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NOTES OF CASES

PROVOCATION-THE NEW LAW


IND.P.P. v. Cumplin first the Court 04 Appeal and then the House
of Lords’-for different reasons-decided that the fact that a
defendant charged with murder was 15 years old at the time of the
killing was a matter which the jury was entitled to bear in mind when
considering whether the prosecution had proved beyond all reasonable
doubt that he was not provoked. In reaching this conclusion the
House of Lords overruled its own earlier decision in Bedder v.
D.P.P.3 which the Court of Appeal had sought to distinguish. The
point certified by the Court of Appeal as being one of general public
importance was
“ whether, on the prosecution for murder of a boy of 15, where

the issue of provocation arises, the jury should be directed to


consider the question, under s. 3 of the Homicide Act 1957,
whether the provocation was enough to make a reasonable man
do as he did by reference to a ‘reasonable boy of 15.’”4
The House of Lords approached the problem in general terms with
the result that in addition to Bedder’s case, Mancini v. D.P.P.5 and
Holrnes v. D.P.P.‘ also have been oven-uled. The outcome was that
the trial judge was held to have misdirected the jury and the
defendant’s conviction was reduced from murder to one of man-
slaughter. He had killed a man under circumstanw which, he
submitted, would have provoked any reasonable 15-year-old man
into kding; but following Bedder’s case the trial judge instructed the
jury to ignore the age of the defendant. In the words of Bridge L.J.
in the Court of Appeal7 they were told that “the criterion to be
applied in deciding whether a reasonable man would have reacted,
to whatever provocation the jury found established by evidence, in
the way that the appellant did, was a man of full age and maturity.”
Bedder’s case involved a man whose sexual impotence was said to
have been the reason why a prostitute had taunted and struck him
with the result that he had killed her in a rage. When tried for murder
the jury was instructed (correctly, in the opinion of the House d
Lords) that it had to consider the &ect of the deceased‘s conduct on
an ordinary person with the result that a sexually impotent man
would not be entitled to rely on provocation which would not have
made an ordinary person act as the accused did.
Unanimously, the Court of Appeal distinguished Bedder’s case
when hearing Camplin’s appeal. Giving judgment for himself and
Willis and Chrichton JJ., Bridge L.J. said that:
1 [1978] 1 All E.R. 1236. 2 [I9781 2 All E.R. 168.
3 ri954i 2 A I E.R.
~ 801.
4 i1978i 1 All E.R. 1236, 1242; [1978] 2 All E.R. 167 and 170.
5 [1941] 3 All E.R. 272.
6 [I9461 2 A11 E.R. 124. 7 [1978] 1 All E.R. 1236, 1238.

722
NQV. 19781 NOTES OF CASES 723
“(a)U the defects which the ‘reasonable man’ test is designed
to exclude are abnormalities, but youth, and the immaturity
which naturally ascompanies youth, are not deviations from the
norm; they are norms through which we must ali of us have
passed before attaining adulthood and maturity.”
By approaching the matter in this way in order not to give an
advantage to the exceptionidly sensitive, excitable, or hot-tempered
perm who might seek to raise the defence d provocation, the
Court of Appeal sought to explain the && of d o n 3 d the
Homicide Act 1957 whiah had made important changes in the law.
The section refers to the “ reamable man ”; and the court accepted
the submission by counsel for the defendant that while this excluded
such matters as drunkmess, impotence, cruelty, hot temper, pugna-
city, over-sensitivity etc., it could not be said that want of years falls
into the same category as a defect of character.
Unanimously the House of Lords dismissed the prosecution’s
appeal. Lord Fraser and Lord Scannan. cmcurred with Lord Diplock,
and Lord Morris and Lord Simon gave their own reasom but
cuncurred with the others on the form which an instruction to the
jury should take in suuh cases. Lord Diplock pointed out that
Section 3 was designed to mitigate the harshness of the common law
relating to provocation which thereafter could include words alone
(and thus Hdmes v. D.P.P.l0 no longer states the law); moreover,
with the effect of overruling M m k i v. D.P.P.” the Act requires it
to be left to the jury to decide whether a reasonable man might have
reacted to the provocation, if there is any evidence at all that the
dlost his d-cmtrd in response thereto. Lord Diplock said
that this mitigation would be stultified unless the jury could take into
account all thase factors which would affect the gravity of the
provocation; and the result of the 1957 Act is therefore that the law
as stated in Bedder’s case, to the effect that unusual physical
chafdcerktics were to be ignored, must be revised. He p f d
this view to that of the Court of Appeal, though he acknowledged that
thu r d g in Bedder’s case would permit of the W n c t i o n between
normal and abnormal characteristics. Lord Simm was of the same
view, considering that Bedder’s case had been “ undermined ” laby
section 3. Lord MQ& said that the changes effected by section 3
were such that “ a jury is fully entitled to cunsider whether an
accused person, placed as he was, only acted as even a reasonable
* [1978] 1 All E.R. 1236, 1241.
9 ’‘ Where on a charge of murder there is evidence on which the jury can And
that the person charged was provoked (whether by things done or by things said or
by both together) to lose his selfcontrol, the question whethw the provocation was
enough to make a reasonable man do as he did shall be left to be determined by the
jury; and in determining that question the jury shall take into account everything
both done and said according to the effect which, in thek opinion, it would have
on a reasonable man.”
10 [1946] 2 Ai-E.R. 124.
11 [1941] 3 All E.R. 272.
1 2 119781 2 All E.R. 168, 182.
724 THE MODERN LAW REVIEW [Vol. 41
man might have acted if he had been in the accused‘s situation.” l3
Lord Diplock-and thus Lord Fram and Lord Scarman-and L o d
Simon said that evidence on how the defendant’s idiosyncracies bear
on any alleged provocation is not admissible, for this is a matter
for the cofleotive common sense of the jury.”14 This seems to be
implicit in Lord Morris’ speech. All agreed with Lord Diplock on
how the jury should be directed in future:
“ I n my opinion a p r o p direction to the jury on the question
left to their exclusive determination by section 3 of the
[Homicide Act 19571 would be on the following lines. The
judge should state what the question is using the very terms of
the section. He should then explain to them that the reawnable
man referred to in the question is a person having the power d
self-control to be expected of an ordinary person of the sex and
age of the mused, but in other respects sharing such of the
accused‘s characteristics as they think would affect the gravity
of the provocation to him; and that th0 question is not merely
whether such a person would in like circumstances be provoked
to lose his self-control but also whether he would react to the
provocation as the accused did.”15
The situation now is that not only age but any other idiosyncracy
or personal characteristic may be borne in mind by the jury when
considering whether or not the defendant might have been provoked,
bearing in mind that the defendant is deemed to possess the same
degree of self-control as any reasonable person of his sex and age.
The introduction of the subjective element is to be welcomed, for
Bedder’s case has been extensively-and, it is submitted, justly-
criticised.16Bedder is consistent with evidence on the topic submitted
to the Royal Commission on Capital Punishment, although not with
its conclusions.” The law as it stands now in fact ef€edvely antici-
pates any changes which might follow on the view of the Criminal
Law Revision Committee which, provisionally, is that
‘‘We think that the test of provocation should be reformulated
so that the mused is judged with due regard to any disability,
physical or mental, from which he suffered. In our view, in place
of the reasonable man test there should be a requirement that
provocation is sufficient if, on the facts as they appeared to
the accused, it constitutes a reasonable excuse for the loss of
self-control on his part. Such a test would be more liberal than
the present law. In particular it would enable any physical
characteristics of the accused to be taken into account. In a
13 [I9781 2 All E.R. 168, 177. 14 [1976] 2 All E.R. 168, 183.
15 [I9781 2 All E.R. 168, 175; cf. R . v. R m e y (1942) 29 Cr.App.R. 14, which
was not referred to in Bedder’s case and is in clear contrast to it.
16 e.g. Smith & Hogan, Criminul Lmv (3rd ed., 1973), pp. 2 F 2 4 1 ; Ashworth,
“ The Doctrine of Provocation ” [1976] C.L.J.292; cf. Edwards, Provocation and
the Reasonable Man-Another View ” [ 19451 Cnm.L.R. 898; Odgers [ 19541 C.L.J.
165; and Brett, “The Physiology of Provocation ” [I9701 Crim.L.R. 634. Now
however see Smith & Hogan (4th ed., 1978) pp. 300-304; GIanville Williams,
Texrbook of Criminal Low (1978), pp. 490-493.
l7 (1953) Cmd. 8932; see especially para. 144, p. 53.
Nov. 19781 NOTES OF CASES 725
case such as Bedder the jury would be able to have regard to his
sexual impotence in deciding whether he had a reasonable
excuse for losing his sdf-control.” la
One effect of overmling Mancini v. D.P.P.l9 is that the so-called
“ reasonable relationship” rule remains merely as a consideration

to be borne in mind by the jury, not as a rule of law.2O This too


is a welcome development, for it is inconsistent with the rule in
Wmlmington v. D.P.P.21 to require the defendant to show that the
mode of resentment he used bore a reasonable relationship to the
provocation he experienced. Such evidence, as pointed out above,
would be inadmissible.
The situation of the bad-tempered man who kills seems to prove no
problem 22; if he acts deliberately he commits murder, and if he acts
notwithstanding his bad temper as a reasonable man of his sex and
age might have done then a verdict of manslaughter saems to be
unexceptionable. Howewer, if his bad temper is a symptom of
“such abnoamality of mind (whether arising from a condition
of arrested or retarded development of mind or any inherent
causes or induced by disease or injury) as substantially impaired
his m a k d responsibility for his acts and omissions in doing or
being a party to the killing,”
then, bearing in mind that the onus of p r d is now generally on the
defendant, the jury might properly return a verdict of guilty of
manslaughter due to diminished responsibility.
Camplin’s case, it is submitted, fits smoothly with the subjective
approach to mens rea as implied in Woolmington’s case and more
recently crystallized in D.P.P. v. In sum, it seems that
where questions of provocation arise the jury can now be invited to
adopt a common-sense approach to the evidence, for the trial judge
must now instruct it in common-sense terms.
M. E. BENNUN

INCITEMENT-h OBJECTIVE APPROACH TO THE


DEFINITION OF CRIME?
IN R. v. Whitehouse l the Court of A p p l quashed the conviction of
a man charged with inciting his 15-year-old daughter to commit incest
with him. The court did so with regret but found itself bound by the

1s Working Paper on Offences against the Person (August 1976, H.M.S.O.), para.
54, p. 21.
19 [1941] 3 All E.R. 272.
20 Cj. Lord Diplock’s remarks in Phillips v. The Queen [ 19691 2 A.C. 130.
2 1 [1935] A.C. 462.
22 Cj. the evidence of Lards Cooper and Goddard to the Royal Commission on
Capital Punishment, quoted in para. 142, p. 52, op. cit. See also Smith and Hogan,
Criminal Lcnv (3rd. ed., 1973), pp. 240-241.
23 119751 2 All E.R. 347. 24 [1975] 2 All E.R. 347.
1 [1977] 2 W.L.R. 925.

