Case Law On Trial: 1996 to 2014

Find out which cases have been getting the most votes for inclusion in our special Anniversary Edition, to celebrate ICLR’s sesquicentenary.

We’ve been reporting cases for 150 years and now we’re putting them all on trial. Which cases made the biggest difference in the development of the common law? Which are the landmarks that really stand out? With less than a week to go, we need you to give us your verdict. Meanwhile, here’s a rough survey of the voting so far.

The biggest influence on case law in this fifth and last voting period, 1996 to 2014, was the enactment of the Human Rights Act 1998, which gave UK courts the scope to adapt existing laws and legislation to conform to the European Convention on Human Rights (ECHR). Other significant developments included the rapid growth of the Internet, transforming business and communications, and the rise of religious extremism and the the War on Terror. (On a practical level, the introduction of neutral citations and the establishment of BAILII have transformed the ease of access to, if not necessarily understanding of, case law.)

Topping the list so far, with 18% of the votes cast, is In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147, CA. There are few cases outside the criminal sphere of which you can say they were a matter of life and death, but this is certainly one of them. It’s the heartbreaking story of a pair of conjoined girl twins whose condition was such that they could not both survive. The hospital having care of them referred to the court the question whether it could lawfully carry out separation surgery the inevitable effect of which would be to shorten the life of one of the twins in the hope and expectation of prolonging that of the other, and indeed enabling her to live a relatively normal life. The hospital’s application was opposed by the devoutly catholic parents.

Giving the judgment of his career, Ward LJ explored the legal issues in a way that was sensitive to, but not clouded by, the moral and religious aspects. It is rare to find a judgment which can so readily be recommended, despite its length, for reading by those outside the discipline of law, but the case it one which captures the imagination of lay readers in a way not matched by most of the daily business of the courts. It cites, and bears some similarity in its “moral maze” subject matter to that from our first voting period of R v Dudley and Stephens (1884) 14 QBD 560, on the issue of necessity in relation to homicide.

Nor was it surprising, when the Booker-winning novelist Ian McEwan was writing his latest book, “The Children Act” (reviewed on this blog), to find him paraphrasing this and at least one other judgment of Ward LJ, to flesh out the moral dilemmas of his fictional judge of the Family Division.

Next in the running order, with 15% of the votes so far, is A v Secretary of State for the Home Department [2005] 2 AC 68, HL(E). This case, involving nine unnamed terror suspects detained indefinitely in the period following the large scale attacks on the Twin Towers in New York in September 2001, was an early example of the interminable tussle between the demands of national security and respect for human rights.The House of Lords held, for reaons on which their Lordships were not all agreed, that a derogation order providing for the detention of non-nationals was discriminatory in its effect in a way that rendered it disproportionate and therefore incompatible with the Human Rights Convention.

This is perhaps not a judgment to be read for its literary value, rather for its historical and political significance. It reflected a period of increasing authoritarianism in the Labour government of Tony Blair, which before the Millennium had been populist and “feelgood” – think of “Cool Britannia” and the mawkish official response to the death of Princess Diana in 1998 – but after 2001 became hardened by warfare and ever more extravagant in its urge to control every aspect of life.

In third place, with 13% each of the votes, we have another tie.

One of two is another great political case, R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147, HL(E). The was the House of Lords’ final word on the attempted extradition from London to Spain of the former dictator of Chile, Senator Augusto Pinochet Ugarte, in respect of his alleged criminal liability for torture on victims including some in Spain, whose courts had issued an international warrant of arrest. Their Lordships held that his immunity as a former head of state, for criminal acts done in his official capacity, did not extent to acts of torture committed after the date of ratification of the international convention prohibiting it.

The other is the rather less politically exciting, but commercially significant case of Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101, HL(E) which extended the law of contract to permit the court, when faced with a clause that was evidently mistaken in its drafting and made no commercial sense, to rewrite the contract to match what it inferred to be the parties’ intentions based on what was known at the time. The judgment of Lord Hoffmann, explaining the principles on which the court was entitled so to act, has been cited endlessly in later cases (alongside his earlier and equally influential judgment in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896). It may not be a big case in moral and political terms, like the others on this list, but its contribution to the law may well be more lasting.

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Which of these should make the grade? Will another case upset the apple cart?

Finally, two extra cases from this period were nominated:

1. R (Countryside Alliance) v Attorney General [2007] UKHL 52; [2008] AC 719, HL(E) which was said to concern “The power of a court to review whether Parliament acted lawfully in passing an act.”

2.  Prest v Petrodel Resources Ltd [2013] UKSC 34; [2013] 2 AC 415, HL(E) which dealt with “Beneficial ownership of company assets and piercing the corporate veil for reaching company’s assets in divorce”.

The voting for this period is still open until the end of the month, so if you haven’t already chosen a case, now’s the time to do so,here. Meanwhile, keep an eye on Twitter (via hashtag #iclrvote) and by all means post about your own choice (using the social media buttons on the last page of the voting process).

Cartoon of man reading contract by Mark du Toit via http://www.marktoon.co.uk/ (If you like his work, he would be grateful for a donation to help him develop his site.)