McEvoy offers some very interesting remarks on Foster’s commentary, “and its
shortcomings.” The passage by Foster selected by McEvoy is cited below, and as
McEvoy’s subject-line reads, McEvoy offers a few ‘questions’ regarding it.
Foster notes (slightly paraphrased): “The amendment sought by Mark Roberts
requires the administrator of the estate to be joined as a nominal defendant to
the proceedings. Unfortunately for Mark Roberts, CPR 19.5 *prohibits* the
addition of a new party to the proceedings after the limitation has expired,
except [when] it is ‘necessary’ under [any] of three reasons listed in 19.5(3).
On the facts, the only arguable limb [concerning the second reason; to wit:]
19.5(3)(b), which states that “the addition or substitution of a party IS
necessary only if the court is satisfied that the claim CANNOT properly be
carried on by, or against, the original party, unless a new party is added or
substituted as claimant or defendant.” All of the Court of Appeal judges agree
that Mark Roberts CANNOT satisfy this requirement. There is NO need for the
administrator to be joined to Mark Roberts’s claim, brought in his personal
capacity, for that claim to continue.”
McEvoy comments: “Now, at one level, this is understandable enough.”
Indeed. I am fascinated by Foster’s use of ‘reason’. Granted, here he is
quoting, when he refers to “[any] of [the] three reasons” listed, etc. But I
notice that, earlier, he also uses ‘reason’ in a more, shall we say, creative
way. So creative that it reminded me of Grunebaum. For Foster says (and I see
it as a longcoming, rather than a shortcoming, though) (EXCURSUS: If the
Meriam-Webster defines a ‘shortcoming’ as "(a) an imperfection or lack that
detracts from the whole; also : (b) the quality or state of being flawed or
lacking", a “longcoming” should mean the opposite, a “perfection that adds to
the whole.” Strawson would argue that one cannot add to something that is
perfect. According to the second sub-definition (b), Grunebaum *might* want to
say (if not implicate) that a longcoming is a “quality or state of being
perfect or not lacking anything" – as in Grunebaum’s “Being excellent at
cricket is one of my longcomings.” – and cfr. misc-in_memoriampaulgrice –
Demijohns Cricket Club
demijohnscricket.co.uk/misc-in_memoriam1988/. – END OF EXCURSUS). Foster gets
creative with ‘reasons’ when he writes, earlier in his commentary (slightly
paraphrased):
“The Court of Appeal also dismisses Mark Roberts’s appeal, but for different
reasons [from those appealed to by Mr. Paul Morgan QC].”
And I say it reminds me of Grunebaum, because (a) the Universe reminds me of
Grunebaum. (b) In particular Grunebaum was never sure if “for the right
reasons” was obviously otiose, or not. When considering what the philosopher is
after Grunebaum ponders on the idea that the philosopher wants to “be right.”
Or more specifically, “to be right for the right reasons,” casting some doubt
with a caveat to the effect that “a great deal” may end up being “packed” in
the implicature of the cliché “for the right reasons.” Foster’s play with
‘reasons’ and Grunebaum’s meditations on the implicatures on ‘for the right
reasons’ may have a bearing on our understanding, theoretical or practical, of
stuff like the law – and stuff.
McEvoy then turns to what I think is his first ‘question’ addressed to what
McEvoy sees as one of the ‘shortcomings’ of Foster’s commentary. McEvoy: “[For]
what really stops, or stands in the way of, [an] alternative line of reasoning?”
McEvoy specifies the ‘alternative line of reasoning’ (slightly paraphrased).
Such a line would have it “[t]hat the “the claim” in the pre-existing action
(in Mark Roberts’s ‘personal’ capacity) is, being a claim for the negligence of
the solicitors acting, substantially the same as the claim in the proposed
‘derivative action’.” Further, since “this “claim” CANNOT succeed in Mark
Roberts’s ‘personal’ capacity (as the solicitor’s duty of care extends only to
*the estate*, and not to *Mark Roberts*, in his personal capacity as
beneficiary), it IS necessary for Mark Roberts to switch to a different
‘representative’ capacity (that is, for *the estate*, now).” A further premise
in this alternative line of reasoning: “[Now,] this switch does make NECESSARY
the joinder of the personal representative.”
In conclusion: “[Therefore,] “the addition or substitution” of the personal
representative IS necessary, because the claim CANNOT be properly carried on by
or against the original party without this happening.”
How does this compare to Grunebaum’s Aspects of Reason?
Cheers,
Speranza
