Monthly Archives: January 2019

Matrons, medicine and maternity

This morning, I have been listening to a podcast of a late-2017 seminar paper from the Institute of Historical Research Late Medieval seminar:

Zosia Edwards (Royal Holloway), ‘Pregnancy diagnosis in the later Middle Ages: medical methods and courtroom procedures’

https://www.history.ac.uk/podcasts/late-medieval-seminar/pregnancy-diagnosis-later-middle-ages-medical-methods-and-courtroom

This was of interest to me in relation to two projects/areas of on-going research: my monograph on women in the medieval common law and my work on curtesy and live birth/still birth.

Its central focus was the divergence between a rich textual tradition of learned medical writing on techniques of diagnosing pregnancy and the common law’s approach, apparently scorning such learning, or the use of (male) ‘medical experts’ in favour of the judgment of ‘lay persons’: mainly ‘matrons’, though with some involvement of knights (in land cases). It includes some very good examples of both medical diagnosis and common law practice.

The divergence between learned texts and common law practice is striking divergence, and has been commented upon to some extent (e.g. by S.M. Butler). There is much to be said about the common law’s emphasis on jury findings as opposed to those of ‘experts’, not just in the medieval period and not just in medicine. In addition, it seems to me that there are also other particular  explanations for the difference in procedure in relation to pregnancy which would be worth consideration. First, the medical texts and the investigation in common law felony cases were directed at slightly different questions. In the case of the medical texts, the search (however dubious we might find the methods) was for the presence of any pregnancy. At least in the case of the ‘pregnant felon’ cases, it was a search for confirmation of a woman’s claim that she was pregnant with a ‘quick’ child: thus a less ‘expert’ and sensitive test might be thought to suffice. In addition, there does not seem to have been a desire to avoid all possible killings of pregnant women: witness the approach to those claiming a second pregnancy, the possible presence of a foetus not being sufficient to defer execution. Views on the value to be accorded by the law to the foetus at various phases of existence were in a state of development/flux in the medieval period, and trying to bring together the attitudes encapsulated by legal texts and plea rolls relating to foetuses in homicide, abortion, curtesy and other land cases is a task with which I am wrestling. A paper on determinations of live birth in relation to curtesy temp. Edward I is on its way to publication, but I would love to expand into a more general overview of ideas about the foetus/newborn in different categories of legal case. One of these days.

13/1/2019.

Regency Villas v Diamond Resorts [2018] UKSC 57 Easements in the Supreme Court: a few thoughts

Now, where were we? Sporting and recreational easements, some weird assumptions about general familiarity with golf courses …

Not one of its more earth-shattering judgments, and no more dodgy golf-focused worldviews in evidence, but the Supreme Court has now brought this long-running case to an end, to the delight of Land Law text book writers and law students studying this particular part of compulsory Land Law units.

The judgment came out (I refuse to use the slimily deferential ‘handed down’ and am not sufficiently down with the kids to say that it was ‘dropped’, despite the involvement of the so-called ‘Beyonce of the Law’ in the case …) in November 2018, and can be found (alongside summaries) via https://www.supremecourt.uk/cases/uksc-2017-0083.html

Law students will be delighted to learn that the SC did not come up with a unanimous view – I know you love it when they disagree and you have to get to grips with the differences! Lady Hale, Lord Kerr and  Lord Sumption agreed with Lord Briggs, whilst Lord Carnwath did not, and gave his views in a dissent at the end.

The overall result was that the appeal was dismissed: the argument that the recreational rights in question could not be easements did not find favour with the SC. It is, therefore clear that it will not be a sufficient challenge to a claimed easement to say ‘it can’t be an easement: it’s recreational’. So far, so unsurprising. The case also shows that the scope of allowable recreational easements is being stretched to include rights beyond walking and using the servient tenement as a garden, and also (at least on the facts of this case) to include the use of a wide array of facilities not in existence, perhaps not contemplated, at the time of grant.  It illustrates the lack of ‘teeth’ of the classic ‘requirement’ of accommodation of a dominant tenement and the ‘non-ouster’ idea which has arisen under the heading of ‘lying in grant’.

Much turns on the convoluted history of the land in question and on the wording of transfers. Lord Briggs gives a summary, (from [3] onwards).

