| From: | Purshouse, Craig <craigjp@liverpool.ac.uk> |
| To: | Nicholas LIU <nicholasliu@smu.edu.sg> |
| Gerard McMeel <Gerard.mcmeel@quadrantchambers.com> | |
| Matthew Hoyle <MHoyle@oeclaw.co.uk> | |
| 'Robert Stevens' <robert.stevens@law.ox.ac.uk> | |
| obligations@uwo.ca | |
| Date: | 18/06/2021 18:38:11 |
| Subject: | Re: SAAMCo safe |
SMU Classification: Restricted
Dear Craig,
I believe the analysis is correct under the (rather artificial) constraints of the exercise. The counterfactual question asks the reader to imagine a world which is the same in all ways save that the false thing that was said (e.g. “your knee is good”) was true (the knee actually was good, not that the doctor said “your knee is bad”). So here, Lord Burrows is imagining the same foetus, just with haemophilia somehow deleted from it.
Very best,
Nick
Nicholas Liu
Lecturer of Law
School of Law
Singapore Management University
55 Armenian Street
Singapore 179943
DID: +65 6828 9672
Email: nicholasliu@smu.edu.sg
From: Purshouse, Craig <craigjp@liverpool.ac.uk>
Sent: Friday, 18 June 2021 11:59 pm
To: Gerard McMeel <Gerard.mcmeel@quadrantchambers.com>; Matthew Hoyle <MHoyle@oeclaw.co.uk>; 'Robert Stevens' <robert.stevens@law.ox.ac.uk>; obligations@uwo.ca
Subject: Re: SAAMCo safe
Hello everyone,
I've just (re)joined the group with my new email address so please ignore if this has already been discussed.
I don't disagree with anything Rob has said but found the following part of Lord Burrows's judgment peculiar. He states (at [77]):
If we ask the question, would the claimant have suffered the same loss had the information/advice been true, the answer is “yes” as regards the autism losses (so that the scope of the duty of care does not extend to the recovery of the autism losses) but “no” as regards the haemophiliac losses (so that the scope of the duty of care does extend to the recovery of the haemophiliac losses). This is because had the information/advice that the claimant was not a carrier of haemophilia been correct, the claimant would still have given birth to an autistic child but would not have given birth to a child with haemophilia. Applying the counterfactual test therefore supports the view that the autism losses were outside the scope of the doctor’s duty of care.
I know that autism has some genetic basis but where is the evidence that any child the claimant had would develop autism? If she had been given the correct advice she would have aborted this child and had another. The above presumes that any egg from this woman and sperm from this father would result in an autistic child. The fact that many autistic people will have non-autistic siblings indicates that it is not the case. Have I misunderstood this or is the counterfactual wrong?
Best wishes,
Craig
Dr Craig Purshouse
Senior Lecturer in Law
School of Law and Social Justice
University of Liverpool
From: Gerard McMeel <Gerard.mcmeel@quadrantchambers.com>
Sent: Friday, June 18, 2021 1:27 PM
To: Matthew Hoyle <MHoyle@oeclaw.co.uk>; 'Robert Stevens' <robert.stevens@law.ox.ac.uk>;
obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: SAAMCo safe
Dear Matthew et al
The links may not all be obvious at the outset. For Swynson we were listed to be heard together with Fulton Shipping (The New Flamenco), and we all sat and watched each other's submissions (with a right to reply).
Only after the hearing did the UKSC decide Swynson was better paired up with ITC. Lord Neuberger at one point suggested we should be making submissions on the issues in ITC, but did not follow that up.
The perspective from Mount Olympus!
Gerard
From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent: 18 June 2021 11:30
To: 'Robert Stevens' <robert.stevens@law.ox.ac.uk>;
obligations@uwo.ca <obligations@uwo.ca>
Subject: RE: SAAMCo safe
External Email
It doesn’t seem that the cases were heard together (heard about a month apart). It continues what seems to be a recent UKSC practice of co-ordinating judgements on similar cases and delivering them together (ITC and Swynson; Morrisons and Barclays; Henderson and Stoffel). Most of these judgments only include passing reference to the other, often only in one direction given that the panels and leading judge are different.
These two cases however involve significant cross referral by each of the judges, including (because there are overlapping panels) to their own (“fuller”) judgments, which not only require both judgments to be read, but arguably require them to be read in parallel. What is worse, this will give the parties in each action the impression that their case was not decided on their arguments, but based upon considerations from and arguments made in cases they were not party to and did not have a chance to make submissions in.
That leads to the practice we see in what is likely the next “pair” of judgments (Times Travel v PIAC and Ukraine v Law Debenture Trust), where the parties in the latter action were able to intervene in the former and effectively get a second bite of the cherry in their arguments. But that is little comfort to the parties to the later case, who won’t get to make submissions their.
Matthew Hoyle
Barrister
One Essex Court
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From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: 18 June 2021 11:18
To:
obligations@uwo.ca
Subject: SAAMCo safe
A couple of cases heard together on the SAAMCo principle. Both right I think, with strong majority judgments by Hodge and Sales, with Reed, Black and Kitchin signing up. Leggatt and Burrows give separate concurring judgments with different reasoning.
The cases were pretty straightforward, IMO, if you'd just read Hoffmann.
Manchester BS v Meadows.
Building Society seeks accounting advice from an accountant, who tell them that the wheeze of "hedging accounting" is the way to go. As a result of the advice the Society engages in some gambling on interest rate movements via swaps contracts. The exciting accounting procedure hid how badly losing the swaps were. The regulator informs the BS that it can't use this exciting new accounting method to avoid regulatory capital requirements. To extricate itself from its arrangements, the BS ends up closing out the swaps for £32m.
The easier one is Khan v Meadows.
Woman seeks advice on whether she carries the haemophilia gene. Doctor negligently advises that she does not. Child is born who, if the advice had not been given, would not have been, who has both haemophilia and autism. Is the doctor liable for the costs of the autism (it is accepted that they're liable for the costs of haemophilia)?
The majority ask: what is the purpose of the duty?
In Manchester BS [34] the purpose of the advice was to enable the Building Society to adopt its exciting new business model. The BS failed to understand that they couldn't adopt this because of the auditor's advice. So, when the regulators told them to draw their necks in, the loss was within the purpose of the duty.
Khan is really straightforward. Was the purpose of the duty assumed by the doctor (to advise about the haemophilia gene) there to protect against the costs of autism? No [68]
Lord Burrows (who cites many academics on this list) would have placed more emphasis on policy matters. Lord Leggatt would have placed more emphasis on the language of causation. The majority don't agree with them.
The majority's approach seems to me to be clearly correct, but they add in an unfortunate six stage "test" for liability in negligence. You'd have thought they'd have learned their lesson with so many previous "tests" having gone down in flames after launch, but apparently not.
The reason there was a seven member panel was because it had been originally thought that SAAMCo was going to be challenged (one of the panel writes a textbook very critical of the rule introduced by Lord Hoffmann). This didn't happen, probably because the prospects for it being overturned at this point is zero. Good.
As a stylistic matter, I think it would be better if judges returned to just answering the question the facts before them pose. We have now had many cases and judgments attempting to give the "definitive" formulation of the SAAMCo principle (which is in fact relatively straightforward, as the majority make clear).
A welcome break from the grind of marking. (And the horror of being chair of examiners. Never see how the sausages are made).
Rob
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