Some further very welcome contributions to this miscellany – including a scholarly contribution from the Supreme Court of Gibraltar which mentions both Justinian and a seventeenth century pig sty – have prompted me to sever the Addendum to my earlier blog in this series and to include these late arrivals in a freestanding set of nine in their own right. I have also added two more paragraphs of Lord Justice Millett’s virgin entry into libel law on the vexed topic of whether it was defamatory for Ms Burchill to call Mr Berkoff hideously ugly.
If any reader can confirm or correct my attribution of the source of Lord Justice Ward’s warring bankers, I would be very grateful in the interests of precise historical accuracy.
Mr Justice Buckley gave judgment in the first case in this series at about the same time as Master Bickford-Smith, with a roar of full-throated judicial laughter of which only he was capable, dismissed my client’s interpleader summons after he had found that he had been unsuccessful in turning himself into a limited company so that the claimant and the judgment debtor were one and the same person. That case had something to do with the impedimenta of an insolvent billiard hall which the sheriff had seized.
My first blog has already attracted over 1,500 viewers in the last two days. I am grateful for all the appreciative messages I have received – although to Paul Magrath and Gordon Exall should go all the credit for this venture.
Mr Justice Buckley
It is a strange and confusing circumstance of the case that the principal antagonists, the plaintiff and the third defendant, are called by the same name. The plaintiff is or claims to be a corporate body recognised and governed by the law in force in the Eastern Zone of Germany; the third defendant is or claims to be a corporate body recognised and governed by the law of the Federal Republic. Sacrificing accuracy somewhat recklessly for the sake of brevity, I am tempted to say that the object of the action is to determine which of these two bodies, if either, is the other; and, if not, whether either, and if so which, is another corporate body of the same name, or, if not in fact such third body, is identical with it. If this is not a wholly accurate way of stating the case (and in seriousness I would say it is not) it will appear that the issues which are involved are scarcely less complicated and metaphysical than they would be if it were.
Lord Justice Ward
I began to write this judgment on the first day of the new legal year after the service for the Judges at Westminster Abbey and with the words of the lesson read by the Lord Chancellor ringing in my ears. From Romans xiii: 10
“Love worketh no ill to his neighbour: therefore love is the fulfilling of the law.”
The Dean’s prayer for the Judiciary was that they
“may be granted the Spirit of Discernment and the Spirit of Love that they may boldly, discreetly and mercifully fulfil their sacred duties, to the good of Thy people and the glory of Thy name.”
It all seemed so apposite, for this case is – or at least it professes to be – all about love. Love is, of course, an old, old story.
“Amor omnia vincit et nos cedemas amori”
– love conquers all, let us surrender ourselves to love – wrote Virgil;
“Love is all you need,”
sang the Beatles. If the theme was timeless, so seemed this case, especially in my many moments of exasperation during the hearing and in the months it has taken to complete this judgment. It has needed the noble subject of love to expiate the ignoble distinction of being the longest wardship ever tried and I hang my head in shame to publish the fact that this hearing lasted 75 days and that it has taken me nigh on a year to produce this judgment.
Lord Justice Millett (dissenting)
Many a true word is spoken in jest. Many a false one too. But chaff and banter are not defamatory, and even serious imputations are not actionable if no one would take them to be meant seriously. The question, however, is how the words would be understood, not how they were meant, and that issue is pre-eminently one for the jury. So, however difficult it may be, we must assume that Miss Julie Burchill might be taken seriously. The question then is: is it defamatory to say of a man that he is “hideously ugly”?
I have no doubt that the words complained of were intended to ridicule Mr. Berkoff, but I do not think that they made him look ridiculous or lowered his reputation in the eyes of ordinary people. There are only two cases which have been cited to us which are at all comparable. In Winyard v. Tatler Publishing Co. (C.A. unreported: 16th June 1991) it was held to be defamatory to call a professional beautician “an ugly harridan”, not because it reflected on her professional ability, but because some of her customers might not wish to be attended by an ugly beautician. I find the decision difficult to understand, since the reasoning suggests that the cause of action would more properly be classified as malicious falsehood rather than defamation, so that actual loss of custom would have to be proved.
