Reviewed by: Robert Khan
Author: Ian McDougall (general editor)
Publisher: LexisNexis
ISBN: 9781405755887
Price: £12.99

Ian McDougall’s excellent new anthology shows how the common law in many jurisdictions continues to have a profound effect on society, with the decisions of judges in contentious cases vying, not always comfortably, with the interventions of legislatures. The cases McDougall chooses are by necessity the hard and difficult cases, raising issues of wide importance whether in the fields of crime, property, family law - or those of first class constitutional importance, including those that engage human rights. As McDougall notes, such an anthology may fall into contention by the very cases it leaves out. He himself opines, where is Carbolic Smoke? Added to that might be Salomon v Salomon, Pepper v Hart, Rylands v Fletcher or indeed Bushel’s Case.

But most lawyers will have their own list depending on their own interests and specialisms and this collection certainly meets the criteria of cases that have demonstrably changed lives, for good or ill. The book ranges across both centuries and jurisdictions, notably surveying the appropriation of ultimate constitutional authority by the Supreme Court of the United States in Marbury v Madison (1803) to the recognition of native title in the Australian case of Mabo v the State of Queensland, on a different continent, almost 190 years later.

In the UK, the cases include Tulk v Moxhay (a case that both breathes life into the doctrine of restrictive covenants and consequently ensures that two centuries later, Leicester Square is open to a horde of Harry Potter fans to populate); Central London Property Trust Ltd v High Trees where a young judge Denning fashioned the doctrine of promissory estoppel (a continuing equitable principle which, as the contributor notes, remains unreviewed by the most senior appellate court); and at the turn of this century the family case of White v White, the implications of which are still strongly felt and widely commented upon in the media, not least by footballers and their wives.

Perhaps though what stands out in reading these commentaries is how the problems that courts and judges have grappled with over the centuries often return, albeit in different guises rendered by changes in attitudes, fashions and culture. So the principles encompassed in the rule of law (some of which can be traced back, at least, to the sealing of the Magna Carta in 1215) are continually invoked. Some of these are reasonably straight forward such as the principle relied upon by Sir Edward Coke in Bonham’s case (1610) that no one may be judge in their own cause. But others are more contestable, and the debate about the proper role of the state in maintaining peace and security at the cost of the potential erosion of civil liberties gives an enduring example. The decisions of the then House of Lords in the Belmarsh cases reflects a long line of decisions where this tension is self-evident and at least in these rulings, settled definitively in favour of human rights and against the then Government's view of the needs of security.

This is not to say that courts have always got this balance demonstrably right (far from it) as in the US example of Plessy v Ferguson, where the despicable doctrine of "separate but equal" was given full legal force (at least until torpedoed, some little time later, by Brown v Board of Education).

There are other public policy debates that are also reflected in the cases that McDougall highlights. The striking decision about the expansion of the law of negligence in Donoghue v Stevenson is examined; this expansion reaching its apogee in Anns v Merton BC. The courts, later realising that such a construction could give rise to the exposure of individuals to indeterminate liability and the opening of the floodgates to claims, sought to return to an incremental, more conservative approach in Caparo Industries plc v Dickman. This series of cases mirrors the current public policy debate that claims and liability for personal injury have escalated out of control and that, as some wrongly assert, we now live in a ‘compensation culture’. In fact, the later decisions demonstrate that the courts have actually taken a very sensible approach in avoiding this.

Conversely, controversial new rights to privacy have been introduced flowing from the effects of the Human Rights Act (assisted by the celebrated Naomi Campbell case) and the practical supremacy of the law of the European Union has found its voice through Factortame (in rounds one, two and three) raising issues where the courts have also arguably led and public debate has followed.

Some of the more recent cases that have been included also show how the courts have had to grapple with problems – and apply existing legal norms – to adapt and reflect upon more general changes in society. The issues about assisted suicide in both Pretty and Purdy reflect the fact that, happily, with advances in medical care many people are surviving with conditions that in previous generations it simply would not have been possible to survive very long into adulthood, if at all. So the courts must now re-consider the law (or at least its application and enforcement) in relation to the more pressing issue of assisted suicide. In this sphere the courts (with prosecutors) have now led where the legislature has not dared to go.

An interesting question that the book gives rise to is where the courts may need to go next. Surely it won’t be long before the laws of defamation and privacy will have to catch up with the so-called ‘Facebook generation’. It will soon almost be impossible to avoid the distribution of photos and images of people in their younger (and perhaps more exuberant) days that will readily be available on the internet, perhaps for the rest of their lives. And the application of the M’Naghten rules (as highlighted in the book) will surely have to be looked at again in the light of advancing knowledge of issues around mental health and neuroscience. Indeed how will the law deal comprehensively with what Professor Steven Pinker calls the dangers of "creeping exculpation", where such discoveries may mean defendants in criminal trials will seek to absolve their liability by blaming not themselves but their genetic inheritance?

One final reason to read this book is to be able to nostalgically return, for some, to the days of law school. While the principles may still burn bright, the facts may have faded. As is pointed out, who recalls that the Corporation in Wednesbury was not actually found to have acted irrationally by banning children from the Gaumont cinema on those post-war Sunday afternoons? Or that the cannibalistic sailors in R v Dudley and Stephens - although pronounced guilty - only actually served six months for their crimes? This excellent book is well worth a read.

Robert Khan is head of law reform at the The Law Society of England and Wales

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