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12 September 2019 / Mark Pawlowski
Issue: 7855 / Categories: Features , Procedure & practice
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Judges as wizards—the making of legal magic

Mark Pawlowski questions the usefulness of legal fictions in English law

A recurring concern among both judges and legal practitioners is the fear of uncertainty in our law. As Mr Justice Harman said, in Campbell Discount v Bridge [1961] 1 QB 445, ‘the process of robust over-simplification may lead, if followed far enough, to palm-tree justice’. The days of the portable palm tree are not yet with us, but there is a growing tendency among the judiciary to latch on to a variety of legal abstractions as a means of disguising the inherently subjective nature of their decisions.

One technique for injecting objectivity into an otherwise highly subjective conclusion is to use a fictional legal character as an objective yardstick. The ‘reasonable landlord’, for example, often appears in cases where a court has to consider whether a landlord has unreasonably withheld consent to a proposed assignment of the lease or a subletting. In Ashworth Frazer v Gloucester City Council [2001] 1 WLR 2180, Lord Rodger states that the correct approach is to ‘consider what the reasonable landlord would do when asked

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NEWS
Talk of a reserved ‘Welsh seat’ on the Supreme Court is misplaced. In NLJ this week, Professor Graham Zellick KC explains that the Constitutional Reform Act treats ‘England and Wales’ as one jurisdiction, with no statutory Welsh slot
The government’s plan to curb jury trials has sparked ‘jury furore’. Writing in NLJ this week, David Locke, partner at Hill Dickinson, says the rationale is ‘grossly inadequate’
A year after the $1.5bn Bybit heist, crypto fraud is booming—but so is recovery. Writing in NLJ this week, Neil Holloway, founder and CEO of M2 Recovery, warns that scams hit at least $14bn in 2025, fuelled by ‘pig butchering’ cons and AI deepfakes
After Woodcock confirmed no general duty to warn, debate turns to the criminal law. Writing in NLJ this week, Charles Davey of The Barrister Group urges revival of misprision or a modern equivalent
Family courts are tightening control of expert evidence. Writing in NLJ this week, Dr Chris Pamplin says there is ‘no automatic right’ to call experts; attendance must be ‘necessary in the interests of justice’ under FPR Pt 25
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