices from Exchange Chambers in Liverpool. He can be contacted by email at waldronqc@exchangechambers.co.uk.

2

Ian Gunn is an Independent Financial Adviser (IFA) and Director of Personal Financial Planning Ltd. He can be contacted by email at ian.gunn@pfp-planahead.co.uk.

Will Waldron QC and Ian Gunn ( IFA) advocate change to the traditional Roberts v Johnstone approach to housing claims.

“Anne” is 27 years of age. Her passion is motorcycles.

On an otherwise unremarkable day three years ago, she was involved in an accident which led to amputation of her left leg. She was entirely blameless.

Anne wanted to be with her family, and they with her. The only available house is less than ideal.

She requires adapted accommodation. Recently, I explained to her the principles of law which apply to a housing claim in a case such as hers. Her response was as unsurprising as it was accurate: “Where’s the justice in that?”

It is my experience that many claimants and their loved ones find the fairness of Roberts v Johnstone3 difficult to accept. Through no fault of their own, their lives have been turned upside down. No area is left untouched.

What is remarkable is the dignity and fortitude with which these imposed life changes are dealt with by the catastrophically injured and their families.

Second only to bereavement and divorce, moving home is as stressful a life event as anyone encounters.

To be forced to move home following, and by reason of, a catastrophic injury only to find that the costs involved must, to a significant degree, be met by raiding the damages awarded under other heads of your claim; all in order to ensure that you do not receive a “windfall” that cannot manifest itself until you are dead; is an exceedingly difficult pill for many to swallow. Even from the perspective of a lawyer, the Roberts regime 3

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TODAY ’S S O L I C ITO R

Roberts v Johnstone [1989] Q.B. 878 CA (Civ Div).

arguably does not accord with the principle of full compensation, the rock upon which personal injury damages are built. From a lay perspective, it simply does not do the job at all. To deprive an innocent party of damages sufficient to fund one of the most fundamental needs of their post-injury life in order to avoid a post-mortem “windfall” is, surely, inexcusable in an age of periodical payment orders?

The Roberts’ principles are well known but the facts of the case less so. Sandra Roberts was six at the date of her appeal in 1988. She had sustained “very severe disabilities” at birth. She suffered from cerebral palsy, was doubly incontinent, hyper-active and unable to walk. She could not feed herself and it was thought unlikely she would ever be able to do so. She was prone to uncontrolled and uncontrollable fits of screaming. By the time of trial, she had been adopted by a second set of foster parents, who provided the bulk of her care. They already had an adopted son, aged 13, who was also disabled. Both sides agreed that the family home was unsuitable for Sandra’s needs.

In the event, total damages awarded on appeal were £334,000, of which £28,800 represented the cost of accommodation. At today’s rates, that would equate to £728,000 and £63,000 respectively—not quite what one might anticipate settling for in a case of such severity these days. It probably highlights the fact that Roberts was decided at a time when the true needs of the catastrophically injured were just beginning to be understood, and the true cost of those needs were not yet widely accepted. If so, there is an urgent need to reconsider the whole basis upon which damages for accommodation costs are awarded. What might

From Journal of Personal Injury Law

REUTERS/Regis Duvignau

have been acceptable in the latter part of the last century is not necessarily acceptable in the second decade of this one.

At first instance, Alliott J. considered himself bound by an earlier authority, George v Pinnock4. The Court of Appeal agreed but refined his application of it. Before turning briefly to look at what their Lordships said on the issue it is important to bear one, critical, fact in mind. George established that the capital cost of a new house could not be awarded as damages. The court held that a claimant was entitled to a sum equivalent to a loss of income from the capital expended on the purchase, or annual mortgage interest. Their Lordships did not consider there was much, if any, difference between those two things. The damages represented the difference between the loss of income or notional outlay by way of mortgage interest and the cost of accommodation but for the accident. The rate of interest adopted by the courts at that time was a healthy 7 per cent to 9 per cent net. This was critical to the outcome in Roberts. At first instance, Alliott J. discovered that applying the George principle produced a sum that exceeded the claimant’s total housing costs by some margin.

Thus, it is not difficult to see why the Learned Judge shied away from such a result.

However, he acceded to the defendant’s submissions that the appropriate rate of interest should be just 2 per cent. He then made a further, arbitrary, deduction of 10 per cent of the global sum to reflect what he called “the Rolls Royce element”. The Court of Appeal held that there was no justification for reducing the full difference between the sale price of the old premises and the acquisition of the new by reference to any element of betterment. Having said that, they decided that the Learned Judge had not really been referring to betterment at all but, rather, to the enhanced value of the property added by the adaptations. On that basis, they accepted the reduction of £10,000 made by Alliott J. They went on to state that the costs of adaptation and damages flowing from loss of income should not be “lumped together” as had been done at first instance but awarded as a separate head, from which former amount should be deducted any assessed enhancement value.

The Roberts’ principle was dealt with fairly briefly in the judgment of Stocker L.J.: “It seems to us, however, that where the capital asset in respect of which the cost incurred consists of house property, inflation and risk element are secured by the 4

George v Pinnock (1973) 1 W.L.R. 118.

rising value of such property particularly in desirable residential areas, and thus the rate of 2% would appear to be more appropriate than that of 7% or 9.1%, which represents the actual cost of a mortgage loan for such a property … We are reinforced in this view by the fact that in reality in this case the purchase was financed by a capital sum paid on account on behalf of the Defendants by way of interim payments, and thus it may be appropriate to consider the annual cost in terms of lost income and investment, since the sum expended on the house would not be available to produce income. A tax-free yield of 2% in risk-free investment would not be a wholly unacceptable one.

