Betraying the fact I had not consulted the case before replying with my
bouncer, another mistake is that it is Lord Walker and not Lord Collins who is
responsible for para 101 - though JLS reports 101 in a way that might suggest
the opposite.
This mistake, of attribution, does not affect the substance of my reply as to
how para 101 should be understood - in terms of CA or PS..
DL
From: Donal McEvoy <dmarc-noreply@xxxxxxxxxxxxx>
To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
Sent: Thursday, 30 November 2017, 19:31
Subject: [lit-ideas] Re: [lit-ideas]
That bouncer now having got through, apologies for the several word errors and
omissions. E.g.
"where CA seeks to unveil necessary truths than are necessarily true because
'conceptually' it could not be otherwise"should have read"where CA seeks to
unveil necessary truths that are necessarily true because 'conceptually' it
could not be otherwise".
But, thanks perhaps to W3-based knowledge of what I must have intended, many of
you perhaps knew that already.
DL
From: Donal McEvoy <dmarc-noreply@xxxxxxxxxxxxx>
To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
Sent: Thursday, 30 November 2017, 19:16
Subject: [lit-ideas] Re: [lit-ideas]
Again, re-repost of a bouncer:
Lord Collins, as quoted by JLS:
“I shall come back to some wider issues arising on the [convoluted and thus not
free from difficulty, when it comes to interpretation and analysis] §35 and the
Yorkshire Regional Health Authority case. First, I want to look more closely at
the CONCEPT OF CAPACITY which is the focus of the convoluted §35(7) and CPR
r17.4(4). In this context "capacity" is “being used in the SENSE of legal
competence or status to bring or defend a claim. It is a competence that one
may have in one's own right or on behalf of another person.” The same MEANING
of capacity must apply in CPR r17.4(4). This means that the alteration in
capacity which is referred to is an alteration from a representative capacity,
or personal capacity, to another representative capacity, or (in the case of a
representative claim) to a personal capacity.” That is how it was put by Arden
LJ in Haq v Singh 1 WLR 1594 , paras 18-19, and that is the RIGHT MEANING in
the context. The best example of a “representative” capacity is that of an
executor or administrator of a deceased person, both offices being included in
the compendious expression "personal representative".”
Now is this conceptual analysis ['CA'] or problem-solving ['PS'] in its
approach, or some mixture?
Here we should look beyond the trappings of the outer language - the
"trappings" could be in 'problemese' yet the underlying approach a CA;
conversely, the "trappings" could be in 'conceptualese' yet the underlying
approach PS. For this reason, we should not read too much into Lord Collins use
of the term "concept" in respect of "capacity" (rather than his using the term
"term"etc., which would arguably serve as well here).
The key question is how is Lord Collins arriving at what is the right, rather
than wrong, "meaning"? This is a matter of theoretical, indeed 'philosophical',
construction or interpretation (of Lord Collins' own interpretative acts).
The PS-philosophy answers that Lord Collins, consciously or not, arrives at his
conclusions by a PS approach. (Though it is possible that a judge, perhaps
under the sway of CA, may mistakenly take CA as instrumental, that judge will
be self-deceived).
How does Lord Collins show his PS approach? First, by his identifying the
problem(s) addressed by "capacity" here: "In this context "capacity" is “being
used in the SENSE of legal competence or status to bring or defend a claim"."
Now "capacity" has other senses in the law: for example, does a person have the
requisite mental capacity, or physical capacity; and the answer may depend on
the problem being addressed - so a person may have sufficient mental capacity
that a contract they entered into is binding but not sufficient mental capacity
that they could form the intention requisite to commit a certain criminal
offence like fraud (though the contract was for a fraudulent purpose
otherwise).
Here, as Lord Collins explains, the problem addressed by "capacity" is about
the right "to bring or defend a claim".
We can start with the "bring"-side i.e. the right to sue. We might further
start with some simple considerations.
X has his property damaged by Y. X is not minded to sue, because Y is his
friend. Can anyone else sue? The law's answer begins by looking at the
character of X's right to the property.
First case: if X's right is absolutely vested in X alone, for example X is sole
legal and beneficial owner, then only X has a right to sue - and therefore, in
the relevant sense of "capacity", only X has the capacity to sue. Z may be
potential beneficiary under X's will and Z may be morally right that Y should
be sued, but Z has no capacity - and can acquire no capacity as things stand.