In 1981, at the time of a key transfer, facilities in the alleged ST included:

  • golf course
  • outdoor heated swimming pool
  • three squash courts
  • two tennis courts
  • a restaurant, billiard/snooker room and TV room
  • gymnasium, including sauna and solarium
  • Italianate gardens
  • putting green
  • croquet lawn
  • outdoor jacuzzi/spa pool
  • ice/roller skating rink
  • platform tennis courts
  • a soft ball court (sic – softball?)
  • riding stables.

 

There were some difficulties and changes. In particular, the pool was closed and filled in. An indoor pool replaced the gymnasium. The putting green, croquet lawn, jacuzzi/spa pool and roller skating rink were closed and the riding stables demolished. The number of timeshare appartment was increased substantially. A dispute arose as to the rights of the timeshare owners to use the facilities without charge. The dispute took legal shape in the main issue of whether they had an easement or easements to use the facilities on the ‘ST’.

At first instance, the answer was that they did have easements. In the Court of Appeal, that was upheld in a general sense, though there was some variation in terms of the content of the easements: there was a net reduction, with the removal of rights to the new swimming pool and facilities in the basement of the mansion house. In the SC, the ‘servient owners’ sought a decision that none of the alleged rights were easements, and the ‘dominant owners’ wanted to hear that all of them were (i.e. that there were easements in relation to both ‘existing’ and ‘post-transfer’ facilities).

Lord Briggs’s account continued with a run through the familiar ‘rules’ as to which rights may be easements, referring to Re Ellenborough Park, and the source for its fourfold test, Cheshire’s textbook (that’s IMPACT for you, REF fans). Singled out for discussion are ‘accommodation’ and ‘ouster’. The idea that ‘accommodation’ is a useful criterion has never convinced me. Except in ‘land support’ cases, it really is a matter of value judgment. The strategy of many writers and judges is to say what sort of thing does not accommodate (usually with a reference to cricket grounds, about which we are all, naturally, well-informed: tiresome cultural assumptions) and to make not-terribly-helpful statements about the matter being one of facts, context etc. etc. Following this pattern, Lord Briggs [40] gives us some mention of the Oval and makes it clear that accommodation is only ‘in a sense’ a legal concept, and mostly a question of fact [43].

Having slightly ducked defining ‘accommodation’, he goes on to decide whether ‘recreational and sporting rights’ such as those in issue here, can be ruled out as not ‘accommodating’ (whatever that may mean) [44]. This is an important point: does it matter that a claimed right amounts to ‘an end in itself, rather than a means to an end (ie to the more enjoyable or full use of the dominant tenement)’. One would imagine that it might. But not so. Because the mode of tenure of the DT at a particular time is to be fed into the calculation of accommodation – so because these were (at the moment) timeshare appartments, the right to use sporting and recreational facilities on adjacent land (whatever they may be at any given time) accommodated them in such a way as to justify a permanent right. [53] No argument of proportionality, nor tails wagging dogs, was to defeat this [54]. It does seem a significant reduction in the utility of the ‘accommodation’ criterion – but then a fairly vacuous criterion can be given whatever meaning we desire. Perhaps people should be able to make whatever deal they wish, to burden their land to whatever extent they wish. If so, however, we should stop pretending that property principles impose definite limits.

Lord Briggs did not consider that the rights amounted to an ouster of the servient owner, depite the suggestion that the dominant owner might have ‘step in’ rights to come in and manage and maintain the facilities if the servient owner did not [62]. Nor did the argument that classing the rights in issue as easements would impose obligations on the servient owner, in the view of Lord Briggs, hold water [66].

He recognised that this was something of an extension to the concept of an easement, but thought that the law ought to allow it. One argument in favour was that the ‘common law should, as far as possible, accommodate itself to new types of property ownership and new ways of enjoying the use of land’ [76]. This, of course, means being open to intensification of the use of land. It is interesting to consider how such a ‘principle’ (which also underpins Making Land Work) interacts with ideas of public good, planning and environmental concerns. Secondly [77] he notes developments in other common law jurisdictions which have indeed allowed some extension to recreational easements (though not obviously involving the sort of intensive artificial and perhaps environmentally harmful management required to maintain a  golf course).

