 Felly, rydyn ni'n bwysig, gyda'ch pethau, ychydigwyd, ddigonwch. Mae'n fath a gyntaf. Mae'n Sarah Worthington, ac rydyn ni'n bwysig i fynd i'ch gweithio'n gweithio'n gwybod a dweud ei wneud o'r Fatholol Cymru, y Llyfrgell Cymru, llaw Llyfrgell. Mae'n ddim yn eich gweithio'n llaw llyfrgell cymru, honourously sponsored by Freshfields and organised by the Cambridge Prif Travels Center through the faculty, but it only takes two to make a tradition, doesn't it? So one of the center's ambitions is to facilitate informed and challenging public debate about some of the fundamental and significant legal issues that are facing us. So we're especially delighted tonight to welcome Lord Hoffman. Er oed i yw'r perrasedd, oes ddiddor i ei ddybodol yn creu'ch ac diebioín arall ochr maen nhw'n yst Food humanity. Felly mae perrasio allan yw gwneud fo. a gweld o'r lawr o'r llwyddon ymlaen. Ond yw'r llwyr? Mae'r llaw o'r blwyddyn yn ei ddweud oherwydd Llenny oedd yn Llyfr H�n. Ond yw'r llwyr wedi'i ffaith, mae'r llwyr oherwydd iechyd yn ddelch yn y llwyr. Felly gan y cael ei ffordd o'r llwyr o'r llwyr, mae'r llwyr o'r llwyr yn ystod o'r llwyr o'r llwyr, yn ei h Teaching fact in company law in very many areas, perhaps especially in shareholder litigation starting with O'Neill and Philips, and you keep on going. But then if I wear my commercial law hat, is there a practicing lawyer, indeed is there a student who's not alert to the fact that Lord Hoffman's restatement of orthodoxy in investors compensation, ymlaen nhw'n gallu'r cymdeithasol yn y cyfgau cyfeiru. Ond dda, yn cyfrifau, mae'r baton yn Fuddon Lord Millet. Dyna'n meddwl. Mae'n meddwl, mae'n meddwl ar dda i fy ffordd. Mynd i'r Fyffordd Haufmann has wedi ymddangos cyfrifau o'r llyfrgyrchu a'r cyfrifau o'r tererysau. Mae'n meddwl i'r llyfrgyrchu'r cyfrifau, i'r meddwl ar gyfer, ac wedi bod yn ymddangos i'r ffordd rydych chi'n gweld y cyfnod yw'r Cyfnod Llywodraeth yn ei ddweud ar y ddechrau'r Ddiogel yn Michael i'r troi Gwyrdwyr Ddylch Cymru, yn gweithio'r ddylch yn gweithio'n gynghwylau, yn ei ddweud yn ddweud y gilydd o'r llyfrwyng yng Nghymru Llywodraeth'r Hofman, gyda'r rydych chi'n gweld y dyfodol, i ddim yn ymgwrdd cymaint o'r cyfnod yma yn ymdweud yn niagoligau, oherwydd, yn cael ei ddweud o'r cael ei ddweud. Why so, I think he is well known because his breath just sweeps across so many areas of law, and he has had such a profound impact on the way we think about some of the fundamental issues. But when you introduce people you are supposed to start at the beginning. Lord Hoffman was born in Cape Town, educated at the University of Cape Town, and then attended that other place, Queens College Oxford, as a Rhodes Scholar. Mae'n ddweud yw'r Cymru i'n ddegwyd yn gyntaf ddechrau a wneud yr oedd y bynneriau. Yn 12 y bydd drws, mae'n ddegwyd yn gymhwyl o'r unedol gyda'r Uneddo Cymru, ac mae'n ddegwyd yn ymddangosol ffalu. A gydag ydych chi'n gweithio, mae'n ddweud o'r barion, mae'n ddegwyd ar gyfer Gwydiannol, a ddegwyd ar gyfer y gweithio, ac mae wedi'n ddegwyd ar gyfer pwynt, y baristur yw'r genwraeth. He was made a QC in 1977 and a judge shortly thereafter. He was a law lord from 1995 to 2009 and still serves as a non-permanent judge of the Court of Final Appeal in Hong Kong. When he retired as a law lord, he didn't stop thinking like a lawyer. He immediately joined the Centre for Commercial Law Studies at Queen Mary as an honorary professor of intellectual property law. But then you should say something more personal, shouldn't you? And anyone who's watched any TV programmes on the House of Lords will know that Lord Hoffman has another side. He's a cyclist. He got to work in the House of Lords on his bike every day. That's not all though. He's probably cycled more miles in Europe, more kilometres in Europe, than anyone who's not a professional cyclist. He's also, so I'm given to understand, a voracious reader of novels. So he puts the rest of us to shame who can barely manage our reading workload. But enough. I think you get a flavour of the man. So without more ado, I will hand over to Lord Hoffman. His topic is constitutionalism and private law. Even the originality of the title and the unlikely pairing of those ideas suggests we're in for a treat and no doubt for a few surprises. So Lord Hoffman will speak for about 45 or 50 minutes and then he's happy to take questions. So over to you Lord Hoffman. Well it's a great pleasure and a privilege to be in Cambridge. This morning I was giving a class on patterns in Oxford, where I'm to be seen more often. But to be here is really an honour. The advertised title of this lecture doesn't give much away. So I shall say now that what I intend to discuss is what judges think about when they're asked to make changes in the common law. Many people think it isn't the business of judges to change the law at all. One of the main purposes of the Cerdynapoleon was to ensure that the whole of the civil law was written down in clear terms and to confine judges to applying the law to the facts of the case. That I think is still the constitutional theory in France, although experience has shown that it's not quite so simple. In England there was a fiction that all the rules of the common law had existed since the coronation of Richard I in 1189 and judges merely declared what it had always been. Even if this involved correcting an error by earlier judges. As a fiction it still exists and it may be said to serve a useful purpose. It supports the undoubted fact