I heard Noam Chomsky make a comparison between football and politics the other day. He said that while few people understood what was going on in politics the ability ordinary people had to talk about football in depth showed that people weren’t avoiding politics because they didn’t have the ability to understand. Noam pointed out that the intricacies that could develop in the relation of all the players in all the teams over the course of a year created a network of data that left him completely lost, yet ordinary blokes down the pub knew it all inside out.
The reason that all this brain power is directed into things like sport is that in sport there is so much flexibility of outcome. An individual may not be able to affect anything personally but it somehow feels like the world in which it takes place does not reject the input of the individual. Ordinary people may not be directors, coaches, or players, but they can still be part of the debate. They may change nothing as individuals but collectively it certainly appears that the debate can have an effect on the overall game. The difference in politics is that it feels so futile. The individual has no effect, but the individual often doesn’t even have the illusion of an effect. Even those within the system don’t appear to have an effect. Britain’s party leaders seem to regularly talk about making changes but in reality they can’t even change the ‘Punch and Judy’ format of the way in which people address each other in the house of commons. If leaders are unable to simply change the rules around how people speak to each other to something more respectful then how on Earth are they going to be able to make any substantive changes.
Politics are currently working on the wrong model. In football the way things work is fairly obvious. Teams fight it out until only the best one is left and they win the cup, or generally actions along those lines. Each time a team goes to play football it is doing its job. The competing is the job and each team gets rewarded for doing things their way to the best of their ability.
In politics the different teams involved do not do their jobs until after they have won the competition. Up until that point they essentially pretend to do their job and then if everyone thinks that their ‘fantasy football’ style politics would be effective then maybe they will get voted in and be able to do it for real. There is no way to objectively test if their methods work though. In football the way to objectively test if a team’s methods work is to see if they won the game. It is obvious. In politics there is no objectivity like this. The team who is trying to win has to try to work out what sort of things the public would like and then pretend that is what they would do. The result means that they, lie about their principles; they mimic the group who has already won because their tactics must have worked, even though they are meant to be opposed, i.e. opposite.
Our political parties cannot be chosen for objective reasons. They can only be chosen because of personal biases or because the current party in power has screwed things up so badly that we have no other choice beside trying to walk across the channel. My Grandmother refused to vote liberal because she said they couldn’t be trusted, although if they had ever been given the chance to learn from that mistake it could only have been when she was a very small child. Certainly I don’t think Lloyd George would have been likely to make the same mistakes again in the 1980s, having long since shuffled off the mortal coil. There was no objective reason to think that they would be remotely similar to the last liberal government.
This is my complaint. No wonder sports are easier to relate to than politics. Most of politics is just one small group of people, fewer than a thousand in a country of sixty million, doing their own thing, more or less unswayed by those who want change. Luckily I have a solution.
As I have pointed out, every week when football teams compete they do so by doing their job. The solution for political parties wholly failing to achieve anything comparable in their own operation is for political parties to start competing before they get into power. Local MPs should be solving their constituent’s problems in their capacity as MP whether they succeed in gaining a parliamentary seat or not. If a candidate fails and wishes to step down then they should be immediately replaced by someone prepared to do their job immediately. A replacement shouldn’t be chosen only for the purpose of running for election. A candidate should be chosen immediately to try and solve local issues and rally people together even if their is no hope of them gaining power for another five years.
The political parties should be operating at a national scale to make large changes to the way things are done. They should consider themselves to be like large multipurpose charities. There should be no focus on one particular field, they should be charities that deal with the day to day running of the country. They should be able to prove their worth as potential leaders to run our country by their ability to raise money and then use that money to improve the lives of the people rather than saving it for advertising and canvassing. If we could see parties achieve success when they are not in power then we are far more likely to put them in power where they get the opportunity to make even bigger changes. We should not have to vote for people based on assurances which will probably never attain fruition.
It was the best of times; it was the worst of times. I have stolen the beginning of a tale of two cities from Dickens because it is more appropriate now than ever. I shall also be stealing the concern that Dickens had for social reform. We often look back on the Victorian era as being a dark and oppressive time. This is partly due to looking at it through the work of writers like Dickens. Ironically it is also partially due to the spotlight on the failings of society provided by his work that led to this era being massively progressive. There was a massive amount of change during the 19th century as prisons were reformed, working conditions were reformed and the law in general began to recognise a respect for human life.
