Monthly Archives: September 2018

Don’t estop me now: credibility and comments on intelligence

-Warning: explicit Land Law content. If you do not want to read musings on land law, stop right now …

James v James [2018] EWHC 43 (Ch)

Having had a year away from land law teaching, I am catching up on recent cases, including this one on proprietary estoppel (as well as testamentary capacity). I am not going to say anything about the actual legal points, despite the fact that this is what I am supposed to be preparing, but will comment on another interesting aspect of the approved judgment: a tendency to elaborate upon and explain the decision making process in terms of views about individuals (I think of this as the Eggheads tendency – after the quiz show where people can’t just say the answer is b, they have to ‘talk us through’ the thought-process which has led to that conclusion).

There is detailed discussion of  various witnesses:  HHJ Paul Matthews does not restrict himself to saying he believes X or believes X more than Y, and some of this material seems to go beyond credibility and into intelligence or education. For example, one of the major characters was, the judge found,  ‘a slow but clear witness. He was not good at reading. He was dogmatic, sometimes rather contrary, and not good at following legal reasoning’. [8] And ‘For the most part, I think that [S.] had convinced himself that he was in the right, and interpreted all the material available to him in a way which demonstrated that he was. In some cases, I am afraid I think he went further, and told me things that were simply not true.’[9] Some of this is honesty/credibility-related, but calling somebody ‘slow’ and criticising their reading seems to go beyond that.


In relation to a group of female witnesses, the judge shared his impressions at [11] that two were ’quiet and calm’. One ‘rather shy but clear and straightforward, but another, while she ‘gave evidence in a quiet tone’ also ‘ avoided eye contact and her body language suggested internal conflict.’  Some material for consideration of appropriate female witness behaviour there, I think – plus signs of great self confidence on the judge’s part of his ability to ‘read’ mental state from ‘body language’. I am not entirely convinced that has a place in an official account like this. Another ‘good’ female witness was ‘loyal.. to her husband,’ but ‘distressed by the litigation and wanted it to be over’ [12]. Yet another female witness was ‘a slow witness, with clear, trenchant views’ [13].


In relation to an older female witness, there is some doubt, but it is not expressed in quite such critical terms: [14] ‘[S.J.], … although she often took her time to answer, was clear and decisive when she did. Despite her advancing years, she was generally very much on the ball. But she was confused as to [a particular point]. On the other hand, she had little or no trouble in following accounts. It is plain that she had a head for business. Sometimes her answer was that she could not remember things, though I noted that that was the answer more often given when the question was a difficult one, not susceptible of a simple answer in her side’s favour. She also appeared confused about [another point]. Her answers did not square with what she said in her witness statement…. I have accepted her evidence without reserve where corroborated by other independent evidence, but otherwise with more caution.’ The first part of this sounds a bit like ‘She’s marvellous, considering …’ – a little patronising?


Also interesting is the decision of the judge to mention his views as to the competence and intelligence of a female solicitor in the case: ‘She struck me as a highly competent, intelligent solicitor …’ [16] while in  dealing with a male solicitor-witness, [17], there was, apparently, no need to affirm his intelligence. Likewise the male experts were ‘as one would expect … highly professional’ [18]. Might have been best avoided?


Clearly, the format of a civil trial requires a judge to make decisions about credibility, and comments on parties are not new, but I do wonder how it helps to hear that the judge does not rate a party’s speed of thought, and whether the study of ‘body language’ is now a respected and scientific subject, taught at judge school.

For a contrasting approach, see another proprietary estoppel case, Habberfield v Habberfield [2018] EWHC 317 (Ch), in which the judge is much less … well … judgey about individuals, and almost entirely sticks to saying which evidence he prefers on particular points. We don’t learn who is intelligent and who is ‘slow’, and yet it doesn’t detract from our understanding …  [no idea why this bit has gone red!]

Park up your troubles: newspaper coverage of neighbour dispute cases

Land law thoughts: warning – almost completely not about Legal History!

Two areas of legal interest which are more frequently covered by the right wing press than the rest of what used to be called ‘Fleet Street’ are (i) succession (when there is a family dispute); and (ii) neighbour disputes. I think there’s a Ph.D. or at least a dissertation for somebody on the way these are covered, but until it appears, here is a start in pulling together some thoughts on the neighbour disputes ones, prompted by a report in this morning’s Mail:

The case involved use of a parking space at a property in Berkshire. If the owner parked in a particular part of the space, that restricted or denied access to the neighbouring property’s back garden.

