Battle of the BAILII… the best opening lines of a judgment

It all began with a tweet…

… with a link to the British and Irish Legal Information Institute page for the case of Officeserve Technologies Ltd, Re [2017] EWHC 906 (Ch), a judgment of HHJ Purle QC whose opening lines read:

1. I have an application before me brought on behalf of a company called Officeserve Technologies Limited (“the company”). The company has achieved what must be the stellar ambition of many of generating a turnover, I am told, of £52,000 per annum and spending £450,000 a month doing so. That is of itself astonishing and it is not surprising to find it appearing before me today on an application made by its directors seeking some form of insolvency process: what is sought is the appointment of an Administrator.

To which there came the following replies.

Andrew Wilson’s tweet linked to Kucukkoylu v Ozcan [2014] EWHC 1972 (QB), a judgment of HHJ Gosnell:

1. Overnight on 29th January 2012 the Defendant, Fatih Ozcan had a dream. In his dream he dreamt that he was holding a large bundle of cash and standing in front of him was the Claimant, Hayati Kucukkoylu, his employer. The Defendant is a strong believer in the power of dreams and interpreted this to mean that he and the Claimant would win the lottery. On 30th January 2012 a ticket was bought for the Euromillions Lottery which won the raffle prize of £1 million. Surprising though this history may be, it is not substantially disputed. What is disputed is who bought the ticket and who is entitled to the winnings.

In a follow up tweet Andrew said “I always think it reads like the opening voiceover of a Cohen brothers’ film”.

But Gordon wasn’t impressed…

… citing Sargespace Ltd v Eustace [2013] EWHC 2944 (QB), per Males J:

Introduction — the hunny bunnies club
1. Paul Baxendale-Walker (who also goes by the name Paul Chaplin) was formerly a barrister and then a solicitor specialising in tax law. Some people might have found that exciting enough, but since 2005, when he acquired and ran a company making pornographic films in which he also starred, he has been active in the sex industry. He describes himself now as a wealthy man living a playboy lifestyle. Those who are interested can apparently find details in the pages of Loaded magazine, which he purchased in May 2012. His lifestyle involves essentially casual relationships with multiple sexual partners, a group or club of women known as his “hunny bunnies” to whom, in return for their sexual favours, he makes lavish gifts, including money, clothes and holidays, as well as providing flats and cars for their use.

This prompted a suggestion from Andrew Lane …

… who cited Sutton v Hutchinson [2005] EWCA Civ 1773:

1. LORD JUSTICE WARD: The appellant is a lap dancer. I would not, of course, begin to know exactly what that involves. One can guess at it, but could not faithfully describe it. The Judge tantalisingly tells us, at paragraph 21 of his judgment, that the purpose is “to tease but not to satisfy”.

He wasn’t the only one. Simon Bradshaw would have cited it…

But he had another suggestion:

… about Uwug Ltd & Anor v Ball (t/a Red) [2013] EWPCC 35, in which Miss Recorder Amanda Michaels began:

1. This is a case relating to design rights and registered design in a sling and a portable frame from which such a sling can be hung, for use during sexual activities involving bondage.

For the avoidance of doubt…

To which Gordon Exall responded “Me thinks he protests too much…”

The Denning factor

Andrew Wilson’s comments on Kucukkoylu v Ozcan prompted a reply from Kim Evans (@SistahInLaw): “it’s quite something. Which is the j’ment about a village green I think, very poetic?”

Though he linked to Wikipedia, the judgment of Miller v Jackson is also on BAILII, where it has acquired the neutral citation [1977] EWCA Civ 6. There are also links to the original law report on ICLR Online, at [1977] QB 966 (for which you’ll need a subscription). The judgment of Lord Denning MR famously begins:

THE MASTER OF THE ROLLS: In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club-house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practice while the light lasts. Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore, he has issued an injunction to stop them.

