Justice, Continuing and Change, Lord Dyson

Justice, Continuing and Change, Lord Dyson A clever lad, from the north, proud of his foreign heritage, classics at Oxford, went to the Bar, quietly and most competently and efficiently built up a successful practice in technology and construction law, became a judge, and turned out to be a very fine judge, with a fine judicial and conceptual mind. In recent years as a senior judge, he has taken to giving very thoughtful reflective public lectures on all aspects of the civil law, always in a cautious but eminently constructive manner, suggesting how progress should be made, and always expressing himself in clear engaging oral language. In recent years, this quiet reserved cautious man Lord Dyson has launched into over 25 lectures on the law, expounding, explaining the origins and history and development and decisions, reflecting, aspiring, pointing the reformative way forward. Anyone who is interested in the law, past, present, and future, who works in the law, who is captivated by the law, will so happily and profitably browse in these pages. They cover a random multiplicity of almost everything of topicality in the law. Of particular interest to readers of this Review will be the lecture on The Shifting Sands of Statutory Interpretation, Lord Dyson being the President of the Statute Law Society. He says that the reasoning in Pepper v Hart is flawed. What a minister happened to say is hardly the intention of Parliament. But Dyson is not an ‘adventurous’ interpreter, he is content with the plain meaning of the words, unless the words are absurd, disproportionate, draconian, unfair, or, as in Pepper v Hart, would mean the state reneging on a promise. The explosion of judicial review in modern times has raised the questions: Are the judges too powerful? Are the judges a threat to democracy? Are the judges challenging the authority of government? Dyson, of a progressive but cautious judicial temperament, is content that the judges are guardians of the rule of law, they are developing the concept of proportionality and its relationship with unreasonableness, but are largely keeping out of political policy and confining themselves essentially to lawyers’ law and procedural impropriety. Though the judges continue to struggle with the limits of the duty of care, e.g. in police cases and child abuse cases. There is no compensation culture, only the myth. The cost of litigation is prohibitive. As for responding to criticism of a judge, when and who and how has still not been satisfactorily resolved. Being of a scholarly disposition Dyson speaks highly of the academics. The academics have spoken the judges have listened, he says. Having himself come up quietly in the profession though the old Official Referees’ Court and the modern Technology and Construction Court TCC, Dyson’s views on the contribution of construction cases to the development of the common law are particularly cogent. Is economic loss recoverable for breach of duty of care? How should the court deal with the frequent problem of the parties starting work before the contract is signed? Can the parties contract to enter into a contract? What is the judicial basis for implied terms? Should pre-contract negotiations be admissible for contractual interpretation? At common law is interest payable on late payment of debt or damages? Commercial common sense ranks high with Dyson. The need for certainty and predictability ranks high in the rather traditional commercial world. So it was right to retain the validity of the penalty clause. By contrast, it was right to create the right to recover money paid by mistake unlawfully to a public body. And we could and should learn more from other jurisdictions so as to improve our law and practice. The Dyson contribution to the Magna Carta 2015 anniversary was to emphasize the importance of the protection of trade and traders and property from 1215 to today; and the need for the commercial community for access to justice. The former Head of Civil Justice advocates on-line dispute resolution. Also deriving from Magna Carta, Dyson examines to avoidable consequences of delay. We must achieve costs control. This requires simplicity, consolidation, and innovation, and maximization of electronification. At the risk of overlooking his huge contribution to our jurisprudence, Dyson may best be remembered for Denton, namely no indulgence, the requirement for the strict compliance with the procedural rules. The biggest threats to our system of law have been complexity, delay and cost. Various remedies are considered: A Contingency Legal Aid Fund CLAF, which needs seed corn; fixed costs; lower fees; and personal legal insurance, perhaps compulsory. Mediation used to be viewed by the judiciary with scepticism. Today scepticism has changed to favour. Perhaps it might help to solve the LIP problem. Perhaps it might be sensible to make mediation compulsory, calling in the judiciary only when it fails. Litigation or arbitration? As a highly experienced commercial judge in both activities, Dyson balances the advantages and disadvantages; and concludes that the parties should choose. As a judge and as a member of the Civil Justice Council, CJC Dyson has greatly influenced the improvement of the practical process. The justification of his own leading judgments in Mitchell and subsequently Denton make for fascinating reading. The progressive endorsement of concurrent expert evidence is very welcome, as fewer experts are required, expert impartiality is improved, and time and costs are saved. Open justice has to be fundamental. Televising proceedings is becoming more widespread and more acceptable; though not witnesses. Provided there is no interference with the administration of justice there can be no objection to silent texting in the courtroom. Dyson dislikes contingency funding and third party funding. In order to help LIPs, and indeed the court, he suggests simpler legislation, improved court forms, telephone and internet advice, early assessment of the merits, fewer experts, less disclosure, trainee lawyers as advocates, and a move to the inquisitorial system in the smaller cases. A system of public legal education would publicize such improvements and inform the public of the process. In the midst of all the changes in the legal profession, the independent ethical role of the advocate has survived. But the reduction in legal aid and the emergence of the litigants in person LIPs has made the role of the judge more difficult. Perhaps law trainees could act as McKenzie men. As for legislation and statutory instruments, involvement of the advocates in the drafting could only be beneficial. In a lecture delivered to a Centre for Islamic Studies Dyson examines the controversies of homosexuality, same sex marriage, Sunday working, corporal punishment, religious clothes, criticism of Mohammed, and attempts to suppress behaviour and expression of opinion, e.g. threats to life, banning of books and plays. Not surprisingly he is searching for moderation, a balance, respect and protection for religion and for freedom of expression. The ideal is compatibility between freedom of religion and freedom of expression. The incorporation of human rights into our law through the European Convention on Human Rights is strongly supported by Dyson. Though he recognizes the difficulties over immigration and deportation, and issues such as prisoners’ votes. But he blames the Strasbourg Court for taking on too many cases, for some erroneous judgements, and for failure to grant a wider margin of appreciation to member states. When it comes to terrorism and security and the unqualified human rights upholding human rights can be a challenge, and the judges are at risk of being drawn into political issues, but the compromise in the special advocate and limited disclosure and judicial oversight is acceptable. As an enlightened judge and jurist reflecting on human rights issues arising beyond Europe, principally issues affecting members of the armed forces in Afghanistan and Iraq and Cyprus and elsewhere, Dyson examines the limits of territoriality and advocates the principles of control and authority, and the relevant case law. We live in an age of globalization, though we lack effective global courts. The common law and our statutory law have managed to absorb principles from outside our own territory and enabled refugee and persecution problems to be justly resolved. If you want to stand back from the day-to-day decisions, to reflect on how things are going, and how things ought to be going, you could not do better than to dip into Dyson. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Statute Law Review Oxford University Press

