McEvoy: “[T]he comments of Lord Collins about "sterile" analysis may be taken
as rebuke to conceptual analysis.”
It is interesting that this is later rephrased as ‘sterile’ being the topic,
rather than the analysis:
“Reference was made in argument to the well-known definition of "cause of
action" put forward by Diplock LJ in Letang v Cooper 1 QB 232 , 242-243. I am
conscious that this is (as Lord Collins says) a sterile topic […].”
However, note the continuation:
“[B]ut I venture to repeat something that I said in a dissenting judgment in
Smith v Henniker-Major & Co Ch 182 , para 95 (just before the passage quoted
by Lord Collins): I have to say that in the context of §35 of the Limitation
Act I am uneasy about the process of lifting either of these CLASSIC
DEFINITIONS out of the legal lexicon, as it were, and reading them into the
language of §35(5)(a). The notion of ‘a factual situation’ which ‘arises out of
the same facts or substantially the same facts’ as another set of facts is not
an easy one to grasp.”
where the idea (concept, notion) of a ‘notion’ NOT being an “easy to grasp” one
may remind some of Baroness Hale and her emphasis on, as McEvoy points out,
“‘conceptual’ (“as in ‘conceptually difficult’).”
Something being conceptually difficult may relate to it involving a notion that
is “not an easy one to grasp” (with the attending implicature that its
‘analysis’ may not prove as ‘sterile’ as _that_).
Grunebaum possibly would think that Lord Collins’s use of ‘sterile’ relates
(_sans_ the pun) to The English Futilitarians – as used by Bergmann when
rejecting an invitation at Oxford to spend a Saturday morning with J. L.
Austin’s Play Group!
Cheers,
Speranza