Mr McGregor, for the Plaintiff, objects that if a rate of 2% is adopted then the multiplier of 16 would be far too low and a substantially higher multiplier should be adopted, resulting in much the same anomaly.

For our part, we would reject this argument, since the object of the calculation is to avoid leaving in the hands of the Plaintiff’s estate a capital asset not eroded by the passage of time; damages in such cases are notionally intended to be such as will exhaust the fund contemporaneously with the termination of the Plaintiff’s life expectancy.”

If that was the intention of the Court of Appeal in respect of Sandra Roberts’ housing costs, then it almost certainly failed. In my view, it has been failing ever since. Any meaningful attempt to achieve that end must surely provide the claimant with full funds to purchase and adapt accommodation during their lifetime, leaving out of account any post mortem “windfall”. A “windfall” can be catered for by a different mechanism and at the appropriate time—that is to say, after the claimant’s need for accommodation has ceased.

A decade after judgment was handed down in Roberts, the Law Commission concluded that “in most cases” the Roberts approach was “inappropriate”.

However, it declined to make any recommendations for change because of the exceptionally complex issues involved. In 2007, the Ministry of Justice published a paper—Consultation on the Law of Damages —in a further attempt to address the question but with the same result. Finally, in 2011, under the Chairmanship of H.H. Judge Graham Jones, the Injury Committee of the CJC reported to the Ministry of Justice on the question: what is the proper basis for assessment of the damages to be awarded in respect of the purchase of special accommodation necessitated by a claimant’s injuries? The majority felt there was a case for reform, recommending funding either by way of an interest only mortgage funded by a PPO or an interest free loan, with an entitlement for a claimant to adopt a traditional Roberts calculation in appropriate cases (for example, where there is a significant deduction

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for contributory fault). Two members dissented from the majority view but conceded that there were “exceptional cases”, which involved a very short life expectation, in which reform to the Roberts approach was justifiable, describing the traditional method as “imperfect perfection”.

I do not for one moment pretend that there is “a perfect solution” to all this. Clearly, there is a tension between the competing arguments. In principle, although never in practice, damages for disability related housing needs ought to be exhausted upon the day the claimant takes his or her last breath. Those damages should provide full and reasonable compensation but no more. For my part, I cannot accept that the expression “full compensation” means anything other than full compensation during the claimant’s lifetime. Of course, the housing needs of the family do not determine upon the death of the claimant and to evict them from a property that might well have been a family home for many years should be avoided, if at all possible. It is unacceptable that defence insurers should fund a “windfall” and some mechanism for preventing that outcome must be found. However, the complexity of the solution cannot justify the continuance of an “inappropriate” one.

That there is a growing call for change is beyond doubt.

In my opinion, the question is not whether the court will embrace change but, rather, the timescale within which that change will come. There may be some judicial sympathy for the criticisms levelled at the inflexible Roberts approach. Two examples serve to illustrate.

First, in St George v Home Office5, MacKay J. approved a housing scheme in which the claimant rented appropriate accommodation, such rental being funded by a PPO, stating that such a course should have a more general application in appropriate cases. Secondly, Tugendhat J. made what, from a claimant’s perspective, might be encouraging remarks in the case of Oxborrow v West Suffolk Hospitals NHS Trust6. Oxborrow was an interim payment application but the facts of the case neatly address a regularly encountered problem. The claimant, five years of age, has a life expectation of 16 years. Martin Spencer QC for the claimant, argued that Roberts was decided on its own facts. Unsurprisingly, Tugendhat J. did not feel inclined to embark upon investigation of this tricky area at an interim payment hearing, less still to reach a decision that might alter a long established principle. That said, he awarded £740,000 as a lump sum to allow the claimant to fund his housing need, accepting that under Roberts he would be left around £100,000 short of the target. The following passage is worth noting:

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5

St George v Home Office (2008) EWCA Civ 1068.

6

Oxborrow v West Suffolk Hospitals NHS Trust (2012) EWHC 1010 (QB).

TODAY ’S S O L I C ITO R

The “issue” to which the court was referring was the very reverse of the Roberts situation—namely, that the calculation produced a shortfall, as it always does.

Whether an appropriate system involves an interest free loan, an interest only mortgage funded by PPOs or otherwise is beyond my remit and will be addressed by Ian Gunn. However, taking a simplistic approach to matters, one method of overcoming the under-funding issue and avoiding the “windfall” problem might be to introduce a system in which the insurer pays as a lump sum the “difference in value” figure to which the 2.5 per cent calculation is currently applied, taking the percentage differential between the value of non-disabled housing and the purchase price of appropriate disability related accommodation and applying it to the ultimate proceeds of sale; which sale would take place within, say, 12 months of the cessation of disability related need. Of course, such a system creates it owns problems. For example, the claimant may have invested monies in non-disability related enhancements to the property that add to its value.

But no hurdle should be insurmountable. Accepting that there is no perfect solution to this problem, surely, there must be a more just and appropriate one in 2012 than Roberts provides?

The financial perspective Like many apparently simple problems, providing for a claimant’s accommodation needs whilst preventing a windfall to the estate proves fiendishly difficult to solve.

