The Gazette 1974

BOOK REVIEWS Lawson (R. H.)—Remedies of English Law. 20 cm.; 367p; London: Penguin Books, 1972. Collection "Law and Society' '(Paperback). £1.50. Professor Lawson has exposed in a clear and erudite fashion the remedies that are available to a person, who seeks a legal remedy, having failed to obtain restitution. The limitations of self-help, whether by pre- venting trespass, or entering upon the lands without a Court order, are fully explored. The damage of penalty clauses is mentioned and the manner in which liquid- ated damages can be asked for and awarded is fully treated. Money remedies arise essentially • from a breach of contract, quasi-contract, trust, or from com- mitting a tort. Whereas a liquidated debt is an amount claimed before the trial, there are several sums which are only assessed in the course of the trial, such as (1) the value of goods supplied, (2) the loss suffered by the plaintiff at the hands of the defendant, (3) a nominal sum awarded in vindication of a right, (4) a penal sum marking disapproval of the defendant's conduct, (5) the unjustified enrichment of the defen- dant at the plaintiff's expense. If under case (1), the value of the goods sold which requires assessment constitutes the action of quantum valebat, whereas an action of assessment for services rendered constitutes a quantum meruit. On the other hand in case (5), there appears to be no general doctrine of unjust enrichment. The principle that a plaintiff cannot recover, when he is unjustly enriched at the expense of the defendant is illustrated by Read- ing v. A. G. (1951) A.C. In that case a sergeant stationed in Cairo was paid a large sum of money for helping in the illegal transportation and sale of whisky and brandy, by riding in uniform on lorries transporting the liquor and so protecting the cargo from inspection. When this was discovered, the Crown impounded the money due in his bank account. As the sergeant had earned the money in his official position, it was held that he was bound to hand it over to his employers, and he consequently could not recover. In case (3), Constantine, the famous West Indian cricketer was awarded £ 5 against the Imperial Hotel for refusing to admit him—see (1944) K.B. Lord Devlin in Rookes v. Barnard —(1964), A.C. laid down that normally exem- plary damages were an anomaly which should be re- moved from the law. The only exceptions were (a) jppressive, arbitrary, unconstitutional action by servants of the Government; (b) defendant's conduct has been such as to make a larger profit than the plaintiff would recover by compensation and (c) exemplary damages authorised by statute. The extraordinary case of Re Diplock—( 1948) Ch. D.—is fully discussed. It will be recalled that the will was badly drawn, where the executors were directed to apply the estate for such institutions with a charitable or benevolent object as they might select; this clause made the will void for uncertainty. Nevertheless the executors were allowed to distribute most of the estate of more than £200,000 without a court order amongst a number of charities. The next of kin only discovered that they were entitled after a few years and took proceedings. As the mistake

which induced the executors to distribute the estate was one of law, the next of kin could not recover the money as having been paid under a mistake; presum- ably this case is unique. All the relevant English statutes and case law are fully treated. Practitioners will benefit immensely from reading Professor Lawson, who, on account of his clarity and precision, is an erudite mine of informa- tion on this involved subject. Keeton (George YV.)—English Law—The Judicial Contribution. 23 cm.; 383 pp.; Newton Abbot: David & Charles; £5.50. Professor Keeton is one of our most prolific writers; apart from his well-known works on Equity, he has also written on the Soccer Football Revolution. In this volume he has tried to assess the contribution of English Judges to various aspects of law. In the early chapters, the learned author deals with legal history, such as Anglo-Saxon Law, Norman England and the Mediaeval Judiciary and the Common Law. The mak- ing of modern Equity extends through the Chancellor- ships of Lords Nottingham, Hardwicke, Thurlow and Eldon, yet it must be recalled that all Lord Chan- cellors were also active politicians, and some of them made little impact upon the law. Lord Eldon enforced the doctrine that a precedent in equity was as substan- tially binding as a precedent in common law. In BlackwelVs Settlement —(1953) Ch. D.—Lord Denning rebutted the suggestion that the Court of Chancery had no jurisdiction to sanction acts which are not authorised by the trust instrument; this has now re- ceived statutory effect in the English Variation of Trusts Act, 1958. As recently as in Baden's Will Trusts —(1970) 2 W.L.R. the majority of the House of Lords per Lord Wilberforce, in a case where a fund was established for the officers and employees of a com- pany, and where Clause 9 (a) of the Trust Deed stated that the trustees were to apply the net income of the fund in making at their absolute discretion grants to or for the benefit of the officers and employees and their relatives in such amounts and on such conditions as they think fit, held—(1) that the trust was valid if it were construed as a power, and, if it could be said with certainty that any given individual was or was not a member of the class of beneficiaries designated and (2) the terms of clause 9 (a) were mandatory and constituted a trust. Lord Mansfield was the ablest judicial law maker to sit in an English Court; he wisely said "I never give a judicial opinion upon any point, until I think I am master of every material argument and authority related to it." In Macartney v. Garbutt— (1890) 24 Q.B.D., the plaintiff, a British subject em- ployed as English secretary in the Chinese Embassy in London was held to have diplomatic status by virtue of international law. But the decision cannot be com- pared to those of Lord Stowell, who, being a master of both Common Law and Civil Law, combined the widest knowledge of classical and modern learning. The principle which Lord Stowell established that a prize Court is essentially an international Court, was re- 279