The other case is Zbyszko v. New York American Inc. (1930) 2239 NYS 411. A newspaper published a photograph of a particularly repulsive gorilla. Next to it appeared a photograph of the plaintiff above the caption: “Stanislaus Zbyszko, the Wrestler: Not Fundamentally Different from the Gorilla in Physique.” The Statement of Claim alleged that this had caused the plaintiff to be shunned and avoided by his wife (who presumably had not noticed her husband’s physique until it was pointed out to her by the newspaper) his relatives, neighbours, friends and business associates, and had injured him in his professional calling. The New York Court of Appeals held that the caption was capable of being defamatory. The case was presumably cited to us as persuasive authority. I find it singularly unpersuasive except as a demonstration of the lengths of absurdity to which an enthusiastic New York lawyer will go in pleading his case…
Mr Justice Declan Budd (in the High Court of Ireland):
1.The news of the death of Joe DiMaggio came while I was writing this judgment. His record streak in 1941, when he got a hit in fifty six consecutive games, still stands. His grace at the plate and his defensive qualities at centre field, his leadership of the New York Yankees to victory in nine of the ten world series in which he led them, and above all his gentlemanly conduct made him a legend in his own lifetime. I wonder what he would have made of the problems with which I have been confronted in resolving the conflicts of evidence presented by what followed the strike by Alice Dunne during the game of rounders played in the sports hall of a convent school in Glasnevin on the morning of Tuesday 21st May, 1996.
Lord Rodger of Earlsferry
Dominus membrorum suorum nemo videtur: no-one is to be regarded as the owner of his own limbs, says Ulpian in D.9.2.13. pr. Equally, we may be sure, no-one is to be regarded as being in possession of his own limbs. The Crown argument, however, depends on the contrary, untenable, proposition that, when carrying out the robbery, the appellant had his own fingers in his possession in terms of section 17(2) of the Firearms Act 1968. I agree with my noble and learned friend, Lord Bingham of Cornhill, that for this reason the appeal should be allowed.
Mr Justice Lewison
1.The entail was once the standard method by which the English aristocracy and landed gentry kept land in the family, as any reader of Jane Austen will know well. In Pride and Prejudice one reason for the desperate attempt to marry off the Bennet girls was that Mr Collins would inherit the estate under an entail. Even then the entail was not widely understood:
“Jane and Elizabeth tried to explain to her the nature of an entail. They had often attempted to do it before, but it was a subject on which Mrs. Bennet was beyond the reach of reason.”
Lord Justice Ward
This case involves a number of – and here I must not fall into Dr Spooner’s error – warring bankers.
Mr Justice Jack (Supreme Court of Gibraltar)
1. In A.D. 537 the Emperor Justinian made a law prohibiting residents of Constantinople from obstructing their neighbours’ views of the sea by erecting buildings in front of their neighbours’ houses. This tightened earlier legislation made by the Emperor Zeno and by Justinian himself, which (as the 537 legislation explained) artful property developers had been able to evade: see Corpus Juris Civilis, N.63, C.8.10.12 and C.8.10.13 respectively.
2. These provisions do not represent the common law. In Aldred’s Case (1611) 9 Co Rep 57b, Thomas Benton erected a pig-sty next to William Aldred’s house. Wray CJ, giving the judgment of the Court of King’s Bench, held at p 58b that an action lay for interference with Aldred’s light and air, but not for interference with Aldred’s view from his house.
“[P]rospect… is a matter only of delight, and not of necessity, [so] no action lies for stopping thereof, and yet it is a great commendation of a house if it has a long and large prospect… But the law does not give an action for such things of delight.”
1.The distinct legal personality of companies has been a fundamental feature of English commercial law for a century and a half, but that has never stopped businessmen from treating their companies as indistinguishable from themselves. Mr Michael Hunt is not the first businessman to make that mistake, and doubtless he will not be the last.
 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 3)  Ch 506
 In the matter of ST (A Minor) 19 October 1995 (unreported)
 Berkoff v Burchill  EWCA Civ 543
 Kane v Kennedy  IEHC 142
 R v Bentham  UKHL 18
 In the matter of P  EWCOP 163
 Unpublished, but likely to have been said when granting leave to appeal on certain issues in Royal Bank of Scotland v Highland Financial Partners  EWCA Civ 475. See Lord Justice Aikens’s judgment in this case at  EWCA 328, para 41 note 20.
 Skyview Properties Ltd v Taylor Woodrow (Gibraltar) Ltd, Supreme Court of Gibraltar, 5 April 2016
 Lowick Rose LLP (in liquidation) v Swynson Ltd  UKSC 32
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