Roberts forces a claimant to hold capital that is illiquid and will never benefit him directly. He is therefore compensated financially for the annual loss of return on it. By implication, in Roberts, the court took the view that part of the award for general damages was not in fact required by the claimant and would be preserved for her estate. The general damages award in Roberts was £75,000 plus interest and the award for loss of use of capital was £28,284. The additional capital need was £68,500, leaving a capital “hole” of a round £40,000—around half of the general damages.

Based on the Nationwide UK Property index, average property values are around 4.5 times higher today than in 1986 (when the property in Roberts was purchased).

General damages awards have also grown, but by nothing like as much. As a result, the capital hole can become a yawning chasm, potentially at two to three times the general damages award, rather than just over half of it as in Roberts.

However, the financial logic of Roberts fails when the capital is required to meet the claimant’s future needs.

This is bound to happen when capital required to purchase accommodation is “borrowed” from a lump sum for future losses. When life expectancy is short and/ or liability is split, the problem becomes even more acute.

What are the alternatives?

From Journal of Personal Injury Law

above. However, the former could be viewed as a reflection of putting right an injustice (as the CJC report put it) in the way that capital is allocated under Roberts.

Interest-free loan This transfers the burden of capital deprivation from claimant to defendant. From a claimant’s perspective, this has some advantages: •

•

REUTERS/David Gray

The only capital that the claimant would tie-up is either the value of an existing home, or that which he would have owned but for the accident. This would come from sale of the existing property, or from his loss of earnings claim.

Therefore, the claimant is put in the position of being able to deploy all of the remaining capital available to meet needs and wishes during his lifetime. It should be noted that, unlike the approach in Roberts, this includes the whole of the award of general damages, and does not force the claimant to leave an inheritance.

Inevitably, there are some disadvantages: •

•

•

•

The cases where capital shortage through application of Roberts is most acute are those where life expectancy is short, made worse if there are issues on causation/liability. There is often an “injured family” to consider, not just an injured person. If the damages have been assessed correctly and applied as intended, the interest-free loan route will require sale of the property to repay the loan on death of the claimant. Therefore, a family who have been living with and caring for an injured relative will be forced to relinquish their home and cope with bereavement, unless the net estate is big enough to clear the loan. However, it should be noted Roberts may produce the same outcome, as it may be necessary to sell the property to pay Inheritance Tax. If the property value rises there is bound to be a windfall to the estate (see below for a discussion of the treatment of any growth in property value) unless the claimant is able to release equity which can then be applied during his lifetime.

What if the property value has fallen, leaving insufficient capital to repay the loan? Under Roberts, the claimant bears the risk of a fall in value, in return for the opportunity of a rise in the value of his property. Implicitly, as the same discount rate is applied to quantification of the annual loss under Roberts, as to the assessment of capitalised future losses, the degree of risk in property ownership is deemed equivalent to holding ILGS. This is open to challenge.

From a defendant’s perspective, there is an obvious cash-flow disadvantage in having to pay out more capital up-front, and a (new) credit risk in the potential for default referred to

Interest-only mortgage backed by a PPO This is also one of the solutions proposed by the Injury Committee of the CJC. George v Pinnock established that a claimant was entitled to be compensated for the loss of use of capital tied up in a larger property, or annual mortgage interest. At the time of Roberts, the mortgage rate was 10 per cent (although there was then 30 per cent tax relief on loans of up to £30,000).

Net of tax relief, the rate considered was 9.1 per cent.

Therefore, there was a significant difference in cost between the two approaches. Taking into account that property prices “in desirable residential areas were almost certain to rise”, their Lordships rejected the mortgage alternative on the grounds of cost and applied a discount rate of 2 per cent.

Whilst interest rates are at an all-time low, it remains the case that commercial borrowing costs on a mortgage exceed the current discount rate of 2.5 per cent. For example, at the time of writing, the lowest rates for interest only mortgages are in the range 4 per cent to 6 per cent. The differential in cost has therefore narrowed since Roberts, but is still potentially significant.

This alternative puts the claimant in the same position as an interest-free loan from the defendant, since the interest cost will be covered by periodical payments, i.e. there is no net financing cost to the claimant in respect of the additional capital tied-up in property.

The defendant has the additional cost of commercial borrowing as compared with an award under Roberts, but no credit risk on a default (as this transfers to the lender).

However, there are some significant practical obstacles to overcome, including: •

The supply of credit generally, which can shrink completely.

•

The restricted supply of mortgage products that carry a lifetime fixed rate, or linkage to a suitable measure (either of which would be necessary preconditions to make a PPO workable), and higher costs attaching to these products.

•

A poor credit history may preclude access to borrowing, unfairly as it is largely irrelevant (periodical payments could be assigned or charged to the lender, with court approval under s.2(6) of the Damages Act).

•

The accommodation claim would have to be

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based on an actual property, with an actual mortgage offer, both of which are time sensitive.

• Institutional aversion to arrangements that are unusual and could potentially have adverse reputational risk for a lender (such as having to evict the family of a disabled child who has died in order to seek repayment of the mortgage).

•

Legal issues where the claimant lacks capacity and the Deputy is party to a mortgage

Defendant to provide all of the additional capital

This was the approach adopted by consent in the case of St George v Home Office. It enabled the parties to resolve a very significant difference of opinion on life expectancy, and the claimant to continue living in an area of London, with his family and friends, where capital values of property would have precluded the traditional approac h.

However, the supply of suitable rented accommodation is limited and, if adaptations are required, private sector landlords may be unwilling to let.