VOL 4 1 4 q 4 (11
726 THE MODERN LAW REVIEW [Vol. 41
principle that, for the purpose of incitement, it must be established
not only that the act incited is one prescribed by the criminal law but
also that the person incited could be potentially liable in respect of it.
Although the particular lacuna dmonstrated by the case has been
filled by the hastily drafted section 54, Criminal Law Act 1977, the
general issue d the principles to be applied in similar cases remains.
It is therefore submitted that the decision of the court was not
inevitable and that an alternative approach might have been adopted
consistent with both logic and authority which would better serve
the fundamental purpose of the criminal law in striking a fair and
utilitarian balance between the interests d the individual defendant
and of Society as a whole.

R. v. Whitehouse
Whitehouse had originally pleaded guilty. On appeal against
sentence the court queried whether the indiotment disclosed an offence
known to the law and granted the defence leave to appeal against
conviction out d time. The dficulty was that under section 11 of
the Sexual Offences Act 1956a incest can only be committed by
a woman who is over 16: on the principle that that which is incited
must be a crime, Whitehouse had therefore committed no offence.
Accepting this, the Crown on appeal did not seek to rely on a
literal reading of the indiatment but rested its case on the alternative
basis that the defendant had incited his daughter to aid and abet him
to commit incest under section 10 of the 1956 Act.3 Without express-
ing an opinion as to whether the indictment could support such a
construction the court rejected this contention. It was held that
since the combined & a t of d o n s 10 and 11 of the 1956 Act was
to protect women under 16, the girl would, under the principle in
TyrelZ,’ have committed no crime had she acted’as contemplated:
therefore her father could not be liable for inciting her.

The Traditional ‘‘ Subjective Approach ’’


The decision embodies the traditional approach which has been
applied perally to all cases where a secondary crime is dependent
upon the commission or contemplation of some other offence. Thus
in Walters v. L ~ n t the , ~ parents of a men-year-old who had dis-
honestly received from him a tricycle which he had taken were not
guilty because the tricycle could not be considered “stolen” as
a result d the child’s incapacity to commit a crime. This approach
applied to incitement is illustrated by Curr where the defendant’s
conviction was quashed because it was not proved that the
~ ~

2 s. 11 (1). ‘‘ It is an offence for a woman of the age of sixteen or over to permit


a man whom she k n m to be her grandfather, father, brother or son to have
sexual intercourse with her by her consent.”
3 s. 10 (1). “ It is an offence for a man to have sexual intercourse with a woman
whom he knows to be his granddaughter, daughter, sister or mother.”
4 118941 1 Q.B. 710. 5 119511 2 A 11 E.R. 645.
6 119681 2 Q.B. 944.
Nov. 19781 NOTES OF CASES 727

principal had the rnm reu required by the 5ubtantive offence.


The m e principle has been adopted for complicity : in Richards ’
it was held that the defendant could not be guilty of co~Selling
wounding with intent where the principals in the act were only guilty
of unlawful wounding as they lacked the specific intent required by
the more serious offence.
The traditional approaoh in cases where the liability of a party is
dependent upon the existence or Contemplation of some main crime
committed or intended to be committed by another may thus be
summarid as follows. Not only must the objective dements of the
main crime exist potentially or in fact, but there must be a principal
actor who is or would be responsible in law for them. Thus, for all
purposes the concept of crime is identified with criminality. Without
a criminal there is no crime.
That this approach when applied to “ dqxndent ” Crimes can lead
to an arbitrary result is demonstrated by Whitehouse’s unmeritorious
acquittal where its application enabled him to take advantage of a
defence designed to prot& a class of which he was not a member.*
Authovity for an Objective Approach
An early opportunity for the judges to develbp an objective
concept of crime was presented in TyIer9 where the defendant was
found guilty of a murder actually committed by one T h a n whose
liability was probably negatived by insanity. Although this decision
could have been based on a finding that, whatever Than’s liability,
the crime existed in an objective sense for the pupme of founding
the liability of an accomplice, the court preferred to rest its decision
on the more limited doctrine of inuocent agency, i.e. that Tyler
could be said to have h m l f committed the crime through the
instrumentality of Thom.
The result of this judicial choice is that where it would be inept
to allege that the secondary party has himself committed the crime,
and the principal is innocent, the secondary party cannot be liable.
Thus a conductor who negligently directs a bus driver cannot be
guilty d careless driving because he cannot be said to be ‘‘ driving.” l o
This would seem to be an unnmw restriotion on the scope of the
law since the policy consideration which prompted the creation of
innocent agency-that the liability of various actors should be con-
sidered independently-would apply equally where that conwpt is
excluded.ll
7 [1973]3 All E.R. 1088.
That the application of the subjective approach to complicity can also lead to
an arbitrary result is illustrated by Aft.-Gem’s Reference (No. 2 of 1975) [1975] 3
W.L.R. 11. It was held that where a procurer or an abettor of an offence. has full
knowledge of the circumstances of a crime but the principal does not, the accomplice
will be guilty if the offence is one of strict liability, but not where the offence is one
requiring full mens rea. 9 (1838) 8 C. & P. 816; 172 E.R. 643.
l o Thornton v. MitcheZZ [I9401 1 All E.R. 339.
l1 The mechanism of innocent agency may not be as limited as is here suggested.
In Cogan and Leake 119751 2 All E.R. 1059 a husband was found guilty of raping
his wife through the innocent agency of the first defendant. This head of the decision
VOL.41-(6) 4 (2)
728 THE MODERN LAW REVIEW [Vol. 41
It might be argued that an objective approach has been tacitly
accepted by the C Q in ~all those cases where a person is charged
as a a m p l k e or inciter and no evidence is either available or
demanded as to the actual or potential liability d the principal.
However there are only two cases in which such an approach appears
to have been adopted where the liability of the principal has been
spec5ca.lly adverted to. In Bourne l a it was held that the defendant’s
conviction for aiding and abetting his wife to commit buggery with
a dog must stand despite an assumption that, had the wife been
charged, the defence of duress would have been available to her.I3
More recently in Cogan and Leake,lq M e ’ s conviction for aiding
and abetting the rape of his wife by Cogan was affirmeo despite
Cogan’s acquittal on the ground of belief in con~ent.’~ Walters v. Lunt
was distinguished by the court on the ground that whereas the
dricycle in Walters was not stolen it was clear that Mrs. Leake had
bem raped.16This distinction is obscure. In both cases the objective
part of the c r h e had been committed but the principal‘s liability
had been negatived, in Cogan by lack of mens rea, in Wdters by the
statutory presumption of lack of mens rea arising throlugh infancy.
If this decision represents a rejection of the traditional subjective
approach in favour d an objective one, the court, in failing to
consider Bourne and finding it “(in)appropriate to review the law
generally ” l 7 failed to give any guidance as to the basis and mpe of
the principle involved. There are three possible tests to determine
whether a crime exists in the objective sense:
(a) All its elements are established but the liability of the principal
is negatived by some defene of a personal nature (e.g. infancy,
insanity or duress as in Bourne); or
has been criticised by Professor Glanville Williams [1976] C.L.J. 183 on the basis
that it is the “first occasion on which a person has been convicted of a crime as
perpetrator for doing something through an innocent agent when he could not have
been convicted had he done it himself,” and further that (innocent agency) looks
wrong where the crime refers to personal bodily behaviour which has not taken
place.”
See also G. R. Sullivan, 39 M.L.R. 350.
1 2 (1952) 36 Cf.App.R. 125.
13 Difficulty w t h this case as an authority for an objective approach lies in the
suggestion that the court’s decision was based on the view that duress went merely
to punishment and not to liability. (Edwards, 69 L.Q.R. 226) If this were the case the
substantive crime would exist in the full subjective sense even where duress could
be successfully pleaded. However, this suggestion can probably be disregarded as
inconsistent with the statement in the judgment that the result of duress plea would
be a not guilty verdict [ibid. 1281, and with the generally held view that duress does
negative liability.
See Cross, 69 L.Q.R. 354; Glanville Williams, “ Criminal Law ” (2nd ed.), p. 389.
14 [1975] 2 All E.R. 1059 discussed by Sullivan, 39 M.L.R. 350; I. R. Scott,
91 L.Q.R. 478.
1 5 The alternative ground for the decision is given in note 11 above.
16 Per Lawton L.J. “ T h e fact that Cogan was innocent of rape because he
believed she was consenting does not affect the ppsition that she was raped.” The
decision is particularly surprising in the light of the view expressed by Lord Edmund-
Davies in Morgan [1975] 2 W.L.R. 944 that in similar circumstances if the
conviction of the principal were quashed the conviction of an accomplice would have
been quashed also. 17 Ibid. 1061.
Nov. 19781 NOTES OF CASES 729

(b) all the elements of the actus reus are established but the
pnincipal lacks mens reu as to some circumstance (as in
Cogan); or
(c) all the elements of the actus reus are established but the
principal has a complete lack of the required mental element.
Although there is no direct authority for proposition (c). if the
rationale for adopting an objbjeotive approach is that for the purpose
of determining liability for a dependent crime the liability of the
principal in the main crime should be irrelevant, there would seem
to be no substantial reason for limiting the principle to either
proposition (a) or (b).

Application to Zncitement
Notwithstanding that inchoate offences and complicity frequently
co-exist and share much cofnmon history the same principles do not
autoniatically apply to them both 1 8 : whereas for complicity there
is only one offence for which each party is independently liable,
liability for incitement is distinct and also the substantive offence
need never be committed. However if the rationale of incitement is
“ the need to deter people from encouraging others to commit offences

even when no offence is d t t e d as a result of the encourage-


ment . . .” l9 it would seem irrational that the inciter is guilty where
the potentidy liable principal desists but not where the proscribed
actus reus is actually caused by an innocent actor.
Had the court in Whitehouse felt able to define crime objectively
for the purposes of incitement, then whichever of the three alternatives
suggested above oorrectly state the BournelCogun principle, the
father would have been liable for inciting his daughter.