Justice, Continuing and Change, Lord Dyson

Statute Law Review , Volume Advance Article – May 30, 2018

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Publisher
Oxford University Press
Copyright
© The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.
ISSN
0144-3593
eISSN
1464-3863
D.O.I.
10.1093/slr/hmy011
Publisher site
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Abstract

A clever lad, from the north, proud of his foreign heritage, classics at Oxford, went to the Bar, quietly and most competently and efficiently built up a successful practice in technology and construction law, became a judge, and turned out to be a very fine judge, with a fine judicial and conceptual mind. In recent years as a senior judge, he has taken to giving very thoughtful reflective public lectures on all aspects of the civil law, always in a cautious but eminently constructive manner, suggesting how progress should be made, and always expressing himself in clear engaging oral language. In recent years, this quiet reserved cautious man Lord Dyson has launched into over 25 lectures on the law, expounding, explaining the origins and history and development and decisions, reflecting, aspiring, pointing the reformative way forward. Anyone who is interested in the law, past, present, and future, who works in the law, who is captivated by the law, will so happily and profitably browse in these pages. They cover a random multiplicity of almost everything of topicality in the law. Of particular interest to readers of this Review will be the lecture on The Shifting Sands of Statutory Interpretation, Lord Dyson being the President of the Statute Law Society. He says that the reasoning in Pepper v Hart is flawed. What a minister happened to say is hardly the intention of Parliament. But Dyson is not an ‘adventurous’ interpreter, he is content with the plain meaning of the words, unless the words are absurd, disproportionate, draconian, unfair, or, as in Pepper v Hart, would mean the state reneging on a promise. The explosion of judicial review in modern times has raised the questions: Are the judges too powerful? Are the judges a threat to democracy? Are the judges challenging the authority of government? Dyson, of a progressive but cautious judicial temperament, is content that the judges are guardians of the rule of law, they are developing the concept of proportionality and its relationship with unreasonableness, but are largely keeping out of political policy and confining themselves essentially to lawyers’ law and procedural impropriety. Though the judges continue to struggle with the limits of the duty of care, e.g. in police cases and child abuse cases. There is no compensation culture, only the myth. The cost of litigation is prohibitive. As for responding to criticism of a judge, when and who and how has still not been satisfactorily resolved. Being of a scholarly disposition Dyson speaks highly of the academics. The academics have spoken the judges have listened, he says. Having himself come up quietly in the profession though the old Official Referees’ Court and the modern Technology and Construction Court TCC, Dyson’s views on the contribution of construction cases to the development of the common law are particularly cogent. Is economic loss recoverable for breach of duty of care? How should the court deal with the frequent problem of the parties starting work before the contract is signed? Can the parties contract to enter into a contract? What is the judicial basis for implied terms? Should pre-contract negotiations be admissible for contractual interpretation? At common law is interest payable on late payment of debt or damages? Commercial common sense ranks high with Dyson. The need for certainty and predictability ranks high in the rather traditional commercial world. So it was right to retain the validity of the penalty clause. By contrast, it was right to create the right to recover money paid by mistake unlawfully to a public body. And we could and should learn more from other jurisdictions so as to improve our law and practice. The Dyson contribution to the Magna Carta 2015 anniversary was to emphasize the importance of the protection of trade and traders and property from 1215 to today; and the need for the commercial community for access to justice. The former Head of Civil Justice advocates on-line dispute resolution. Also deriving from Magna Carta, Dyson examines to avoidable consequences of delay. We must achieve costs control. This requires simplicity, consolidation, and innovation, and maximization