Critical Analysis of the Extract of Lady Hale’s Judgement: Issues of Tort Law

Critical Analysis of the Extract of Lady Hale’s Judgement

Introduction

Throughout this essay, I will critically analyse the extract below from Lady Hale’s judgement in the case of Woodland v Essex County Council and to what extent this statement reflects the judicial approaches in the law of torts. The extract states:

1. ‘The common law is a dynamic instrument. It develops and adapts to meet new situations as they arise. Therein lies its strength. But therein also lies a danger, the danger for unbridled and unprincipled growth to match what the court perceives to be the merits of the particular case. So it must proceed with caution, incrementally by analogy with existing categories, and consistently with some underlying principle.’
2. Concurring that common law is a dynamic instrument with both strengths and weaknesses, while simultaneously challenging the idea that the solution to these weaknesses is narrow incrementalism. A balance between both narrow and wide incrementalism will, in theory, provide the best results in the Courts’ administration of justice. For this assignment, I will regard ‘incrementally by analogy with existing categories and … underlying principle to mean narrow incrementalism and generally accept there is a tort of privacy or at least a tort for the misuse of private information, as a lot of controversy surrounds this area.

The Strength of the Common Law

The strength of the common lies in its ability to conform the law to individual cases, while still taking into account public interest. The common law and the law of torts can be seen every day in the Four Courts and many other Courts across the British Isles. Every day new plaintiffs and defendants appear before the Courts, where the common law ‘develops and adapts’ to their unique case. It becomes clear that common law is a ‘dynamic instrument’ which uses its strength to administer justice to the people. This virtue is enacted in two ways, either by wide or narrow incrementalism. The former using a broad application of precedent, seeing precedent as a direction of where the law ought to go.[footnoteRef:6] The latter using a more rigid approach to precedent, which mechanically follows the previous decisions set down by the Courts.

Wide incrementalism

These seemingly radical changes in the law follow the model of wide incrementalism, whereby precedent ‘indicate[s] the direction in which the law ought to develop. This freedom given to the judiciary allows the Courts to adapt to novel claims, where there may not be any law covering that area. Alternatively, there may be loads of conflicting case law in an area and the Courts make a sudden change in the law to form a clean slate, while loosely regarding the precedent. This can be used to determine where the law stands on a given issue of tort law. Furthermore, the overhaul of the law may be used to realign the views and realities of society with the law. This method of change in the common law also contains some shortcomings, which will be discussed later in this assignment.

Narrow Incrementalism

The growth of law incrementally with caution by using analogy and underlying principles creates a dependable consistency, which is extremely helpful for solicitors, barristers and potential plaintiffs. The model of ‘narrow incrementalism ensures a relatively strong continuity’ from case to case and year to year. This legal ‘continuity’[footnoteRef:9] often ‘promotes a degree of legal certainty, providing predictability, uniformity and stability in the law.

Joseph Raz, in Authority of Law, stated that these advantages are ‘frequently cited as a core element of the rule of law. Additionally, the narrow incrementalism approach restricts the powers of the undemocratic judiciary, as they have to rigidly apply the precedent from other cases. This creates better power-sharing between the organs of this democratic state, which affects all areas of law, including the law of torts.

The Danger of the Common Law

Although the common law contains many advantages, it also includes several unfortunate shortcomings. The most notable of these is the seemingly unwarranted power given to judges to bring ‘unbridled and unprincipled growth’ to an area of law with one decision in a case.[footnoteRef:13] This leaves the law inconsistent with conflicting precedents, which confuse solicitors and barristers alike. Resulting from this, potential plaintiffs become unsure if their claim is worth the mental and financial stress a court case will inevitably bring. Lady Hale, in her extract, stated that this was the ‘danger’ of the common law.[footnoteRef:14] Unfortunately, this wide incrementalism model is widespread throughout the law of torts but is most noticeable under the heading of the duty of care. We will begin to discuss the extent to which this applies to tort law, by looking at some landmark decisions from Ireland, England and Wales.

The Jurisdiction of England and Wales

In the jurisdiction of England and Wales, the case of Donoghue v Stevenson is one of the most famous examples of the aforementioned ‘unbridled’ growth in tort law. In this case, Lord Atkin’s ‘neighbour principle’ was created which allowed for an extreme scope of liability for a defendant. Resulting from this, the Courts were left confused about where the boundaries of the law were placed, begging the famous question, ‘who then, in law, is my neighbour?’ Following on from the landmark case of Donoghue v Stevenson, the Courts made another leap in their understanding of the duty of care in the case of Anns v Merton London Borough Council, commonly known as Anns[footnoteRef:19]. In this case, Lord Wilberforce attempted to use the wording of Lord Atkin's judgement but changed the meaning of these words to conform to his idea of what the law should say, obviously just adding to the confusion of an already radical change in the law. These numerous radical and unpredictable changes make the law difficult to understand and send contradictory messages to barristers and solicitors alike. Moreover, this ‘danger’ of radical change in tort law is apparent in recent times with one case from 2018. In the case of Darnley v Croyden Health Services NHS Trust, the Supreme Court held: ‘The common law in this jurisdiction has abandoned the search for a general principle’ when deciding their cases, which would have allowed for consistency and reliability. It becomes clear that the Courts did not attempt to consider the ‘decade-long application of a universal test.’ This ‘unbridled’ approach toward judicial decision-making drastically changes the way the Courts view this area of professional negligence.

