[lit-ideas] Re: Hands Across The Bay
- From: "Donal McEvoy" <dmarc-noreply@xxxxxxxxxxxxx> (Redacted sender "donalmcevoyuk" for DMARC)
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Wed, 15 Nov 2017 16:17:50 +0000 (UTC)
When I spoke of the "obvious" it was really a concession: what might appear
obvious when spelled out might not be beforehand etc. Darwin's theory of
natural selection was one where, when understood, it appeared obvious - in a
kind of 'Why did no one think of that before?' way. Or take John Dalton's
conjecture about the fact every compound (e.g. water) always broke down into
elements that were in fixed proportion by ratio and of identical weight.
Explanation? Every element is present in the form of atoms and each of these
is uniform in weight with any other of that element, and the combination of
such atoms to make a specific compound is always based on a uniform ratio
between each element. That may seem obvious enough as an idea worth exploring
but that doesn't mean it is so obvious everyone had it.
DL
From: Donal McEvoy <dmarc-noreply@xxxxxxxxxxxxx>
To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
Sent: Wednesday, 15 November 2017, 8:19
Subject: [lit-ideas] Re: Hands Across The Bay
This first set of arguments may be supplemented by a second set. The second
set centre on the following: that failure to bring a 'derivative action' in
the correct representative capacity (within the limitation period) is
something so generally inexcusable that no "special circumstances" could tip
the interests of justice into allowing amendment of a pre-existing claim made
in the incorrect personal capacity.>
Much of law (some might say much of science also) is about spelling out what
(at least in hindsight) may appear obvious. But it's important not to overlook
the so-called obvious. So please forgive this amplification of something that
may seem obvious once stated but which may be important to understanding the
majority view in Roberts. It is this: by adopting a far-reaching rule (that
amendment of a pre-existing action to switch capacities is never allowable
outside the limitation period for beginning an action in a representative
capacity - even where there are "special circumstances"), the majority make
clear that legal advisors must tell clients that if there is any possibility
that at some point their case needs to take the form of a 'derivative action'
then they need to bring this action within the limitation period (rather than
think they might amend their pre-existing action in their personal capacity
outside the limitation period). Now nearly everyone should be able to adapt
themselves to this rule without any injustice, which is therefore preferable on
grounds of efficiency [cost-benefit] to a less far-reaching rule that opened
the door to plaintiffs with "special circumstances" seeking to switch
capacities in a pre-existing action outside the limitation period. If everyone
can adapt themselves to this rule without injustice, we need not worry much
about the potential injustice where people fail to adapt to it. Such people,
together perhaps with their legal advisors, have brought the "injustice" on
themselves.
The fact that this might do some injustice to the plaintiff before them, who of
course acted before this far-reaching rule was established, is not something
that will weigh much with the majority (as against the prospective efficacy of
the rule established).
In Roberts the Law Lords were particularly unlikely to lose any sleep over the
effect of their ruling on the plaintiff: looked at closely, there is something
iff-y about the whole scenario leading to the action (e.g. why no evidence from
the other beneficiaries of the estate?). Iffy-ness aside, the plaintiff made
two fundamental mistakes in conducting their litigation and have brought their
problems on themselves - first, they began an action in their personal
capacity, for negligence by the estate's legal advisors, when they should have
known case law shows the legal advisors have a duty of care to the estate but
not to its beneficiaries; second, there was a clear window of opportunity for
the plaintiff to switch capacities, within the limitation period, after they
knew the action in their personal capacity was doomed - but (for reasons not
really explained) they didn't do this.
It is clear enough my points above are based on looking at the problems in very
practical terms - and not on analysing concepts etc. This, I suggest, reflects
how the courts actually look at legal problems (despite the make-believe of
some legal philosophers).
DL
From: "dmarc-noreply@xxxxxxxxxxxxx" <dmarc-noreply@xxxxxxxxxxxxx>
To: lit-ideas@xxxxxxxxxxxxx
Sent: Sunday, 12 November 2017, 17:01
Subject: [lit-ideas] Re: Hands Across The Bay
McEvoy makes veryinteresting remarks (below) re: the Roberts case, and
concludes:“Anyway I […] mightleave my remarks at that for now. But how many
readers, including myself, aregoing to get all of the above (and much more I
could go into) on a firstreading of Roberts? And if not, why not? Why not, if
it’s allsimply a matter of knowing a 'wff' from a non-'wff'?”Lovely! I will
re-readthe remarks. I was fascinated by the use of some ‘logical’ expressions
like,especially, ‘legally impossible’ and, of course ‘excusable’ and
‘INexcusable’. Orshould I say, ‘philosophical,’ rather than merely ‘logical’?
(Cfr. J. L.Austin, “A plea for excuses”). I also enjoyed McEvoy’s use of
‘formal contradiction’.Austin once said, “They say logic is a game, so let’s
play it!’ Sadly,Grunebaum reminisces, Austin’s SYMBOLO was never profitably
marketed as “WFF ‘NPROOF” was!I enjoyed, too, McEvoy’sfocus on the
value-oriented side to it all and his references to matters of INjustice,as it
pertains to what he calls ‘the legal game.’We should perhaps bringH. L. A. Hart
here too, and R. Hall (who provided a philosophical analysis of ‘Excluders’).I
believe G. P. Baker saw that Hart’s claim to fame should be the idea of
‘defeasibility,’which, in its ‘ceteris paribus’ formulation favoured by
philosophers, may (butthen again may NOT) relate to Austin’s plea! (And, who
knows, to Roberts!)And stuff!Cheers,SperanzaREFERENCESAustin, J. L. “A pleafor
excuses,” repr. in Warnock and Urmson, “Philosophical Papers,” Oxford
Baker, G. P. “Defeasibility and meaning,” in P. M. S. Hacker and J. Raz,
Law,Morality, and Society: Essays in Honour of H. L. A. Hart, Oxford.
