Restitution Discussion Group Archives
| Sender: |
Gordon Goldberg |
| Date: |
Thu, 8 Nov 2001 18:37:04 |
| Re: |
Etridge and the constitution |
Although probably even less advanced than he through
Etridge, I respectfully share Lionel's view. Legislation (unless
by an Act of Parliament, agreed to by the Commons and the Crown, as well
as by their Lordships) is ultra vires the House of Lords - Beamish
v. Beamish (1861) 9 H.L.C. 274 (I.) at 338-339. Thus, in their
judicial capacity their Lordships are limited to the induction of the
relevant principles from the previous cases and the application of those
principles to the facts of the case before them, so as to deduce its resolution
in favour of the appellant or the respondent. To purport to lay down what
will be invariably satisfactory in the future (though properly continuing
to let past transactions depend on the facts of each case) goes far beyond
these limits. Yet that is what Lord Browne-Wilkinson did in O'Brien
[1994] A.C. 180, at 196; and so I have always taught that, being pretended
legislation, what Lord Hobhouse calls "Lord Browne-Wilkinson's ... carefully
crafted scheme" could not be part of the ratio decidendi of O'Brien.
I submit such pretensions should cause no surprise because (as I tried
to argue in [2000] R.L.R. at 200 n.65) the Practice Statement (Judicial
Precedent) [1966] 1 W.L.R. 1234 is itself so tainted and perhaps may
be seen as the root of the evil.
-----Original Message----- I have been trying to get through Etridge.
Although I am not there yet, one thing has struck me.
In Kleinwort Benson there was some discussion
of prospective overruling, but it was not really given serious consideration.
This came up much more squarely in R. v. Governor of HM Prison Brockhill
(27 July 2000). This is the case which confirmed the liability of the
prison governor for wrongful imprisonment, when he calculated a release
date in accordance with earlier case law, but later case law (after his
calculation) overruled the earlier decisions and required an earlier release.
The Lords considered prospective overruling but while they left it open
as a possibility, they decided that such an option would not affect the
case at bar.
In the light of this I am struck by some
passages in the leading speech of Lord Nicholls in Etridge:
50. The principal area of controversy
on these appeals concerns the steps a bank should take when it has been
put on inquiry. In O'Brien Lord Browne-Wilkinson, at [1994] 1
AC 180, 196-197, said that a bank can reasonably be expected to take
steps to bring home to the wife the risk she is running by standing
as surety and to advise her to take independent advice. That test is
applicable to past transactions. All the cases now before your
Lordships' House fall into this category. For the future a bank
satisfies these requirements if it insists that the wife attend a private
meeting with a representative of the bank at which she is told of the
extent of her liability as surety, warned of the risk she is running
and urged to take independent legal advice. In exceptional cases the
bank, to be safe, has to insist that the wife is separately advised.
[emphasis in original]
Here I think Lord Nicholls is summarizing
what Lord B-W said in O'Brien. Later, after setting out his own procedures,
Lord N says:
...
80. These steps will be applicable
to future transactions. In respect of past transactions, the bank will
ordinarily be regarded as having discharged its obligations if a solicitor
who was acting for the wife in the transaction gave the bank confirmation
to the effect that he had brought home to the wife the risks she was
running by standing as surety.
This looks kind of legislative to me.
Contrast Lord Hobhouse:
100. To the end that lenders, those
advising parties and, indeed, judges should have clear statements of
the law on which to base themselves, I will state at the outset that
in this speech I shall agree with my noble and learned friend Lord Nicholls
and, specifically, the guidance which he gives concerning the role of
the burden of proof, the duties of solicitors towards their clients
(paragraphs 64-68, and paragraph 74), and the steps which a lender which
has been put on enquiry should take paragraph 79). I would stress that
this guidance should not be treated as optional, to be watered down
when it proves inconvenient (as may be thought to have been the fate
of Lord Browne-Wilkinson's equally carefully crafted scheme). Nor should
it be regarded as something which will only apply to future transactions;
it has represented, and continues to represent, the reasonable response
to being put on enquiry. ...
What do others think?
Lionel
From: Lionel Smith
Date: 07 November 2001 19:22
Subject: [RDG:] Etridge and the constitution
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