This prompted further evocations of rural nostalgia…

Welsh Girl Abroad’s link was to Morge, R (on the application of) v Hampshire County Council [2010] EWCA Civ 608, which again is also reported by ICLR at [2010] PTSR 1882. It offers another example of the wit of Ward LJ:

1. This is a case about bats and badgers, Beeching and bus-ways.

After that splendid bit of alliteration, his Lordship explains:

In 1969 Lord Beeching caused the closure of the 128 year old railway line between Fareham and Gosport in Hampshire. Since then it has become overgrown with trees, shrubs and other vegetation. Bats and badgers have moved in. Now Hampshire County Council has granted Transport for South Hampshire planning permission for a bus route along the old track. A local resident, Mrs Vivienne Morge, challenges that permission asserting that it will disturb the bats and badgers and have a serious adverse impact on the environment.

Andrew Wilson noted that it was “Denning-esque” and Welsh Girl Abroad replied “Well it is about Hampshire”. If it was Denning we were after, there was more to come.

The case was Eves v Eves [1975] EWCA Civ 3, reported at [1975] 1 WLR 1338, in which Denning MR began:

THE MASTER OF THE ROLLS: I will call her Janet because she has had four surnames already. She was married for the first time at the age of 18; but that marriage only lasted about a year. Next at the age of 19 she met a man, Stuart Eves. He was a married man. They could not marry. So they started living together. She took his name and had two children by him. After 4 1/2 years that relationship broke down. Now both have got divorces from their former spouses and have remarried. The question arises now as to the house where they lived.

Complicated. But Gordon Exall seemed to think citing Denning all the time was not quite, er, cricket.

Some non-compliant contenders

Though not in any sense cheating (the idea!) some contenders didn’t quite match the original competition rules, one of which focused on the opening para. Rob Pettitt’s proposal (incorporating a sly dig at ambulance-chasing or perhaps A&E trolley-chasing solicitors) failed that reason:

The case was Chapman v Tameside Hospitals NHS FT, a decision of DJ Swindley and therefore also disqualified by not being on BAILII. Neither was the suggestion of Derby Exile, though worthy of recall:

“ Of course both the litigants mistakenly thought he was denigrating Jasper Carrott. The happy days of the ABWOR for chattel disputes….” said Derby Exile later, before explaining (for the benefit of younger readers) that ABWOR stood for “Assistance By Way Of Representation, a sort of hybrid Green Form short of full LA to permit limited some limited advocacy”.

Another case that wasn’t on BAILII was a ridiculous neighbours’ dispute from the Superior Court of Justice, Ontario, recommended by Ian Phillip.

The case is Morland-Jones v Taerk, 2014 ONSC 3061, which reads at para 23:

23. In my view, the parties do not need a judge; what they need is a rather stern kindergarten teacher. I say this with the greatest of respect, as both the Plaintiffs and the Defendants are educated professionals who are successful in their work lives and are otherwise productive members of the community. Despite their many advantages in life, however, they are acting like children. And now that the matter has taken up an entire day in what is already a crowded motions court, they are doing so at the taxpayer’s expense.

Although CANLII is the Canadian equivalent of BAILII, the citation of a non-opening paragraph probably remains fatal.

Intimations of immortality

Another non-BAILII contender came from C J Lee:

However, the case was reported in the Law Reports, as Parker v British Airways Board [1982] QB 1004. So legal immortality guaranteed. Immortality of another kind, on the silver screen, was reflected in the suggestion of Philip J Taylor.

That was the case of In re Flynn, decd [1968] 1 WLR 103, a decision of Megarry J, whose opening para reads, in full (and with obvious relish):

Errol Flynn was a film actor whose performances gave pleasure to many millions. On June 20, 1909, he was born in Hobart, Tasmania, and on October 14, 1959, he died in Vancouver, British Columbia. When he was seventeen he was expelled from school in Sydney, and in the next 33 years he lived a life which was full, lusty, restless and colourful. In his career, in his three marriages, in his friendships, in his quarrels, and in bed with the many women he took there, he lived with zest and irregularity. The lives of film stars are not cast in the ordinary mould, and in some respects Errol Flynn’s was more stellar than most. When he died, he posed the only question that I have to decide: where was he domiciled at the date of his death?

Pain and suffering (and humiliation)

As to “lusty, restless and colourful” sexual activity, there was also the notorious case cited by Paul Nicholls (with an unusual citation linking to something called the Circumcision Reference Library).

