Small tidbit. The song is " A whiter shade of pale", not "a white shade

of pale."

-----Original Message-----

From: James Lee [mailto:j.s.f.lee@bham.ac.uk]

Sent: Thursday, July 30, 2009 5:29 PM

To: obligations@uwo.ca

Subject: The Final Judgments of the House of Lords

Dear Colleagues,

Further to Prof Stevens' e-mail, it is appropriate to note that today

saw the final seven decisions of the Appellate Committee of the House of

Lords. When our judges resume after the summer recess, they will take

their seats in the new Supreme Court for the United Kingdom. All the

decisions are available at:

http://www.publications.parliament.uk/pa/ld/ldjudgmt.htm

Moore Stephens is indeed most likely to be of greatest interest to

members of this list, as Prof Stevens suggests. It is also of the

longest decisions (in terms of paragraphs) of their Lordships in recent

years, and certainly since OBG v Allan [2007] UKHL 21.

Masri v Consolidated Contractors International Co SAL concerned the

enforcement of judgments.

R v C concerned the nature of consent in the context of several offences

under the Sexual Offences Act 2003.

Lexington Insurance Co v AGF Insurance Ltd concerned a reinsurance

contract.

Fisher v Brooker concerned the musical copyright in Procul Harum's "A

White Shade of Pale", and is perhaps particularly worth reading for Lord

Hope of Craighead's speech:

[8] The law of property is concerned with rights in things. The

distinction which exists between the exercise of rights and the

obtaining of discretionary remedies is of fundamental importance in any

legal system. There is no concept in our law that is more absolute than

a right of property. Where it exists, it is for the owner to exercise it

as he pleases. He does not need the permission of the court, nor is it

subject to the exercise of the court's discretion. The benefits that

flow from intellectual property are the product of this concept. They

provide an incentive to innovation and creativity. A person who has a

good idea, as Mr Fisher did when he composed the well-known organ solo

that did so much to make the song in its final form such a success, is

entitled to protect the advantage that he has gained from this and to

earn his reward. These are rights which the court must respect and which

it will enforce if it is asked to do so.

Transport for London Ltd v Spirerose Ltd is a compulsory purchase order

case, but there are some interesting observations concerning the

relationship between such cases and the general law of obligations.

The final decision of the Judicial House of Lords was R (on the

application of Purdy) v Director of Public Prosecutions [2009] UKHL 45.

Members who have an interest in medical law will certainly wish to read

it. It is this decision which is making the most impact in terms of

media coverage here, considering as it does the current UK position on

assisted suicide and its compatibility with the Human Rights Act 1998.

Their Lordships unanimously determined that the Director of Public

Prosecutions must promulgate "an offence-specific policy identifying the

facts and circumstances which he will take into account in deciding, in

a case such as that which Ms Purdy's case exemplifies, whether or not to

consent to a prosecution under section 2(1) of the [Suicide Act 1961

(which makes anyone who "who aids, abets, counsels or procures the

suicide of another, or an attempt by another to commit suicide... liable

on conviction on indictment to imprisonment for a term not exceeding

fourteen years.")]." With a view to the approach of the Justices of the

Supreme Court to judging, the penultimate sentence of the decision, from

Lord Neuberger Neuberger of Abbotsbury at [106], is worthy of note: "As

judges, we are concerned with applying the law, not with changing the

law: that is a matter to be decided by Parliament."

Best wishes,

James

--

James Lee

Lecturer

Director of the LLB Programme

Birmingham Law School

University of Birmingham

Edgbaston

Birmingham

B15 2TT, United Kingdom

Tel: +44 (0)121 414 3629

E-mail: j.s.f.lee@bham.ac.uk<mailto:j.s.f.lee@bham.ac.uk>

________________________________________

From: Robert Stevens [robert.stevens@ucl.ac.uk]

Sent: 30 July 2009 20:30

To: obligations@uwo.ca

Subject: Illegality Defence (again)

The House of Lords have handed down Moore Stephens v Stone Rolls Ltd

http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090730/moor

e-1.htm

Reduced to its essentials, it concerns a company which was used as a

vehicle for fraud. It goes into liquidation, and sues its auditors for

negligently failing to prevent the frauds being committed. The majority

hold that the claim fails on the basis ex turpi causa non oritur actio.

Quite right too.

We discussed the first instance decision a couple of years ago (

http://www.ucc.ie/law/odg/admin/2007.htm  - Alice in Wonderland)

Rob

--

Robert Stevens

Professor of Commercial Law

University College London