that changes in the law by judicial decision, unlike most statutes, operate retrospectively. That's certainly no fiction. When the Supreme Court says that the law which was previously thought to be entirely in favour of the respondent is actually in favour of the appellant, the respondent loses the appeal. Even though, by definition, the facts of the case happened before the Supreme Court changed the law. Writers and judges have occasionally speculated about the possibility of the Supreme Court assuming a power to change the law only with prospective effect. But that would involve judges moving outside their normal business if deciding disputes between parties. They would be saying to the successful party, well it's very public spirited of you to have brought this action and brought this matter to our attention. And we quite agree that the existing law is extremely unjust and wrong so we're going to change it for the benefit of other people in the future. But I'm afraid you're going to lose because the unjust law was the law when you entered into this arrangement. But the fact that a change in the law will operate retrospectively is one of the matters which judges take into account in deciding whether it should be changed. Even if they think a decision of their predecessors was wrong, the effect of the change on people who entered into transactions on the assumptions was right may be so unfair that it would be better to let things be as they are. The judges can leave a rule of common law unchanged even though they think it's wrong because judicial decisions are not the only way in which the common law can be changed. It can be changed by act of parliament and there are often reasons like the retrospectivity of judicial decisions which may make it more desirable that the parliament should do so. That's obvious and has been recognised by judges for a very long time. But there are other reasons which are not so well recognised arising sometimes out of the conceptual differences between rules of statute and rules of common law and sometimes out of constitutional arguments based upon the principle of the separation of powers which mean that one should leave matters to parliament or that parliament should leave matters to the judges. And it's those which I'm proposing to discuss tonight. One of the most striking recent changes in a rule of common law was the decision of the House of Lords in Clynydd, Benson and Lincoln City Council. The common law allows a person who has mistakenly paid money that he didn't owe to claim that it should be paid back to him. It's unfair that the recipient should be allowed to take advantage of his mistake. However, in the early 19th century it was decided that the money could only be recovered if the mistake was one of fact. It could not be recovered if it was paid under a mistake of law. There's no logic in that distinction whether the mistake was one of fact or of law. The person who paid did so because he thought the money was owing when actually it wasn't. And so it's equally unfair that the recipient should be able to keep it when it wasn't due to him. And the Law Commission had recommended legislation to abolish the distinction. But in the way of recommendations of the Law Commission not a lot had been done about it. It was a rule of common law for nearly 200 years until the House of Lords changed it in the Clynydd, Benson case. Now why did the House of Lords feel able to say that a rule which had been assumed to be the common law for so long was wrong and change it with retrospective effect? Why didn't they leave it to Parliament to do it for future cases when they got round to it? Its first reason is that the common law trades in principles rather than arbitrary rules. The distinction between mistakes of fact and mistakes of law was looked entirely unprincipled. And secondly, because there was no question of reliance, recipients of money which isn't adding to them don't rely upon the fact that it was paid under a mistake of law rather than a mistake of fact. Of course they may share the mistaken view of the person who paid them that the money was due and they may then go ahead and spend it. But that would be possible whether the mistake was one of fact or of law. It wouldn't matter one way or the other. There are special defences for people who changed their position on the basis of the mistaken assumption the money was due to them. But they don't depend on the nature of the mistake. So the House of Lords thought it would be unjust to leave the parties who had paid under a mistake without any remedy. I now want to contrast the Kleinwith-Benson case with another case decided in the House of Lords four years later. Fairchild and Beneven funeral service is limited. This was a case about victims of mesotelioma. And that's a rare but fatal cancer caused almost invariably by the ingestion of asbestos fibres. It has an incubation period of several decades so that the victims tend to be people who worked with asbestos when its dangers were insufficiently appreciated many years earlier. In 2012 about 2,500 people died from mesotelioma in the United Kingdom. That's about 1.5% of the total number of cancer deaths in that year. And in many of those cases their employers had years earlier been negligent in not taking precautions against their coming into contact with asbestos. But at common law it's not enough to prove that someone has been negligent. You have to prove on a balance of probability that his negligence