As it’s the Daily Mail, and I have read a number of such articles there, I was not surprised to see the piece highlighting the following:

  • The amount of money spent on legal action (£120,000)
  • The length of the dispute (10 years)
  • Descriptions of the disputed land: ‘a 30 inch parking space’ (imperial, obviously) and ‘a thin strip of concrete’ (concrete – a bit modern and insignificant). In fact, although it almost suggests this is an ownership issue, it isn’t: it’s an easement case.
  • A kick for lawyers, even though the piece also makes it clear that it could have been settled amicably, and the parties are ‘stubborn pensioners’ (not quite on-brand there, Daily Mail) who have engaged in ‘bickering’ and a ‘frenzy’ of legal action. The implication seems to be that lawyers encouraged the legal action (those ‘pettifogging’ slurs go deep into history) even though I would be very surprised if lawyers involved in such a case did not try and encourage the parties to come to a sensible agreement.
  • Legal bills described as ‘eye watering’ – without any context as to what was provided by the lawyers (over ten years?). It may be that they over-charged, but it isn’t possible to tell from this. The disproportion is really between the value of the land/right in question and the amount of money: and unless the evil lawyers were forcing the parties to litigate against all reason, that’s hardly their fault.
  • A photograph of the ‘winner’, who gets the right to use the path: pictured with a walking aid, though, in fact, according to the story, he does not live at the property, but rents it out. In a way, this makes the story look like ‘nasty people stop mobility-impaired man using access to his house’, when it is more ‘people use car space in a way which potentially reduces financial gain on second home’.
  • Extra facts – the applicant ‘lives with his wife’ in an ‘impressive £1.5 million 5 bedroomed house in nearby village of Cookham. The losing respondents, however, had moved down South from Scotland. This may help the DM reader to decide who is the more sympathetic ‘stubborn pensioner’ in the dispute.

A more legal explanation (including the fact that it’s about easements and prescription – lost modern grants, Prescription Act and all that getting an airing) can be seen at:

This is the judgment of the Land Registration Tribunal. Here, we have metric measurements (the horror!) and some ‘nice points’ about exactly how acquiescence is to be understood (still a bit unsatisfactory, it seems to me, but let’s leave that for now), but  almost no criticism of lawyers (it does in fact speak of solicitors ‘taking up the cudgels’ after initial disputes between the parties (para 12) – which seems a little unnecessarily fighting talk-ish). Nothing about Scotland, or the applicant’s ‘impressive’ home.

Lots to compare and contrast, and the makings of an interesting study, if more examples were included.

Coke fanboys and a cheer for F. Pollock!

I recently had occasion to go over the report of Bebb v. Law Society [1914] Ch. 286 (woman wants to be solicitor; not allowed to; takes legal action; loses, because obviously women can’t do such things – they should know their place), and, apart from its steam-from-ears-inducing unfairness,  it has some interesting material for those of us who are not fans of Sir Edward Coke (some might find the words ‘over-rated ruff-wearing misogynist’ spring to mind – I could not possibly comment).

On the depressing side, it is an example of just how ludicrously deferential judges of this period were to Coke: even when he was citing the dodgy Mirror of Justices. Cozens Hardy MR at 293, ‘[T]he opinion of Lord Coke on the question of what is or what  is not the common law is one which requires no sanction from anybody else …’ while Swinfen-Eady LJ, at 296 goes with ‘It is said the authority of the Mirror is impugned. But the authority of Lord Coke is not …’ and Phillimore LJ 298 ‘Lord Coke … is only a witness, no doubt, as to the common law, but he is a witness of the highest authority’. Creepy, craven stuff. Still, I suppose the deification of Coke meant there was no need to do proper Legal History research.

Pollock, editor of the Law Reports, however, had Coke’s number, noting in a footnote that his citation was incorrect and that there was some corrupt spelling (fn on  p. 292) and in a footnote on p. 295 that ‘Coke, according to his frequent habit, felt bound to support his living knowledge of  practice by citing an apocryphal authority’. Quite right too, F.P.

All of which has left me wondering:

(1)    When did the Coke-idolisation thing end’; and

(2)    What is the most Coke-worshipping statement in a law report? I will be looking out for this from now on.

