 is perfect community, a community where law is incredibly important, where equity is incredibly important. There's an awful lot of legal discourse and references to the language of equity and justice and fairness llawer o y ddweud i'r ysgol yn ymddangos â'r ysgol, mae'r ddweud i'r llunag, a'r ddweud i'r ddweud i'r ddweud i'r eisgol. Yn y tro bod y bydd y fawr, mae'n ddweud i'r ddweud i'r ddweud i'r ysgol yn y Ddweud i'r ysgol yn y Ddweud i'r ysgol. ac yn fwy o'r ffordd mwy o bobl i dda i gyda wahanol, bo allan i ddechrau i chi'r gwladlaeth, dyna sy'n ffordd yn ei ddweud i gyfarwydd, i ddweud i gyfarwyddu ac i ddweudio. Mae wedyn y dyna pam i wedi bwysig wedyn yn ymgyrchwil ac os yw meddwl i gweithio, mae'r ddiweddau o'u gwybod, mae'r idea cyllid yn ychydig yn ymddangos o'r eich cyfnod. Mae'r problemau er mwyn fydd yn ymddangos o'r cyllid, a'r cyllid yn ymddangos o'r cyllid yn ymddangos. Ac yn y cwrs ar y cwestiynau, nid yw'n gwneud i'w bwysig yn ymhwyl yn roeddenol am y Llywodraeth yn Llywodraeth a Lleidwyr yn Llywodraeth. Roedwch yn ymhwyl yn gwneud i'w bwysig yn ymhwyl yn ymhwyl yn ymhwyl yn ymhwyl yn Llywodraeth. Wrth gwrs, wedi'u bwysig, yma ymhygl yn rhan ffordd o'r pwysig yn ymhygl yn ymhwyl yn ymhwyl yn ymhwyl. But I think it's appropriate for me to be challenging, but not to be disrespectful. I'm actually rereading Thomas More's utopia. I did find this quotation, which gives me a bit of heart in what I'm about to say. He said you are not obliged to assault people with discourses that are out of their road ..раu bod yn siarad o'r a harborau yn bwysig yn ysgolio'r dda. Ond wrth gwrs, mae'r cyfrifio, yn cael tu'r cyfrifio a gael adegwyd o'r cyfrifio yn eu cael y ddech sydd wedi eich teimlo'n fawr... .. sy'n bywysig yn ddigwydd y ddweud o'r ddweud i'r ei hun, ma'n le enw i'r sydd wedi cael uth maen nhw. If this doesn't go well, I hope there is as little ill as possible arising from what I'm going to say. Now what is the nature of the problem? The language of conscience and unconscionability is used a great deal both in England and you can find it in New Zealand cases as well. As I said earlier, what exactly does conscience mean? Now my thoughts relating to this and that this is a problem that requires careful consideration was prompted by two decisions of the UK Supreme Court in 2013 given within two weeks of each other. When the language of conscience and unconscionability was used, but was interpreted completely differently. Now the first case is pitton halt, the facts of which don't matter for today, but it was a case about a settlement on trust which the set law sought to challenge and set aside on the ground of mistake. Essentially she had been advised to set up the trust in a particular way to avoid a significant tax liability. The legal advice was not very good and actually was set up in a way to incur a particular tax liability and she sought to get the settlement set aside to avoid the tax liability. And actually the Supreme Court allowed that settlement to be set aside. But in that case Lord Walker said an important test of the equitable jurisdiction to set aside for mistake is whether not setting it aside would result in an awful word to use but would not result in unconscionableness, that was the standard. And he said the standard of unconscionableness was an objective standard. And to determine it you have regard to the circumstances of the mistake, the consequences, change of position and other matters relevant to the exercise of the courts and I should say there is a typo in that slide and it should say the court's discretion. That's going to prove important a little bit later. So the test for the jurisdiction to set aside was one of unconscionableness objectively defined. Two weeks later in a case which made no reference to Pittenholt maybe because the facts were significantly different Lord Newberger used the language of conscience to establish a liability but interpreted it very differently. This was the Vestergaard case, a case which was about accessorial liability for breach of confidence. The breach of confidence related to trade secrets relating to a mosquito net which had got a particular drug put into the netting to keep the mosquitoes away. The question of liability related to somebody who had arguably assisted the breach of confidence and it was held she would only be liable if she acted unconscionably. But here unconscionable was interpreted subjectively with a focus on the defendant state of mind and with particular regard to issues of knowledge, willful blindness, recklessness and dishonesty. Two cases of the Supreme Court within a fortnight using the language of conscience and unconscionability but interpreted very differently. Pittenholt objective, Vestergaard a subjective test of fault. So what on earth is going on? Can we really use the same words and interpret them so differently? Now let's just focus briefly on the language of conscience and unconscionability. This is largely a ground clearing exercise just so you're all with me about the basic language. My view is that we can actually use conscience and unconscionability interchangeably in the sense that they are different sides of the same coin. My view is that unconscionability means contrary to good conscience. That's the negative and good conscience the positive. In the cases and the commentaries you'll find many synonyms for unconscionability. It's bad faith or equitable fraud or injustice, unfairness, dishonesty and commercially unacceptable conduct. They are used both in New Zealand and in England as synonyms for the language of unconscionability. And the real question is, when we use that word unconscionable, should it refer, does it refer to a state of mind, a normative standard for evaluating conduct, is it a test of morality, a sense of guilt or all of those things? I'm going to investigate that in a minute. But I just want to say two things before I go any further. First is just to establish that in New Zealand the language of