It is a constant theme throughout history that change will always upset the people it affects. The 20th and 21st centuries have seen even more change than the 19th due to the explosion of modern manufacturing techniques. In many ways now is indeed the best of times, but as my opening line suggests it is also the worst of times in many ways. We are technologically more advanced than at any other time in history but this has been at a cost.
The business techniques that have allowed us to have such massive growth are focussed on growth. The corporations grew up as a solution to how such large scale projects as national railways could be completed when they were so far beyond the financial strength of the average business person. Within the legislation that supports the setting up of corporations is a statutory mandate to seek profit and the benefit of the shareholders. Despite recent attempts to mitigate this primary directive through concern for broader societal impacts, the dependence that corporations have had on legislative backing to aid their main aim has led to anything other than legal rules being ignored where this aim is not supported. As a result it has been recognised for some time that humanity is beginning to learn the Gordon Gekko mantra, “Greed is good.”
Although there is much to be said on the failing of ethics in modern business, this is not my intention with this post. I think that by now the vast majority of intelligent people are well aware of the ethical tightrope walking that is practised by company boards. Even those who are not intelligent or are not regular readers of the daily news must recognise the precarious positions they are being placed in by the way in which these large companies are affecting their lives. Jobs are disappearing, wages are dropping, land is being eaten up, towns are dying. Even those who might be lucky enough to live in wild countryside paradises may have been able to see that there are fewer insects than there once were, and fewer birds. Even stranded in the middle of the Pacific ocean it is hard to miss the effects of a failing business model when you are surrounded by a floating pack of discarded rubbish the size of a country.
My intention is to talk about a solution to all these problems. One thing is certain, our politicians have failed us. With each successive government we see them ever more bowing to the wishes of the corporations. Every government is so afraid that trade will leave their shores and instead give their wealth to international neighbours that they will allow the companies to get away with almost anything. In addition to this a disaffected and disillusioned public is given little choice in the politicians who may next be given control. Largely homogenous groups of MPs parade through parliament trying to make things better rapidly enough to prove they are the ones for the job before the next election date. Unfortunately they have little power over companies big enough to buy their own countries so the focus of the legislative posturing is the behaviour of the people. Even more unfortunately the behaviour of the people is a result of the interaction the people have with the companies. In essence, the companies are creating changes that are producing negative effects amongst the populace. The governments are treating the symptoms, not the causes, and the result is the deterioration of life for individuals.
We may be gaining massive benefits from the progress of technological development but at the same time we are losing freedoms that have been enshrined in British law since the Magna Carta; that go back almost as far as time immemorial. Politicians even wish to knock back positive gains in human rights that have only been gained in the last 50 years. If changes are holding back the agenda of profit then they are changes that are slated for reversal.
The majority of people feel helpless against the behemoth that is politics, law and business. This is with good reason; the last millennium has been a lesson in the futility of standing up against them. There have been gains in the past. The revolutions of England, France and America wrought massive change. There are even some who speak of revolution now. Such a course of action is unlikely in the conventional sense. Despite the hardships we have to face we are supplied with the things we need to keep us docile. Television, the drug of the nation keeps many people far too busy to protest. Where this is not effective we are beginning to see growing legalisation of marijuana across the United States. I wonder if it can be just coincidence that this sedating substance, so very much favoured by many protestors I have met, is being made available to them at just such a time as it seems vigilance and energy are more important than ever. Social engineering is often looked upon as a technique of conmen and hackers but it is also the tool of governments and corporations to keep populations on side and to make their own brands appear to be of value.
Despite the failing of democracy and the futility of revolt there is a way that is open to us to effect change. The arrival of computers and the internet mean that direct action of the sort advocated by green peace or more darkly, anonymous, are not necessary. All the actions that are carried out by the companies are in a manner of speaking truly democratic. The big corporations are only there because we, the people, have allowed them to be. It is us who have provided them with their wealth. It is us who have observed their business models and decided that purchasing their products is something that we wish to do. It is us who have said that the way in which they conduct business is acceptable. It is us who can stop paying them if we decide that the way in which they conduct business is not acceptable.
In our traditional conception of democracy we might have made our vote for a better world by voting for certain politicians but the politicians themselves feel powerless to change the world when they have to bow to corporate demands. That traditional conception was developed in a world before the internet and before instant communications. We could not have known the details about what we were voting for. We simply voted for someone we trusted to get the job done and then hoped that they had the inside knowledge to get the job done. The internet now allows us to uncover the information for ourselves. The only way that we can really change things for the better with greatest rapidity is to start doing this and to start voting with our money.