The Jurisdiction of Ireland

The law in Ireland closely followed with unprecedented changes in the duty of care among other areas of tort law. Primarily with the case of Ward v McMaster, which says Ireland adapt the Anns test form abroad at a time when ‘many High Court judges were attracted by the … retrenchment from Anns’ that was occurring in the jurisdiction of England and Wales. This seemingly rogue decision created a complete overhaul of the duty of care in the Irish Courts after one case. The upheaval a decision like this can cause is immense because a Supreme Court decision is infallible. Similarly in Ireland, there are instances of recent court cases which move in leaps and bounds, disregarding precedent as they expand the law. In the case of Mohamud v WM Morrison Supermarkets plc, the Supreme Court held the defendant vicariously liable despite the fact previous courts’ reasoning would have determined the decision in the alternative.[footnoteRef:26] This total disregard for the precedent previously set down creates uncertainty which is destructive in not only tort law, but every aspect of the common law. Concurring with Lady Hale’s judgement that the ‘unbridled and unprincipled growth’ in the common law is a ‘danger’ to both itself and the future stability of that area of law.

An Incremental Approach

The solution posited by Lady Hale in the extract of her judgement brings value, in theory, to tort law. The law of torts, like many other aspects of common law, has gained clarity, consistency and dependability from its use of the narrow incrementalism model. The ‘carefree extension of negligence principles, must be viewed with scepticism, as it creates uncertainty and irregularities in the law. However, the use of this ‘incremental by analogy’ approach provides a resolution to this predicament. The wave of unpredictability surrounding the duty of care is closely followed by the precision-based model of narrow incrementalism. The slower method aids the understanding of the tort law on specific issues. This becomes abundantly clear when taking various examples of tort law cases regarding the duty of care in different jurisdictions, such as Ireland, England and Wales.

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The Position of England and Wales

The law in England and Wales had experienced a huge shift in tort law after the series of landmark cases. However, in the series of decisions in Sutherland Shire Council v Heyman, Caparo Industries plc v Dickman[footnoteRef:29] and Murphy v Brentwood District Council the ‘House of Lords made it clear that it would no longer proceed by broad strides… venturing cautiously by way of close analogy.’ The wording used in McMahon and Binchy’s Law of Torts book is echoed in the Lady Hale’s judgement in Woodland v Essex County Council, this use of similar wording exemplifies the aforementioned narrow incrementalism approach to judicial reasoning. Using this model of incrementalism, the Courts slowly retreated from the expansive test in Anns, as they balanced their understanding of the duty of care and the protection of the unnecessarily liable defendant. In this way, the ‘more cautious approach favoured in Caparo’ allows the Courts to focus on clarifying the specifics of the law and developing their reasoning, creating underlying principles for future judges to use in deciding their specific cases in the future.

The Irish Position

This model of narrow incrementalism is not a new phenomenon in Ireland, as lower courts are strictly bound by the decision and reasoning of superior courts. A lateral precedent also applies in Ireland, where courts on the same level have to respect the previous decisions of their predecessors. This precedent in Irish law protects the predictability, uniformity and stability of the Courts. Instances of this in tort law include; the Glencar Explorations plc and Andaman Resources plc v Mayo County Council (No.2), the Breslin v Corcoran case and Gaffey v Dundalk Town Council. The Irish Courts, like in the United Kingdom, used a series of cases to clarify the law by developing previous tests and reasoning set down by precedent. In the Glencar case, Keane CJ put forward a four-stage test, which progressed the Ann's two-step test and the Glencar three-stage test. Following on from this the Courts clarified the parameters of the duty of care in Ireland, where they ‘laid great emphasis on the foreseeability step.’ This stability is one of the main advantages associated with Lady Hale’s ‘incremental by analogy approach.’ Additionally, this model can be used to strategically reduce the number of cases, which come before the Courts. In the case of Fletcher v Commissioner of Public Works, the Supreme Court acknowledged the fact that if this case was decided the other way it would have opened the floodgates for plaintiffs to attempt to claim compensation. This may be against the judiciary’s role in the administration of justice, but it could also be seen as a pragmatic approach to culling the number of cases which the Courts have to reside over.

