Last night, the House of Lords released its latest no liability judgment in a public authority case. Mitchell, a council tenant on a Glasgow Housing Estate was killed by Drummond his neighbour - who was the very personification of the title of the TV show" Neighbour from Hell." At end of a very long series of minor and major infractions, Drummond was summoned by the Council to again warn him of proceedings to have removed from his home. During the meeting Drummond had apologised to the Council Officer for having lost his temper, but nevertheless returned home and killed Mitchell. Mitchell’s family argued that the Council had owed him either a common law duty, or a duty under the Human Rights Act, to warn him that the meeting was taking place and that Drummond might not take kindly to it. The House of Law denied liability under both headings. There was no general duty to prevent a crime by a third party at common law, and the Council did not have sufficient knowledge of the risk posed by Drummond to engage the Council’s obligation under article 2 of the ECHR.

There seem to be three really interesting points in the case:

(1) All their Lordships and the Baroness agree that the time has come to dispose of Lord Mackay's "very likely" stuff . As much as I personally enjoyed drawing his Lordship's pendulum on the board during lectures, I have always been a fan of Goff's categorical approach... of course they don't have to quite overrule Lord Mackay because he reached the same result in Littlewoods as Goff, it was long past time for "very likely" to be discarded into the bag of very bad ideas. But the Lords and Baroness might have acknowledged that were in fact rejecting what was the majority in Littlewoods, and what seemed to be its endorsement in Hartwell.

(2) The continued decline of foreseeability more generally. Hale says that foreseeability is necessary but not sufficient, one wonders if foreseeability should actually just be deleted from our accounts of what a duty is ? If Lord Reid no longer got it right in Dorset Yacht, can one also simply now say that Lord Atkin as well has little of use to add to the modern law of negligence.

(3) The rather short explanation as to why the HRA claim ought to be struck. It seems to me that that there might have been some merit in finding out a bit more about the Housing Authority knew or did not know. I could have the Scottish procedure wrong here, so can be corrected here, but it seems to me hard for plaintiffs to be struck on their inability to show something like the defendant's knowledge, on the pleadings, when one needs discovery to find out what was known. http://www.parliament.the-stationery-office.com/pa/ld200809/ldjudgmt/jd090218/mitche-1.htm

Geoff McLay


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