This is all true in English law, but not because it is "conceptually true" -
for it is easily conceivable that we could allow Z a right to sue Y (by
standing in X's shoes), at least in certain circumstances, say, provided Z
could make out a sufficiently compelling moral case given Z's position as
beneficiary under X's will.
Why then is it true in English law? It is true because the law 'draws the line'
so that there is no form of 'derivative action' here: this is the law's
(contingent) solution to the problem of 'drawing the line' here as to
"capacity" to sue. We are making a mistake if we elevate this contingent
solution into a form of conceptual truth, whereby we pretend to ourselves that
Z could have no "capacity" because Z falls outside the 'conceptual zone' for
capacity where a right belonging entirely to X is violated. What we "could
have" here is entirely a matter of how we assess and solve the problem. It is
the law, via its decision-makers, that decides how the line is drawn - not any
of the concepts used.
Of course the position of Z is (or may be) different if the character of X's
right is different. For example, if X's right is not such that X is sole legal
beneficial 'owner' or holder of that right: we now have a very different
problem - and this may, and in English law does, give rise to a quite different
solution.
Second case: a different case would be where X holds property as trustee - for
example, X is personal representative for Q's estate and in that "estate" is a
house that is damaged by Y's negligence. As before, X does not want to sue Y,
because Y is his friend etc. Can Z, who is a beneficiary of Q's estate, sue?
The answer is not forced on us by any CA of "capacity" etc. (n.b. nor did CA
force on us the conclusion that Z lacks "capacity" in the first case). We are
looking at what is the best solution to the problem.
As a matter of legal history, there is also always a story as to the evolution
of the law here - in terms of how problems presented themselves. It may be (and
likely sometimes is) that the history of the law would be different if the
sequence of the problems faced were different (and these 'contingencies of
history' have a role that tends to refute the view that what determines matters
is CA).
For example, if the second case arose directly after the first case, a court
_might_ deny Z "capacity"by analogy with the first case. But let us say (again
a contingent truth) that a third case presented itself before the second case.
In this third case, X is personal rep [i.e. in a "representative capacity"] for
Q's estate, but, before Q died, Q lent X a huge sum in X's personal capacity.
X, in his personal capacity, now owes Q's estate this huge sum but is not
minded to pay it. X, in his representative capacity, is not minded to sue X in
his personal capacity for the sum. Can Z, who is a beneficiary of the estate,
sue X in his personal capacity?
The 'derivative action' arises as the law's solution to this third case. This
solution has a specific and circumspect character. The law strikes a balance
between generally restricting "capacity" (so not every John Doe can take action
where some legal wrong is alleged) and extending "capacity" to solve the
problem in the third case - i.e. to prevent the obvious injustice were the
third case answered by restricting "capacity" only to X (as this would allow X
to cheat the estate of what X, in his personal capacity, owed it).
This 'PS balancing-act' explains why Z, in Z's personal capacity as beneficiary
of the estate, is not allowed to sue X in Zs personal capacity i.e. it would
wrong to say that Z is allowed to sue X only on the basis that Z is a
beneficiary of the estate: one of the fundamental points, accepted by all the
Law Lords in Roberts, is that Z cannot sue X in Z's personal capacity but can
only sue X if Z acquires "representative capacity" to act for the estate. In
practical PS terms, this means that Z needs to persuade the court of two things
(in order that it grant Z "representative capacity" on the basis "special
circumstances" justify deviation from the starting-point that "representative
capacity" is vested only in X as sole personal representative): (a) Z has an
important lawful interest at stake, as a beneficiary of the estate (b) it is in
the interests of justice (i.e. there are "special circumstances") that Z be
granted "representative capacity" for the limited purpose of the proposed
action against X.
Once we have answered the third case, so as to permit Z a 'derivative action'
to ensure X cannot cheat the estate of what X owes it, we can approach the
second case armed with the validity of 'derivative action' given "special
circumstances": consequently, the answer to the second case is not by analogy
with the first case but by analogy with the third case - it therefore depends
on whether the circumstances are such that they are "special circumstances"
justifying Z stepping into X's shoes to sue Y.
(Despite some possible appearances to the contrary,) none of the above is due
to CA as usually understood by philosophers (where CA seeks to unveil necessary
truths than are necessarily true because 'conceptually' it could not be
otherwise), and all of it is best understood as a result of a contingent PS
approach to what are, after all, a series of practical problems (not conceptual
ones).
DL
