On the contrary. Eoin's different approaches take different attitudes to the declaratory theory, and so it is necessary to decide on the status of the declaratory theory to decide between them.

The short point is that Eoin's Pattern 1 embodies a fiction (because it pretends that the law always was as Hazell declared it to be), whereas Pattern 2 does not embody a fiction.

The approach Eoin outlines amounts to allowing the fiction itself to determine its own application, which seems to me unacceptable. Hazell changed the law. Therefore, any approach which denies that is engaging in a fiction. And any approach which asserts that the parties were "mistaken" for not appreciating what the court in Hazell would do is repeating that fiction.

This is not a point about which side should have won the case. It is a point about what language we should use to debate it. If we ask which is a better analogy for the effects of Hazell, Pattern 1 or Pattern 2, the answer has to be Pattern 2, and that this is *not* a matter of perspective -- the law *really did* change. But that alone does not tell us which way the Lords should have decided the appeal.

What all 5 law lords did, but Eoin seem reluctant to do, is to abandon the fiction, and then argue about how we deal with the situation we find ourselves in, having abandoned it.

The argument in the Lords is, it seems to me, trapped between two excellent points : Lord B-W's point that any attempt to deny that Hazell changed the law contains a fiction, and Lord G's point that changes in the law have to involve *some* element of retroactivity. The issue therefore is, whether *for the purpose of the rule permitting recovery for mistakes of law*, we admit the truth that the law changed or we pretend that it did not (and so anyone who acted on what was earlier understood to be the law was, by fiction, "mistaken"). Now this issue can be answered either way, using various arguments. But the one way in which it should *not* be answered is by treating the fiction involved in the declaratory theory as if it were true.

Steve Hedley

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FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE

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