unconscionability has been interpreted. You'll see then the judgment of Justice Summers in the elders case. He said that words such as unconscionable and inequitable have drawn closer to more objective concepts such as fair, reasonable and just. That's one of those dictums that you could spend a long time unpacking drawing closer to more objective concepts, suggesting perhaps it is a subjective concept that is starting to be expanded to become objective. But one other useful thing. Recently I was reading a book called The Bramblebosh by Carl Thlewellyn. Some of you will know this book. Carl Thlewellyn was a professor in the States who at the University of Columbia gave first year lectures. They were obviously rather tough lectures I think having read this book because The Bramblebosh is basically a publication consisting of those introductory lectures. And apparently this book is still referred to in some US law schools to be read by first year law students. That book Thlewellyn said the following. He wasn't talking about unconscionability as such but I think this actually identifies the problem with which I'm concerned. He said legal use of technical words has sinned and does still in two respects. It is involved in ambiguity of two kinds. Multiple senses of the same terms and terms too broad to be precise in application to details of single disputes. First it does not use terms in single senses but uses the same term in several senses and in several senses indiscriminately without awareness. This invites confusion. It makes bad logic almost inevitable. It makes statement of clear thought difficult. It makes clear thought itself improbable. And as lawyers surely clear thought is what we should be seeking to encourage in others and in ourselves. And I think that's a really good summary of the problems relating to the failure to unpack what we mean by conscience and unconscionability. Now at this point I think it is quite useful to give you a very brief history of conscience inequity and this is where some of you are going to be squirming in your seats because this is a gross generalisation of a complex historical development of the law. But actually I stand by this brief history. I think this does in general terms indicate how conscience has developed over time as an equitable notion. You can trace the language of conscience back to the Chancellor's conscience. The Lord Chancellor who received petitions from citizens in England and Wales who said we weren't happy with what the common law said we want justice and we want the Lord Chancellor to provide justice in the individual case. And the Chancellor would determine what was just by reference to his and of course it was always a he, conscience. And that of course sometimes was described as discretion or just simply the embodiment of justice. It appears to involve an individual moral judgement. That's what conscience means. But what is interesting of course is that the Lord Chancellor's and of course Thomas More was one of them were ordained. There was a theological grounding to their interpretation of conscience. I think that might be significant. And I'll come back to that later. Later on there is evidence that the language of conscience was used to refer to the testimony of witnesses. Witnesses and parties were only allowed to give testimony as to what was in their own knowledge. So the defendant might be testifying as to their conscience by reference to what they knew. Thirdly, equity developed so that conscience referred specifically to the defendant's conscience but as determined by the court. And this was very much a cathartic jurisdiction. The court actually saying we are determining that this is what your conscience demands you should do. You should provide a remedy because conscience demands. And in the very famous Earl of Oxford's case Lord Ellesmere said the office of the Chancellor is to correct men's conscience. That's the cathartic jurisdiction. Moving into the 18th and partly 19th centuries the language of conscience was simply used to describe equitable doctrine. Equity was the conscience jurisdiction. And fifthly, and this is my term but I think we can bring the development of conscience up to date by reference to what I call the rhetorical conscience. And I actually regard pit and halt as being a good example of that. A case where the language of conscience is used to justify a result, to justify equitable intervention but it's actually a smokescreen because when you look behind it there's nothing there. There's nothing you can really identify to determine what conscience actually means other than the judge's own sense of what is fair and just. Now you might even say having looked at that brief history we've gone full circle. If you accept that notion of rhetorical conscience isn't that rather like the Chancellor's conscience this idea of an individual moral judgement. But you might say it's different because at least the Chancellor's conscience purported to be founded on theological considerations when certainly we don't purport to do that today. So that just shows you the complexity of the development of conscience. Now in the paper which accompanies what I'm talking about and this can be circulated to anybody who's interested I spend a significant amount of time focusing on the different interpretations of conscience in quite often fairly contemporary judicial developments and analyses of the law both in England and to some extent in New Zealand with a bit of Australia as well. And in doing that I identify four interpretations of conscience. The first is most definitely subjective conscience specifically having regard to the defendants mental state and using unconscionability as a form of mens rea and we can actually see that in areas of law involving the creation of equitable proprietary rights and to some extent in the action for unconscionable receipt. I will say at this point I could and I'm really tempted to get really technical and get into the nitty gritty of