caused your injury. The problem with mesotelioma was that there was no way of proving which asbestos caused the disease. If you worked with asbestos for several employers over the years, as most building and shipyard workers did, it could have been caused by any of them. So the Court of Appeal decided that it was very unfortunate but none of the employers could be made viable. The House of Lords decided this was a terrible injustice which they had to put right. So they created an exception in which it was unnecessary to prove that the defendant had caused the injury. They said it was sufficient to prove that he substantially increased the chances of it happening. Well, statistically you're more likely to get the disease if you've worked for asbestos for ten years than you would be if you'd only worked for five years. The chances of one of them causing your disease is that much greater. So an employer who exposed you to asbestos for a considerable length of time increased your chances of the injury. And the House of Lords said that was enough to make him liable. Well, in principle, this was a revolutionary judgment. The common law of negligence had always demanded proof that the negligence caused the injury. It operated a binary system either you had caused it or you hadn't. There was nothing in between. If the evidence showed that it was more than 50% likely that you'd caused it, you were taken definitely to have done so. And if it was 50% or less, you'd definitely not done so. You recovered full compensation or none at all. It was a crude but simple system. So why did the House of Lords think he could change the law? The reason, of course, was that fair child was a hard case. And they say, hard cases make bad law. The great difference between climate pension and fair child was that in climate pension you could say that as a matter of principle the previous decisions were wrong. It made no sense in the context of recovering money paid by mistake to distinguish between errors of fact and errors of law. But the House of Lords in fair child did not claim to be correcting a rule that was wrong in principle. The general principle that you had to prove causation on a balance of probability was left intact. So the judges had to find some way in which they were justified in creating an exception. But they were unable to do so. Should one say that the exception should apply in all cases in which it was impossible to prove which of two possible causes was responsible? That would have been far too wide if it would have destroyed the general rule altogether. There are many cases, for example, of medical negligence in which it's impossible to prove but for some negligent act on the part of the doctor the patient would have got better or he wouldn't have got worse. If it was enough to show that the doctor substantially reduced the chances of getting better then the one billion or so pounds paid by the National Health Service last year for clinical negligence claims would have had to be very considerably increased. The best that we could do as judges, and this includes myself, was to say that the exception applied when the injury was caused by the same agency. That meant in fair child, for example, it was undoubtedly caused by asbestos. And the only question was, who's asbestos? It wouldn't apply when, for example, the cause of the disease was either asbestos or smoking. But this was an unprincipled decision which was almost comically exposed in the later case in the Court of Appeal when the claimant's cancer could have been caused by smoking or by inhalation of chemicals for some dye stuffs that you've been working. And the expert evidence showed that the chemical substance in the dyes, which might have caused the disease, was actually the same as that in cigarettes. This was an arbitrary decision if ever there was one. Now I said in discussing Kleinbert Benson that the common law trades in principles and not in arbitrary rules. Kleinbert Benson was right because it removed an arbitrary distinction and restored the general principle. Fair Child was wrong because it introduced an arbitrary distinction into what had been a clear principle. The judges recognised they could not limit the exception to mesothelioma. That would have looked blatantly arbitrary. So they tried to invent a distinction which looked more like a principle but it came apart in their hands. Arbitri distinctions in the law are often necessary on pragmatic grounds. The voting age is 18. You can't vote when you're 17 years and 11 months, even though you may have a better knowledge of politics than someone who's 19. It wouldn't be practical to test everyone's qualifications. So Parliament does lay down arbitrary rules all the time. But judges can't. I think that in Fair Child we assume that we alone could do something to put right and injustice to the mesothelioma victims. We did not consider that Parliament might intervene. What happened afterwards is interesting. The Fair Child case decided that if the negligence of two or more employers had each substantially increased the chances of the worker getting the disease, each was liable. We did not decide what they were liable for. Was it going to be each for the whole of the damages jointly and severally so that if one didn't pay the other had to? Or was each going to be liable in proportion to the extent to which he'd increased the chance of getting the disease? In a case about two years later, the House of Lords decided that each