The Future
Whatever the attractions of an objective approach, the decision
in Whitehouse does seem to indicate that it is probably now too late
for the courts to depart from their traditional adherence to a
subjective aplroauh for the purposes of incitement or other “ depen-
dent” crimes, except perhaps in the most repugnant of cases. Such
diffidence is not Universal. Recently Parliament and the Law Com-
mission have considered an objective approach to be appropriate in
limited arms. Under section 2 (4), Homicide Act 1957, where a
person who directly causes death raises the partial defence of
diminished responsibility the liability of an accomplice is unaffected
and he may still be convicted of murder. Similarly the Law Can-
mission has recommended that the narrow ratio of Bourne be given
statutory effect so that where one party to a crime successfully
pleads duress this should not affect the liability of an accomplice.2o
18 See generally I. R. Scott [1975] A.A.L.R. 289.
19 kaw Comm. Working Papex No. 50 (1973), para. 94.
20 Criminal Law, Defences of General Application,” Law Comni. No. 83, para.
2 (34) considered by A. T. H. Smith [I9771 Crim.L.R. 122.
730 THE MODERN LAW REVIEW [Vol. 41
The most recent example of this trend towards objectivity is section
54, Criminal Law Act 1977, which specifically deals with the White-
house situation. Section 54 (i) states: << It is an offence for a man to
incite to have sexual intercourse with him a girl under the age of
sixteen whom he knows to be his granddaughter, daughter or sister.”
If these measures demonstrate a recognition that it is illogical to
define crime subjectively for every purpose the piecemeal reforms
they produce are unsatisfactory in that they make for inconsistency
in the law between areas which would logically seem to require
similar treatment. Why for instan= should an objective approach be
applicable to diminished responsibility but not to infancy or insanity?
Why should the Law Commission’s recommendations on duress be
limited to accompliws and not apply to one who has incited the
crime? Most strikingly it is regrettable that Parliament, having
identified the gap exposed by Whitehouse, should have drafted
section 54 so restrictively. As has been noted by Professor Griew,
inciting a girl to have sexual intercourse with a pason other than the
inciter who is known to be her grandfather, father or brother does
not fall within the section.*l
No doubt in passing section 54 Parliament was concerned to rectify
the immediate problem prmmted by Whitehouse and felt it inappro-
priate to promote a general reform until after further consideration.
If as is suggested above it is now too late for the courts to develop
a coherent principk of objective crime for the purpolses of incitement
and other “dependent” crimes, it is to be hoped that the Law
Commission will find it appropriate to consider the anomaly exposed
by the case in the course of their current review of the general
principles of criminal law.z2
ROGERLENG.

TRICKOR TRESPASS?
THE recent decisioln in legrey v. Black’ underlines again the
unsatisfactory nature of the citizen’s protection from the exercise of
arbitrary police powers. The facts d the cam, which was an appeal
by case stated from the Brighton magistrates to the Queen’s Bench
Division, were relatively simple. The respondent, Black, was arrested
by two members of the police drug quad for the theft of a sandwich
from a public house. After he had been taken to the polke station
and charged with the theft, and before he had been bailed, the police
told him that they intended to search his premises. He tmk them
there, they searched his room, and they found cannabis resin and
cannabis. The justices found as a fact that the respondent had not
21 The Criminal Law Act 1977, note to s. 54.
22 The Law Commission have not yet finally reported on incitement. The issues
discussed above were not adverted to in their Working Paper No. 50, “ Inchoate
Offences, Conspiracy, Attempt and Incitement.”
1 [I9781 1 All E.R. 555.
Nov. 19781 NOTES OF CASES 73 1
given permission for the search of his room, and therefore the police
did not have the authority required by &on 23 of the Misuse of
Drugs Act 1971 to enter and search the room, as they did not have
a search warrant. Consequently the justices, on the authority of
King v. R.2 considered that anything found in the coursa of the
unlawful search would not be allowed to be used in evidence
against the respondent, and thus dismissed the charges against him.
The High Court’s opinion was sought on the following questions;
namely :
(1) Were the justices right in ruling that the evidence of the finding
of the articles was inadmbible if they found that the respondent
had not given his c o m t to the search?
(2) Following a lawful arrest without a warrant did the police have
the porwer to search the rapondent and the respondent’s premises?
On the latter point the court held that police officerswho arrest a
suspect for one offmce at one place cannot,without a search warrant
or the consent of the suspect, go and search his house at another
place where the contents of the (housedo not, on the face of them,
bear any relation to the offence with which the suspect is charged
or the evidence required in support of that offence. To find otherwise
would have been to sanction a departure from established principles.
Lord Widgery3 referred to Lmd Denning’s judgment in G h n i v.
Junes4 to the effect that plice &cers are entitled to remwe goods
in the pu>ssession of a s w p a or in his home where the officers
reasonably W e v e that the goods are material evidence in relation
to the crime for which he is arrested. It was dear that the officers
in the instant case were not conducting a search in order to find
evidence relating to the theft of the sandwich. The search therefore
constituted a trespass. Forbes J.5 also refuted the argument that where
the police had arrested an accused at one place they had authority
i p s 0 fact0 to search in another place the dwelling-house of the person
whom they lawfully arrested. Again, no authority for t h i s could be
found in the judgment of Lord Denning in Ghani v. Jones.
The next argument a d v m d by the appellant, and the‘one that
groved sucasdul, was that even though the justices were correct in
holding that the entry of the police officers was UnlaM, nevertheless
this should not prevent the cannabis r& and the cannabis that they
found from bedng admitted in evidence at the respondent’s trial.
Lord Widgery based his w c e of this argument on a combination
of two points. First, the proposition that provided that evidence is
relevant the method of its obtaining is irrelevant had a firm basis in
English law, as stated in Kuruma v. R.=This by itself did not dispose
of the case however, but had to be read in conjunction with the
seumd p i n t that the magistrates had a general discretioa to refuse

