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Fake Case Law

By: Mark Tottenham

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[Originally published in Law Ireland, March 2019]

As April 1st approaches, it is easy to be nostalgic for the days of the annual fake news story. Each newspaper, and many television shows, used to have a fake news story on April Fools Day, written in such a manner as to fool the gullible reader or viewer into thinking it was real. Probably the most famous was the 1957 Panorama report about the annual Swiss spaghetti harvest.

Since the advent of the internet, fake news stories are no longer a once-a-year event. Satirical web sites like Waterford Whispers, The Daily Mash, the Borowitz Report and The Onion produce April Fool-like stories all year round. While most are learning to be skeptical, some stories are still spread by credulous readers, believing them to be real. Other fake news stories seem almost prophetic, like The Onion’s 2011 report claiming that Facebook was a CIA project designed to lull the world’s population into sharing sensitive personal information.

But long before the days of fake news, A P Herbert, a writer, politician and law reform activist, was busily writing fake case law in the pages of Punch magazine. Collected as ‘Misleading Cases in the Common Law’, he stretched common law authorities beyond their logical conclusion in such a manner as could still fool readers into thinking they were reading a real law report.

An example was the case of Fardell v. Potts, where the Court of Appeal considered a claim against a Mrs Fardell, who had been navigating a motor launch that collided with a punt, and whether to award damages for negligence. Noting that the law had been built around the mythical figure of the ‘reasonable man’, they could not find any authority containing a mention of a ‘reasonable woman’ and unanimously allowed her appeal.

In R v. Haddock, the appellant had been convicted of causing an obstruction of a public thoroughfare by leaving his motor car unattended for two hours and ten minutes. His appeal relied upon the fourteenth chapter of Magna Carta, which was directed against excessive fines. The crown’s response to the appeal was that so much of Magna Carta had been rendered obsolete or repealed that it was no longer in force. Despite the fact that it had been considered the bulwark of English liberty, the Court of Appeal reluctantly accepted the point and granted a declaration that Magna Carta was no longer the law.

The most famous of the ‘Misleading Cases’ was Board of Inland Revenue v. Haddock, better known as ‘The Negotiable Cow’. In response to a tax demand, the defendant had written on the side of a white cow: ‘To the London and Literary Bank, Limited. Pay the Collector of Taxes, who is no gentleman, or Order, the sum of fifty seven pounds £57/0/0 (and may he rot!)’ The collector declined to accept the cow as a cheque, despite the fact that stamp duty had been paid by affixing a 2d stamp to the cow’s horn. Mr Haddock led the cow away and was arrested for causing a public disturbance. In response to a criminal prosecution, he argued that a man should be able to convey a negotiable instrument down the street without being arrested. The court found in his favour and held that the Revenue, having refused the cow when it was originally proffered, were estopped from demanding it at a later date. The case has been cited many times in more authentic judgments.

A familiar barb can be found in the report on Carrot & Co v. The Guano Association: “Sir Ethelred’s brief is marked four thousand pounds, with ‘refreshers’ of two hundred pounds a day, and it is the general opinion in legal circles that the case will never finish. Had the defendant company been unable to secure his services, it is calculated that the case would have been clearly intelligible from the beginning and in all probability would have then been concluded in a day.”

Mark Tottenham

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