equity. Some of you would be really interested in that I'm not going to and just giving you a few broad headings to illustrate that how these different types of conscience are interpreted but certainly fault for unconscionable receipt can be interpreted in that subjective sense. There are cases involving objective conscience again a fault element but determined by reference to what the court considers the defendants mental state should be by reference to a reasonable standard albeit having regard to facts known by the defendant so the action for dishonest assistance illustrates that and particularly and a really interesting example of New Zealand and English law going hand in hand at setting aside a contract for unconscionability where an objective fault element relating to conscience is identified. Thirdly I think there are cases where the language of conscience is used to refer to what the judges or the courts conscience demands but reference to recognised principles this isn't a smoke screen of conscience it's actually a principled approach and I think proprietary a stop all is a really good example of that and then fourthly there are plenty of examples of the court's conscience but being used as a rhetorical device a smoke screen I've already mentioned pit and halt and in England at least in the 1980s we had a body of law developing where in the context of illegality where a transaction would be set aside because of the taint of illegality if the public conscience demanded it now of course there's a reference to the public but the reality was it's the judges conscience thinking that is the right result but when you look at it there are no principles underpinning it that is rhetorical conscience so there are four senses of conscience now in a minute I am going to suggest a new approach to conscience what I call a new taxonomy of conscience but to explain that and maybe we've already got a hint of where my concern is with the interpretation of conscience I do want to say something about judicial discretion which is actually one of the other papers I've been delivering at the law schools I have been visiting and I'm actually delivering one tomorrow at the law school here so there'll be much more detail in that so give you an idea about judicial discretion discretion is used a great deal by the courts and by commentators is discretion a good thing or a bad thing I have a sense and I realise this is going to be a generalisation and rather stereotypical but I have a sense having taught a lot of New Zealand students met New Zealand academics and judges as well that you seem quite happy as a general rule with giving your judges discretion in this country you have many statutes which specifically give judges discretion I think in England we are much more concerned about giving our judges discretion we don't trust our judges that's stereotypical generalisation but I think there is a difference of approach you seem happier with judicial discretion here interestingly Thomas Moore in Utopia was really happy with discretion he actually said this is his utopian ideal the law and judges should avoid should avoid arcane interpretations and debates about law but should instead judge the overall equity or justice of a situation and decide accordingly so arguably in Utopia there are no law schools because there's nothing to discuss you just let the judges get on and determined what equity or justice demands in England and of course he was writing in England but in England there are other views my favourite is a dictum of Lord Camden admittedly delivered in 1795 but he said the discretion of the judge is the law of tyrants it is always unknown it is different in different men it is casual and depends upon constitution in temper and passion in the best it is often times caprice in the worst it is very vice folly and passion to which human nature is liable two views about discretion now I have to say I actually share Lord Camden's view or at least I did until I read an article which was published in 2013 and this is the point at which I start to get into some more jurisprudential territory out of my comfort zone in 1956 Herbert Hart the famous jurisprud was at Harvard Law School and was talking to various people there about discretion and various academics at Harvard said why don't you present a short paper to the law faculty about discretion and Hart did and they obviously really liked it but that paper was lost not published until 2013 when it was found and published in the Harvard Law Review and Hart's paper simply called discretion has had quite an influence on my own thinking particularly relevant to this topic about conscience because Hart said discretion is not a bad thing the distinction is not rule versus discretion which we would typically regard as the distinction actually the real distinction is between rule judges applying a clear rule and arbitrary choice it's arbitrary choice which is the bad thing where a judge is just making a decision without any structure being provided by the law without any identified reasonings with reference to principles and it's that which judicial discretion is judicial discretion involves the judge evaluating the facts and the context but making a decision by reference to recognised principles so that the evaluation judgement can be defended and when you analyse discretion like that and realise it's really a choice between discretion and arbitrary choice I think we can use that to create what I've called a new taxonomy of conscience in my view it is perfectly acceptable to use the language of conscience and maybe we ought to replace the language of conscience because of unacceptable overtones but I have no problem in saying it refers to the defendants conscience and then to say clearly sometimes that will refer specifically to the defendants state of mind a subjective test of thought and that will be exceptional inequity but at other times to say the defendants conscience refers to an objective assessment of the