Date: Wed, 30 Jul 2003 10:59:31 +1000

From: Andrew Robertson

Subject: Insurance/principles/policies

For those who are bored with this discussion, I am sorry to prolong it, but I feel obliged to offer some evidence to support Steve Hedley's point that the non-formalist approach to deciding cases and developing principle is not new. Lord Blackburn's speech in Foakes v Beer (1884) 9 App Cas 605 is a well-known example of the delicate interplay between doctrine, precedent and an appellate judge's understanding of the world. He said (at 622-3), referring to the doctrine (formulated by Coke) that payment of a lesser sum cannot be satisfaction of a greater:

'What principally weighs with me in thinking that Lord Coke made a mistake of fact is my conviction that all men of business, whether merchants or tradesmen, do every day recognise and act on the ground that prompt payment of a part of their demand may be more beneficial to them than it would be to insist on their rights and enforce payment of the whole. ... I had persuaded myself that there was no such long-continued dictum as to render it improper in this House to reconsider the question. I had written my reasons for so thinking; but as they were not satisfactory to the other noble and learned Lords who heard the case, I do not now repeat them or persist in them. I assent to the judgment proposed, though it is not that which I had originally thought proper.'

If Lord Blackburn had decided the case as he was originally disposed to do, based on armchair empiricism about business practice, would he have breached his judicial oath? I don't think so.

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