header-logo header-logo

12 September 2019 / Mark Pawlowski
Issue: 7855 / Categories: Features , Procedure & practice
printer mail-detail

Judges as wizards—the making of legal magic

Mark Pawlowski questions the usefulness of legal fictions in English law

A recurring concern among both judges and legal practitioners is the fear of uncertainty in our law. As Mr Justice Harman said, in Campbell Discount v Bridge [1961] 1 QB 445, ‘the process of robust over-simplification may lead, if followed far enough, to palm-tree justice’. The days of the portable palm tree are not yet with us, but there is a growing tendency among the judiciary to latch on to a variety of legal abstractions as a means of disguising the inherently subjective nature of their decisions.

One technique for injecting objectivity into an otherwise highly subjective conclusion is to use a fictional legal character as an objective yardstick. The ‘reasonable landlord’, for example, often appears in cases where a court has to consider whether a landlord has unreasonably withheld consent to a proposed assignment of the lease or a subletting. In Ashworth Frazer v Gloucester City Council [2001] 1 WLR 2180, Lord Rodger states that the correct approach is

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

NLJ Career Profile: Daniel Burbeary, Michelman Robinson

NLJ Career Profile: Daniel Burbeary, Michelman Robinson

Daniel Burbeary, office managing partner of Michelman Robinson, discusses launching in London, the power of the law, and what the kitchen can teach us about litigating

Joelson—Jennifer Mansoor

Joelson—Jennifer Mansoor

West End firm strengthens employment and immigration team with partner hire

Sidley—Jeremy Trinder

Sidley—Jeremy Trinder

Global finance group strengthened by returning partner in London

NEWS
The controversial Courts and Tribunals Bill has passed its second reading by 304 votes to 203, despite concerted opposition from the legal profession
The presumption of parental involvement is to be abolished, the Lord Chancellor David Lammy has confirmed
A highly experienced chartered legal executive has been prevented from representing her client in financial remedies proceedings, in a case that highlights the continued fallout from Mazur
Plans to commandeer 50%-75% of the interest on lawyers’ client accounts to fund the justice system overlook the cost and administrative burden of this on small and medium law firms, CILEX has warned
Lawyers have been asked for their views on proposals to change the penalties for assaulting a police officer
back-to-top-scroll