was only liable for the proportion to which he'd increased the chances of getting it and not for the whole. That meant that if one employer was insolvent and you're looking at employers who were going back for many, many years, sometimes several decades, one had gone out of business and there was no money there, then the worker or his estate usually couldn't recover that proportion of the damage. That decision caused immediate protest from the trade union movement. The government was sympathetic and within three weeks an act of parliament had been passed to reverse it. The act made all the employers liable jointly and severally for the whole damage. It did so retrospectively and it limited its application simply to the disease of mesotelioma. That's the kind of thing parliament can do and if the public interest requires it and parliament is the judge of that, it's the right thing to do. But judges on the other hand can't. I think if we'd realised when we decided Fairchild that parliament would be willing to pounce on the problem in the way it later did, we would have left well alone. We would have said it's a hard case but that the common law couldn't be changed without damage to an important general principle and would create uncertainty as to how the new exception extended. We might have recommended that parliament deal with the matter pragmatically by legislating specifically for mesotelioma and to be fair to the claimants in our case, perhaps retrospectively. The Fairchild case indicates the perils of making changes in the common law which cannot be justified on principle simply because you think that would be a fair and a good thing. But there may be other more constitutional reasons why judges should hold back. Sometimes it'll be because parliament has already created a system of rules which are a more practical answer to the problem than anything which judges could devise. Sometimes it'll be that a preparer's change in the law, for example to create a new form of liability, will involve public expenditure. And it's more appropriate that that expenditure should be authorised by democratically elected organs of government than by judges. The Fairchild case itself opened the way to another which raised an issue of that kind. Greg and Scott was a case in which a doctor had been negligent in telling a patient that a lump under his arm was benign instead of referring him to a hospital to have it checked. In fact it was found a year later to be cancerous. The judge found, hardly surprisingly, that having cancer had reduced his expectation of life. The questioner ever was whether it would have made any difference if it had been diagnosed earlier. The judge found on a balance of probability that it had made no difference. There was, he said, after looking at epidemiological statistics, a 40% chance that it would have made a difference. And under the law's binary system, that's not good enough. That meant it had to be taken as having made no difference. In the House of Lords it was submitted that we ought to extend the Fairchild principle, or version of it, to all cases of medical negligence and award the patient 40% of the damages which he would have recovered if he'd been wholly successful. That would have been a huge change in the common law if it had enormously increased the liabilities of the National Health Service. And if such a change was desirable, and maybe it was, it should be made by Parliament and not by judges. Fortunately by a majority of three to two that proposed change in the law was rejected, it was a very close-run thing. I want to turn next to cases in which the court shouldn't make changes in the common law because the ground with such a change with cover is already occupied or should be occupied by a statute. And I'm going to take two examples from the law of nuisance. Now, the law of nuisance goes back to medieval times and it's concerned with a particular form of what economists call externalities. That is to say, either the involuntary imposition of part of the costs of some activity upon other people or the conferment upon other people of benefits that they haven't paid for. Either consequence can happen. Nuisance is concerned with the first kind of externality in connection with the use of land. And the best example is the great mid-Victorian case of St Helen's smelting company and tipping in which an alkali company in Lancashire polluted the atmosphere to such an extent that it was actually dumping chemicals upon surrounding land. The result was to impose some of the costs of the business on other people, namely the landowners around who then had to clear up their land. The House of Lords in that case decided that the law of nuisance allowed the other landowners to claim compensation. In those days, of course, there was no planning control and the law of nuisance was the only remedy available to prevent landowners from doing what they liked upon their land no matter what the consequences were for other people. Well, a comprehensive system of planning control was introduced by the Town and Country Planning Act of 1948. And the 1990 version was in force when the case of Hunter and Canary Wharf came before the House of Lords in 1997. The Tower of Canary Wharf, which is clad in stainless steel, interfered with television reception from the transmitter at Crystal Palace to the people in houses in Poplar which had the tower between them and the transmitter. Many houses in Poplar, in, so to speak, the electromagnetic