of electronification. At the risk of overlooking his huge contribution to our jurisprudence, Dyson may best be remembered for Denton, namely no indulgence, the requirement for the strict compliance with the procedural rules. The biggest threats to our system of law have been complexity, delay and cost. Various remedies are considered: A Contingency Legal Aid Fund CLAF, which needs seed corn; fixed costs; lower fees; and personal legal insurance, perhaps compulsory. Mediation used to be viewed by the judiciary with scepticism. Today scepticism has changed to favour. Perhaps it might help to solve the LIP problem. Perhaps it might be sensible to make mediation compulsory, calling in the judiciary only when it fails. Litigation or arbitration? As a highly experienced commercial judge in both activities, Dyson balances the advantages and disadvantages; and concludes that the parties should choose. As a judge and as a member of the Civil Justice Council, CJC Dyson has greatly influenced the improvement of the practical process. The justification of his own leading judgments in Mitchell and subsequently Denton make for fascinating reading. The progressive endorsement of concurrent expert evidence is very welcome, as fewer experts are required, expert impartiality is improved, and time and costs are saved. Open justice has to be fundamental. Televising proceedings is becoming more widespread and more acceptable; though not witnesses. Provided there is no interference with the administration of justice there can be no objection to silent texting in the courtroom. Dyson dislikes contingency funding and third party funding. In order to help LIPs, and indeed the court, he suggests simpler legislation, improved court forms, telephone and internet advice, early assessment of the merits, fewer experts, less disclosure, trainee lawyers as advocates, and a move to the inquisitorial system in the smaller cases. A system of public legal education would publicize such improvements and inform the public of the process. In the midst of all the changes in the legal profession, the independent ethical role of the advocate has survived. But the reduction in legal aid and the emergence of the litigants in person LIPs has made the role of the judge more difficult. Perhaps law trainees could act as McKenzie men. As for legislation and statutory instruments, involvement of the advocates in the drafting could only be beneficial. In a lecture delivered to a Centre for Islamic Studies Dyson examines the controversies of homosexuality, same sex marriage, Sunday working, corporal punishment, religious clothes, criticism of Mohammed, and attempts to suppress behaviour and expression of opinion, e.g. threats to life, banning of books and plays. Not surprisingly he is searching for moderation, a balance, respect and protection for religion and for freedom of expression. The ideal is compatibility between freedom of religion and freedom of expression. The incorporation of human rights into our law through the European Convention on Human Rights is strongly supported by Dyson. Though he recognizes the difficulties over immigration and deportation, and issues such as prisoners’ votes. But he blames the Strasbourg Court for taking on too many cases, for some erroneous judgements, and for failure to grant a wider margin of appreciation to member states. When it comes to terrorism and security and the unqualified human rights upholding human rights can be a challenge, and the judges are at risk of being drawn into political issues, but the compromise in the special advocate and limited disclosure and judicial oversight is acceptable. As an enlightened judge and jurist reflecting on human rights issues arising beyond Europe, principally issues affecting members of the armed forces in Afghanistan and Iraq and Cyprus and elsewhere, Dyson examines the limits of territoriality and advocates the principles of control and authority, and the relevant case law. We live in an age of globalization, though we lack effective global courts. The common law and our statutory law have managed to absorb principles from outside our own territory and enabled refugee and persecution problems to be justly resolved. If you want to stand back from the day-to-day decisions, to reflect on how things are going, and how things ought to be going, you could not do better than to dip into Dyson. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Journal

Statute Law ReviewOxford University Press

Published: May 30, 2018

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