This was the approach adopted on behalf of the claimant at the interim payment stage in Oxborrow.

However, especially at that stage, the court felt unable to depart from Roberts. George established the principle that the additional capital required could not be awarded as damages, since otherwise there would be a windfall to the estate.

Causation/liability issues

However, as proffered in Oxborrow, this objection could be overcome by the claimant (or Deputy) undertaking to repay any such windfall (resulting from property ownership) following death, secured if necessary by a charge on the property.

We do not suggest there is any easy solution to what we believe to be the current accommodation predicament in which many catastrophically injured claimants find themselves. However, we believe there must be a better solution to the problem than the Roberts method allows. With the advent and the increasing prevalence of PPOs, the flaws in Roberts have been brought into sharper focus. Alternative methods of funding housing claims are available. Our preferred option would be that outlined above in which the insurer provides a lump sum on initial purchase in return for an undertaking to repay any windfall to the estate following the death of the claimant, secured if necessary by a charge on the property. The claimant would then be restored to the pre-accident position of having to invest only such moneys as he or she would have invested in property uninjured. That approach has a ring of fairness to it. The acknowledged pitfalls of such a scheme are not beyond sensible resolution and with co-operation and collaboration from all interested parties, would likely be fairly easily overcome. Although it cannot yet be said that the foundations upon which Roberts was built are crumbling, it is clear that cracks are beginning to appear.

Financially, it seems to me that this alternative meets all of the necessary requirements. It manages to avoid both forcing the claimant to leave an inheritance and ensures that all of the remainder reverts to the defendant whilst providing the capital needed. It is also a much simpler option than the other two considered so far.

This approach is also much more straightforward than the direct alternative of the defendant purchasing the property outright.

Clearly, from a defendant’s perspective, this alternative is going to impose a potentially significant additional up-front payment, with a prospect of a return maybe far distant in the future. However, given that the problems caused by Roberts are most acute in short life expectancy cases, adoption of this solution in those cases would mean defendants suffering the additional cash flow for a far shorter period, simply transferring the burden of loss and risk.

It is my view that, from a financial perspective, this is the preferred solution where Roberts simply will not work and renting is impractical.

10

Rent covered by a PPO

TODAY ’S S O L I C ITO R

These already aggravate the problems caused by application of Roberts. However, they will also interfere with any of the other solutions considered. This is a simply unavoidable consequence when full recovery of damages is not possible.

Conclusions

Will Waldron QC Ian Gunn J.P.I. Law 2012, 4, 231-237

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ARTICLE

Case Comment Domicile and the revocation of wills

By Alison Regan Alison Regan*

Subject: Succession Other Related Subjects: Conflict of laws Keywords: Applicable law; Domicile of choice; Implication; Revocation; Wills Case: Perdoni v Curati [2012] EWCA Civ 1381; [2013] W.T.L.R. 63 (CA (Civ Div)) *Alison Regan is a partner at Russell-Cooke LLP specialising in Trust and Estate Disputes. She is a member of ACTAPS and a student member of STEP. Tel 0208 394 6549 or email Alison.Regan@ russell-cooke.co.uk.

This article discusses the decision of Sales J. in Perdoni v Curati11 and the subsequent appeal decision of October 31, 2012. The case dealt with the all too common problem of the inadvertent revocation of a will and the impact of domicile.

Perdoni is a useful reminder of the criteria to be satisfied when replacing a domicile of origin with a domicile of choice and on dealing with the presumption against implied revocation of a will. In Perdoni the problem was compounded by the fact that the deceased’s domicile was in dispute, with the result that either one of two systems of law could apply in determining succession.

Facts The deceased was born in Italy in 1927 and moved to England in 1955 “to improve his economic condition”.

He married in 1955. His wife was born in England to Italian parents. A short while after his marriage his wife’s parents made a gift to them of the restaurant in which they worked. By the late 1970s the deceased and his wife had built up a healthy property portfolio in England.

In 1980, the deceased drafted a will that left his English property to his wife. It contained a substitution clause that stipulated that if his wife predeceased him, the property was to pass to the deceased’s niece and nephew, the claimants.

On September 20, 1994 the deceased made a holographic will in Italy, written in Italian, in which he declared his wife to be his “universal heir”. There were no substitution clauses and so, should Mrs Curati 1

predecease her husband, an intestacy would arise with the result that the deceased’s sister (the defendant) would benefit (whether under English or Italian law).

Mrs Curati did in fact predecease her husband. A dispute ensued as to the effect of the 1994 will and whether or not it had revoked the 1980 will.

The parties agreed at trial that the domicile of the deceased in 1994 governed the law to be applied in determining the effect of the 1994 will. The claimants contended that this should be determined according to English law on the basis that the deceased was domiciled in England. The defendant on the other hand argued that the deceased had been domiciled in Italy and that Italian law applied.

Domicile The court had to consider whether or not the deceased had abandoned his domicile of origin, Italy, and replaced it with a new domicile of choice in England by the time of the execution of the 1994 will.

In considering the criteria to be satisfied, Sales J. referred to the leading authority of Fuld (Deceased) (No.3).2 In that case Scarman J. stated that a person will retain their domicile of origin unless and until there is sufficient evidence of the deceased intending to acquire a new domicile of choice in the new territory in which he resides.

Strong evidence is required to displace the domicile of origin. For instance, if a person intends to return to the country of his birth on completion of a contract of employment, he does not have the intention to replace his domicile of origin. If, on the other hand, a person

Perdoni v Curati [2011] EWHC 3442 (Ch); [2012] W.T.L.R. 505.