shadow of Canary Wharf, couldn't receive any signal at all and had no television. And that continued for three or four years until the construction of a relay transmitter to the North solved the difficulty. But they claimed compensation under the law of nuisance, saying that the building had interfered with their enjoyment of their land. Well, to allow such a claim would have been an extension of the law. There'd never been an action for nuisance against somebody who just kept himself to himself and constructed the building on his land. A neighbour couldn't complain that he'd interrupted his view or blocked the flow of air or even darkened his windows. Although there was a rather anomalous right, a rule by which you could acquire a right to light if your building had been up for more than 20 years. Well, if you can't complain with interference with light or view, why should you be entitled to complain of interference with television? And yet being deprived of television in today's society is a serious matter. Why should it not be regarded as an externality, part of the cost of putting up the building which should be borne by the developers who are hoping to make a profit out of letting the office space? That was an argument for extending the law. So far as I was concerned at any rate, part of the reason for not doing so was the existence of planning control. A planning inquiry gives the planning authority an opportunity to hear the objections of the neighbourhood. It can require the developer, under the Planning, Downer Country Planning Act, to enter into an agreement under section 106 to take steps to prevent inconvenience to others, for example, to pay for the construction of a relay transmitter before the building is completed. So statutory planning control seemed to me a much more effective mechanism for avoiding such externalities than having individual actions for compensation brought by hundreds of householders in the neighbourhood of Canary Wharf. But the difficulty in that particular case was that Parliament had suspended the application of planning control just for the Isle of Dogs. It was so anxious to regenerate the docklands that it declared the area an enterprise zone in which landowners were free from any planning restrictions. They could build whatever they liked without having to get planning permission. So the television reception of the householders of Poplar was sacrificed to the greater good of developing docklands. But those special circumstances were not a reason for changing the common law, which would have to apply over the country, including everywhere where planning control still existed. And one mustn't forget that in addition to negative externalities like interference with television, there were positive externalities which conferred upon those householders other benefits that they had not paid for. The construction of the docklands right well way and other infrastructure projects at public expense and the consequent revival of the neighbourhood, no doubt, increased the value of their houses. Well, if a statutory scheme of planning was a relevant consideration in the Canary Wharf case, which had to be taken into account, in the case of Marchik and Thames water utilities, the statutory scheme was decisive. Marchik was a case about sewers. Until they were recently privatised, sewers were a public utility and subject to statutory control. And an important element in that scheme of control, going back into the 19th century, was that anyone had the right to connect his land, his house, into a public sewer. Well, from a public health point of view, it was desirable that he should do so. But it gave rise to a problem if many people emptied their sewage into file sewers and they became overloaded. In time of heavy rains, sewers would back up and deposit extremely unpleasant file sewage in people's gardens. And that's what happened to Mr Marchik, who had a house in Stanmore. There was a great deal of building in Stanmore, new houses and so forth, and the sewers became overloaded. And he had to build his own flood defences to keep the sewage from actually coming into his house. So he made a claim in nuisance against the sewage company saying the inadequacy of their sewers had interfered with his use of his property. Now, the company had no control over the quantity of sewage which went into their sewers. Anybody had a legal right to put it in. So the complaint wasn't about anything that the company had done. It was that when faced with increasing use, it should have done something positive to enlarge the sewers. The ancient rule of common law was that liability in nuisance required you to have done some positive act causing damage to other landowners. You weren't liable simply by allowing nature to take its course. But in the last 60 or 70 years, that rule has been thought slightly too restrictive. There are some exceptional cases in which people have been required to take some action to prevent a dangerous situation on their land which they had not created themselves but which had happened from spreading to a neighbour. A farmer in Australia was held liable for not preventing the spread of a fire which had been started by lightning. And the National Trust was liable for not doing something to prevent eroded rocks on their property from tumbling on to the people next door. But these were very unusual forms of liability, particularly because they required a court to take into account what the particular defendant