There was recently a worldwide protest against capitalism that swept across the globe through many capital cities. The most that a lot of people heard about this was a paragraph on the BBC news website. When it comes to the drama of public protest there is a tendency by the media to ignore it these days. There is so much protest that there is lower news value in publicising anything that isn’t truly spectacular. There may also be other reasons behind the scenes why it might suit news corporations to keep the protests quiet. Protestors are portrayed as trouble makers, hippies, punks, anarchists, anonymous. All the negative buzzwords are used to show protestors up as being something other than normal people. Normal people therefore wish to distance themselves from these groups. This does not mean that normal people do not share the same concerns. The way in which the normal people can make their wishes known is to reward the companies when they get it right. Shop politically.
I do not like the idea of boycotts. They are a lot of effort for a start and can endanger the welfare of all those who rely on that particular company’s trade. I do think that it is possible to make a change for the better in the world just by making slightly different choices when in the supermarket. This is largely achieved already as people avoid the GM crops and buy more of the organic or whatever their concern is at the time. The problem is the lack of transparency around the activities of the companies. It is a shame that the newspapers are so wrapped up with other important issues like Chantelle’s latest diet because it is here where reportage is of greatest importance. Companies would soon change their behaviour if they found that it was ceasing to be profitable. They are like the genie in the bottle; they will give us what we wish but we must be careful what we wish for.
With that said, I am now going to go and find out whose products I should be buying and whose I shouldn’t if I am to bring my kids up in a world where they have a chance of a healthy and happy life.
Lord Denning suggested a number of times that Court of Appeal judges should be able to go against the decisions of the House of Lords where it was apparent that the House of Lords had made their decision without considering all the relevant authority that applied in the case. It is not surprising that Denning would feel this way. One gets the impression that he was a bit of a loose cannon. The Dirty Harry of the British legal profession. There were certainly many judges who disagreed with his views on any number of things and I sometimes think that the main reason he was made into a Lord was so that when he came up with his more radical decisions they would be watered down by the presence of four other Lords sitting the case rather than only two other Court of Appeal judges. No doubt the feeling of having risen to the top of the legal profession on the merits of your abilities would also give the Lords a greater level of confidence with which to oppose Lord Denning, arguably one of the most famous (infamous?) judges of the twentieth century.
Denning tried to make use of this belief that precedent could be approached with the flexibility of attitude that was a hallmark of his career in the case of Broome v Cassell  2 Q.B. 354; Denning convinced the other judges in the case that the precedent set by the House of Lords in Rookes v Barnard  A.C. 1129 had been made per incuriam, without taking into account previous judgements of the House of Lords. Of course Rookes v Barnard was set before the 1966 practice statement and as such would have been a case in which the Lords did not have the discretion to go against previous decisions of the House.
When the case inevitably went before the Lords the Lord Chancellor was not impressed by the Denning’s obvious attempt to escape the limits of stare decisis.
This did not stop Denning making another attack on precedent in Schorsch Meier GmbH v Henning QB 416 where he tried to use an idea expressed by the maxim ‘cessante ratione legis, cessa ipsa lex’, with the reason for the law ending the law itself also ceases. While some would say that the greater the age of the precedent the stronger its authority others might say that a lot of precedents should simply get old and die. Out with the old and in with the new. The court did not fully back Denning in this instance. The case they were looking at was Re United Railways of Havana and Regla Warehouses  A.C. 1007. Foster J agreed with Lord Denning that the rules had changed and a different result was necessary. Lord Justice Lawton showed the resolve that was wielded with his higher rank and went against the majority with the opinion that the Court of Appeal had no authority to overrule the Lords.
Denning got his way in this case but he tried to use this rule again in the case of Miliangos v George Frank (textiles) Ltd  QB 489 and this time the case went on to the House of Lords where they once again took a very dim view of Denning’s attempts to avoid stare decisis. They then went on to decide the case using exactly the same logic as Denning had used at appeal. The House of Lords has been very certain that they do not wish the Court of Appeal to have a mind of its own. However, as this assertion was not made as the actual ratio decidendi (the reason for the decision of the court in the case) in Miliangos is it a binding assertion? It would seem that this case was an end to the matter but it seems that to be binding, precedent needs to be very strictly tied to ratio decidendi. My evidence for this strictness is actually the main point I wish to address and the previous 600 words or so serve simply as an introduction to the subject.