defendants conduct in the light of the facts as the defendant knew them or believed them to be that actually is how conscience as a state of mind is typically interpreted in equity I would prefer to call that dishonesty to distinguish it very clearly from the subjective state of mind again in the paper accompanying this I elaborate on that and it gets rather into some rather technical equity but I'm perfectly happy with conscience in that state of mind sense but crucially if conscience is being referred to as the judge exercising conscience or a reference to the courts conscience it cannot be rhetorical conscience because that is arbitrary choice that does not involve the judge exercising discretion properly defined conscience in terms of the courts conscience has got to be principle discretion heartyon discretion and if we accept that and we find the court referring to the language of conscience without identifying the principles that underpin the exercise of the judgement it is unacceptable in my view that is what lord walker was doing in pit and halt and that therefore is a critical flaw in lord walker's analysis in that case now I could go on in some detail about the implications of this analysis in the paper I talk about how it affects the determination of fault in equitable claims I don't want to look at that now conscience of time I just want to look at one particular application of what I'm talking about and that is the role of conscience in the law of unjust enrichment now the law of unjust enrichment is recognised in England and it is recognised in New Zealand I am well aware that there are some people in this room who think it shouldn't be recognised either in England or in New Zealand but it is we can argue about whether it should but it is and it's interesting looking at the law on unjust enrichment the modern law of unjust enrichment for those of you who don't know essentially says that if you can establish that the defendant has been enriched at your expense in recognised circumstances that can be characterised as unjust and that's not using unjust like unconscionable in a rhetorical sense it is grounded on established categories then restitution will follow so if for example I pay money to you thinking I owe you that money and I don't you are liable to pay the value of that money back to me you've been enriched by the money you were enriched at my expense and it was my mistake that caused me to pay the money to you incorrectly and both in England and New Zealand we would analyse that claim using the language of unjust enrichment what is interesting is when you go back to the origins of unjust enrichment and the language of unjust enrichment was not used then the origins at least of the law of restitution where Lord Mansfield in the mid 18th century developed what has become the law of unjust enrichment the language of conscience was specifically used restitution should be awarded because conscience demanded it Saddler and Evans is one of the leading cases and I've chosen that particularly because that was decided exactly 250 years ago midway between utopia and today so conscience is there but today we don't use conscience very much in the context of unjust enrichment maybe that was being used in this rhetorical sense or maybe unjust enrichment is the principle underpinning conscience and then the question is whether conscience is actually adding anything and arguably it isn't and it's actually a red herring which we should ignore so that's the English approach and as I say that has really influenced what's happened in New Zealand as well Australia is interesting and I'm really grateful I'm standing in New Zealand because of what I'm about to say although I have said some of this in Australia myself Australia has had a profound influence on the development of the modern law of unjust enrichment Australia recognised applied and developed unjust enrichment before we did in England in the 1980s the High Court had a profound influence on our thinking about unjust enrichment but more recently something odd has happened because of different membership of the High Court of Australia and you can particularly identify it with certain personalities unjust enrichment has been rejected most recently in the Australian financial services and Hills Industries case which said we don't talk about unjust enrichment the focus instead is on whether it is unconscionable for the defendant to retain the enrichment and if it is restitution should be awarded it's all a matter of conscience now I'm paraphrasing slightly but there is a clear undertone from the Australian High Court saying all this unjust enrichment stuff is what England has developed and we're not going to have all this English stuff being imposed on us we are going to have conscience we are an equitable jurisdiction conscience is at the heart of restitution forgetting perhaps conscience can be traced back to the English cases and Australia developed the jurisprudence on unjust enrichment before England so that's where we are in Australia they've rejected unjust enrichment it's a test of conscience but which sense of conscience is it? is it subjective fault? well in Hills they said it's strict liability so certainly not subjective fault and certainly not objective fault either so the choice is either it's the court's conscience in a principled sense or the court's conscience in this rhetorical sense so what is the principle? is there a principle underpinning conscience and I've read Hills Industries really carefully and I can't find one there is no reference to any indication as to how you should determine whether restitution should be awarded all we have in that case is a suggestion that there are legal principles but they are grounded on equitable notions of good conscience and there are equitable concepts available that are not identified now that suggests perhaps that Australia is doing something fundamentally different from what's going on in England and in New Zealand as