Grunebaum, “Reminiscenceson Austin’s Symbolo”, in Grandy/Warner, Philosophical
Grounds of Rationality:Intentions, Categories, Ends. Hall, R.
“Excluders,”Analysis, vol. 20.McEvoy: “It is no less aW3 affair because it
involves value-judgments. [These] are some remarksintended to throw light on
the judgments in Roberts. It is of course opento anyone to give an alternative
commentary, and for this to be compared on itsmerits with my remarks. The
important underlying point is this: all of this,from my remarks, to alternative
commentary, to deciding on the merits of thejudgments themselves, to deciding
the merits of alternative accounts of thosejudgments, *are* very much *W3
affairs*, i.e. of understanding relevant W3content, and so W3-dependent. (Not
matters of sense-data, not matters of 'wff;’though no doubt sense-experiences
and 'wff' may play some role in the processesby which we engage in W3
discussion and evaluation). The central problematic issue in Roberts is whether
a personshould be allowed to switch capacity in a pre-existing action, by
amendment,when the new capacity (into which they seek to switch) is outside
thelimitation period for beginning an action. The issue gives rise to
manypossible questions, including a series of interrelated questions that
eachinvolve a W3-based analysis. Two crucial ones are: (a) Do the provisions
ofthe Limitation Act itself provide an answer (to be assessed *on a scale* of
howconclusively such an answer may be 'derived' from the statutory provisions)?
(b) What level of substantive INjustice (also to be assessed *byscale*) is
likely to arise if amendment to the pre-existing action is *never* allowed? It
is the effect of the Limitation Act at (a), as analysed by LordCollins, that
perhaps weighs most with the majority. It is the risk ofsubstantive INjustice
at (b) that perhaps weighs most with the minority. Theminority would prefer to
decide the Limitation Act issue at (a) in the contextof a case where the
plaintiff had “special circumstances,” and so where thelevel of INjustice in
not granting the amendment might be moreproperly weighed. In this more cautious
approach, the minority maywell be bearing in mind a well-recognised INjustice
(now corrected byParliament) where an administrator could not amend an action
wrongly begun whenthey lacked the requisite 'representative capacity,' i.e.
where a personsued as administrator of the estate *before* formal grant of
Letters ofAdministration. If the limitation period then expired, between the
wronglybegun action and the attempt to bring a fresh action *after* Letters
ofAdministration were granted, the second action would fail. As is explained
inRoberts, Parliament intervened so that now a person can amend the action
begunwhen they lacked 'representative capacity', rather than have to begin
again andface the risk that the limitation period has expired. What might
concern theminority is that a plaintiff with "special circumstances"
couldencounter a similar INjustice - if they began an action in their
personalcapacity, but could not amend this pre-existing action to switch to
claiming ina 'representative capacity' (by way of 'derivative action'). In
other words, inthe view of the minority Roberts was not the right case to weigh
the interestsof justice properly on issues (a) and (b), because Roberts was
not a casewhere there were sufficient "special circumstances" to allow
aderivative action. Now we are really beginning to get into thelegal game and
its correct understanding. For there are counter-argumentsto the minority's
caution. These consist, first, of arguments based on thebinding effect of
statutory provisions - but of course these arguments are onlyas conclusive as
the arguments showing that the statute has the claimed effect(and it is clear
the Law Lords differ on how CONCLUSIVE Lord Collins' analysisis). This first
set of arguments may be supplemented by a second set. Thesecond set centre on
the following: that failure to bring a 'derivative action'in the correct
representative capacity (within the limitation period) issomething so
*generally INexcusable* that no "special circumstances"could tip the interests
of justice into allowing amendment of a pre-existingclaim made in the incorrect
personal capacity. Why? Effectively this ‘INexcusable’-argumentdenies there is
sufficient analogy with cases where would-be administratorsrush out to bring an
action before they have bothered to get Letters ofAdministration: such would-be
administrators are viewed as having made an EXCUSABLEmistake, in not
formalising their position as administrator before taking legalaction - and,
most importantly, therecan be no real prejudice to any other party, by allowing
amendment, because everyone must know the claimsfor the estate can only be made
by its personal representative (as it is legally impossible to sue on behalf of
anestate in one's personal capacity). The counter-argument, then, is that in
the case of a'derivative action', the plaintiff must get their capacity right
from thebeginning - because such a plaintiff could have claims in their
personal capacity (i.e. other than claims made on behalf of another's estate),
andso the other parties may well be prejudiced if such a plaintiff were allowed
toswitch capacity outside the limitation period. This may explain LordCollins's
use of the term "abuse of process": it would be "anabuse of process" to allow
such a switch of capacity, by amendment, in thecase of a 'derivative action'.
It is worth pausing on this usage: because ifthe Limitation Act conclusively
has the effect contended by Lord Collins, theconclusion should be that the
Court has no lawful power to allow the amendment - and that would render otiose
anyconsideration of whether the exercise of such a power would amount to"abuse
of process". In other words, Lord Collins may be seen to beriding on two
different horses: the (relatively) conclusive effect of theLimitation Act, and
the "abuse of process" if the sought amendmentwere permitted. However, this may
not be a formal contradiction by Lord Collins- provided we accept that his
'Limitation Act analysis' can be supplemented bythe 'inexcusable'-argument
(i.e. that "specialcircumstances" could not make excusable the failure to bring
the actionwithin time in the right capacity). Anyway I […] might leave my
remarks atthat for now. But how many readers, including myself, are going to
get all ofthe above (and much more I could go into) on a first reading of
Roberts? And if not, why not? Why not, if it’s all simply a matter ofknowing a
'wff' from a non-'wff'?”
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