2

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Fuld (Deceased) (No.3), In the Estate of [1968] P. 675; [1966] 2 W.L.R. 717.

From Private Client Tax

Although the court found that from 2002 the deceased did from time to time express a wish to return to Italy, it was no more than that. Sales J. therefore determined that English law was to be applied in determining the effect of the 1994 will and whether or not it had revoked the 1980 will. (It should be noted that on appeal Mr Justice Tomlinson agreed with the decision on domicile based on what he called “overwhelming evidence”).

Revocation There was no express revocation clause in the 1994 will, and so Sales J. confirmed that it was necessary to consider whether the 1980 will had been revoked by implication. This was therefore a question of construction.

REUTERS/Amr Abdallah Dalsh

would only contemplate returning if he won the lottery but otherwise will not return, then arguably he has replaced his domicile of origin. Each case turns on its own facts, and different factors will have different weight.

In Perdoni, Sales J. decided that the deceased was domiciled in England by the time of the 1994 will. The following factors were particularly important: •

The deceased moved to London to work indefinitely. He did not at that time anticipate returning to Italy at a particular time. It was, rather, a “vague possibility”.

•

The intention to remain in England permanently was reinforced by the deceased marrying a British citizen of Italian parents and establishing the family home in England.

•

The deceased’s business activities were based in England.

•

Even after the deceased and his wife established an Italian property portfolio, they maintained their family home in England and only returned to Italy for holidays or business visits.

•

When his wife (to whom the deceased was devoted) became ill in 1992, there was no chance that she would have moved to Italy, and so it was considered highly unlikely that the deceased would have returned to Italy.

•

The deceased referred to England as his home and was proud of and took care to maintain the family home.

When considering whether a will has been revoked, the primary consideration is the intention of the testator at the time of the purported revocation. Dempsey v Lawson3 stated that it was necessary to examine the testamentary document itself to determine whether the testator intended to vary the dispositions set out in the earlier will either partially or wholly.

In Perdoni, the deceased’s wife had shortly before her death given instructions for a new will in relation to English assets in circumstances that suggested that she herself did not consider that the 1994 will had revoked the 1980 will, thereby inferring that the deceased did not consider the 1980 will to have been revoked. Significantly, the court did not consider that such a subjective view controlled the “meaning and effect” of a will. It was not considered that the deceased’s subjective view as to whether or not an earlier document had been revoked was significant.

What was significant was the intention in relation to the gifts themselves rather than the testamentary documents.

This supports the view that a person’s testamentary wishes could be expressed through a combination of several different documents. Sales J. referred to Lemage v Goodban,4 in which case Sir J.P. Wilde confirmed that any number of testamentary documents can exist together and be admitted to probate as the last will: “[t]he will of a man is the aggregate of his testamentary intentions”.

Sales J. confirmed that there was a presumption against implied revocation and that to rebut the presumption it would be necessary to consider whether the testator’s intentions (as determined from the testamentary documents) were that earlier dispositions were no longer operative. He held that the 1994 and 1980 wills were not inconsistent because 3

Dempsey v Lawson (1877) 2 P.D. 98; [1869-72] All E.R. Rep. 296.

4

Lemage v Goodban (1865–69) L.R. 1 P. & D. 57; (1865) 12 Jur. N.S. 32.

13

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the 1994 will did not provide for a substitute heir in the event of the deceased’s wife predeceasing the deceased. Consequently he held that the 1980 will had not been revoked.

Sales J. also discussed the position as it would be under Italian law in the event that his findings on domicile were incorrect. Interestingly, he said that he would have held that the 1980 will had been revoked by the 1994 will because of the special position of the “universal heir” in Italian law.

The appeal The defendant appealed the decision on two grounds.

First, as noted above, it had been agreed at trial that the law of the deceased’s domicile should govern the construction of the will. The defendant now sought to abandon that argument and stated that the presumption that the law of the deceased’s domicile should apply to construction could be rebutted where it could be shown that the deceased had intended otherwise, i.e. that he intended Italian law to apply to the construction of his 1994 will. On the facts of this case, the defendant argued that the 1994 will should be construed according to Italian law as it was written in Italian, in Italy, by an Italian citizen and used Italian terminology.

Conclusion It is possible for a number of consistent testamentary documents to be read together as forming the last will of the testator, but it makes matters a great deal more complicated, and litigation is more likely to follow, if it is necessary to try and unravel what the testator’s intentions actually were. This becomes even more complex if there are foreign assets and foreign wills. Practitioners therefore need to be alive to the possibility of foreign domicile, the implications of foreign domicile and the dangers of inadvertently revoking a testamentary document.

Alison Regan; Russel-Cooke LLP P.C.B. 2013, 1, 2-5

Mr Justice Tomlinson gave little weight to the first two of these factors, as it was accepted that the deceased was not comfortable speaking in English and that there was little evidence of the circumstances in which the will was drafted and executed in Italy. The fact of citizenship was also held to have little weight bearing in mind the presumption as to domicile, and the terminology was seen as ordinary Italian words having no special significance. He therefore held that the presumption had not been rebutted.

The second ground for appeal was that the Judge had erred in holding that the 1994 will did not revoke the 1980 will. Mr Justice Tomlinson held that it was not permissible to speculate on the deceased’s intentions and that one had to look at his testamentary writings.