well but actually I don't think they are the Hills Industries case was essentially a mistaken payment case it was slightly more complicated about a settlement made but on mistaken grounds and actually a lot of the discussion was about whether the defendant had changed its position having been enriched but if we treat it as a case involving money paid to a defendant by mistake and the High Court accepted it would be unconscionable for the defendant to retain that enrichment what would make it unconscionable surely it was the fact that the defendant had received money had received that money from the claimant and the claimant was mistaken in other words the only way you can give any sense to unconscionability is by reference to the component parts of unjust enrichment I have no doubt that that case if it was heard in New Zealand or in England would be decided in the same way maybe some different interpretations of the defence of change of position but the core response to restitution reliability would be the same and I think there's an important lesson there that if we aren't careful and we fall into the trap of using conscience without identifying the underpinning principles it collapses into arbitrary choice and that is no way to structure our private law now there are other implications of my analysis relating to remedies which I'm not going to look at now just to pull this together what are my conclusions I have no problem in distinguishing between the conscience of the defendant using conscience to reflect fault and the conscience of the court as long as we are really clear that we are doing that and why the conscience of the defendant can be a test of fault which is usually assessed objectively and I would wish to call that dishonesty to make it clear subjective assessment of fault is also exceptionally appropriate in equity particularly to create proprietary rights but crucially it is legitimate to refer to conscience and unconscionability to refer to the conscience of the court or the judge but only in a hearty and judicial discretion sense it has got to be founded on clear principles to structure reasoning ultimately and fundamentally the true role of conscience in contemporary equity reflects a battle over the nature of private law and there is a spectrum of approaches that can be adopted at one end there is an idea of the pure logic of the law which is founded on reason and predictability where there is no role for conscience at the other end and this is a view I know reflected in many judgements and many judges like is the desire to reach a just result on the facts but maybe using conscience as a smokescreen to hide behind I think more interpreted the role of equity in that way my view is that the preferable approach falls somewhere between those two extremes principled justice principled conscience is justifiable principled conscience has a legitimate role to play in contemporary equity but only when the principles are identified and I think more's utopia would be a complete disaster I mean I think in more's utopia I wouldn't have a job because more's utopia actually doesn't involve law the real utopia does involve law but it does involve judicial discretion it is nuanced but it's principled there is a legal structure and it's that legal structure that we need to spend our time very carefully identifying and defending thank you now I have said I'm really happy to answer any questions or receive any comments from you on that I can predict what a couple of the comments might be you may want to not publicly raise a question or comment but speak to me afterwards I'm really happy to stay around for a bit and talk to anybody who's got any comments on that but are there any questions anybody would like to ask? yes thanks for the thought Brian it's really interesting and insightful and I have to say I agree with almost everything you say except one little thing this is just a little question isn't it true that you're actually you have a reductive view of conscience in the sense that you don't really need it anymore if you've got the principles what do you need consciousness for anymore right? the consciousness is just the placeholder that once you've got the principles it can disappear well just on that I accept that completely and that's really what I was saying with unjust enrichment what is conscience adding and particularly the dangerous I don't mind for traditional reasons using it but of course if we hide behind it and don't unpack it it is dangerous so yeah and that is if I just on equivocations in the use of the term conscience and it's absolutely right that it needs to be done no doubt but I would say that there's also a problem with the use of the term discretion and I think that's just wrong because he's not talking about discretion he's talking about something else he's talking about what if we weren't loyalists we would just call judgements let me just give you an example let's say I have a friend and let's just stand as an example my friend has bought some really ugly shoes and my friend is really happy really proud of them and asked me what do you think of these shoes? and I mean I've got a dilemma here right what do I say do I say goth here put the idiots they shoes it what do I say oh they're lovely they're fantastic so I've got to try and think about what now let's say I decide look what I've really got to do here is it's kind as I can I've got to tell my friend that those shoes are horrible because she's got to go out to the public and make a fool of herself I've got to tell her that and I do that now is that a discretion? I come to the conclusion that there is one thing that I have to do it's this right it's not a discretion I don't have a discretion I'm sure I have to make there are no rules here it's not as if there are rules that can determine I have to make the judgements in the light of the relevant principles but it's not discretion so I think you should keep your view about discretion and recognise that heart