Coke’s Marriage and Treatment of his Wife and Daughter

Those writing about Coke have generally given him a rather easy ride in relation to his treatment of his wife and daughter. It is hard not to find his ‘gold digging’ matrimonial conduct and his swift and secret second marriage anything other than discreditable and distasteful, but Baker’s introduction goes no further than saying that he ‘later had cause to regret’ i: Baker, Introduction to English Legal History, 4th edn 2002, 480t). No mention of the whole abduction of daughter to force her into obviously unsuitable marriage for his advancement in the favour of important people …

‘The second Mrs Coke’, a.k.a. Lady Elizabeth Hatton is subject to straightforward, and deeply gendered, insult elsewhere: being called a ‘harridan’ in Barnes and Boyer,  Shaping the Common Law from Glanvill to Hale 1188-1688 (Stanford CA, 2008) p. 120. The abduction of his daughter is mentioned here, at p. 127.  but there is not any real criticism and nothing on the lack of suitability of the groom.

Mephitic metaphor

I am not sure we really want the mental pictures conjured up by the idea of the common law as Coke’s ‘jealous mistress’ [A.D. Boyer,  Sir Edward Coke and the Elizabethan Age (Stanford UP 2003), 32. There are all sorts of dubious metaphors about the common law, or justice, as a woman, but does it need to be a ‘mistress’, with all that that imports, and does it need to assume that there is a recognisable, accepted idea of ‘the jealous mistress’. Just unnecessary.






Early modern medical snippet

I am neither an early modernist nor a medical historian, but came across an early modern medical case recently and thought it was worth sharing, for the benefit of those who know more about these things.

Brashford v. Buckingham 79 ER 65 and 179 , Cro. Jac. 77 and 205, is a King’s Bench case from 1605-7 (Trinity 3 James I, and Hilary 5 James I),  concerning a promise to pay a healer £10 for healing a wound, and then a dispute as to whether payment was due. It is not especially surprising to see an action of this sort in this context (it is an ‘action on the case’, not unexpected in the medical context), and the main legal point which was of interest to the reporter concerned a technical issue of the appropriate parties, but it did strike me as slightly unusual in that the ‘medical practitioner’ was a woman.  Curing a wound which was worth £10 does sound like fairly serious medical treatment, and being trusted to do so by somebody who can pay £10 suggests a high reputation for healing. The woman in question deserves some attention from early modern medical historians.  Sadly, this will mean trawling through four KB plea rolls: KB 27/1391, 1392, 1403 and 1404, since the report (annoyingly) does not give a roll or membrane number. One day …

Life, death, dower and the twitching of legs

I have recently been doing a lot of work on the history of proving the presence or absence of life. My particular focus has been on medieval England, and on determining whether or not a baby, now dead, was ever alive so as to qualify the father for certain property rights (tenancy by the curtesy: article on its way). That has been fascinating, and I am sure there is more to discuss and discover on that point, but it is also part of a bigger question for the law, on drawing lines between life and death. This is important in criminal cases – e.g. in working out whether a person was killed by X or by Y – but it is also crucial in relation to various succession questions. As well as the curtesy cases in which there is a need to determine whether or not a live child was produced, there are cases in which it is necessary to work out the order of deaths. How was this decision made in the past?

There are two broad issues for legal historians: by what mechanism is the question decided, and by what test is it decided. My curtesy work has shown me that neither question leads to an entirely straightforward answer. Today, I came across an ‘order of death’ case from the 16th C which has set me thinking about this in a wider context.

The case, called Broughton v. Randall in the English Reports, though more properly Morgan Broughton, armiger v. Margaret, widow of Robert ap Rondell Cro Eliz 502. 78 ER 752; appears on the King’s Bench plea roll for Trinity 1596 (38 Elizabeth I), starting at KB 27/1339 m. 876 (AALT IMG 0945).  It is in the report, however, that something is said about the ‘order of deaths’ issue. This was a dower case from Denbighshire, Wales, in which Margaret was claiming land currently held by Morgan. The land in question appears to have been held jointly by Robert and his father. Both were hanged at the same time. Margaret’s chance of dower depended on it being decided that Robert had outlived his father. She was successful, and this was, according to the report, because Robert’s legs had been observed to twitch after his father was still. I am not qualified to say whether that really is a good indication of life in a meaningful sense, though I am inclined to be doubtful.

