Getting It Right

The lengthy judgment of Lord Justice Lloyd in a decision of the Court of Appeal of England and Wales released 9 March 2011, contains the following tantalizing sentence:

“For the reasons that I have given above, in my judgment the principle known as the rule in Re Hastings–Bass… is not a correct statement of the law.”

These words are all the more tantalizing because the courts of England and Wales have applied the rule in Re Hastings Bass consistently since it was handed down in 1975. (The rule essentially allows trustees, in certain circumstances, to attack their own decisions and set them aside where there have been, for example, unintended tax consequences.)

In his concurring opinion Lord Justice Longmore said the Hastings-Bass rule was an example of the law “taking a seriously wrong turn”. The legal press called the decision a “U-Turn”.

There is something pleasing about formal recognition that wigged judges, resplendent in ermine, Oxbridge men, sat up there getting it wrong for 35 years. But it ‘s hard to put your finger on what it is exactly that’s pleasing. The fact that eminent legal scholars get it wrong, makes it easier to accept one’s own errors, of course. But more than that, it is the fact that despite the Court’s pomp and authority, the oak panelled rooms and high prestige of its officers, errors – “serious” wrong turns in the pronouncement of the law – are admitted. It makes the power of the judicial institution less scary somehow, less hubristic. It demonstrates humility: it recognizes that getting the right answer in the interpretation of law is an incremental and constant process of adjustment and checking, over decades.

In short, this recent appellate decision illustrates the organic, flexible beauty of our Common Law system which records the law in reports that embody the decisions of judges, together with the reasons they assigned for their decisions. In the days of astronomical legal fees and mandatory mediation the question that arises is, can we keep it?


  1. I agree that the flexibility of the common law is an advantage, but I wonder what the people think who paid the high legal fees to be advised that the rule in the 1975 case would apply as it had for decades … only to have the judges (however dressed) say ‘not this time, or in the future (until the next U-turn)’.

    The swipe at mandatory mediation was not earned by this story. The common law, like all law, exists to serve the people affected by it. People are served by a legal system that resolves disputes. Mandatory mediation helps resolve disputes far earlier, and thus far more cheaply, than full trials – and of course 97+% of cases do not go to trial anyway. Mandatory mediation (or other mediation) helps them settle for good reasons rather than because of exhaustion or running out of money.

    Without the mandatory feature, a good number of lawyers and sometimes their clients tend to drag things out, either out of procrastination or out of a desire to hurt the other party financially. Those are not reasons that the legal system should encourage.

  2. At least in non-criminal court decisions, “getting it right” depends (1) on what “right” – i.e. “correct” means and (2) relatedly the extent to which one believes that the controlling prupose of the judicial system is to make to a decision which is true statment of what actually occurred.