The case that gave me pause for thought was the case of Malik v Bank of Credit and Commerce International  UKHL 23:
This is a case that is generally listed as setting a precedent that in a contract of employment there is an implied term of mutual trust and confidence. However I was taught in University that the precedent it set was that it is not possible to claim for loss of reputation in a case on contract. It is a view I have since seen set out in a number of text books.
- The claimants in this case were senior employees of the defendant bank. Following the discovery of a major fraud at the highest levels the bank was forced to liquidate and this led to the claimants being made redundant. The fraud was quite severe and involved money laundering, terrorists and extortion on a global scale. Malik and Mahmud found that having been made redundant in such circumstances they were unable to find employment in the financial services industry. They believed their reputations had been destroyed.
- Malik and Mahmud relied on an implied term in their contract of employment in order to sue their former employers. They said that although it was not explicitly written into the contract it was so obvious that it could safely be assumed to be part of the contract. The implied term was such that the employer should at no point during the employment behave in such a way as to damage future employment prospects.
- This idea went through the courts and all the way to the House of Lords. The position held by Malik and Mahmud was contrasted with jobs such as an apprentice or a performer where the relationship was considered to be one such that the employer would be seeking to improve employment prospects while in this case that would not be expected of the employer.
- In the most recent book to take the view that the case was about the impossibility of claiming for loss to reputation in a contract case it was reported that the claim failed and that Malik and Mahmud did not win. The following quote from the Court of Appeal supposedly supports this principle.
- “…damages are not recoverable in contract for damage to or loss of an existing reputation” This was said by Lord Justice Morritt  I.C.R. 406
- However the law is a tricky and complicated beast. Perhaps all these writers have not understood the decision in this case or perhaps it is a case that there is something very wrong with the system of precedent.
- The case went on from the Court of Appeal to the House of Lords where Lord Steyn drew attention to the fact that a claim could only succeed when there was no legitimate reason for the employers’ conduct and that the conduct was of such a nature that the implied condition of trust between employer and employee would be likely to be severely damaged. Lord Steyn says that of course it is very difficult to calculate damages in such a case but he mentions, “no Law Lord said that in breach of contract cases compensation for loss of reputation can never be awarded, or that it can only be awarded in cases falling in certain defined categories.” He goes on to say, “A rule that damages can never be recovered in respect of loss of reputation caused by a breach of contract is also out of line with ordinary principles of contract law.” He goes on to talk about the decision in Marbe v George Edwardes (Daly’s theatre) Ltd  1 K.B. 269 which he says is in complete contrast with cases that were relied on by the judges in the lower courts, “In Marbe on similar facts the Court of Appeal came to the opposite conclusion: damages in respect of loss of an existing reputation was expressly held to be recoverable”. Lord Steyn then backs this up by saying, “in Herbert Clayton v. Oliver A.C. 209 the House of Lords approved Marbe. The House of Lords did so expressly”
- Lord Steyn says that, “In my judgment therefore the authorities relied on by Morritt. L.J. do not on analysis support his conclusion. Moreover, the fact that in appropriate cases damages may in principle be awarded for loss of reputation caused by breach of contract is illustrated by a number of cases which Morritt L.J. discussed: Aerial Advertising Co. v. Batchelors Peas Ltd. (Manchester)  2 All.E.R. 788; Foaminol Laboratories Ltd. v. British Artid Plastics Ltd.  2 All.E.R. 393; Anglo-Continental Holdings Ltd. v. Typaldos Lines (London) Ltd.  2 Lloyd’s Rep. 61. But, unlike Morritt L.J., I regard these cases not as exceptions but as the application of ordinary principles of contract law.”
- He says that there is a natural difficulty in quantifying such damages but ultimately concludes by saying, “The limiting principles of causation, remoteness and mitigation present formidable practical obstacles to such claims succeeding. But difficulties of proof cannot alter the legal principles which permit, in appropriate cases, such claims for financial loss caused by breach of contract being put forward for consideration. “
- Lord Steyn then allows the appeal with the majority of the Lords giving their full backing without contributing anything further to the judgement. This judgement was delivered in 1997. I am at a loss to explain why law books still say that the decision means that there can be no claim for loss to reputation in contract. Fair enough it was stated by Lord Steyn explicitly that his ratio was concerned with the implied clause about trust and confidence but the only way I can imagine the Court of Appeal version still standing for the principal that one cannot claim for loss of reputation is accepted is if the Court of Appeal version set a precedent in its ratio decidendi that still stands despite the fact that the House of Lords allowed the appeal against the case with a ratio decidendi on a different point and therefore did not reverse the CA judgement despite Lord Steyn leaving no doubt that it was decided per incuriam.