could have done. The normal rule about liability for things you do is that there is a single standard of reasonable behaviour for everyone. If you don't have the resources or the skill to meet that standard, then you oughtn't to be doing it at all. But that would obviously be unfair when the complaint was that the defendant had just failed to do something. It needed an inquiry into what he in particular could have done, what resources he had available, and that may not be an easy matter. But if that's a difficult question as between neighbours, it becomes much more difficult when it comes to a sewage company and asking whether it should have built more or bigger sewers. In order to do so, they would have presumably had to charge the public more for their water rates. Would it be fair that the householders of Greenwich should have to pay more for their sewage in order to enable more sewers to be constructed in Stanmore? Because these are complicated questions, Parliament has for more than 100 years entrusted them, not to judges, but to administrators. So today, if your local sewer is inadequate, you can complain to the director-general of water services, and he will then consider whether something ought to be done. He'll take into account the severity of the problem, well it was obviously pretty severe for Mr Marcik, how it ranks in priority compared with other sewers that need to be built or enlarged, what it will cost, whether that will mean putting up the water charges and so forth. And that's obviously not an exercise which a court could possibly undertake in litigation between two parties. So the House of Lords decided that the question of whether the law of nuisance should be extended to cover Mr Marcik's case would be decided without regard to the existence of that statutory form of regulation. That seemed to deal with the matter much better than anything which the common law would devise. My last example of the relationship between the roles of the judiciary and the legislature in changing the law is the extraordinary story of what are called the economic torts. Which consist of causing a claim and purely financial loss. Until the mid 19th century they hardly existed. There had been two cases in the 17th and 18th centuries respectively in which judges appeared to think that tradesmen had caused lost rivals by exceeding the bounds of fair competition. They were quite striking cases, there was a 17th century case in which a quarryman at Oxford made death threats against anyone who traded with a rival. Another a century later in which the master of a ship trading on the west coast of Africa fired his cannon to sink a canoe which was bringing goods to sell to a rival ship. The obscure law reports in which these cases are reported say a little about the principle upon which they were decided. However, in Lumley and Guy the common law went a great deal further. In this famous case Mr Lumley, the manager of Her Majesty's Theatre engaged Mr Johanna Wagner, a famous soprano and Richard Wagner's niece to sing Don Anna in Don Giovanni and a couple of other roles and Mr Guy, the manager of the Covent Garden Theatre not yet the Royal Opera House offered her better terms and she broke her contract and didn't appear for Mr Lumley. The Court of Queens bench decided by a majority that inducing a party to break a contract is a thought. The only precedent for such a claim was the medieval action for poaching a servant which was based partly on the theory that you had a proprietary interest in your servant and partly upon the economic needs of landowners arising out of the acute shortage of labour caused by the Black Death. As in the case of medieval labourers the judges in Lumley and Guy felt that it went beyond the bounds of fair competition to poach a famous opera singer who had already signed up for a rival. Well, what was the general common law principle which the case represented? At the time it wasn't easy to say. Mr Willis QC, later Mr Justice Willis who had been on the losing side he maintained for the rest of his life that the case had been wrongly decided. The judges looking for a principle the judges in Lumley and Guy they couldn't have declared that the statute of labourers 1351 was being extended to opera singers or even to people offering cultural services to members of the middle classes like themselves. Parliament could have done that but not the courts in the interpretation of the common law. Well, did it express a principle of unfair competition? It looks as though that's what the judges thought. You may offer customers a better deal than your competitors but not when you know they've already signed up to a binding contract with someone else. That's going too far. But the common law unlike for example German law has no general theory of unfair competition of which this could have been a species. Common law has a few specific principles of unfair competition like the law passing off. You may not deceive the public by pretending with your goods at those of your competitor. That's safe ground for the common law deception being something that judges are used to dealing with. It doesn't raise any difficult questions of economics or public interest. I suppose the same may be said about the ancient cases about violence against the rival's customers. Presumably the judges in Lumley and Guy thought that inducing a breach of contract for the competitor was crossing a bright line which would be easy enough for the judges to police. But