3 At p.- 558.
4 I19691 3 All E.R. 1700, 1703. 5 At p. 560.
6 [1955] A.C. 197.
732 THE MODERN LAW REVIEW [Vol. 41
to allow the prosecution to call evidence if to do so would be unfair
or olpl>ressive. This was a discretion to be exercised sparingly:
“if the case is excqtional, if the case is such that not only
have the police of€icers entered without authority, but they have
been guilty d trickery or they have misled someone, or they have
been oppredve or they have been unfair, or in other respects they
have buhaved in a manner which is morally reprehensible, then
it is open to the justices to apply their discretion and decline to
allow the particular evidence to be let in as part d the trial.” ‘
It was assumed that the justica had considered the argument
as to discretion, although this was not clear from the case, but it
was held that the decision of the justices could not be supported
on the exercise of their discretion simply because the evidence had
bean, obtained by police officers who had entered without the
appropriate authority.
Thus on the one hand the decision contains a laudable refusal to
extend police powers of search beyond existing authority; while on
the other hand it displays considerable judicial caution, turning
essentially on the question of whether or not the police behaved in
such a way in obtaining the incriminating evidence as to justify
exercising the discretion not to admit. The case law is clear that
relevance is the essential factor in deciding whether evidence is
admissible or not, rather than the means by which the evidence was
procured, unless the making of a aonfetsion is involved. However this
principle is subject to the general discretion to disallow evidence
if to allow it would be unfair or oppressive. In Kuruma v. R.” the
appellant was stopped and searched at a police road block. He was
found to be in unlawful possession of two rounds of ammunition,
and was sentenced to death. The regulations authorising the stop-
and-search gave this power to any police officer of or above the rank
of assistant inspector, but the search of the appellant was made by
two police officers below the rank of assistant inspector. Lord
Goddard, in a brief judgment reviewed the authorities and concluded
that relevance was the key factor, and that the court was not con-
cerned with how the evidence was obtained. Thus a remedy in tort is
not precluded, but its existence is irrelevant to the question of whether
the evidence should be admissible or not unless the acts that constitute
the tort in question also constitute unfairness or oppression. The
authorities were reviewed rather more thoroughly in King v. R.*
In this case the appellant was charged with possession of ganja. The
ganja was found following an unlawful search of the appellant’s
person. However the Privy Council considered that the evidence
had not been obtained by conduct of which the Crown ought not
to take advantage, so there was no ground for interfering with
the exercise of the court’s discretion to admit the evidence obtained
by the search.
7 At p. 559.
* [1955] A.C. 197. 9 [1969] 1 A.C. 304.
Nov. 19781 NOTES OF CASES 733
There are in fact d y two decided cases where the English
courts have excluded evidence on grounds of unfairness. In R. V.
Payne l o the defendant, who was accused of drunken driving, agreed
to a medical examination, having been told that it would be no part
o€ the doctor's duty to give an upinion as to Ms unfitness to drive.
The doctor who had examined him gave evidence before the London
Sessions d the extent to which he was under the influence of drink,
and the amused was Qonvicted. The Court of Criminal Appeal held
that the evidence was admissible, but the Chairman should have
refused to d o w the evidence to be given as if he had realised that
the doctor would give evidence the accused might have refused to
subject himself to examination.
The only two English decisionS supporting exclusion on the grounds
of unfairness then are cases where a trick or at least misleading
conduat was involved. It may well be asked why this should be a
weightier factor than illegality, such as took place in K u r u m . King
and Jeflrey, and also when police misooaduct will constitute oppres-
sion such as to render evidence obtained thereby inadmissible. Would
it really have made any difference in Jeflrey if the police had obtained
Mr. Black's consent to the search of his premises by means of a trick?
Surely not. It would be highly unsatisfactory if the rules d evidence
depended on such distinctions as that suggested by a comparison
between the two cases of a trick and a trepQss. More important in
Puyne is the fact that the accused might have refused to subject
himself to examination if he had k n m that the doctor might in fact
give evidence. A refusal by Mr. Black would not have prevented
the police from obtaining a warrant to search his premises. provided
that their grounds for suspicion were Suaoient. However it is not
so much the faot that Mr. Black's premises were searched unlawfully,
since as it happened cannabis was disvrnwered there, but the impli-
cations for the i n n m t p e r m whose premises are searched in
similar Oircumstances that gives particular cause for concern. From
a civil libertarian point of view it is d y invidious for such police
behaviow to be supported tacitly by the courts. There would be
little point in the requirement of a warrant in any case if the police
are able to assume that, if they obtain evidence as a result of their
illegal searoh, it will be admissible in all but the highly exceptional
case. They are also unlikely to be deterred by the possibility of an
action in trespass, which is highly improbable and, even if successful
would not rasdt in such damages as might be awarded being paid
by the guilty officer,llbut out of the police fund.
Although the existence of a civil remedy may well explain why
evidence will not be excluded when illegally obtained, and the
absence of a remedy explain the greater likelihood of exclusion when
the evidence is obtained unfairly but not illegally, such a conclusion
10 119631 1 All E.R. 848. See also R. v. Conrt [1962] Crim.L.R. 697 (same
decision on similar facts).
11 s. 48, Police Act 1964. For a more detailed discussion of the unsatisfautory
nature of a civil action in such cases, see Heydon El9731 Crim.L.R. 690,693-694.
734 THE MODERN LAW REVIEW [Vol. 41
should not be taken as a justification in itself. Even if one were to
iLcc6pt that a civil remedy is a thing of value in this context, the
apparent sanctioning by the ju&iciary of unlawful police conduct can
only have the dual effectsof enmuraging pliw misconduct and
reducing public respect f o r the law and the judicial process.
A rule as strictly in favour of exclusion as English Law favours
inclusion brings with it its own problems of inflexibility.la Though
both the English and Unlted States rules have the advantage of cer-
tainty, or a substantid degree of certainty, it is suggested that the
advantages of certainty are outweighed by the need to take account on
a case to case basis of the two competing interests: “ (a) the interest
of the citizen to be protected from illegal invasions of his liberties by
the authorities, and (b) the interest of the State to secure that evidence
bearing upon the co1T11ILisson of Crime, and necasary to enable justice
to be done, shall not be withheld from courts of law on any merely
formal or t e c h i d ground.”13 In the attempt to reconcile those
inter- the Scottish (and Irish 14) courts take acoount of a number
o€ different factors in deciding whether illegally or unfairly obtained
evidence should be excluded. Thus matters such as the question of
how serious the illegality was; whether there were circumstances of
urgency or emergency; how easy it would have been to obey the law.
and how serious the offence being inquired into was, will be
co11side1red.~~Applying these to the instant case, although the trespass
was not @culmly serious, there is no mention in the report of
circumstanm d urgency requiring the immediate search of Mr.
Black’s premises before a warrant could be obtained, nor (perhaps
not surprisingly) that a wrrant would not have been obtained if it
had been applied for. The offence in d a t i o n to which the illegal
search was carried out was by no means a serious one, but the
erosion of civil liberties that the court’s sanction of the police
misconduct in this case entails is far from trivial.
All in all it is diilicult to escape the conclusion that had the case
fallen to be decided by a Scots or Irish court the decision would
have been different. It is strongly suggested that, particularly at a
time when a Royal Commission on Criminal Procedure is Sitting,
serious consideration should be given to the adoption of a series of
factors along the lines of those outlined above in deciding whether
or not improperly obtained evidence should be admitted. Such a
scheme would avoid the necessity of modifying the substantive ruks
regulating warrants, search and arrest that many consider the
introduction d an exclusionary rule would involve, though the time
may be ripe in any case for a review of these rules.
DAVIDK. ALLEN.
*a Heydon, sup;, at p. 697.
1s Per Lord Cooper (Lord Justice General) in Lawrie v. Muir, 1950 S.C. (J) 19, 26.
See also McGovern v. H.M. Advocate, 1950 S.L.T. 133; Fairley v. Fishmongers of
London, 1951 S.C. (J) 14; H.M. Advocate v. Turnbull, 1951, S.C. (33 96.
1 4 e.g. R. v. Murphy [1%5] N.I.L.R. 138.
15 For discussion of these and other factors, see the cases cited at note 13 and
Heydon [1973] Crim.L.R. 603,607-610.
Nov. 19781 NOTES OF CASES 735
HOWARD MARINE A N D DREDGING CO. LTD. v, A. OGDEN A N D SONS
(EXCAVATIONS) Lm. : SHIETING GROUND
THE movement of Contract from Intention to Reasonableness
encourages speculation. How much of the old will be carried forward?
What will be the pattern of the new? Will there be great dislocation
during the transition? The recent decision of the Court of Appeal in
Howard Marine and Dredging Co. Ltd. v. A. Ogden and Sons
(Excavations) Ltd.2 is interesting not least because it hints at some
part of the answers to these important questions.
Although the case was “very complicated,” the fact situation
was simple enough. The defendants required two sea-going barges
for the purpose of carrying earth out to sea to be dumped there.4
They hired two German-built barges from the plaintiffs who had
the file of German shipping documents in their London office. These
documents revealed that the deadweight capacity of the barges was
some 1,055 whereas Lloyd’s Register quite mistakenly
showed a figure ot 1,800 tomes. During a pre-contract interview at
the defendants’ Yorkshire office, the plaintiffs honestly but wrongly
represented the capacity of the barges as being some 1,600 tomme
The representation was made from memory and was based on the
Lloyd’s figure. The shipping documents were not checked at this
time. After contract the barges were used for six months before their
true Capacity was discovered. Ogdens paid E20,OOO on account. The
plaintifk withdrew the barges and duly claimed the outstanding hire
on them. The defendants counterclaimed. Two questions of law
a r m : (1) was the plaintiffs’ representation actionable? and (2) if so,
could liability be excluded by contract? Bristow J. found for the
plaintiffs ‘; but the defendants’ appeal succeeded.
(1) Was the representation actionable?
Ogdens argued that the representation was actionable on any one
of three pounds: (a) as a collateral oral warranty; (b) on the
principles of Hedley Byrne and Co. Ltd. v. Heller and Partners Ltd. 8 ;
or (c) as a misrepresentation under the Misrepresentation A d 1967.
The Court of Appeal were unanimous in rejecting the first ground.
Bridge L.J. did not think that the plaintiffs “ever intended to bind
1 I put this rather loosely: here reasonableness embraces both fairness and
reasonableness. Later I suggest that fairness and reasonableness represent rival
normative frameworks.
2 [1978] 2 W.L.R. 515.
3 Ibid. at p. 520.
4 This was in pursuance of a contract with the Northumbrian Water Authority
who were constructing a sewage works for Tyneside.
6 The documents gave the deadweight figure only in freshwater. However, ‘‘ the
dBerence between freshwater and seawater deadweight capacity was minimal.”
Zbid. at p. 532.
6 The capacity of the barges was also discussed some months earlier in the course
of two telephone conversations. As a result of some misunderstanding Ogdens
fpimed the impression that the barges had a capacity of 1,700 tomes. However
there was no misrepresentation [here].” Zbid. at p. 521.
7 For an account of which see ibid. at pp. 518-519.
8 [19641 A.C. 465.
736 THE MODERN LAW REVIEW [Vol. 41
themselves by suoh a collateral warranty.” Lord Denning M.R.
mentioned the modern approach to collateral warranties but then
seemed to derail himself by treating it as a question of main, contract
rather than collateral warranty.1g Shaw L.J. felt that in the circum-
stances the basis for a collateral warranty was “perhaps too
tenuous.” This suggests that collateral devices will not figure
prominently in the new scheme of things.12
The second ground was supported only by Shaw L.J. Having
resisted the temptation to squeeze a collateral promise out of the
situation ha applied the “ gravity of the inquiry ” version of Hedley
Byrne13 so as to produce a duty situation. Since Ogdens had no
direct access to the “ specific fact ’’ l 4 with which they were cmcerned
the elements of relian-at least with hindsight-and fault were
heavily in their favour. By contrast Lord D m i n g M.R. applied the
same version of Hedley Byrne only to conclude that if the plaintiffs
chose to represent the capacity of the barges without reference to
their file then that as Ogdens’ risk. A routine explanation of this
disagreement could be supplied by pointing to the leeway in applying
law to facts: unlike Shaw L.J., Lord Denning M.R. did not think
that the facts evidenced a serious inquiry.15 However a deeper
explanation surely would have to account for Lord Denning M.R.3
view that Ogdens “ought to have got expert advice on their own
behalf.” l6 This is testimony to more suppxt for the fault principle
and/or-ought implying can-a reluctance to let equally powerful
parties transfer a risk by simple inquiry.” Bridge L.J. held obiter
that there was no duty and that even if there was a duty then there
was no breach.’*
Fortunately for Ogdens their third ground was supported by a
majority of the court. The crucial issue here was whether the
plaintiffs could, within the terms of the proviso to section 2 (1) of
the Misrepresentation Act 1967 prove “ that [they] had reasonable
.
ground to believe . . that the facts represented were true.” Although
9 [1978] 2 W.L.R. 515, 529. But how long is it since the representor’s actual
intention really counted?
10 For the modem approach see in particular J. Evans and Son (Portsmouth) Ltd.
v. Andrea Merzario Ltd. [1976] 2 All E.R. 930, 933; on which see my “ Suisse
Atlantique: Last Seen Sinking Slowly” (1977) 128 N.L.J. 433. For the derailment
see [1978] 2 W.L.R. 515, 525; a curious off-shoot it seems of Lord Denning M.R.’s
boldness in Dick Bentley Productions Ltd. v. Harold Smith (Motors) Ltd. [1965]
2 All E.R. 65, 67. 11 [1978] 2 W.L.R. 515, 533.
12 Yet the flexibility of the collateral contract ygues strongly for its retention.
On the formation/performance flex;bility see my Of Cups and Coins and Con-
tracts *’ (1976) 27 N.I.L.Q. 414, 419.
13 119641 A.C. 465, 539 (Lard Pearce). In applying this test Shaw L.J. followed
the lead given by Lord Denning M.R.; likewise in preferring the minority opinion
in Mutual Life and Citizens’ Assurance Co. Ltd. v. Evatt [I9711 A.C. 793, see
[1978] 2 W.L.R. 515, 533-534. 1 4 [1978] 2 W.L.R. 515, 534.
15 Although Ogdens noted down the representation, Lord Denning M.R. felt that
they should have asked for the representation itself to be put in writing, ibid.
at p. 526. 16 Ibid. at p. 526.
17 A case of Contract striking back at Tort?
18 Zbid. at p. 532. The significance of this is that one can satisfy the Hedley Byrric
standard without necessarily discharging the burden under s. 2 (1) of the Misrepre-
sentation Act 1967. Cj. note 21, infru.
Nov. 19781 NOTES OF CASES 737
Lord Denning M.R. supported Bristow J. in thinking that the plain-
ti& had discharged this burden, the majority of the murt thought
otherwise. The discussion of this p i n t reveals at least four inter-
pretations of the proviso in section 2 (1). The representor may be
required to establish :
(a) not only due care in collecting and verifying the grounds for
his belief but also a reasonable inference as between such
reasonable grounds and the belief itself; or
(b) due care in collecting and verifying the grounds for his
belief 19; or
(c) a reasonable inference as between whatever grounds he has
(reasonable or otherwise) and the belief he holds; or
(d) in the case of simple parroting, a reasonably reliable source.2u
Seemingly the majority applied (c) 21-a weak requirement-but it
availed the plaintiffs not one bit. For, with both the shipping
documents and Lloyd‘s Register as the source of their belief, and-
putting the majority view at its strongest-with actual notice of the
material discrepancy between the documents and the Register,,,
the plaintiffs’ preference for the Lloyd’s figure was a totally unreason-
able inference. It violated both the expert and the lay expectation
that “ the original figures in the ship’s documents [would be] more
reliable than the derivative figures in Lloyd’s Register.”23

(2) Could liability be excluded by the contract?