Happily, the well known (especially to student mooting societies) case of R v Brown & ors[1993] UKHL 19 is on BAILII and also reported by ICLR in the Law Reports at [1994] 1 AC 212. The sentence cited from Lord Templeman’s speech is not in the opening paragraph, however. It states that:

Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities.

What was not lawful, it was said, was the consensual hurt and humiliation of sado-masochism. Meanwhile, some other tweeters’ suggestions had involved the infliction of a different kind of hurt and humiliation — from the court.

That was Thevarajah v Riordan & Ors [2015] EWCA Civ 41, whose first paragraph, from Tomlinson LJ, reads:

1. By an Order of 21 March 2014 Mr David Donaldson QC, sitting as a Deputy Judge of the Chancery Division, to use his own language at paragraph 20 of his judgment giving his reasons therefor, ordered “implementation of an arrangement lacking (as pleaded, and perhaps in fact) agreement of an important element.” In consequence he attributed to the Appellant Mr Thevarajah and to the First, Second and Fourth Respondents, respectively Mr Riordan and the two Messrs Burke an agreement which, demonstrably, they had not made. The question which arises on this appeal is whether he was right to do so. There is something very wrong with our legal system if the answer to that question is yes.

If it was judicial kickings we were after, Martin Downs offered another one:

This was Jones v Jones [2011] EWCA Civ 41, also reported [2012] Fam 1, in which Wilson LJ said, at para 3:

3. The judge released his judgment for publication but on an anonymised basis, i.e. as J v. J. Its citation number is [2010] EWHC 2654. It has 484 paragraphs. An article on the judgment, by Mr Ashley Murray of counsel, has recently been published in [2010] Family Law, Vol 40, at 1111. Mr Murray introduced his article as follows:
“There are certain challenges each of us should attempt in our lifetime and for most these involve a particular jump, a mountain climb, etc. Akin to these in the legal world would be reading from first to last a judgment of Charles J. One of his most recent is J v. J …”
Mr Murray’s introductory sentences were witty and brave. In respect at any rate of the judgment in the present case, they were also, I am sorry to say, apposite. The judgment is a monument to the intellectual energy of the judge. Nevertheless, notwithstanding my extreme personal discomfort in saying so, I feel driven to describe it as far too long, too discursive and too unwieldy. I have devoted days to trying to understand it. So have the parties’ advisers, at substantial further cost to the parties themselves. With respect to a colleague whom I greatly admire, I refuse to accept that our modern principles of ancillary relief are as complex as the content of the judgment of Charles J implies.

To which Mel Clarke replied “Oof!”

Some other contenders

Among other suggestions, the one proposed by Matt focused on the role of the court in championing the under-dog.

This referred to the judgment of Jacob LJ in Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46, which began:

1. It is one of the glories of this country that every now and then one of its citizens is prepared to take a stand against the big battalions of government or industry. Such a person is Lisa Ferguson, the claimant in this case. Because she funds the claim out of her personal resources, she does so at considerable risk: were she ultimately to lose she would probably have to pay British Gas’s considerable costs.

On that occasion, the court stood up for the ordinary citizen, refusing British Gas’s application to strike out Ms Ferguson’s claim, alleging unlawful harassment by their debt recovery department.

The ordinary citizen was the subject of extraordinary consideration in the Supreme Court in SJC’s suggestion.

That was Healthcare at Home Ltd v The Common Services Agency [2014] UKSC 49, also reported [2014] PTSR 1081, the opening four paras of which provide (per Lord Reed, with whom the other JJSC agreed):