I doubt they thought very hard about it. The judgment contains some general statements that there might be cases in which inducing a breach of contract could be justified but no illustrations of what that might be. The court simply fastened upon the fact that any breach of contract was an unlawful act, a violation of the rule that people shouldn't perform their bargains, and Mr Guy had deliberately induced such a breach to profit at the expense of the rival. For many years Lumley and Guy remained a curiosity, a controversial anomaly. No-one was quite sure how far it went. Thirty years later, when the Court of Appeal approved it in a case called Burnham Hall by a majority, Lord Currie said it had never previously been applied. What made the ruling Lumley and Guy explode into public life was the rise of the trade union movement which had led a shadowy existence of semi-illegality until Israeli's conspiracy and protection of property acted in 1875. Now the ultimate bargaining weapon of the 19th century trade union or indeed the 21st century one was a strike, either against the employer whom they were in dispute with or against a customer or supplier whom they wanted to compel to put pressure upon a recalcitrant employer. Well a strike often involved breaches at the striker's contracts of employment. Although not always as the plaintiff in Allen and Flood discovered when he lost his case in the House of Lords on what must have seemed to most people the highly technical point that his fellow employees who were threatened to strike unless he was sacked had no contracts of employment. They just signed on from day to day. The question which arose in the last quarter of the 19th century was whether the courts would transfer the rule in Lumnian Guide from the context of competing traders if we can call them that to industrial relations where the economic considerations were entirely different. And Tempeton and Russell in 1893 was the crucial case in which Lord Esha enthusiastically embraced Lumnian Guide as a weapon against the trade unions. His judgment made no secret of his political views and it put the courts on a collision course in a series of highly politicised cases which are all very well known at the end in the last decade of the 19th century and the early years of the 20th. The difficulty was that although inducing a breach of contract might be a bright line although perhaps not always a very logical one when in competition between traders it would very seldom raise questions of what counted as justification. But such questions were very much to the fore in cases about industrial relations. You couldn't regulate strikes by law without having a political and economic view about the circumstances in which a strike would be justified. Not only were judges unqualified to make such decisions the questions were so politically charged that it was really constitutionally inappropriate for them to do so. And in the mogul steamship case which was decided the year before Tempeton and Russell the House of Lords emphatically declared it was incapable of laying down a general principle of unfair competition between traders. The ship owners defendants in the mogul case had done everything which nowadays would bring down upon them huge fines from the competition authority. They had formed a cartel, they had lowered prices to drive out competition and then raised them again and so on and so forth. The House of Lords said this was perfectly lawful and that was entirely reasonable. Their view was it was for Parliament rather than the common law to create a system for dealing with restrictive practices and unfair competition, as it eventually did in the Restrictive Practices Act of 1956. In the case of industrial relations, however, the courts plunged into the fray. They refused to engage in economic questions of justification. In the South Wales miners case in 1905 the union attempted to justify a strike by saying that it was in the legitimate interests of their members who were being paid miserable wages. The House of Lords would have none of it. Liability depended upon breach of contract and nothing but breach of contract. The result was that apart from the odd case in which judges could apply moral views that didn't involve questions of politics or economics, like the man who persuaded chorus girls to desert him breach of contract to rescue them from prostitution, the question of justification disappeared from view. Well, if ever there was an example of the law of unintended consequences it was the decision of the Court of Queens to give Mr Lumley a remedy against Mr Guy because he had not behaved like a gentleman. They could not have foreseen the thrifty years later that rule would form the basis for a political storm which did much to give rise to the growth of the Labour Party and to bring down the government in the election of 1905 after which the unions were given protection by the Trade Disputes Act of 1906. The political pressures under which the law evolved in the late 19th century also produced their own illogicalities. For example, was the rule confined to introducing a breach of contract or was that just one example of a wider thought of interfering with economic relations? In Temperton and Russell, Lord Isher in an expansive mood said he could see no difference between inducing a target employer's suppliers to break their contracts and inducing them not to enter into such contracts in the first place. In both cases, the purpose of