On appeal, the plaintiffs sought to affirm the judgment of Bristow J.
on the further ground that the terms of the charterparty excluded
19 It is just possible that Bristow J., who treated the question under s. 2 (1) as
one of negligence, took this view. However, (c) looks a good deal more likely.
Cf. note 22, infra.
20 At [1978] 2 W.L.R. 515, 527. Lord Denning M.R. said: “All that was in
[the representor’s] mind was the 1,800 tonnes in Lloyd’s Register which was regarded
in shipping circles as the Bible. That afforded reasonable ground for him to believe
that the barges could each carry 1,600 tonnes pay load.”
21 Zbid. at p. 532, Bridge L.J. said: “But the question remains whether [the
representor’s] evidence, however benevolently viewed, is sufficient to show that he
had an objectively reasonable ground to disregard the figure in the ship’s documents
and to prefer the Lloyd’s Register figure. I think it is not.”
22 This is complex and necessarily compressed. The components of the majority
view that I have suggested are: (1) the deadwEight capacity figures in both the
shipping documents and Lloyd’s Register had registered (whatever that may
mean) with the plaintiffs; (2) the discrepancy had been noted; (3) the Lloyd’s figure
was preferred; and (4) the resultant belief was an unreasonable inference from the
facts of (1). Although (1) is a fixed feature of the majority view support for other
progressions could be found in the judgments. At (2) the point might be that the dis-
crepancy had not been noted but should have been; while at (3) the point might be
not so much that the Lloyd’s figure was preferred, but rather that the figure in the
shipping documents was “ de-registered,” as it were, on inadequate grounds. Once
these variations are applied the majority view looks more like (b) than (c). The
minority view differs on (1) for Lord Denning M.R. followed Bristow J.’s finding
that although ,fh“ represeEtor had seen the shipping documents the deadweight
figure had not registered in his mind. This fits quite well with (c): on the basis of
the Lloyd’s figure only the representor’s belief was a reasonable inference. Quuere:
if the majority had followed Bristow J.’s finding would (c) have been reworked so
as to require a reasonable inference as between the representor’s belief and the
information that would have ‘‘ registered ” with a reasonably careful representoll
23 Jbid. at p. 531.
VOL. 41--(6) 5
738 THE MODERN LAW REVIEW [Vol. 41
any liability for misrepresentation and moreover that such exclusion
satisfied the requirements of section 3 of the Misrepresentation Act
1967.’* The majority held however that it would not be “fair and
reaso~nable” within the meaning of section 3 for the plaintiffs to rely
on their exemption
Discussion of this point was rather sketchy but answers were
suggested to three leading questions on the future treatment of
exclusion clauses. First, will exclusion clauses be construed strictly?
Will the policy of ‘‘ tortuous construction ” 2 6 continue? Lord Denning
M.R.’s view was that in future there would be “ n o need-and I
suggest no warrant ” ” for any such policy. Yet by contrast Bridge
L.J. said that such clauses ware “ to be narrowly construed ” 2 8 and
Shaw L.J. implicitly seemed to support such a policy. Secondly, what
jurisdictional policy will the Appeal Courts follow in reviewing a trial
court ruling? One view is that espuused by Bridge L.J.: “The
judge having asked himself the right question and answered it as he
did in the exercise d [his statutory discretion], I ca.n see no ground
on which we could say that he was wrong.” 29 The counter to that of
course is the othef view, namely, that the Appeal Courts should
freely exercise the discretion de now.
The third and most intriguing question is this: what criteria will
the courts employ in determining whether an exclusion clause is
‘‘ fair and reasonable ”? Here there are two competing frameworks of
thought: the framework d c‘fairness,” an essentially backward-
looking, standing-on-a-principle mode of thought; and the framework
of “ reasonableness,” a forward-looking, all-things-considered, loosely
utilitarian apprc~ach.~~ Lord Iknning M.R. clearly followed the
“reasonableness” approach taking into account a wide range of
2 4 S. 3 holds than an exclusion or restriction relating to misrepresentation
“ shall be of no effect except to the extent (if any) that, in any proceedings arising
out of the contract, the court or arbitrator may allow reliance on it as being fair
and reasonable in the circumstances of the case ” (emphasis supplied). Now of c(yurse
we have a substituted s. 3 in s. 8 (1) of the Unfair Contract Terms Act 1977.
This makes the test ‘‘ the requirement of reasonableness as stated in section 11 (l).”
Section 11 (1) maintains the criteria of fairness and reasonableness but focuses on
inclusion rather than reliance.
2 5 The clause in question was clause 1 of the charterparty which provided:
‘‘ On handing over by the Owners the vessel shall be tight, staunch and strong but
charterers’ acceptance of handing over the vessel shall be conclusive that they have
examined the vessel and found her to be in all respects seaworthy, in good order
and condition and in all respects fit for the intended and contemplated use by
the charterers and in every other way satisfactory to them.”
2 6 Per Diplock L.J. (as he then was) in Robophone Facilities Ltd. v. Blank [ 19661
3 All E.R. 128, 142, and see my “ ‘ Remedy-Stipulation ’ in the English Law of
Contract-Freedom or Paternalism? ” (1977) 9 Ottawa L. Rev. 95.
2 7 [1978] 2 W.L.R. 515, 527.
2 8 Zbid. at p. 532. Indeed Bridge L.J. held that clause 1 of the charterparty only
covered those attributes which “ would be apparent on an ordinary examination of
the vessel ” ibid. at p. 532; and, deadweight capacity did not fall within this category.
2 9 Zbid. at p. 533.
30 At the normative level this is a hotly contested competition. Cf. Wasserstrom,
The Judicial Decision; Dworkin, “ Does Law Have a Function? A Comment on the
Two-Level Theory of Decision” (1964-65) 74 Y.L.J. 640, and Dworkin, “Hard
Cases” (1975) 88 H.L.R. 1057.
Nov. 19781 NOTES OF CASES 739
considations 31 including the “ trouble and expense ” 32 caused to the
parties by the decision. The majority merely endorsed the ruling of
Bristow J., the latter apparently holding that an exemption covering
negligent misrepraentatim was not “ fair and reasonable.” Quite
possibly this evidences the “ fairness ” mode of thought with fault as
the crucial principle.
Conclusion
There is no question of the movement to Reasonableness working
wonders: rather, the question is one of wondering how it will work.
Clearly Cuntract is not going to settle readily into a new shape.
Inevitably there will be t r a n s i t i d difficulties but two special
problems loan large: first, the crucial statutory discretion is built
on two incompatible normative frameworks; and, secondly, within
both frameworks there is potential for an acute conflict between the
ideas of fault and c(M1sent.
ROGERBROWNSWORD.
FORUMNON CONVENIENS-AN ENGLISHDOCTRINE?
THEEnglish courts have traditionally resisted the importation into
English (law of the Scottish and American doctrines of Forum non
C0nveniens.l “ The right of access to the King’s Court,” it has been
said, “ must not lightly be refused.” In MacShannon v. Rockware
Glass the House of Lords, extending its earlier decision in
The Atlantic Stat-,* has so m&ed the traditional vbw that one
would now be justified in saying that English colmmon Law has,
finally,6 developed its own variant of the
The power d the courts to stay proceedings, even in cases where
31 Viz. equal bargaining strength, no enforced standard form, both sides well
aware of the clause, the common occurrence of such a clause., and Ogdens having
the opportunity to check the information for themselves. Lord Denning M.R. also
seemed impressed by the role that exemption clauses might play in minimising
litigation between commercial men where the dispute hinged u m n a conflict of
evidence. 32 119781 2 W.L.R. 515. 528.
1 See Dicey & Morris (9th ed.), pp. 219-220 and 5th Cumulative Suppt., 1977,
p. 220; Cheshire, Private Znternational Law (9th ed.), pp. 123-126; Morris, The
Conflict 01 Laws, pp. 80-84 and 1975 Suppt., at p. 12.
2 St. Pierre v. South American Stores (Gath and Chaves) Ltd. Per Scott L.J.
[1936] 1 K.B. 382, 398.
3 MacShannon v. Rockware Glass Ltd.; Fyfe V. Redpath Dorman Long Ltd.;
Jardine v. British Steel Corporation; Puterson V. Stone Manganese Marine Ltd.
[19781 1 All E.R. 625; 119781 2 W.L.R. 362.
4 Atlantic Star, The, The owners of the Atlantic Star V. The owners of the Bona
Spes [1973] 2 All E.R. 175. See note: 36 M.L.R. 649 (M. G. Bridge); [1973]
C.L.J. 240 (J. G. Collier); [1973] I.C.L.Q. 748 (A. Maclean).
See Inglis (1965) 81 L.Q.R. 380; Kahn-Freund (1977) 26 I.C.L.Q. 825 esp. pp.
850 et seq.; MacClean (1969) 18 I.C.L.Q. 931; and see dictum per Lord Denning
M.R. in The Maharanee of Baroda v. Wildenstein [ 19721 2 All E.R. 689, 693.
6 The name forum non conveniens is anathema to English judges perhaps from
fear of confusion with other doctrines. So long as one remembexs that different
legal systems may operate, under the same overall name, doctrines widely distinct
in their operative detail but similar in their objectives, there would Seem no reason
to reject a term accepted generally as covering this broad area. Cf. Hesperides
Hotels Ltd. and Another v. Muftizade [1978] 2 All E.R. 1168 at p. 1 1 7 6 ~per Lord
Wilberforce; at p. 11828 per Lord Fraser.
740 THE MODERN LAW REVIEW [Vol. 41
proper jurisdiction has been founded, is laid down in proviso (a) to
section 41 of the Supreme Court of Judicature (Consolidation) Act
1925 and R.S.C.,Ord. 18, r. 19. This is a discretionary power and
the cases are concerned with the conditions and circumstances in
which it should be exercised. The traditional view, the classical
statement of which is by Scott L.J. in St. Pierre v. South American
Stores (Gath & Chaves) Ltd.,’ stipulated two conditions which had
to be fulfilled for a stay to be ordered. The defendant would have
to prove that “. . . continuance 04 the action would work an injustice
because it would be oppressive or vexatious to him or would be an
abuse of the process of the Court in m e other way” and would
further have to prove that a stay would “. . .not cause an injustice
to the plkintiff.” A mere balance of convenience would not suffice.
The words “ oppressive ” and “ vexatious ” were given a subjective
meaning connoting moral blameworthiness on the part of the plaintiff
and a desire to harass the defendant. The difficulty of proving bad
faith is a known feature of the law and this instance is no exception.‘
In addition, the defendant would have to prove that a trial elsewhere
would cause no injustice to the plaintiff. If one remembers that in the
traditional view an English forum offered self evident advantages
over a foreign it becomes apparent that it would be a fortunate
defendant who was able to discharge the combined burden of these
two conditions.
In The Atlantic Star, the House of Lords rejected an invitation to
discard, in toto, the old St. Pierre test and substitute in its stead
the Scottish doctrine of Forum non Conveniens. Their Lordships did,
however, put a new gloss on Scott L.J.’s statement which materially
affected its operation. The majority felt that a less introverted
approach was called for and achieved this, principally, by giving the
words “ oppressive ” and “ vexatious ” a meaning wider than their
natural and hitherto legal usage. The subjective element was dropped
and it was no longer necessary to show bad faith. It would be
sufficient to dmonstrate that the continuance of p r o d i n g s would
“. . . in a reasonable sense be oppressive looking to all circumstances
inchding the personal position of the defendant.” lo The invitation
7 See note 2 ante. “ T h e true rule about a stay under s. 41, so far relevant to
this case, may I think be stated thus: (1) A mere balance of convenience is not a
sufficient ground for depriving a plaintiff of the advantages of prosecuting his action
in an English Court if it is otherwise properly brought. The right of access to the
King’s Court must not be lightly refused. (2) In order to justify a stay two conditions
must be satisfied, one positive and the other negative: (a) the defendant must satisfy
the Court that the continuance of the action would work an injustice because it
would be oppressive or vexatious to him or would be an abuse of the process of the
Court in some other way; and ( b ) the stay must not cause an injustice to the plaintiff.
In both the burden of proof is on the defendant.”
8 See Logan v. Bank of Scotland (No. 2 ) [1906] 1 K.B. 141; Egbert v. Short
[1907] 2 Ch. 205; Re Norton’s Settlement [1908] 1 Ch. 471, where actions were
stayed in circumstances of mala fides.
9 See The Atlantic Star [1973] 2 All E.R. 175, 181 per Lord Reid.
10 Ibid. The composition of the House in MacShannon was: Lord Diplock, Lard
Salmon, Lord Fraser, Lord Russell and Lord Keith. In the Atlantic Star: Lord
Reid, Lord Wilberforce, Lord Kilbrandon (majority) and Lord Morris of Borth-y-Gest
and Lord Simon of Glaisdale.
Nov. 19781 NOTES OF CASES 741
to consider all circumstances would allow the court to take into
account the position of witnesses and generally all relevant factors
as is the practice in relation to the plea of lis alibi pendens. The
court would then have to strike a balance between the disadvantages
to the plaintiff and the ccoppression” of the defendant. In effect,
the distinct c‘positive-negative’7 St. Pierre test merged into one
weighing-up process. The decision was not clear as to the respective
burdens of proof on plaintiff and defendant and it is thought that
in this respect no change was intended. In addition, The Atlantic
Star was concerned with the in rem Admiralty jurisdiction of the court
and much turned on the interpretation and scope of international
conventions.l1
Thus, although the traditional view was liberalised, it was not clear
whether the judgment in The Atlantic Star was to affect in personam
cases, and the vagueness of its precise operative terms made it
necessary for the present case to make the long journey back to the
House of Lords.
MacShannon v. Rockware Glass Ltd.-to which were joined three
similar cases--concerned a Scottish employee d a company which
operated in Scotland, but whose registered office was in England.
MacShannon was injured at work in their Glasgow factory and his
case for compensation was taken up by his trade-union, whose
headquarters were in England. The union, advised by their regular
English solicitors, issued a writ in the High Court in London. These
simple facts are representative of a trend which has grown over the
last few years largely due to the industrial expansion related to North
Sea Oil exploitation.’2 On one point all 10 judges who considered
the case were agreed, namely, that “Anyone with nothing but
common sense to guide him would say that (the claims) ought to
be tried in Scotland.” 13 The defendants applied for the action to be
stayed. They complained about the additional cost involved in having
the case tried in England the general inconvenience to the witnesses
and their employers. The plaintiffs contended that they had bona fide
advice that litigation in Scotland may be less advantageous in terms of
Scottish legal procedure and rules of evidence, the prospective
damages and costs, the length of trial and consequent expense and
that, in general, the outcome would be less certain. Master Lubbock
refused the request for a stay’“ as did Goff J.” and the Court of
Appeal (Lord Denning M.R. dissenting).’“ The House of Lords,
reversing the decisions of the lower courts, allowed the appeal and
ordered a stay. In rmhing this result the earlier decision in The
Atlantic Star was reviewed and, while agreeing with the trend and
l1 1952 Brussels Convention. International Convention on certain rules concerning
civil jurisdiction in matters of Collision signed at Brussels May 10, 1952; ratified
by U.K. March 18, 1959 (Cmnd. 1128).
12 Lord Diplock remarked that in the last three years 44 similar cases were started
in the English High Court; at p. 631.
l 3 r19771 2 All E.R.at p. 453 per Stephenson L.J. 14 May 20, 1976.
1 5 November 16, 1976. ‘8 [I9771 2 All E.R.449.
742 THE MODERN LAW REVIEW [Vol. 41
outcome of that case, their Lordships sought to put the legal issues
on a firmer and more rati0na.I footing. They questioned the device
of ‘‘libemlising” the natural and accepted meaning of the words
“vexatious” and “oppressive,” believing that this might lead to
c~nfusion.~‘ They @med the outright elimination of the words from
the St. Pierre test or in any event their relegation to an instance of a
wider principle.18They also made changes in respect of the burden of
proof. Their judgment in MacShmnon amounts to a construction of
a new framework, only loosely connected with the old St. Pierre
test, within which decisions on applications for a stay must henceforth
be considered.
A distinction is to be drawn between cases where a foreign jurisdic-
tion is the natural and appropriate forum, and cases where England is
the more appropriate forum for the acti011.l~In this context the term
natural-forum must be understood as that with which the action
has the most real and substantial connection.2oIf the defendant can
make a prima facie case demonstrating that England is not the
natural forum and that there is a forum which is natural and appro-
priate, he will, in the first stage, have to shosw merely that incon-
venience and unneoessary expense will result from the continuance
of proceedings.21The burden is then shifted to the plaintiff who must
show “reasonable justification” for his choice of an English court.
There is no longer a presumption in favour of English justice.z2If
the plaintiff fails to show such reasonable justification, a stay may be
granted without more ado. Even if the plaintiff shows reasonable
justification, it will still be open to the defendant to try and prove
that a refusal to stay proceedings would cause him an injustice,
whereas a itay would cause no injustice to the plaintiff.23In doing
this the defendant need not show vexation and oppression and may
rely on a broad notion of a “ balance of justice.” The precise meaning
to be given to “ reasonable justification ” and to the comparative
test of “ justice ” will be examined below but it is already apparent
that in relation to cases, the prima facie natural forum of which is
outside England, a new two-tier test has evolved which is far
stricter on the much maligned forum shopping plaintiff. In the
second category of cases, where England is the natural forum, or in
any event where there is no prima facie foreign natural forum, the
plaintiff need not justify initially the bringing of the action in
England and it will be for the defendant to prove that the continuation
‘1 Lord Diplock at p. 6 3 0 ~ Lord ; Salmon at p. 6 3 6 G ~ ;Lord Fraser at p.
~ ; Russell (implicitly) at p. MA.
6 3 9 ~ Lord
l* The House, in The Atlantic Star, was no doubt mindful of the provisions of
s. 41 of the Act which specifically mentions the words “ oppressive and vexatious *’
as grounds for granting a stay. Lord Salmon, in McShannon, relied on earlier
authority to show that s. 41 did not limit a stay to cases of oppression at p. 6 3 5 ~ - ~ .
19 Lord Diplock at p. 6 3 1 ~ ;Lord Keith at p. 644G-I and at p. 6 4 5 A 4 ; Lord
Salmon at p. 6 3 7 s ~ . 20 Lord Keith at p. 644H.
21 Lord Diplock at p. 6 3 2 ~ ;Lord Salmon at p. 636c, Lord Keith at p. 64Sa.
2 2 See note 9 ante.
23 Lord Keith at p. 6 4 5 ~ ;Lord Salmon at pp. 6 3 7 s ~ and 638c; Lord Diplock
at pp. 6 3 2 and~ ~~ ~ O E - F .
Nov. 19783 NOTES OF CASES 743