The 1994 will did not set out what would happen in the event that the deceased’s wife predeceased him, but the 1980 will did. It was held that there was nothing in the testamentary documents to suggest that there was an intention to revoke that disposition and there was no inconsistency. The decision of Sales J. was therefore upheld.

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ARTICLE

The Commission on a Bill of Rights: an English approach to a UK Bill of Rights

By Louis Blom-Cooper QC

“ Louis Blom-Cooper QC

Subject: Human rights Other Related subjects: International law. Legal systems Keywords: European Court of Human Rights; Human rights; Legal history; Treaties Legislation: Human Rights Act 1998 (c.42) European Convention on Human Rights 1950 European Convention on Human Rights 1950

T

he hostility towards human rights and the Human Rights Act 1998 within some sections of the press … impels me … To reaffirm my unswerving support both for the international system of human rights protection that the European Convention on Human Rights provides and the provisions of the Human Rights Act 1998 under which our own judges protect those rights in domestic law.” 1 For the last 60 years, the British public has been protected in its human rights and fundamental freedoms by the international treaty, the European Convention on Human Rights and its Court at Strasbourg; for the last 12 years they have been protected by the grant of a domestic remedy under the Human Rights Act 1998. The Coalition Government, therefore, asked a Commission on a Bill of Rights whether now or in the future the British public needs additional specific British rights.2 The Commission’s questionable answer is given in its report, A UK Bill of Rights? The Choice Before Us, a document of 180 pages which contains no index and 97 pages of eight individual papers from members of the Commission, and Annexes (Vol.II) on various documents of over 257 pages.

Articles 2 to 12 and 14 and the relevant Protocols to the Convention are the substantive rights accorded by the Rome Treaty of 1950 (in force from 1953) by the original 12 Member States (there are now 47) of the Council of Europe. They are reflections of the international law of human rights that burgeoned in the years leading up to and surrounding World War II. They are the human rights and civil liberties fashioned by a series of international declarations of human rights, international instruments developed in the 1930s, together with documents brought into existence at the ending of World War II. They constitute neither British nor French, or even strictly European 1

Opening remarks of Lord Irvine of Lairg (the Lord Chancellor at the time of the 1998 Act and its architect) in a public lecture to the Bingham Centre for the Rule of Law on December 14, 2011, uncited in the report of December 18, 2012 of the Commission on a Bill of Rights. Lord Irvine, “A British Interpretation of Convention rights” [2012]

standards, but are creatures of public international law. They are not derivative, other than collectively under public international law, of the human rights of any of the 12 individual Member States who signed the convention.

The report of the Commission is replete with useful information about our human rights and fundamental freedoms down the ages—mostly since 1950. But the report is woefully bereft of intellectual analyses of the European Convention on Human Rights and its Court in Strasbourg. This is odd, if not eccentric, since the Commission’s terms of reference requested that it “examine the operation and implementation of these obligations” and “promote a better understanding of the true scope of these obligations and liberties”. This oddity can be explained by the Commission’s “approach to our work” (pp.6–7) and its Overview (pp.7–39).

Paragraph 8 of the latter chapter states as follows: “8. In many ways, therefore, the foundation on which today’s human rights edifice rests is not the European Convention on Human Rights nor the Human Rights Act but an unbroken tradition going back at least some 800 years of both statutes and common law providing protection against the arbitrary acts of those in power.”3 Presumably, the reference to some 800 years of both statutes and common law is to the earliest, Magna Carta of 1215, which has been aptly described, not unfairly, as “one Baron, one vote”—the first step towards a modern system of democratic government.

Paragraph 9 states, moreover: “9. [It] has a great deal of its origin here in the United Kingdom … Following the creation of the Council of Europe in 1949, with the United Kingdom as one of

P.L. 237.

2

Hansard HL Vol.517, col.921 (November 3, 2010). As Mark Elliott argued in this journal “there are plenty of other obstacles deriving from international law and the political reality of coalition”. M. Elliott, “After Brighton: between a rock and a hard place” [2012] P.L. 619, 620.

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3

Commission on a Bill of Rights, A UK Bill of Rights? The Choice Before Us (2012), para.8. Emphasis added.

From Public Law

its twelve original members [of Western European and Scandinavian countries, including Turkey], work on drafting such a charter began … by a seminal text produced during the Second World War … the eventual Convention on Human Rights in August 1950 was largely based on an original draft by, amongst others, David Maxwell-Fyfe, a former Law Officer and later Home Secretary …”

REUTERS/Darrin Zammit Lupi

during the later stages, the international protection of human rights became an aspect of plans for a new international organ which was to replace the League of Nations.

This odd statement is a case of the use of the technical term, post hoc, propter hoc, the fallacy of confusing consequence with sequence. There is in fact a complete break between what occurred until the years surrounding World War I (when many states had begun to develop civil liberties for their subjects) to the events of the years leading up to and surrounding World War II. The quintessential powers that were reflected in declarations of human rights (including the Articles and relevant Protocols of the European Convention) owed their provenance of discrete development to public international law of the 1930s and onwards. The break between what had gone before and the 1930s is demonstrable to any respectable historian. A quick dip into A. W. Brian Simpson’s classic work, Human Rights and the End of Empire: Britain and the Genesis of the European Convention4 would have informed the Commission that Contrary to what the Commission proclaims in Ch.6 of its report (at p.102)—which, to say the least, reads like a tract on English habits through the ages (not to say British, let alone French and other nationals) on the issue of human rights—the real significance was the departure from the attitude taken by the authors of the League.