I have drawn a blank, so far, on Robert, his father and their crime, though that does seem an interesting avenue to pursue one day. Also interesting is the fact that this is a Welsh case – since there is much to be discovered about the ways in which the Welsh were arranging their property holding in this period. As far as the pinpointing of death is concerned, however, this does show the inventive approach which might be taken to establishing the facts for legal purposes. Its use of movement as a criterion is also very interesting as a counterpoint to the test in curtesy, which was traditionally more sound-focused.

Another triumph of legal science from Sir Edward Coke: the Great Lady and the Baboon

Despite his high reputation, there is a lot not to like about Coke (gold-digger, involvement in some very abusive trials and persecutions,  tendency to misrepresent and mis-cite medieval cases …). It is, therefore, always satisfying to be able to point out his grosser follies in the field of ‘legal fake news’. They don’t come much grosser than his much-quoted tale of the Great Lady and her sexual relationship with a baboon.

This comes in his discussion of buggery. [3 Co. Inst. 59] From buggery, he goes on to bestiality (grudging admission that this is justified by the statute he is discussing, which also does so), and this is illustrated by the story of the Great Lady who manages to become pregnant by a baboon. Coke places this some time before the passing of Henry VIII’s act against buggery  [25 Henry VIII]. Neither the lady nor the baboon is named, and it is not clear whether a human-baboon baby was supposed to have been produced. Obviously this is biological nonsense, and it looks as if Coke is caught out either making things up or not checking his plea rolls to confirm the facts. Nevertheless, it is quoted over and over again, without any doubt being cast upon the tale – such was his canonisation.  [E.g. in Anon., A Treatise of Femes Coverts or the Lady’s Law (London, 1732), 52; and there are examples at least into the 1820s].

If it is not absolute fabrication, the story might have its origin in some very unfortunate and misunderstood birth of a very disabled baby, given a back-story blaming the mother. We know such tales were told. If it is a fabrication, that fits in all too well with Coke’s striking, and sadly influential, misogyny, which damaged women’s chances of improving their legal position for centuries after his death: cases on areas including dower and the right to practise law frequently cited Coke to the disadvantage of women. And yet this was a man who alleged that a woman and a baboon could conceive a baby.

The anti-Coke backlash starts here!

Shaming and sheep (Baa baa black … ram?)

Reading some early modern material, in the (forlorn) hope that I might find something useful on tenancy by the curtesy (a recent obsession), I came across more than one reference to a strange procedure allegedly used in relation to free-bench (the equivalent to dower, for land held by ‘unfree tenure’, according to various manorial customs.

The procedure was allegedly used in cases in which a widow, who would, in the usual course of things, be entitled to free-bench, had had an illegitimate child after her husband’s death. ‘Incontinence’ (and, indeed, remarriage) would often mean that she lost the right. But there was, apparently, a way out: all she had to do was present herself in the manor court, riding (possibly backwards) on a (possibly black) ram, (possibly holding its tail) and reciting the following verse:

“Here I am

Riding upon the back of a black ram,

Like a whore as I am;

And for my Crincum Crancum

I have lost my Binkum Bankum;

And for my tail’s game

Have done this worldly shame;

Therefore pray, Mr Steward, let me have my land again.”


This would, so we are told, act as condign penance, and she would not be forfeited.

The sources in which I have seen this are 17th and 18th C, and the procedure is sometimes linked to particular manors in Berkshire, Devon and ‘parts of the West’. [See, e.g., Anon., A Treatise of femes coverts or the Lady’s Law (London, 1732), 128; G. Jacob, A New Law Dictionary 6th ed. (London, 1750) under ‘free bench’; G. Williams, A Dictionary of Sexual Language and Imagery in Shakespearean and Stuart Literature vol. I (London, 1994), 333].

Is this just ‘horrible legal history’ or was it really ‘a thing’? It does chime in with various rough music and carnivalesque/misrule practices, but it is hard to see that performing a humiliating verse in this manner would have been thought to cancel out the ‘shame’ of producing an illegitimate child, evidence of sexual misbehaviour by a widow which was frequently seen as serious and deserving of severe property consequences. (And is it actually possible to ride backwards on a ram?) Early modern England – bit of a mystery.