I found some commentary by R. Foster at
http://ukscblog.com/case-comment-roberts-v-gill-co-anor-2010-uksc-22/
which may pertain to McEvoy’s reflections on the Roberts case. If I understand
McEvoy’s alright, his point had originally to do with Popper’s W3. We explored
the obviousness of the obvious and all that, and it might be argued that
obviousness is not so obviously a virtue that reasoning should display.
In any case, this below is the commentary slightly rephrased:
Given the potential [cfr. hypothetical, or as it applies to cases in W3, if not
W1] injustice of cases like Roberts, it is perhaps a little difficult (i.e. not
THAT obvioius) to see quite *what* would be required in order for the [legal]
rule [cfr. Hart on rules] referred to by Lod Hope below to be departed from.
Lord Hope appears to have precisely this in [his] mind when commenting in his
judgment:
“I am not convinced,” Lord Hope says, “that the rule that the administrator
must be joined is quite as absolute as Lord Collins indicates in his judgment.”
--- which reminds me of this essay by Guy Adams, “By the grace of God,” which
deals with the Roberts case, too.
In any case, the minority -- both Lord Hope and Lord Clarke – end up prefering
NOT reaching a conclusion on the question of whether, IF special circumstances
are made out, the court has power to give the appellant permission to amend to
introduce the derivative claim.
As it happens, this minority of opinion proves to have little bearing on the
outcome of the Roberts case, as all of their Lordships take the view, in
contrast to the majority of the Court of Appeal, that the circumstances of the
Roberts case are NOT sufficiently ‘special’ to warrant a derivative action.
However, and this is the point that may (or of course may not) relate to W3 and
the hands across the bay, it is fair to say that the two minority opinions of
Lord Clarke and Lord Hope in the Roberts case *leave a degree of doubt* [which
is perhaps philosophically okay in terms of philosophical jurisprudence – cfr.
Socrates, “I only know I don’t know anything”] as to the *correct* position in
respect of the procedural question where special circumstances DO exist, e. g.
if John Roberts had remained as administrator of the estate throughout the
limitation period, as envisaged by Pill LJ in the Court of Appeal.
“The law in this area therefore remains unclear.”
But who every said that clarity is enough?
Cheers,
Speranza
Adams, G. There but for the grace of God: Roberts v Gill & Co. Trusts &
Trustees, vol. 17
Grunebaum, “The desideratum of conversational clarity.”
Grunebaum, “The conversational category of perspicuity.”
Lewis, D. “Clarity is not enough.”
Adams: “In its first case concerning trusts and trustees the Supreme Court had
to confront, but in the end did not conclusively decide, central issues
concerning the nature of the equitable jurisdiction, which were thrown into
sharp relief by the law of limitation and the equitable principles which allow
derivative actions (See generally Lewin on Trusts (18th edn) paragraphs 43-01ff
and Underhill and Hayton: Law of Trusts and Trustees (18th edn) art 68).”