Apart from the reference in art.23 of the League to “fair and humane conditions of labour” for everyone and to just treatment of the native inhabitants of dependant territories, the Covenant of the League of Nations in 1919 contained no question of universal human rights. While they were discussed during the drafting of the Covenant, no obligations regulating human rights were incorporated into the Covenant. At that time, moreover, vast numbers of men and women were disenfranchised; women in fact did not even have the right to vote in Britain until 1928. It is only the internationalism that emerges post-World War I (1914–1918) which concluded by the time of World War II with the rights of all men being considered as one. History records that this was the watershed of the universal declaration of human rights. Britain was a prominent forerunner, but only one of a number of countries involved, that produced the internationalism that lay behind the various declarations of that time.

4

A. W. Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford: OUP, 2001), p.221. A fleeting reference to p.350 of the work is made at fn.75 on p.75 of the Commission’s report.

19

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At p.745, Simpson wrote also: “The First Protocol to the European Convention, which was signed in Paris on 20 March 1952, was a product of a continuation of the negotiation which has produced the Convention itself … Broadly similar provisions to those in the Protocol had featured in a number of declarations of rights produced before and during World War II. Thus the American Institute’s draft of 1944 on the rights of property …” was relied upon. It confirms once more that it was the work of international lawyers working primarily in France, alongside the classic work of Professor Hersch Lauterpacht (fondly, and rightly, quoted by the Commission as a British contributor during the 1930s). But he was not alone. The various declarations of human rights culminated in the preamble to the Charter of the United Nations—drafted incidentally

by General Jan Smuts of South Africa—which was passed on May 1, 1945, before World War II had ended, followed by the Universal Declaration of Human Rights in 1948. None of this features in the Commission’s report.

The European Convention on Human Rights was hugely significant in that it was the very first international treaty to grant enforceable legal rights to Member States of the Council of Europe, including the right of individual petition which the United Kingdom gave to its citizenry in 1966—and which was specifically renewed in 1970 by the incoming Conservative administration, and thereafter. This was achieved through art.13, which was, quite deliberately, not replicated in the Human Rights Act 1998.

Article 13 is the only discrete European instrument providing a legal remedy for violation of international human rights law. Instead the Human Rights Act 1998 provides in domestic terms the remedy of “incompatibility” to any non-compliance with the Convention. It is then the subject of adjectival, not substantive law.

This commentator’s analysis (skimpy though it must inevitably be) has meant that the authors of the Commission’s report have overlooked international development to concentrate on a Bill of Rights for the United Kingdom, incomprehensibly, if not fatally. They argue for an immediate contemplation for the future of the possibility of a UK version, as an alternative if not in addition to the Convention. This analysis is additional to the arguments of the two Commissioners (Lady Kennedy of the Shaws and Professor Philippe Sands) who concluded in their dissent, that the time is not ripe for a review of human rights for the British public, including the devolved powers of the constituent elements of the United Kingdom. The

20

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report, moreover, is silent on the nature and scope of the Court at Strasbourg, although it adds unfairly to its revised procedures discussed at the Brighton conference of 2012.

The substantive remit of the court is disappointingly not subjected to any treatment, since the court, unlike any appellate court, is entirely unique in its functioning. It is exclusively the judicial guardian of certain human rights and fundamental freedoms, in that it performs no other function as would a domestic court—appellate or otherwise—of a Member State, with judges reared necessarily in the cultural backgrounds of different countries. The judges of the court reflect uniquely their diverse cultural origins and heritage. The court is not dependent on characteristics such as race, nationality or gender; it has no citizenry to acknowledge that it represents; its constituency is the Council of Europe.

Nor does it depend on any person’s presence within the territory of any particular entity. The constituents of the Convention are the universal confluence of rights springing from a development that is international. The rights are ethical norms, with a legal content that in modern times requires that those rights should be honoured and enforced by the “public authorities” of the Member States of the Council of Europe. In short, the court has judicial oversight of a system that is legally enforceable, internationally and domestically. It is subject to temporary or limited abridgment only, by each Member State, either by exigent circumstances, for example by emergency situations, or by a margin of appreciation, a doctrine developed by the court itself to accommodate national (domestic) interests.

Above all, it is ultimately for the court to interpret the meaning of the substantive rights conferred by the Convention. A Constitutional Convention after May 2015 is correctly identified as meritable, and to be welcomed. Then, if at all, is the moment for considering an updated UK Bill of Rights.

Louis Blom-Cooper QC P.L. 2013, Apr, 209-212

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Telecommunications Law considers the various legal relationships which may exist between network and service providers and also the emerging ‘over the top’ services such as voice over the Internet (VOIP) telephony. Contractual relationships between providers and consumers are analysed and extensive consideration is given to consumer protection issues in the context of universal service and privacy protection.

May 2013

January 2013

Volume 1 | 9780414027596 | £200 Volume 2 | 9780414027602 | £160 Volumes 1 & 2 | 9780414027619 | £265

9780414031036 | £150

The Law of Personal Property 1st Edition Michael Bridge; Louise Gullifer; Gerard McMeel; Sarah Worthington This title provides a treatment of personal property and covers both tangible and intangible property, including things in action, intellectual property rights and shares and securities. It also examines all modes of dealing with or transferring interests in intangible property.

