At some point McEvoy goes on, as he did above, to proceed counter-factually, as
it were.
McEvoy:
“Now, there IS a counter-argument to this explanation. The counter-argument is
that, in the Roberts case, the plaintiff's action for negligence in his
‘personal’ capacity is THWARTED BY [no less] LAW, and so the action IS
[analytically] ‘impossible,’ legally speaking. The acction is thwarted by, no
less, law, because the law says that the solicitor’s DUTY OF CARE extends ONLY
to the estate, not to its beneficiaries. Therefore, breach of this duty of care
gives [conceptually, as per conceptual analysis] the beneficiaries no ‘cause of
action’ in their ‘personal’ capacity. An answer to this counter-argument is
that the law only says this “as a general starting point,” as it were, and NOT
– as per the Fatal Accidents Act -- as a matter of ‘pure’ legal [analytic? A
priori? Conceptual?] impossibility. In contrast to The Fatal Accidents Acts
case, it IS [conceptually? Merely factually?] possible that, in some
circumstances, solicitors acting for THE ESTATE conduct themselves in a way
that DOES give a beneficiary a ‘cause of action’ against those solicitors in
the beneficiary’s ‘personal’ capacity, e.g., by making a negligent misstatement
to the beneficiary. The counter-argument, and, for that matter, its reply,
provide [as Grunebaum and Hart would have it] an ANALYTICAL basis for
distinguishing the ‘negligence’-focused Roberts case from The Fatal Accidents
Act case where the action is begun before grant of Letters.”
McEvoy has a caveat here:
“This [analytic basis] is [such], notwithstanding that the plaintiff's claim in
their ‘personal capacity’ in the Roberts case is [hyperbolically] doomed to
fail as a matter of ‘mixed fact and law.’ The claim in the plaintiff's
‘personal’ capacity IS [hyperbolically] doomed [to fail] but need not have been
purely as, as in the Fatal Accidents Act case, a matter of law. The solicitors
had not conducted themselves in a way that extended their DUTY OF CARE, prima
facie to the ESTATE, to any beneficiary in their ‘personal’ capacity. There
could have been a viable claim in their ‘personal’ capacity HAD THE FACTS BEEN
DIFFERENT.”
And perhaps even substantially so!
McEvoy:
“This might seem a somewhat ‘fine’ distinction, [but] we need remember [that]
the law is perennially engaged in fine line-drawing exercises, lines have to be
drawn somewhere.”
Perhaps the abuse of the term ‘term,’ which originally means ‘boundary,’ as per
a drawn line.
McEvoy:
“This leads to a key practical point, which shows that the [finesse] of [this
or that] distinction serves the SUBSTANTIVE [i.e. substantial] interests of
justice. Once the decision is promulgated in the Roberts case, all plaintiffs
OUGHT to ASSUME that they need to get their ‘representative’ capacity in order
within the limitation period. Courts will not allow them to subsequently get
such ‘representative’ capacity in order by way of some amendment of a
pre-existing course of action brought in a, say, a ‘personal’ capacity. The
Fatal Accidents Act case where, as per a ‘mere formal error,’ Letters are
granted only after proceedings are commenced, is treated as SUBSTANTIVELY [or
SUBSTANTIALLY] very different, despite its ‘conceptual’ similarity, because it
is always [analytically] clear that the Fatal Accidents Act case is brought in
a ‘representative’ capacity in respect of which there was a mere formal
‘error’. Does the decision in the Roberts case look like one that will create
more INjustice than a decision where the law takes a less clear-cut stance on
the impermissibility of the sought amendment? This question takes us to the
heart of the differences between majority and minority. Some might argue that
the majority view in the Roberts case creates LESS INjustice overall than would
a less adamantine approach to the proposed amendment. In any case, it is for
the Supreme Court [and not for Grunebaum] to assess the merits and rule
accordingly. All the while, the different decisions in the Roberts case and in
a Fatal Accidents Act case and their assessments pertain to, and are based on
matters of, shall we say, ‘substance,’ and not, dare I suggest, ‘linguistic
botany.’
This reminds me of a play by Ford, “‘Tis Pity She’s A Botanist”! For one
problem for the conceptual analyst re: the FAA is the conceptual analysis of
‘fatal’ (fromm Virgilian Latin, ‘fatum,’ as inter-texted by Bob Dylan, meaning
‘fate’). But I surely enjoyed the commentary and the idea of the combo of ‘law’
and ‘facts’ – what about ‘legal facts’? Also the concept of impossibility:
“legal” impossibility, as McEvoy qualifies it. The qualification seems in order
because ‘impossibility’ simpliciter may suggest we are dealing with ‘analytic’
facts alla H. L. A. Hart, and while McEvoy does use ‘analytic’ in the above,
and ‘fine’ distinctions, he is ready to bring in the facts, as Sondheim brought
in the clowns!
Cheers,
Speranza
