From: David Cheifetz <david.cheifetz@rogers.com>
To: obligations@uwo.ca
Date: 08/07/2013 11:18:30 UTC
Subject: Re: just published (Burrows et al (ed), "Judge and Jurist...")
Dear Colleagues,
 
I wonder if I should (anonymously) arrange a copy for the Supreme Court of Canada's library with a book mark at the page for Lord Hoffmann's article. The SCC's stated view is that Fairchild's analysis is coherent, correct, and consistent with and justified by corrective justice.
 
The corrective justice bit is the justification the SCC gave (in 2012 in Clements, not in 2007 when the Fairchild principle first made its appearance in SCC jurisprudence, albeit without reference to Fairchild) as the SCC's explanation for why the SCC ought to make this change in Canadian common law. There wasn't, in either case, any acknowledgment that there could be any issue as to whether the change was one that ought to have been left to the legislature, even though the SCC conceded in Clements that the Fairchild principle is a radical change.
 
On the other hand, Lord Hoffman said the same in May 2011 ago in a lecture he gave to a conference in Vancouver, B.C. It's a safe bet that somebody in the SCC knows that since a member of the SCC attended the conference and received a copy of the conference materials. Also, the piece was later published: "Fairchild in Retrospect" (2012) 39 Advocates Quarterly 257.
 
Cheers,
 
David Cheifetz
Vancouver, B.C.

From: "Mitchell, Charles" <charles.mitchell@ucl.ac.uk>
To: Andrew Burrows <andrew.burrows@law.ox.ac.uk>; Donald Macdonald <d.r.macdonald@dundee.ac.uk>; "obligations@uwo.ca" <obligations@uwo.ca>
Sent: Monday, July 8, 2013 2:26:14 AM
Subject: RE: just published (Burrows et al (ed), "Judge and Jurist...")

Dear Andy, Ross, et al

Re Lord Hoffmann's essay: this is a great read, and I think that many people will agree with his reasons for saying that the HL's decision in Fairchild was a mistake. But is it a good idea for an appellate (or indeed, any) judge to go into print saying that he decided a case the wrong way? If I were the losing party in the litigation I wouldn't feel very happy about that.

Best wishes
Charles

_______________________________________________________

Professor Charles Mitchell
Faculty of Laws
University College London
Bentham House
Endsleigh Gardens
LONDON WC1H 0EG

+ 44 20 7679 4517

From: Andrew Burrows [andrew.burrows@law.ox.ac.uk]
Sent: 08 July 2013 09:28
To: Donald Macdonald; obligations@uwo.ca
Subject: RE: just published (Burrows et al (ed), "Judge and Jurist...")

Thank you to Ross for drawing this to the attention of list members. Colleagues may be particularly interested in the essay by Lord Hoffmann, ‘Fairchild and After’ (Essay 8) in which he writes the following at p 68:
‘In retrospect, I think the most satisfactory outcome [in Fairchild] would have been for their Lordships in their judicial capacity to have adhered to established principle, wrung their hands about the unfairness of the outcome in the particular case, and recommended to the Government that it pass appropriate legislation. Then judiciary and legislature would each have been functioning within its proper sphere: the judges not creating confusion in the common law by trying to legislate for special cases and Parliament amending the common law where fairness and the public interest appeared to demand it.’   
Other essays relevant to the law of obligations include those by Lord Dyson (essay 6: ‘Some Reflections on Lord Rodger’s Contribution to the Development of the Common Law’), several on Scots Law (eg by Jacques du Plessis and Robin Evans-Jones on unjustified enrichment (essays 33-34); Philip Hellwege on contractual interpretation (essay 36); and Joe Thomson on liability for Negligence (essay 39)); Sonia Meier who, in essay 45, takes a comparative law approach to ‘Performance of an Obligation by a Third Party’; and my own essay on ‘Common Law Retrospectivity’ (essay 41).
There are insights into the work of the UK Supreme Court not only in the nine essays by Law Lords/Supreme Court justices but also by Lord Rodger’s last judicial assistant Tetyana Nesterchuk whose essay (essay 11) is entitled ‘The View from Behind the Bench: The Role of Judicial Assistants in the UK Supreme Court’.  
All legal academics will also find much of interest in the essay, essay 40, by Lord Justice Beatson, ‘Legal Academics: Forgotten Players or Interlopers?’
 
Best wishes,
Andrew
 
Professor Andrew Burrows QC, FBA,
Professor of the Law of England,
All Souls College,
Oxford,
OX1 4AL
 
From: Donald Macdonald [mailto:d.r.macdonald@dundee.ac.uk]
Sent: 07 July 2013 16:14
To: obligations@uwo.ca
Subject: ODG: just published (Burrows et al (ed), "Judge and Jurist...")
 
Dear colleagues,
 
While not particularly (or even primarily) a book on aspects of obligations law, members may like to know of the appearance of the denkschrift commemorating Lord Rodger of Earlsferry.  The attached link takes you to the book details, including contents.
 
 
http://ukcatalogue.oup.com/product/9780199677344.do#.UdmAnNijO2Y
Judge and Jurist  [:]  Essays in Memory of Lord Rodger of Earlsferry
Edited by Andrew Burrows, David Johnston, QC, and Reinhard Zimmermann
752 pages | 234x156mm
978-0-19-967734-4 | Hardback | 20 June 2013       £125
 
 
Best
 
Ross Macdonald (School of Law, University of Dundee)
 
 

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