July 2013

9781847037992 | £225

HOW TO ORDER

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ARTICLE

Introducing

WESTLAW UK INSIGHT We caught up with general editor Daniel Greenberg and project manager Sally Turvey to learn about Westlaw UK Insight

TS: WHAT IS WESTLAW UK INSIGHT AND WHAT SOLUTIONS DOES IT OFFER LEGAL PROFESSIONALS?

DG:

Westlaw UK Insight is an online encyclopaedia of the law of the United Kingdom, which gives people a rapid overview of the law, links to core materials for further research and contains cutting-edge analysis of areas of particular complexity or fluidity.

ST:

It provides legal professionals with answers to real-world research questions. Topical articles aim to provide succinct, up-to-date guidance on the law. Westlaw UK Insight enables you to find the solution to a particular issue quickly, rather than doing the analysis yourself.

TS: WHAT ARE THE KEY BENEFITS WESTLAW UK INSIGHT HAS TO LAWYERS?

DG:

I think the key benefit for small and medium law firms is the comprehensiveness of the encyclopaedia. The smaller firms have to be able to understand a wide range of issues without necessarily having in-house specialists, and Insight will be a valuable research tool for them when they have to orientate themselves rapidly in a relatively unfamiliar area of law. From a marketing point of view, contributing to Insight can help the smaller firms to showcase their niche expertise, and mark themselves out, for the benefit of in-house Counsel, local and central government and others; as market leaders in particular areas.

ST: 2

3

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There are three notable benefits.

1. It increases understanding of the law by including authoritative articles, helps legal professionals stay up-to-date and ensures lawyers are made aware of evolving changes in the law.

2. Improves productivity so rather than reviewing all primary sources and developing a brief statement

Westlaw UK Insight

of the law on a particular issue, Westlaw UK Insight does this for you. It’s also a time saver so there’s no more wading through hundreds of search results or huge textbooks.

3. Increases responsiveness by allowing you to respond to enquiries quickly and to focus on high-value, or core aspects of a case. It also enables you to get up to speed with a point of law quickly.

TS: DANIEL, HOW DID YOU BECOME INVOLVED WITH WESTLAW UK INSIGHT?

DG:

I approached Sweet & Maxwell a couple of years ago with a suggestion for a product that would pull together the disparate strands of material on Westlaw UK and provide coherence to the database overall. Sally Turvey and others in the business had already been thinking along similar lines, and we designed the product together.

ST:

We were thinking about how to make legal research easier and more efficient.

After conducting a series of market research studies, we concluded that there were two key elements to solving this problem – successfully deconstructing legal research aims and techniques – and then creating an intuitive interface that reflects the way lawyers think and act. Westlaw UK was organised around content type, rather than by topic and it was missing “the content glue” to hang everything together in a meaningful way. Daniel and our team spent hours brainstorming ideas – then turning these into diagrams, storyboards… and eventually into working prototypes, which we turned over to our customers to play with and feedback. It really was a collaborative effort. Our main focus was to remain open-minded and listen to what customers were saying.

TS: WHO CONTRIBUTES THE CONTENT?

DG:

We have more than a hundred leading barristers, solicitors and academics who are writing on their own areas of expertise, and the list is growing all the team. Contributors range from Silks and senior partners to pupils and trainees, and cover the entire range of the academic spectrum. I write personally on topics where I drafted the principal Acts or where I have been involved in advising clients recently; and I also write some of the overview articles designed to pull the expert contributions together.

TS: HOW OFTEN IS IT UPDATED?

DG:

We encourage authors to consider continually whether a legal development has given rise to a need for an update. Cases and new primary or secondary legislation can be reflected in articles by way of daily update, if necessary. Any material that comes in by way of update can be processed and put online the next day.

ST:

When authors deem a revision of an article is necessary they do so, there is no delay or publishing cycle with which we are tied to, so we can reflect the update on Westlaw UK Insight on the day that an event or change occurs. We also alert our customers to updated topics using Twitter and LinkedIn, alongside other legal news updates.

Lawyers can also “watch” or follow topics that are of particular interest to them – these appear as bookmarks on their Insight homepage – when a watched topic is updated an alert icon is displayed.

TS: ARE USERS ABLE TO SHARE CONTENT WITH THEIR COLLEAGUES?

ST:

Yes, users can share articles they like with colleagues using Twitter or LinkedIn, or simply email it to them!

TS: IS THE INFORMATION RELEVANT FOR THE WHOLE OF THE UK?

DG:

The encyclopaedia will eventually be UKwide and already includes a considerable amount of material that applies throughout the UK.

TS: HOW IS IT INSTALLED ONTO AN EXISTING WESTLAW UK ACCOUNT?

ST:

Customers do not need to install anything.

We have already enabled access to our customers. Just look out for the new heading “Insight” on the main navigation bar on Westlaw UK. You can also expect to find Insight articles in amongst your search results if you are using the global search on Westlaw UK. For example, if you enter the term “mines and quarries”, you will find the first result is an Insight article on this topic.

TS: HOW MUCH DOES IT COST? It’s included as part of the DG: Nothing.

Westlaw UK subscription.

ST:

Exactly. We felt this enhancement to Westlaw UK was so fundamental to the service that everyone should have access to it as part of their existing subscription.

Take the Westlaw UK Insight video tour at: westlaw.co.uk/insight

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CONTACTS

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If you have an existing online subscription (Lawtel, Westlaw UK) queries in the first instance should be sent to: smg.legalinsidesalesqueries@thomson.com

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