1. The Clapham omnibus has many passengers. The most venerable is the reasonable man, who was born during the reign of Victoria but remains in vigorous health. Amongst the other passengers are the right-thinking member of society, familiar from the law of defamation, the officious bystander, the reasonable parent, the reasonable landlord, and the fair-minded and informed observer, all of whom have had season tickets for many years.
2. The horse-drawn bus between Knightsbridge and Clapham, which Lord Bowen is thought to have had in mind, was real enough. But its most famous passenger, and the others I have mentioned, are legal fictions. They belong to an intellectual tradition of defining a legal standard by reference to a hypothetical person, which stretches back to the creation by Roman jurists of the figure of the bonus paterfamilias. As Lord Radcliffe observed in Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696, 728: “The spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is and must be the court itself.”
3. It follows from the nature of the reasonable man, as a means of describing a standard applied by the court, that it would misconceived for a party to seek to lead evidence from actual passengers on the Clapham omnibus as to how they would have acted in a given situation or what they would have foreseen, in order to establish how the reasonable man would have acted or what he would have foreseen. Even if the party offered to prove that his witnesses were reasonable men, the evidence would be beside the point. The behaviour of the reasonable man is not established by the evidence of witnesses, but by the application of a legal standard by the court. The court may require to be informed by evidence of circumstances which bear on its application of the standard of the reasonable man in any particular case; but it is then for the court to determine the outcome, in those circumstances, of applying that impersonal standard.
4. In recent times, some additional passengers from the European Union have boarded the Clapham omnibus. This appeal is concerned with one of them: the reasonably well-informed and normally diligent tenderer.

If that seems whimsical, it is not alone. Towards the end of the evening a number of other suggestions came in of an almost surreal nature. As Karen Davis said:

There was this crime scene from C J Lee

R v Rostron & anr [2003] EWCA Crim 2206 begins:

1. LORD JUSTICE MANTELL: Some time between midnight and 1 o’clock in the morning on 30th August 2001 a burglar alarm went off at Whetstone golf club in Leicestershire. It was not the sort of burglar alarm which can be heard in the neighbourhood, but one which connected with the police station, and as a result, police officers arrived at the club to find on cursory examination, that it did not appear that the club house itself had been interfered with. However, on looking around, they found in the car park to the golf club, not too distant from the club house, two men dressed in frogman, or diving suits, and in possession of a sack, it can be described in no other way, of very wet golf balls.

Then there was this canine curiosity from Mark Hague…

… citing McLean & Anor v Trustees of the Bankruptcy Estate of Dent & Ors [2016] EWHC 2650 (Ch) (summarised by ICLR at [2017] WLR(D) 157), in which Norris J began:

1. This application by the joint administrators of Dent Company (a partnership) (“the Partnership”) affords the opportunity to consider the application of the equitable doctrines of marshalling and subrogation in relation to a fixed charge over a dog.

Finally, combining some of the themes of whimsy, fortune and fate, although expecting to be rejected, was this further contender from C J Lee:

Happily, Burgess v Rawnsley [1975] EWCA Civ 2 is on BAILII, as well as being in the Law Reports, so the rest of the story can be read at leisure.

Closing submission

By way of closing, we had another example of the whimsical wit of Ward.

The case was Reeves v Northrop [2013] EWCA Civ 362, reported at : [2013] 1 WLR 2867, in which Sir Alan Ward said, in closing:

30. I am afraid, therefore, that Randy Northrop must lose and the appeal must be dismissed. I have a sneaking sympathy for him because he did not use many of the services which council tax is supposed to provide and it may have been harsh to list him in band A. But all of that is of no moment. He had indicated that he was soon to move and he has moved from the mooring. He has thrown off the bow lines and sailed away from the safe harbour though whether to catch the trade winds in his sails or just withstand the buffetings of the gales in the English Channel I know not. In as much as this is the penultimate judgment I shall write after 18 years in the Court of Appeal, I am a kindred spirit who has sailed away from the safe harbour of the Royal Courts of Justice, not at all sure how to explore, or what to dream or what I am about to discover.

For the title of this roundup, we are indebted to Uncivil Still, who flagged up the thread from the start.

By way of thanks to all who participated, William Gummow’s final tweet says it all:

Before you go…

Sounding a bit like The Guardian these days, may we just add this message. BAILII is a charity, funded by donations. It provides an extraordinary service, on which the judiciary, practitioners, teachers and students of law, and many journalists and other members of the public rely. It is currently the most popular free legal website. The Ministry of Justice provides some of its funding, and numerous law firms and chambers sponsor it, as does ICLR and other legal publishers who link to its content; but for the rest it relies on personal donations from users. Please consider donating too, if you don’t already do so. Here’s the link: http://www.bailii.org/bailii/appeal.html

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