A Positive Solution?

The above paragraphs address the apparent problem associated with a sudden change in one case and Lady Hale’s solution to the apparent ‘danger’ of radical change in an area of common law, but is this a viable and pragmatic solution? Lady Hale’s proposition of narrow incrementalism contains some flaws, from the administration of justice in novel cases to a slow-moving approach in a fast-paced world. The alternative is not to be desired either, as it would lead to contradictory precedents bringing inevitable confusion to an already complex area of law. I believe, a balance between these two models will provide us with a system of consistency, which is still ‘receptive to novel claims.’ In theory, this would be the best solution to the incrementalism approach as it would bring about the positive attributes associated with each system, while simultaneously diminishing the negatives. Pragmatically, some explicit restrictions would be necessary for the dual-model system to work.

The Irish Position

Due to the fact Ireland is a relatively small jurisdiction of common law, it becomes more difficult to determine its position on the specific issue of extreme incrementalism in judicial decision-making and reasoning. Above, I have discussed the disadvantages of using wide incrementalism, but there is little case law regarding the mediocrities of narrow incrementalism. One counter-argument to the shortcomings of wide incrementalism model is pragmatic. The novel claims, by their definition, do not occur very often. In Ireland, the broad approach of the duty of care lasted for thirteen years and in that time, there was no instance of undue expansion. This begs the question: is strictly narrow incrementalism necessary when ‘unbridled and unprincipled growth’ does not occur as often as suggested? Although there are no problems presently with Lady Hale’s solution of incremental improvements in the law, we must look to other jurisdictions as we inevitably follow.

Other Jurisdictions

Other common law jurisdictions in the world have seen both the extremes of narrow and wide incrementalism, which highlight their various flaws. In the jurisdiction of England and Wales, the Courts recently held that they approved the narrow incrementalism model, but simultaneously explained they were not endorsing a previous case. This seemingly contradictory statement confuses many, which is one of the reasons a clear new rule would have been better suited to explain the Court's position in that area of law. Similarly, the case of Campell v Mirror Group Newspaper Ltd, which involved the aforementioned controversial tort of privacy, uses this narrow incrementalism approach to maintain consistency in the law, but ultimately it left ‘lawyers scrabbling around’ attempting to make sense of the decision. Additionally, academic articles have been written about the problems associated with extreme incrementalism. An article from England and Wales stating an unsatisfactory element in a strict narrow incrementalism model:

‘A fundamental problem with [narrow] incrementalism is that it constitutes a requirement for courts to proceed gradually, it cannot handle a truly novel case other than with the unhelpful response that, as the circumstances are unprecedented, the claimant must lose.’

This harsh reality demonstrates the pragmatic inadequacies in the model, which is hindering the Court's administration of justice instead of helping it. Furthermore, a USA article refers to the narrow incrementalism approach to precedent as leaving the Courts ‘shackled… by the dead hand of the past, as it could be argued that a slow-moving approach is inadequate for a fast-paced society.

Regulating a Dual-Model System

A dual-model system of incrementalism would work to balance the strengths of both the narrow and wide approaches to judicial decision-making. In theory, the judiciary should control the small changes by deciding individual cases, which allows the legislature to make bigger adjustments in line with society’s growth. As I have explained above, this theory does not occur in reality, leaving the difficult question of how it should be improved. I would suggest a few restrictions to be placed on the Courts to stay generally consistent with the common law. Additionally, I believe an external review should be completed on the decisions which were deemed to apply to novel cases, this could be achieved with aid from academics and legal practitioners. Hopefully, this would provide us with the ‘strength’ of the common law, while reducing the ‘danger’ that Lady Hale refers to in her judgement.

Conclusion

During this essay, it becomes self-evident that the common law is a ‘dynamic instrument’, which has the strength to develop and adapt to ‘new situations’, but also the danger of having ‘unbridled and unprincipled growth.’ This is seen throughout the tort cases from Ireland, England and Wales. Lady Hale, in her judgement, claimed that the solution to this aforementioned ‘danger’ is to proceed ‘incrementally by analogy,’ which is akin to the model of narrow incrementalism previously mentioned. Nevertheless, there is an important question that needs to be answered: Is this a viable and pragmatic solution, which upholds the Courts’ role in the administration of justice? The judicial approaches to the law of torts can help us understand this question. Their leniency for a broader interpretation of precedent creates radical changes, while a more restrictive approach does not adequately deal with novel cases. I believe that neither model properly fulfils this aspect of the court’s role. However, a balance between the two forms of incrementalism would, in theory, present the best solution. Unfortunately, we are still waiting for the Courts to adopt this model, leaving us to only theorise the possibilities of a dual system.