The CA case goes down as precedent in history and the HL obiter is left to disappear into the deep pages of the law reports where few students of law will ever see it despite the fact that it represents such incredibly strong persuasive authority that no-one who ever brings an analogous case to court will ever have any doubt that reaching a court with the requisite authority to overturn the decision is a mere formality. If it were overturned by a lower court it would offend against the doctrine of stare decisis and the judges would certainly find that the Lords would disapprove, even if they then followed the same reasoning to reach the same decision themselves.
If this is the case then the only way that a case on similar facts can be decided and a new precedent set is to take the case to the House of Lords and go through the trouble of an additional level of law to set a decision which is so plainly clear that it could be set by a clerk with a rubber stamp. I have reached this conclusion as the only alternative is that everyone who has written a book claiming the case sets a precedent of an impossibility to claim for loss of reputation is either wrong or the court system is ludicrous. I am not so arrogant to believe that I am sharper than numerous writers of law books before me but the fact that the law is an ass is well documented. I have therefore assumed that the system of precedent is plainly in need of reform. If the system of precedent is to blame and the law supposes it is impossible to claim as a precedent these words of Lord Steyn then ‘”If the law supposes that” said Mr Bumble squeezing his hat emphatically in both hands “the law is an ass – an idiot”’ (Dickens (obviously) Oliver Twist 1838)
Although that beautifully conclusive statement would be a delightful point at which to finish writing it does not offer us a solution. Indeed we have been aware that the law is an ass since 1838. In fact as the expression was originally published by George Chapman in the 1654 in the play ‘Revenge for Honour’, which many believe to actually date from 1620 this is not news at all. Given the speed at which the legal profession pushes through reform we can safely anticipate the law still being an ass at the dawn of the next millennium.
Changes can be made though. Of course there are many things to be changed in the law and the world in which the law is used is changing at an extremely rapid pace. If the system of precedent is bound to the extent that I suppose it is then it is in need of change so that it is adaptable enough to cope with this changing world. In fact, even if I am wrong and the law of precedent is only bound to the extent that Denning tried to circumvent then my case is no less weak. Change is necessary.
The common law’s greatest strength is its flexibility to adapt to different situations that are brought before it. However the system of precedent has greatly reduced this flexibility and led to the common law being far too rigid. So rigid in fact that the system of equity was brought in. The greatest strength of the system of equity was its flexibility. However the system of precedent has greatly reduced this flexibility until now equity is seen as too rigid. We cannot continue like this. We desired this flexibility in the past when the pace of change in life was extremely slow. Now the world radically changes shape every few years. The past two decades have seen the necessity for parliament to pass more legislation than it did in its entire history beforehand. This is why we need to get some of this flexibility back.
What should we do? Last time we created Equity. That appears to be a short term solution as equity is now as rigid as the rest of the law. What needs to be reformed is the system of precedent. It has become plain that with the passage of time things change. That was Denning’s observation in Schorsch Meier and Miliangos. Those cases were 50 years ago. Denning never lived to see ‘change’ as it is now. The necessity of the Court of Appeal to make decisions that go against precedents set by the House of Lords is stronger now than it ever was. Of course there will be many people harrumphing quite seriously at this idea. However, I do not propose the Court of Appeal is given free rein to just do as they please, but I think there should be a time limit placed upon precedents.
There should be discretion given to the House of Lords to pick a limit within a certain time frame. If they are offered a maximum of 50 years by statute then this seems quite reasonable to me. In cases that involve very serious seemingly timeless issues they can impose the limit of 50 years before the precedent ceases to be binding and becomes only persuasive. If it is an issue that is affected by the rapid change that goes on around us all the time maybe they can set a limit of 25 years for the precedent to remain binding or perhaps any other figure. If judges can be given discretion to choose a maximum or minimum date for a man to be incarcerated then I am certain they will not have too much difficulty in setting the expiry date of a precedent.
Doing this will save the money and time that is wasted with the formality of taking a case to the House of Lords in order to have a stale precedent overturned. Of course it is likely that many cases overturned by the Court of Appeal will then progress to the House of Lords in order to discover whether their new decision is acceptable in the eyes of the law but some cases will not and every single case in which it is accepted at the level of the Court of Appeal that the change was appropriate will be more money in the public coffers and more time for Lords to deal with issues where they are actually needed.