of the action in England will cause him injustice and that a stay will
cause no injustice to the plaintif€.
The House d Lords is envisaging here a dichotomous situation
in which cases will fall neatly into their natural-forum category. In
MacShannon, the facts so clearly pointed to Scotland that little
discussion was devoted to this point. This asumMon, of an easily
as- * le dichotomy begs the question; for surely there will be
many cases where the crucial issue to be decided will be the very
problem d determining the natural forum. This omission may be
regarded as an oversight and a lacuna in the judgment to be fdled by
subsequent decisions. Alternatively it may indicate the fundamental
approach of the House which perhaps differentiates it from other
similar doctrines. The power to stay is essentially a discretionary one.
The allocation of fora and the decision whether to stay proceedings
will not turn on the question of the natural forum; this serves merely
as a pointer to one of the tests outlined above and it is these tests,
concmnd with the actual balance of justice based, inter aliu. on the
facts of the case, which will determine the issue. Thus, even where
England is the natural f m , a defendant may be able to show, albeit
with dilkulty, that, on the balance d justice, a stay should be
granted. Conversely, where England is dearly not the natural forum,
a plaintiff who is able to show reasonable justification, and where no
injustice will be caused, may be allowed to proceed with his action.
The system remains loaded in favour of the plaintiff in that only
in cases where it can be shown both that England is not the natural
forum and that a foreigu natural forum does in fact exist will the
stringent two-tier test be invoked. What then will constitute ’‘ reason-
able justification” and how is the “balance of justice” to be
determined?
By their very nature these concepts are not capable of precise
formulation and only future case law will provide a guide to their
meaning and allow a synthesis of working dehitions. As the House
was agreed that Scotland was a natural forum for the case,
M u c S h m o n itself comes within the first category d cases involving
the two-tier test. Although their Lordships did not discuss ‘‘reasonable
justification ” at length, they insisted that advantages advanced by the
plaintiff would have to be objectively ascertainablea4: thus the
bona fide belief of the plaintiff in the superiority of the English
system over the Scottish one was found to be erroneous in fact and
could not avail him. Moreover, the advantages claimed in justification
must be personal to the plaintiff, e.g. place of residence and “ personal
convenience both as respects the trial and preparation.”26 The
convenience of the location of the plaintiffs trade union and solicitors
were not, strangely perhaps, in the eyes of the House of Lords, deemed
to come within the requirement of personal advantage. If however.
24 Lord Keith at pp. 6 4 5 ~and 6466;Lord Diplock at p. 631c; Lord Salmon at
p. 6 3 7 ~ .
z5 Lord Diplock at p. 632~;and see Lord Keith at p. 645c, relying on Devine v.
Cernenfufion Co. Lrd. [I9631 N.I. 65.
744 THE MODERN LAW REVIEW [Vol. 41
the plaintiff could show a substantive and significant legal juridical
advantage in bringing the action in England, this would amount to
reasonable justification. Before turning to the question of the “ balance
of justice,” it should be remembered that the advantages raised by the
plaintiff in justification w i l l be weighed against the disadvantages
adduced by the defendant. The two tiers fuse together and, on this
view, it may be possible to suggest that the effect of McShannon
is to place the burden of proof on the defendant when England is the
natural forum (or where there is no prima facie foreign natural forum)
and on the plaintiff when there is a foreign natural forum.
In considering the question of the “ balance of justice,” both Lord
Diplock and Lord Salmon, with whom Lord Frases concurred,2B
suggested a restatement of the St. Pierre test from which the words
“ oppressive ” and “ vexatious ” were omitted.27The defendant would

still have to show that another court existed where justice could be
done at substantially less inconvenience and expense to himself and
that there would be no denial of any material advantages to the
plaintiff.28The court would consider what justice demands 2 9 and,
in doing so, might take into account the convenience not only of
the litigants but also of the witnesses. Even an dement of public
policy might be introduced, namely, “that the administration of
justice within the United Kingdom should be conducted in such a
way as to avoid any unnecessary diversion to the purposes of
litigation.’’30Here, as in The Atlantic Star, the process is designed
to strike a balance between two competing claims, rather than follow
the stringent negative-positive St. Pierre framework. On the facts
of the present case31 the House agreed that the defendant had
establlished that he would be involved in inconvenience and expense
by continuance of the action in England and that the plaintiff had
failed to prove reasonable justification. Although one may question
the lack of importance attached by their Lordships to the convenience
and benefit ta the plaintiff of having his case conducted from London
bv the exwrienced solicitors of his trade union, one must welcome
t6is definitive introduction into English law of an approach and
doctrine a 2 long overdue. JOSEPH H. H. WEILER
2 6 Lord Keith adopts, in this context, the view expressed in The Atlantic Star
which prefers the retention of the words “ oppressive ” and “ vexatious ” albeit with
a liberalised meaning at p. 643H-I. Lord Russell “ detected a further liberal use of
the water jug ” at p. 640~.
2 7 Although Lord Diplock’s restatement goes slightly further (p. 630~-F)than that
of Lord Salmon (p. 637a), the practical effect is minimal. Lord Fraser concurred, on
this point with Lord Diplock. 28 Ibid. 2 9 At p. 636e (Lord Salmon).
30 At p. 6 3 2 ~(Lord Diplock); at p. 6440 (Lord Keith). There may be tension
between the requirements of the “ adminktration of justice ” and the personal
advantages to the parties. Their Lordships did not discuss this point.
31 Which falls into the category of cases where a foreign natural forum exists.
3 2 One must remember that the Scottish doctrine does not, as is often presumed,
operate on the bare principle of a balance of convenience. It is also concerned with
a notion of justice as between the parties. See SociJtJ du Gar case [ 19261 S.C.(H.L.)
13. MacShannon leaves open the question whether the new framework will be appli-
cable to cases concerning legal systems outside the United Kingdom. See esp. Lord
Salmon at p. 631%~.
Nov. 19781 NOTES OF CASES 745

