“the wisdom of Salomon (v A Salomon & co. Ltd [1897] AC 22)…”



Perhaps not initially obvious but the Madagascan lemur & the common law of England & Cymru have far more in common than one might initially imagine. They are both essentially unique and utterly the outcome of being removed from certain Darwinian pressures on account of their geographic location and isolation.

In the case of the lemur; as a result of the land mass that we now call Madagascar splitting off from the Gondwana supercontinent some 165 million years ago (and India some 100 million years later) the resident lemurs were over time removed from the predatory pressures of the big cats and in their unique eco-system were able to become the wondrous and divergent species we see today. Common Law (as distinguished from European civil law) came about (on account of our island status) in a rather similar way allowing it to evolve (over approximately the last 1,000 years) into a system that though it has been exported and emulated has no direct legal equivalent; the net result being the wonder that is UK common case law.

This presents the #fledginglawyer with a bewildering and initially puzzling variation of “species” /cases much as must have been met by early primate anthropologists following Madagascar’s “discovery” by Diogo Dias on August 10th 1500 after he was blown off course on his way to India.

But after an initial sense of being overwhelmed the law student can start to revel and enjoy the wonders of their studies; and for me this always comes about by stumbling on cases that on first glance have little to recommend them yet on further analysis start to reveal narratives, stories and ultimately differences of opinion and character that only someone such as Charles Dickens (Bleak House 1853) might even begin to to apprehend let alone be able to capture and transmit; one such case for me is the seemingly humble case of Salomon v. Salomon [1897].

Now whether it’s appeal to me lies in location (my family were raised near Salomon’s Whitechapel boot/shoe-factory location); it’s subject matter (concerning company law as I prepare to sell one of my own businesses (http://dbstudios-shanghai.com) or perhaps the vast array of legal details and food for thought that it yields (with House of Lord opinions from no less than Halsbury LC) I think is of little import; I think what it provides is a perfect instance of why one should read cases, in full and from the original sources as opposed to relying on mycompanylaw.blogspot.com, lawteacher.net &/or wikipedia or other such derivative websites.

Use the latter and you will undoubtedly come to rote memorise that:

  • Salomon v Salomon – was formative in the establishment of “corporate personality”; consequently
  • creditors of an insolvent company cannot sue shareholders
  • & for the 2/1 student that this rolled over into the Interpretation Act 1978 etc.


But (just as if you have never seen a “ball’ of lemurs at play) how much of the joy of common law is missed; as you fail to see the accusations and counter-accusations flying across the air of the high court, the court of the appeal and ultimately the House of Lords; come to appreciate both the meanness (witness the original shareholders’  agreement) yet business shrewdness of Salomon senior; taste the bitterness and sense of injustice that must have been flooding through Edmund Broderip as he tried to recoup his (all importantly subordinate) debenture until finally one feels the final drop of Halsbury’s guillotine like ruling (as he applies a very legally “literal” reading of the statute (in this instance The Companies Act 1862)) & we are informed that the “sole guide must be the statute itself”.

Whether Otto Kahn-Freud’s view of this case i.e that ultimately it was a “calamitous” ruling; (& certainly in recent cases (such as Pepper v Hart [1992] & Re Spectrum Plus Ltd [2005] there has been a view to a much more “purposive view” of legislation/statute interpretations); nonetheless how much poorer would we be for not having taken the time and trouble to understand how, why and where our current legal system comes from.

“The common law is a storehouse for worm tubs, ornamental broughams, snails in ginger beer bottles and fancy waistcoats, all of which would long since have returned to rust and rubbish had the cases which brought them into prominence been governed by some statute”

Sources: Salomon v A Salomon & Co Ltd [1897] AC 22/Pepper (Inspector of Taxes) v Hart [1992} UKHL 3/Re Spectrum Plus Ltd [2005] UKHL 41/Luke (1982)


“times they are a changin’…”

bob dylan

Come gather ’round people
Wherever you roam
And admit that the waters
Around you have grown
And accept it that soon
You’ll be drenched to the bone
If your time to you
Is worth savin’
Then you better start swimmin’
Or you’ll sink like a stone
For the times they are a-changin’.

If May 2014 has started as it means to go on it should prove to be quite some month; with two news stories catching my eye… 1st May 2014 marked an historic day with the first Radio 5 Live broadcast (& a fascinating interview with Lord Neuberger (current President of the Supreme Court)) from courts one and two of the UK Supreme Court. The interview is surprisingly candid for someone that apologised on at least more than one occasion for being “cagey” and touches on a variety of very current topics including Legal Aid, the “tension” (my choice of words) between the UK & the European courts and the current somewhat “embarrassing” (Victoria Derbyshire’s choice of words) socio-sexual admixture of the current Supreme Court (there being only one lady (in the form of Lady Hale) & no non-caucasians amongst the “Justices” of the Supreme Court).

Meanwhile only a day later Alexander Cameron QC (David’s elder brother; himself heading 3 Raymond Buildings (currently representing Rebekah Brooks)) made history by playing a seminal role in the “halting” of a huge Southwark Crown Court fraud trial primarily as a result of punishing cutbacks in Legal Aid (the net result being no defence barristers were willing to take on this immensely complex (46,000 pages of written evidence) case; the judge Anthony Leonard QC stating:

“I have taken into account that it is common ground between the parties that where the defendant is not at fault, in a case of this complexity the defendants could not receive a fair trial without advocates to represent them.”

With 7 similar cases in the pipeline (due to be heard before September 2015) the implications are very far reaching.

The Supreme Court first agreed to television coverage in July 2009; with Sky News Live (http://news.sky.com/info/supreme-court) beginning their broadcasts in May 2011. To listen to Victoria Derbyshire’s interview simply go to: http://www.bbc.co.uk/5live &/or for a more edited version download as a podcast at the iTunes store.