stop talking about it's just using the wrong word he's talking about the judgement and yet we need to make judgements about how to apply principles so essentially what you're saying is that the arbitrary choice a phrase he uses quite a lot in that paper is actually what discretion is and judgement is what he's calling discretion so we could play around with the word my immediate response to that problem was of course I prefer my reference to discretion to judicial discretion if there was a judge who was required in the case to say whether these shoes look good or not the judge would put all centre mentality out of the picture and say well they're rubbish don't suit you, you don't get any damages etc now that okay whether that's discretion or judgement we can talk about but I think ultimately that may just be playing around I mean important but playing around with the words the core of what I'm saying is okay let's call it judgement it's got to be principled and that's my real concern with quite a lot of private law where you actually delve down and the principles aren't there yeah and if you look at that history of equity it's used to keep property from wives so it's not, I would like to question that conscience is really a part of equity and if it is I would like to hear your views on what role do you think of it playing going forward so is there a role so if you think about the financial crisis and the deregulation of banking is there a new role for equity going forward in terms of providing social justice okay that's a big question and really interesting what my immediate response is and of course within equity there's an awful lot of discussion about is equity really about conscience to answer that you have to unpack conscience clearly equity is a lot about spending time analysing fault and analysing what the just response should be and true as well there's an awful lot of equity as applied rigidly which appears to work against what the just response might be but I would say and of course there are areas of the law you can throw against me that increasingly I think there is a role for equity in the commercial world, in the family law world etc to be used to do what it originally did which is to say here is the strict common law we need to qualify it by reference to equitable principles I mean I'm certainly we are seeing that in various jurisdictions as to what is being done for cohabiting couples and dealing with property rights and actually I was critical of Pittenholt Pittenholt is essentially there were two cases there which concerned tax avoidance and in Pittenholt itself poor Mrs Pitt who's the money that was held on trust was provided as damages for her seriously injured husband in an accident she actually went to a solicitor saying what do I do with this and also the scheme was approved by the court of protection to say this is the best way of using the money and it all bat fired that seems to be an entirely appropriate way case where you unwind the transaction compare another case which was footer and footer which was one of these very bit like the Duke of Westminster recently died and actually in England not much inheritance tax is going to be paid because of discretionary trusts where maybe we are having an abuse of the trust and there is a role for equity to say we are not going to help you there so there was sorry well true but certainly there is a concern about manipulation of a tax system using the and of course the trust is an equitable device so I mean there's an awful lot I could say in response to that I am actually increasingly confident that equity has a really important role over the next few years in dealing with some of the big commercial problems that we have now we don't need to relate it to conscience I'm happy to do so if we can identify the principles that underpin it there are other questions should we have one more Peter is that all right OK so yeah and he was a pain to emphasise that the judges might simply be trying to carry out the purpose of the statute that might be ambiguous and to effectuate the policy of the principle and that can be as a conceptual matter to involve any more of those controls so my first question is when he gave the lecture at Harvard regarding discretion was he talking about discretion in the context of equity cases or was he talking about discretion in the context of these so really this is me grabbing hold of an article and thinking I can use that to structure my thinking he was not talking about equity cases what is interesting as well and there'll be people here who've read more about this than I have this was a relatively early paper from Hart on discretion and his thinking developed subsequently so I think there's more work to be done in tracing how his thinking perhaps changed and certainly in the debates with Fuller that appears to be perhaps at odds with my description of this particular paper I mean what is very interesting from a US perspective in the mid to late 1950s and early 60s this was a really live issue about discretion particularly in public administration etc and I think it flowed into some of those discussions as well so I don't think it's certainly you can't say oh he's just talking about equity he wasn't but he wasn't really engaging with the Fuller debate at that point I think this was just thoughts about what do we mean by discretion so what we're doing is speaking for 45-50 minutes and then inviting questions he said yes I'm quite happy to do that and I thought that was quite commendable being willing to come up in the way that he has it's kind of exceptional so often we go to excellent presentations but they end immediately when the presentation is some of the way that there was a willingness here to engage I thought that was some trouble anyway this is just the formal vote of thanks I thought this was an extremely engaging lecture and I think we were all quite limited we are in his depth and I suggest that we signify our thanks in the usual way