THEEURYMEDON;
AGROUND
OR AFLOAT?
THE decision of The High Court of Australia in Port Jackson
Stevedoring Pty. Ltd. v. Sdmond & Spraggon (Australia) Pty. Ltd.'
provides yet another contribution to the judicial debate upon third-
party protection under bills d lading. It is, however, unlikely to
clarify many of the problems in this area or to stimulate any
unequivocal solutions. The respondents were consignees of a cargo
of razor blades. The appellant stevedores were appointed by the
carriers to discharge the cargo and to arrange f o r its delivery to
the respondents. The cargo was unloaded and warehoused by the
appellants but was then removed iby a thief who had !been admitted
to the goods without documentary authority. In the face of clear
evidence of negligence on their part, the appellants sought to avoid
liability as noncontractual bailees by invoking certain clauses in
the bill of lading.2 These clauses purported to extend the protection
conferred upon the carriers to any servant, agent or independent
contractor to whom they deputed performance of the contract of
~arriage.~ They were clearly assented to by the respondents and the
debate centred upon their application to the appellants, who were
ostensibly strangers to the bill.
Three currents of opinion are discernible from the report.
According to Mason and Jacobs JJ. the operation of the clauses in
favour of the appellants, although acceptable in principle after
The Eurymedon? could not ibe sustained on the language d the bd.
This document, by purporting to exempt the third-party from liability
" while acting in the course o f or in connection with his employ-
ment," limited the appellants' protection to those occasions upon
which they were acting as agents for the carriers. They had to
be engaged in work which the carrier had contracted to perform,
and their potential liability had (apparently) to be one for whlich the
carriers would (apart froan the bill) have been answerable. Here,
the misddivery of the cargo occurred when the appellants were
acting, not as agents for the carriers, but as independent bailees;
their conduct as warehousemen was unrelated to any obligation
assumed by the carriers because the carriers' obligations had ceased
upon delivery over the ship's raL5 Stephen J. agreed on this
point, arguing that certain words in the bill which appeared to
envisage a subsequent immunity may have been inserted because the
1 (1978) 18 A.L.R. 335, afirming [1977] 1 Lloyd's Rep. 445 (New South Wales
Court of Appeal).
2 No reliance was placed upon the doctrine of the bailment upon terms: see
Morris v. C. W . Marfin & Sons Lfd. [1966] 1 Q.B. 716, 729, 730; Gillespie Bros.
Ltd. v. Roy Bowles Transport Lfd. [ 19731 Q.B. 400, 412, per Lord Denning M.R.;
cf. Philips Morris (Australia) Pry. Ltd. v. Transport Commission [ 19751 Tas.S.R.
126, where the doctrine was unconvincingly disapproved.
3 The provision was i n " Himalaya " form. See generally " The Himalaya Clause
-Heresy or Genius? " by William Tetley, Q.C. (1977) 9 Journal of Maritime Law
and Commerce 111.
4 [1975] A.C. 154 (P.C.).
5 (1978) 18 A.L.R. 335, 370; cf. Gilchrist, W a f t & Sanderson Pty. Ltd. v. York
Producfs P t y . Lfd. [1970] 3 All E.R. 825.
746 THE MODERN LAW REVIEW [Vol. 41
carriers had contemplated the prospect of becoming bailees in
person after delivery; they were not designed t a afeguard anyone
else. So far as concerned third-parties, the protection of the clauses
was expended upon discharge from the ship’s tackle.6
Banvick C.J. disagreed. He thought that upon a realistic and
sensible inteqxetation the exempting provisions continued in force
during the appellants’ custody as bailees.T He further aligned
himself with Mason and Jacobs JJ., (and against Stephen J., upon
the principle of third-party protection. Stephen J. refused to con-
strue the bill as crating any contract between the respondents
and the appellants. He pointed out that clauses of tihis kind ante-
dated the positing of Lord Reid’s five conditions in Midland
Silicones* by m e 10 years. To read than as producing some
contractual immunity would require either rewording them or
straining their existing terminology beyond reasonable bounds. This,
in the interests of comity and uniformity, he found it impossible
to d a 9 To similar effect appears the judgment d Murphy J.,’O
whioh contains little more than a restated animadversion to tihe
principle of third-party protection. Barwick C.J., on the other hand,
found the provisions of the bill entirely proficient in protecting the
stevedores, and he alone of the High Court Eknch favoured a
judgment in their favour. He dismissed the ground upon which the
New South Wales Court of Appeal had held in favour of the
respondents (viz. that the stevedores were unable to demonstrate
reliance upon the u.nila&al offer of protection when they performed
the necessary act of acceptance by unloading the goods) by observing
that the pr&ent transaction of immunity disclosed, not a unilateral
contract, but a mutual initially non-binding agreement, rendered
binding by the subsequent provision d the agreed or contemplated
consideration. In such an environment (totally distinct from that which
obtains where an offen: is to be accepted by conduct) the contideration
is simply the doing d the act; no “reliance” is necawary as an
accompaniment to performance. The essential characteristic of the
c o w u s batween respondents and appellants, as evidenced by the
bill of ladhg, was
“ to provide an a g e d w ~ u e n c e to future action should that
action take place: to attach conditions to a relationship axising
from conduct. . . . The performance of the contemplated act
both supplies the occasion for those conditions to operate and
the consideration which makes the arrangement contractual.” ’’
The learned Chief Justice declined to consider whether, prior to
-~
6
7
.-~
11978)
_, 18 A.L.R. 335. 358.
-.
~~~

Ibid. at pp. 349-351.


8 Scruttons Lid. v. Midland Silicones Ltd. [1962] A.C. 446, 474.
Q (1978) 18 A.L.R. at pp. 354-357.
lo-lbid.. at pp. 316-318.
11. Ibid. at p. 344, relying upon what the learned Chief Justice took t
o be a
tacit assumption of the majority of the Privy Council in The Eurymedon [1975]
A.C. 154 ibid. at p. 346. Cf.The Queen v. Demers [1900] A.C. 103; Atiyah (1978)
94 L.Q.R. 193, 205-206.
Nov. 19781 NOTES OF CASES 747
suah performance, either party might resile unilaterally from the
agreement,
The resultant theoretical problems render it difficult to provide
an immediate assessment d the value of Barwick C.J.’s analysis.
It may be that, once the problems of drafting are overcome, courts
will continue to prefer to analyse the relevant transaction as an
offer of immunity on the part of the consignors (or consignees),
which ripens into a contract upon commencement of performance
by the act of unloading. The attractiveness of this route to protec-
tion is enhanced by the refusal of both Barwick C.J., and Mason
and Jacobs JJ., to awly the strict and rigid requirement of a clear
demonstration of reliance upon the cargo-owners’ offer. Barwick C.J.
endorsed this as an alternative theoretical basis of exemption and
a p e d to regard the stevedores’ knowldge of the offer as a
sufficient accompaniment to performance to generate a concluded
contract.12 Mason and Jacobs JJ. held tihat proof of performance
of the required act combined with knowledge of the offer oontem-
plating that act is prima faok evidence of acceptance and may
therefore, without any furbher positive evidence, generate the
necessary wnsid~rabion.’~ They relied upon the judgment of Starke J.
in R. v. Clarke 14: contrast the more recent decision of the New
South Wales Court of Appeal in Dalgety Australia Ltd. v. Harris.15
In the present case the appellants were safeguarded because the
respondents had failed to displace the inference that their perform-
ance of sthe contemplated act constituted cunsideration.
From the fretwork of intersecting rationdkations, only three
conclusions can be drawn: (i) a broad acceptance of the principle
of The Eurymedon Is; (ii) a refusal to construe exclusion clauses
(whether quoad liability or quoad beneficiary) spaciously or realisti-
cally“; and (iii) a sharp disagreement as to whether all of Lord
Reid’s five conditions in Midland Silicones’* are applicable to the
unilateral contract analysis.’@Unfortunately, it is for its opacity and
disunity that the decision is chiefly conspicuous. It is unlikely, for
this reason, to afford much comjfort to commercial lawyers.
N. E. PALMER.
P. J. DAVIES.
12 (1978) 18 A.L.R. 335, 346-347.
1s Ibid. at pp. 365-361, again relying upon a tacit assumption in The Eurymedon
(ante): “ There the element of consideration was held to be satisfied in circumstances
where all that appeared was that the stevedore performed his services with knowledge
. .
of the eXistence of the shipper’s offer. . Plainly their Lordships did not regard
it as a case in which the stevedore was obliged to adduce actual evidence of
its intention to rely on the offer.The Eurymedon is therefore an authority on this
mint.”
14 (1927) 40 C.L.R. 227, 244.
l5 [19771 1 N.S.W.L.R. 324.
16 Rut cf. Stephen J. at (1978) 18 A.L.R. 335. 352.
1’ But cf. the judgment of Barwick C.J., ante.’
1 8 [1962] A.C. 446, 474.
1 9 See Barwick C.J. and Stephen J. at pp. 345, 356355 (where this was denied);
cf. Mason and Jacobs JJ. at pp. 363-365 (where it seems to have been accepted) and
Murphy J. at p. 376.
748 THE MODERN LAW REVIEW [Vol. 41
VANISHING CARPETS AND THEBURDEN OF PROOF
THE Unfair Contract Terms Act 1977 constitutes the most recent
attempt by the legislature to protect consumers from unreasonable
exemption alauses.‘ Just under a year before the Act came into force
(on F&ruary 1, 1978) the Court of Appeal decided what may prove
to be one of the last cases to discuss the common law rules relating
to exemption clauses in consumer contracts: this was the case of
Levison and mother v. Patent Steam Carpet Cleaning Co. Ltd.2 In
discussing this decision which, ingr alia, clarified one point in
relation to the burden of proof where fundamental breach is alleged,
this note also considers whether the same result would be achieved
if the new Act were applied to similar circumstances.
The faots were these. Mr. and Mrs. Levison owned a carpet worth
E900. They entrusted it to the defendants for oleaning. The stipulated
date for return was not met, and the defendants’ replies to requests
for information provide a good example of how to stonewall a
customer. Eventually they told Mrs. Levison over the telephone:
“ We are sorry but it has been stolen.” The Levisons thereupon sued

for breach of contract. In the county court they were awarded


damages of &900. The defendants appealed. Their defence was based
on two exemption clauses, contained in a document signed by Mr.
Levison when the carpet was collected, and limiting their liability
to E40.
The first p i n t which the Court of Appeal had to consider was the
time at which the contract was made. If, as the plaintiffs argued, it
was formed when Mrs. Levison telephoned the defendants and asked
them to collect the carpet, then the exemption clauses which were
contained in the document signed by Mr. Levison would not have
been incorporated, in the absence of a previous course of dealing3
There had in fact been previous similar contracts between the parties,
and Lord Denning relied on these, not in order to establish that
