311 / 328
was covered by his £1,500 a year retainer. He was
not entitled to the profit costs of the 1961 ballot
rigging action and the other actions in which he
acted for the Union. The Judge said he would
allow Mr. Tarlo half his profit costs concerning
accident claims, from which should be deducted
20 per cent, of his retainer. He described the case
as a "backwash" of the ballot rigging affair of 1961.
Daily
Telegraph & Morning Post,
Thursday,
March jth, 1964.
LAW REFORM
~Law Reform Now.
Edited by Gerald Gardiner and
Andrew Martin.
London: Gollancz, 1963.
Soy-
Lord Gardiner has assembled a leading group of
Labour lawyers to present the views of the British
Labour Party on law reform. As there are different
contributors to the various topics, the book is
rather uneven, but, at its best, it is excellent.
Members may not agree with many of the reforms
mentioned, but at least this volume will give them
plenty of food for thought.
Strong support is given in renaming the Lord
Chancellor's Office the Ministry of Justice, and that
the Court of Criminal Appeal should consist of
appellate judges only. There would be five full-time
law commissioners who would supervise law reform.
As regards the law of evidence, it is pointed out
that, if civil juries are abolished, there is nothing to
prevent the amendment of the rules excluding
hearsay, secondary evidence of documents, and
relevant evidence tendered on behalf of an accused.
The fact that there can be no well-founded criticism
of judicial proceedings on account of antiquated
contempt of court rules is severely criticised.
In contract,
standard
form contracts which
have to be accepted are rejected on the ground of
no proper negotiation; these documents should be
construed according to equity. The suppression of
the doctrine of consideration is advocated while
the doctrine of mistake is said to be full of abstruse
technicalities.
Specific performance should be
granted as of right in cases of breach of contract.
Except in regard to property transactions, infants
should be able to contract at 18.
In tort, negligence should be concerned not with
punishing carelessness, but in compensating the
injured, and an appropriate insurance scheme should
be considered.
Could criminal prosecutions and
civil claims for negligence not be combined ?
As regards property, easements are said to be
a confusing morass of ancient rules.
Property
developers and builders should be compelled to
include the following in their contracts :
(i) A
warranty that the house is fit for human habitation,
where a purchaser moves into new property;
and (2) an implied term that there is liability for
all defects appearing in the property within 2 years
from erection. A tenant should have the right to
determine the lease and not pay rent if the premises
no longer exist owing to fire, enemy action or
inevitable accident.
In commercial law, the problem of consumer
protection is urgent. The defects of the rule " Nemo
dat quod non habet " and its current exceptions are
fully exposed.
In a motor care hire-purchase
transaction, the dealer should be vested with the
full obligations of a seller, and the finance company
should be made the dealer's principal and surety.
Exorbitant interest rates in such transactions should
be severely curtailed. Insurance proposal forms are
described as traps for the unwary, as most people
are not aware that the truthfulness of the answers
is the basis of the policy.
In company law, the
transfer of assets from one private subsidiary com
pany to another, all being subsidiaries of a public
company, makes the accounts of public companies
more than usually incomprehensible to its share
holders.
In the case of an amalgamation, or the
sale of assets of a company, the directors should be
bound to compensate their employees for loss of
employment.
Arbitrary expulsions, as well as
unjustified expulsion from trade unions, should be
liable to heavy penalties.
In criminal
law,
the age
limit for criminal
responsibility for children should be raised to 14,
the McNaghten Rules should be thoroughly revised ;
the death penalty and the doctrine of constructive
malice in murder should be abolished. The Courts
should have no power to declare that particular
acts are public mischiefs. The detention of accused
by the police for questioning is described as illegal
and most objectionable ; instead suspects should be
brought before a justice for questioning, where he
need not answer incriminating questions.
As
regards bail, it is an undeserved hardship for an
innocent man to be sent to prison to await trial,
and the defence of the accused is made more
difficult. Magistrates are too often ready to refuse
bail when the police oppose it without reason, and
this is often used as a weapon to procure unjustified
information from the prisoner.
If bail is refused,
sentences should date from the first day of imprison
ment.
As regards Revenue law, the principle of "One
Taxpayer—One Assessment" should be applied ;
the taxpayer should be assessed on the basis of the
current year.
As
regards legal education, the
continuing tendency in law teaching to look to the
past rather than to the present, and to extol
antiquated rules and practices is deplored; more