the strike was to use action against the supplier to put economic pressure upon the employer. Well, it's hard not to sympathise with Lord Isher because he was obviously right. In the opera world it may make sense to treat the signing of the contract as the line which you may not cross. Once you know Mr Wagner is under contract you may not offer a larger fee or a better dressing room. But it's hard to think of what would be regarded as a justification for doing so. But in the world of labour relations, however, the question of whether there is justification for applying economic pressure is more important than whether there was a contract or not. And what Lord Isher didn't recognise was that his sound instinct about the real issue did not necessarily lead to the conclusion that the trade unionists would be liable whether there was a contract or not. It might lead to the conclusion they shouldn't be liable on either case. However, a few years later a majority of the House of Lords in Allen and Flood, who didn't share Lord Isher's political views, saw that insistence upon a breach of contract as a way of cutting back the application of Lumley and Guy to trade disputes. So it did, but it left the law in a highly illogical state. The Trade Disputes Act of 1906 drew the teeth of Lumley and Guy in the area of industrial relations. In the 1960s and 70s, the turbulent labour relations at that time gave rise to the judicial intervention of some new economic thoughts, namely intimidation and causing loss and awful means, which were a sort of muted reprise of the events of the late 19th and early 20th centuries. But the role of the common law in this area, industrial relations, was entirely extinguished by Mrs Thatcher's trade union legislation in the early 80s. And since then, the matter is governed entirely by statute and no political party has shown any appetite for allowing the possibility of further judge-made law. Unfair competition, as the House of Lords recognised in the Murgall case more than a century ago, is also not an area suitable for judge-made law. It also involves questions of policy and economics, which are more appropriately decided by Parliament or by statutory machinery. And when the scope of the economic thoughts was considered by the House of Lords in the case of OBG and Allen, the general approach was to restrict their scope as far as public respect for precedent would allow. So inducing breach of contract is now, perhaps uniquely in the law of thought, a thought of specific intent. You must intend a specific consequence, namely the breach of a contract of which you have knowledge. Doesn't matter that you were careless or stupid in being unaware that there was such a contract. Furthermore, there must have been an actual breach. Cases which created liability for interference with the performance of a contract, which caused damage, were overruled. The thought of causing loss by unlawful means was pruned right back to its roots in the old cases about death threats to customers. You now must have done something unlawful to a third party which affected his ability to deal with the claimant. In effect, the House of Lords recognised that in Lumley and Guy, the courts' judges have made a mistake by entering a field better left to Parliament. Well, in this lecture, I've dwelt upon the cases in which the courts have unwisely trespassed upon ground better left to Parliament. But the opposite is sometimes also true. The common law consists of general principles of great flexibility, which have been applied over centuries in many cases to situations enormous number of which are recorded in the law reports. In some cases, the introduction of legislation covering the same ground is like a bull in a china shop. Consider, for example, the social action responsibility and heroism bill. I do not lie, that is what its name is. Presently about to return to the House of Commons after being amended in the House of Lords. It requires that in an action for negligence the courts must have regard to whether the defendant was acting for the benefit of society, whether he demonstrated a generally responsible attitude towards protecting the safety and interests of others or whether he was acting heroically by intervening in an emergency to assist an individual in danger. But all these things are matters that, as a macro principle, any court would take into account in deciding whether someone was negligent. So what are we to make of the act? Does it change the law? What was the mischief in the traditional phrase which it was meant to correct? It seems to have been a declaratory, a parliamentary statement to reassure readers of the Daily Mail that judges would, contrary to their supposed previous practice, have regard to such matters. Now the trouble with political interventions in the common law like that is they run the risk of causing confusion and uncertainty by being taken seriously. The adaptation of the law to the needs of justice and to changing conditions is a partnership between the judiciary and the legislature, which requires some sensitivity on the part of both branches of government, a recognition that there are areas of change which are, however desirable, best left to the other branch. W. S. Gilbert said of the contribution of the House of Lords to the victory over Napoleon that they did nothing in particular and did it very well. And that is something which one can sometimes recommend, sometimes to the courts and sometimes to Parliament.