the exemption clauses were incorporated, but to say that because the
plaintiffs knew that the defendants’ usual practice was to require a
signature on a form at the time of collection, the contract was not
formed until that point.4 This approach would presumably mean
that if the terms of the contract, as opposed to the manner of
dealing, had changed between the previous and present transactions,
the plaintiff would have been bound by the new terms. If, however,
the course of dealing was used to show incorporation, it would be
the terms of the previous contract that would be incorporated, and
no change would be binding. The other two members of the Court
of Appeal, Sir David Cairns and Lord Justice Orr, agreed with Lord
1 See also, e.g. Misrepresentation Act 1967; Supply of Goods (Implied Terms)
Act 1973.
2 r19771 3 ~ i E.R.
i 498.
3 See e.g. ONey v. Marlborough Court Ltd. [1949] 1 K.B. 532; Spurlrng v.
Bradshuiv [I9561 2 All E.R. 121.
4 At p. 502.
Nov. 19781 NOTES OF CASES 749

Denning that the contract was formed at the time of collection, but
placed no reliance on the existence of previous
If the exemption clauses were in fact part of the contract between
the parties, the next question was whether the defendants could rely
on them. Condition 2 (a) said : “ The maximum value of any carpet,
rug or tapestry delivered to the Company for any purpose whatsoever
shall if the area. thereof exceeds 4 square yards be deemed to be Ma00
per square yard, and if the area does not exceed 4 square yards shall
be deemed to be E10~00.”(On this &is the Levisons’ carpet would
have been deemed to be worth E40.) Condition 5 said:
“A ll merchandise is expressly accepted at the owner’s risk and
owners are recommended eithes to insure such merchandise in
such manner as to cover them whilst in the Company’s hands or
to instruct the Company to insure it as their agents in such sum
and in such manner at their cost as they shall specify.”
The plaintiffs argued that these clauses were incompatible with each
other, and that the defendants could not therefore rely on either
of them.
Once again the Court of Appeal was unanimous in rejecting the
plaintiffs’ argument. Lord Denning felt that the clauses should be read
together, so that clause 5 applied only to losses in excess of the sum
arrived at by applying the limitation of value under clause 2 (a).*
The other members of the court felt that there was no conflict between
the clauses. Where both were applicable the defendants could elect
not to rely on the total exemption under clause 5, but to rely on the
limitation of liabiity under clause 2 (u).‘
What was the effect of clause 5? Both Lord Denning and Sir David
Cairns had no doubt that following AZdersZude v. Hendon Laundry
the words “all merchandise is expressly accepted at the owner’s
risk ” was adequate to cover loss or damage caused by the negligence
of the cleaners. O n the other hand, all three members of the court
were agreed that the words were not effective to exclude liability for a
fundamental breach. Lord Denning came to the conclusion on the
basis that, even after Suisse Atluntique: the strict rule of law
invalidating attempted exalusions of liability for fundamental breach
still applies to standard form c;ontracts where there is inequality
of bargaining power.’O Orr L.J. and Sir David Cairns reached the
same conclusion on the dBerent grounds that clause 5 was not
sufficiently clearly worded to cover a fundamental breach,” even
though it might be possible to frame such a clause. That being so it
5 See e.g. Sir David Cairns at p. 506.
6 He found authority for this approach in certain dicta of Wright J. in C. Wilh.
Svenssons Travaruaktiebolag v. Cliffe Steamship Co. [19321 1 K.B. 490, and the
New Zealand Court of Appeal’s decision in Producer Meuts (North Island) Ltd. v.
Thomcrr Borthwick & Sons (Australia) Ltd. [1965] 1 Lloyd’s Rep. 130.
7 See e.g. Sir David Cairns at p. 506. 8 119451 K.B. 189.
9 [1967] 1 A.C. 361.
1 0 119771 3 All E..R 498, 507.
11 Since both clauses could be given adequate meaning without being construed as
applying to a fundamental breach.
750 THE MODERN LAW REVIEW [Vol. 41
was not necessary for them to consider whether any stricter rule
should apply to standard form contracts.
The final and crucial decision that the Court of Appeal had to take
was therefore whether, on the evidence available, the? could hold that
there had been a fundamental breach of contract in this case. The
problem was that a distinct air of mystery surrounded the eventual
destination of the Levinsons' carpet. The defendants seemed to be as
bewildered by its loss as the plaintiffs. They finally claimed that it
had been stolen. Their transport manager also suggested that it might
have been lost during a move of premises which took place at about
the relevant time.12 Either of these events might well have involved
negligence but would not in themselves have amounted to a
fundamental breach. Lord Denning pointed out, however, that if the
carpet had been stolen by one of the defendants' own servants, or had
been misdelivered, or damaged by wilful misconduct, this m u l d have
amounted to a breach so fundamental that it could not be covered
by the exemption ~1ause.l~ As there was no strong evidence as to
which of the possible events had occurred, the court had to decide
where the burden of proof lay. Previous decisions on this point were
inconclusive. In Wodmer v. Delmer Price l 4 McNair J. held that
where a mink c a t had been handed over for storage or sale and
then lost it was up to the bailees to establish that the loss occurred
in m e way other than by a fundamental breach. This approach was
supported by dicta of the Court of Appeal in Spurling v. Br~dshaw.'~
On the other hand in the case of Hunt and Winterbotham (West of
England) Ltd. v. B.R.S. (Parcels) Ltd.16 the Court of Appeal had
held that in relation to a contract of carriage it was up to the plaintiff
to establish that the loss occurred in a way not covered by the
exemption clause. However, in that case fundamental breach had not
been pleaded, and the court left open the question as to whether
Wmlmer v. Delmer Price17 might still be good law where funda-
mental breach was pleaded. Lord Evershed, while recugnising this
possibility, said that for the burden to fall on the defendant there
s h d d be m e additional basis for the action apart from breach
of contract.ls For example, in Woolmer v. Delmer Price'% the
plaintiff was claiming in detinue as well as for breach of contract. In
Levison fundamental breach was specifically pleaded, but the only
action was the contractual one. Nevertheless the Court of Appeal was
unanimous in holding that the burden of proof lay on the defendants.
The reason for adopting this approach was, it seems, in the words
of Orr L.J., that :
12 [1977] 3 All E.R. 498, $07. 13 Ibid. at p. 505.
14 [1955] 1 Q.B. 291.
15 119561 2 All E.R. 121. As regards negligence it is fairly well established that
the burden falls on the bailee, and this has been confirmed by the recent decision
of the Privy Council in Porr Swertenham Authority v. T . W . Wu and Co., The
Times, Jtme 22, 1978. 16 [1962] 1 Q.B. 617-
1 7 [1955] 1 Q.B. 291.
18 [1962] 1 Q.B. 617, 637.
1 9 [1955] 1 Q.B. 291.
Nov. 19781 NOTES OF CASES 75 1
" as a matter both of justice and common sense the burden ought
to rest on the bailee who, if the goods have been lost while in
his possession, is both more likely to know the facts, and in a
better position to ascertain them than the bailor." 2 o
Since the defendants had faded to provide any evidence as to what
had happened to the carpet their a p p l was dismissed.
What then are the irnpkaticrrts of this case for the development of
the colrzmon law rules relating to exemption clauses, and the
application of the Unfair Contract Terms Act? Apart from Lord
Denning's m e w h a t unusual treatment of previous dealings, the two
important aspects of the case relate to the dochine of fundamental
.breach. The case d m not wholeheartedly follow the recent trend
towards cutting down the applicatiw of the House 04 Lords approach
in Suisse Atlantique.21It is true that Lord Denning based his decision
on the basis that as regards certain types of contract, liability for
fundamental breach ca.n never be excluded. The majority, however,
adopted an approach based on the construction of each clause. This
perhaps indicates that the two approaches (rule of law, or rule of
construction) to the problem of fundamental breach would continue
to co-exist, even as regards consumer contracts, were it not for
section 9 of the Unfair Contract Terms Act. The Act requires any
exclusion clause in a consumer contract to be reasonable. If it is
reasonable then section 9 allows a party to rely on it even where the
contract has been terminated as a result of a fundamental breach.
Thus the kind of approach adopted by Lord Denning would seem to
be no longer available in, a situation such as that in lev is or^.^^ On the
other hand, if a construction approach is adopted, the Act may well
be irrelevant. If the clause does not cover the breach then there is
no need to consider whether it is reasonable. It would seem, in fact,
that the majority of the Court of Appeal could have quite legitimately
deliver& exactly the same judgments as they did in fact deliver,
even if the contract had been formed after February 1, 1978.
As regards the burden of proof, while it may well be that a bailee,
who is in the best position to know what has happened to property
in his possession, should bear the responsibility of disproving
fundamental breach, once this has been pleaded, it is unfortunate
that contracts of b e n t now seem to be covered by a different rule
from that applying to contracts of carriage. A carrier is surely in
20 At p. 506.
21 119671 1 A.C. 361. See e.g. Harbutt's Plasticine Ltd. V. Wayne Tank and Pump
Co. Ltd. [1970] 1 Q.B. 447; Farnwortfi Finance Facilities Ltd. v. Atfryde [1970]
2 All E.R. 174; Kenyon, Son & Craven Ltd. v. Barter Hoare & Co. Ltd. [1971]
2 All E.R. 708; and Wathes (Western) Ltd. v. Ausrins (Menswear) Ltd. [I9761 1
Lloyd's Rep. 14. And see also the post-Levison decision of the C.A. in Photo
Production Ltd. V. Securicor Transport Ltd. [ 19781 1 W.L.R. 856.
22 Lord Denning's comments on " reasonableness " at p. 503 of his judgment in
Levison are nat very helpful in predicting the way in which the reasonableness test
under the Act will owrate, since he is clearly considering the reasonableness of the
clause in the context of the actual breach which occurred, whereas s. 11 of the Act
requires the courts to consider whether the clause was a reasonable one to include
i n the contract at the time it was formed.
752 THE MODERN LAW REVIEW [Vol. 41
muoh the same position CY€ knowledge as a bailee. There must be
room for a re-consideration of the whole area by the House of Lords
as soon as an opportunity arises.
In conclusion, it may be predicted with some degree of assurance,
that even after the Unfair Contract Terms Act, fundamental breach,
as a particular kind of breach having its own rules (at least as regards
the burden of proof) will be found to be alive and well, even in the
area of consumer contracts.23
R. T. H. STONE.
23 The Act does not apply at all to some types of contract, see s. 26 and Sched. 1,
and in these areas also the common law rules will continue to apply.