fortunately speranza and his wife are getting their stride back, the job is
the difficult task of taking tarzanelli
palma, apgs
On Fri, Dec 8, 2017 at 5:29 AM, Redacted sender jlsperanza for DMARC <
dmarc-noreply@xxxxxxxxxxxxx> wrote:
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