Part of the route to arriving at approval of these rights as easements involved going against the Court of Appeal’s approach of ‘unbundling’ the various rights and treating them as separate, depending on date of creation of the relevant facilities, amongst other criteria. Instead, Lord Briggs reverts [85] to the first instance policy of treating them as a bundle of rights over such facilities as exist on the ST at any given time. This avoids potential issues of futurity and perpetuity (at which we may breathe a sigh of relief) but does also introduce some new artificiality, in creating the idea of rights associated with a country club [89]. Is there an agreed list of such rights? Not being likely ever to be associated with such an organisation, I would not know, but would suggest that there might be arguments around the edges.

Lord Carnwath dissents from paragraph 94 onwards. He is concerned about the extent of the imposition on the ST: [95] …’An easement is a right to do something, or to prevent something, on another’s land; not to have something done… The intended enjoyment of the rights granted in this case, most obviously in the case of the golf course and swimming-pool, cannot be achieved without the active participation of the owner of those facilities in their provision, maintenance and management. … Thus the doing of something by the servient owner is an intrinsic part of the right claimed.’ He is not convinced that the authorities cited justify the extension required to make easements from the rights claimed [96]: ‘In effect what is claimed is not a simple property right, but permanent membership of a country club.’ He also makes light work of the ‘non-ouster’ conclusion [102] and expresses concern at the potential extent of ‘future’ rights over the ST [109-114]. All of this seems very fair comment to me.

Anyway, the decision has been made. The climate seems to be in favour of expansion of the sorts of rights which can be easements. It will be interesting to see how far this stretches. Does recreation have to be ‘active’? Could it in fact involve spectating at sporting events (and allow us to put an end to the tedious cricket examples …)? And why should somebody be allowed a right to play golf free of charge on the ST, but not be allowed an easement to have a lovely (and golfer-free) view over it? Is the positive/negative distinction above challenge, if ‘accommodation’ can be reduced to this feeble level?

12/1/2019

Disclaimer – these are my own musings, not legal advice, and subject to revision (except the negative views of cricket and golf, which will be with me until my last breath).

Papal infallibility

This morning’s mind-broadening podcast (listened to as a way of attempting to blot out the sheer tedium of a gym session) was the latest ‘In Our Time’ on papal infallibility.

https://www.bbc.co.uk/programmes/m0001yck

As ever, a good way of getting an overview of a subject on which I am not entirely ignorant, but my knowledge is pretty thin. Also as ever, however scrupulously the programme tries not to make the easy modern connections, it is very hard for the listener not to relate it to current debates about sovereignty, supra-national organisations, binding authority for the future … I now blame the Franciscans for our current slither towards Brexit.

12/1/2019.

 

Podcasts: a lot of eighteenth-century crime

 

Teaching an undergraduate Legal History unit means venturing outside my usual medieval limits, and, when it comes to criminal law and criminal justice, it means engaging with the vast and ever-increasing scholarship on the 18th century.

I will admit to a bit of anti 18th century prejudice – probably stemming from having ‘done’ 18th C history at ‘A’ level and wanting to move on from Walpole, Bubbles and Wars. But I am starting to get over it by listening to some podcasts on crime and punishment in this era (study of which is more popular than ever amongst historians, at least partly because of the Old Bailey digitisation project).

Today’s mind-broadener was from 2013 at the Institute of Historical Research, London: Steve Poole (UWE) ‘For the benefit of example’: hanging felons at the scene of their crime in the long eighteenth century’. https://www.history.ac.uk/podcasts/british-history-long-18th-century/benefit-example-hanging-felons-scene-their-crime-long

 This was extremely interesting.  It was good to hear about places other than London (the Old Bailey project, marvellous though it is, has tended to push London even more to the fore in crime history scholarship than had previously been the case) and intriguing to learn about differences in practice, and cross-currents, in relation to the location of, procession to, and conduct of executions. The paper was also very worthwhile in its demonstration of the danger of trying to impose progress narratives on the past.Apart from anything else, my heart was gladdened to see yet another example of Foucault’s much-genuflected-at theories being proved inaccurate. (One can only hope that the end is in sight for the disciplining and punishment of academia by these pretty patterns which, when examined in the context of specific histories, show their lack of substance).

This paper, and the research behind it, however, showed real substance, and introduced important matters for consideration. In particular, it is vital – though hugely difficult – to try and get one’s head around what people of the past thought was good and appropriate about public execution. There are some good and thoughtful suggestions here, and some excellent examples to back them up.

Well worth a listen.