Comments on: Dead and gone http://nearlylegal.co.uk/blog/2009/02/dead-and-gone/ Housing law news and comment Tue, 07 Feb 2012 18:18:54 +0000 hourly 1 http://wordpress.org/?v= By: Tolerated Trespasser makes Lords return - The Property Law Bloghttp://nearlylegal.co.uk/blog/2009/02/dead-and-gone/#comment-2564 Tolerated Trespasser makes Lords return - The Property Law Blog Fri, 26 Jun 2009 08:47:49 +0000 http://nearlylegal.co.uk/blog/?p=1255#comment-2564 <!--%kramer-ref-pre%-->[...] anyone doesn't subscribe to EG then have a look at Nearly Legal's analysis here or comment on my blog and I will send you an electronic copy of the law [...]<!--%kramer-ref-post%--> Kramer auto Pingback[...] anyone doesn’t subscribe to EG then have a look at Nearly Legal’s analysis here or comment on my blog and I will send you an electronic copy of the law [...]

]]> By: NLhttp://nearlylegal.co.uk/blog/2009/02/dead-and-gone/#comment-2563 NL Wed, 18 Feb 2009 23:45:22 +0000 http://nearlylegal.co.uk/blog/?p=1255#comment-2563 I agree on the circularity - the challenge was whether Knightley applied and the court proceeded on the basis that it did and therefore none of the reasons given to distinguish Knightley applied. But I think J is right inasmuch as the interpretation of Knowsley is notably conservative, the court clearly wanted to keep itself within Knowsley bounds to such an extent that it was more restrictive than the Lords in its approach. I agree on the circularity – the challenge was whether Knightley applied and the court proceeded on the basis that it did and therefore none of the reasons given to distinguish Knightley applied. But I think J is right inasmuch as the interpretation of Knowsley is notably conservative, the court clearly wanted to keep itself within Knowsley bounds to such an extent that it was more restrictive than the Lords in its approach.

]]> By: Barrack Room Advice Serviceshttp://nearlylegal.co.uk/blog/2009/02/dead-and-gone/#comment-2562 Barrack Room Advice Services Wed, 18 Feb 2009 22:01:18 +0000 http://nearlylegal.co.uk/blog/?p=1255#comment-2562 The judgment has agenerally odd feel to it, but paragraphs 35 & 38 strike me as particularly weird. The Law Reform (Miscellaneous Provisions) Act 1934 is clear regarding causes of action surviving death. Arden LJ construes the 1985 Act without reference to the 1934 Act and then states that the "1934 Act must be disapplied where a specific Act such as the 1985 Act provides on its true interpretation that a cause of action shall not survive death.", but her 'true intrepretation' is ignoring the 1934 Act; and so on and so forth. All a little bit circular for me. I think J is wrong about Arden LJ worrying about being overturned again, in that the government has made it plain that she was right and the House of Lords wrong in Malcolm. The judgment has agenerally odd feel to it, but paragraphs 35 & 38 strike me as particularly weird.

The Law Reform (Miscellaneous Provisions) Act 1934 is clear regarding causes of action surviving death. Arden LJ construes the 1985 Act without reference to the 1934 Act and then states that the “1934 Act must be disapplied where a specific Act such as the 1985 Act provides on its true interpretation that a cause of action shall not survive death.”, but her ‘true intrepretation’ is ignoring the 1934 Act; and so on and so forth.

All a little bit circular for me.

I think J is wrong about Arden LJ worrying about being overturned again, in that the government has made it plain that she was right and the House of Lords wrong in Malcolm.

]]> By: NLhttp://nearlylegal.co.uk/blog/2009/02/dead-and-gone/#comment-2561 NL Mon, 16 Feb 2009 23:33:54 +0000 http://nearlylegal.co.uk/blog/?p=1255#comment-2561 Yes, there is something of that in the selective address to White, too. Longmore LJ's 'I don't understand it' is an odd response to an argument, but I can see the 'no new rights' line. We'll have to see on the Lords, assuming permission is even sought, but you could well be right that they would want White to be an ending. Yes, there is something of that in the selective address to White, too.

Longmore LJ’s ‘I don’t understand it’ is an odd response to an argument, but I can see the ‘no new rights’ line.

We’ll have to see on the Lords, assuming permission is even sought, but you could well be right that they would want White to be an ending.

]]> By: Jhttp://nearlylegal.co.uk/blog/2009/02/dead-and-gone/#comment-2560 J Mon, 16 Feb 2009 22:03:05 +0000 http://nearlylegal.co.uk/blog/?p=1255#comment-2560 Hmm... having just read it, my impression is that it is a bit of a "cop out" judgment. Knightley is right and so there is no need to go any further. I was left wondering if Arden LJ had decided - after being so thoroughly overturned in Malcolm - that the safer route was the better route. Longmore LJ does a bit of a hatchet job on the A1P1 argument as well. I confess I'd be surprised if it went to the Lords though. Are they really going to grant leave for another TT case? Hmm… having just read it, my impression is that it is a bit of a “cop out” judgment. Knightley is right and so there is no need to go any further. I was left wondering if Arden LJ had decided – after being so thoroughly overturned in Malcolm – that the safer route was the better route.

Longmore LJ does a bit of a hatchet job on the A1P1 argument as well.

I confess I’d be surprised if it went to the Lords though. Are they really going to grant leave for another TT case?

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