Tuesday, September 4, 2012

Serjeant Sullivan

Another one for the lawyers. . .

In 1983 the House of Lords was debating the Occupier’s Liability Bill, which sought to provide that a duty of care was owed to trespassers in certain situations.  One of the Lords who spoke on the Bill was Lord Mishcon.  In his speech he referred to Serjeant Sullivan.

The Serjeants-at-Law were an order of barristers that were the oldest in England.  Dating back to 1300, the order was formally created by Henry 11 but their numbers began to decrease when Elizabeth 1 created the position of Queen’s Counsel.  No more Serjeants were created from 1873 when the Judicature Act came into force.  Lord Lindley (1828-1921) was the last English Serjeant-at-Law; A M Sullivan (1871-1959) was the last Irish Serjeant.

 A M Sullivan

From Lord Mishcon’s speech from Hansard:

Volenti non fit injuria is a maxim of our common law well known to lawyers. "If you voluntarily take a risk you cannot complain about an injury resulting from it", is a rough and ready translation. But there is also a maxim which clearly applies to the criminal trespasser (if I may so call him) and that is ex turpi causa non oritur action - ...  "no right of action stems from a wicked cause". These maxims, so beloved of lawyers, sometimes lead my profession into the pompous belief that the layman of necessity knows of them and understands them.

If I may digress, there is a classic and, I think, lovely story ascribed to the last of the great Irish Serjeants, Serjeant Sullivan, who was undaunted by any court before whom he appeared. On this occasion he was appearing in the Court of Appeal for an appellant workman in a workman's injury case. Said one of the learned Lord Justices: "Has your client never heard of the maxim, 'Volenti non fit injuria'?"—to which came the immediate reply in lovely Irish tones: "My Lord, in the small village in Antrim from which my client comes, it forms the sole topic of conversation."

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