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5. See section 1 below.

6. Dworkin, rightly in this author's view, believes that legal philosophy should try to be ‘interesting’: Hart Lecture, above n 4, at 36–37.

7. Hoffmann, Lord Book review’ (1989) 105 LQR 140 Google Scholar at 142.

8. Ibid.

9. Mackie, JL The third theory of law’ (1977) 7 Philosophy and Public Affairs 3 Google Scholar at 7.

10. Dworkin, R Taking Rights Seriously (London: Duckworth, 1977) p 23. Google ScholarPubMed

11. Birks, P Restitution and wrongs’ (1982) CLP 53 Google Scholar at 61.

12. Dworkin, above n 3, p 1.

13. Ibid., p 2.

14. Since the retirement of Lord Nicholls of Birkenhead on 10 January 2007.

15. [2006] UKHL 20, [2006] 2 AC 572.

16. [2005] UKPC 37, [2006] 1 All ER 333.

17. Barker considered Fairchild v Glenhaven Funeral Services [2002] UKHL 22, [2003] 1 AC 32. Barlow Clowes considered Twinsectra v Yardley [2002] 2 AC 164.

18. R Dworkin ‘Hard cases’ in Taking Rights Seriously, above n 10, at p 87.

19. Hart Lecture, above n 4, at 35.

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26. Ibid, at [63]. See also Lord Hoffmann, above n 7, at 143–145. This paper is concerned with the issue of fidelity, but other reasons to doubt Lord Hoffmann's true philosophical allegiance to Dworkin may be found in his speech in White v Chief Constable of South Yorkshire[1999] 1 All ER 1. In White, Lords Steyn and Hoffmann, for the majority, reoriented the law of psychiatric harm onto the basis of distributive justice. Lord Hoffmann claimed that ‘the search for principle was called off’ (at 47) in Alcock v Chief Constable of South Yorkshire[1991] 4 All ER 907, and decided the case expressly on policy grounds. It may or may not be a coincidence that one of the vigorous dissentients in that case was Lord Goff, whose 1983 Maccabaean Lecture was entitled ‘The search for principle’ (1983) 69 Proceedings of the British Academy 169, Google ScholarPubMed as was the Festschrift published in his honour:

27. [2006] UKHL 49, [2007] 1 AC 558.

28. [1999] 2 AC 349.

29. Deutsche Morgan Grenfell, above n 27, at [14] (emphasis added).

30. See above n 18.

31. MacCormick, above n 20, p 190.

32. S Hurley ‘Coherence, hypothetical cases, and precedent’ in Hershovitz, above n 21, p 69.

33. Raz, J The relevance of coherence’ and ‘Appendix: speaking with one voice on Dworkinian integrity and coherence’ in his >Ethics in the Public Domain (Oxford: Clarendon, 1994).Google Scholar

34. Ibid, p 277, fn 3, and Appendix.

35. Above n 21.

36. R Dworkin ‘Response’ in ibid, p 295.

37. Dworkin, R A reply to critics’ in Taking Rights Seriously (New Impression with Appendix, London: Duckworth, 1978).Google ScholarPubMed

38. Ibid, p 360.

39. Hart Lecture, above n 4, at 25.

40. It may be that Dworkin's recasting of fit as procedural fairness should not be taken at face value: ‘Conceptions of legality differ...about what kinds of standards are sufficient to satisfy legality and in what way these standards must be established in advance; claims of law are claims about which standards of the right sort have in fact been established in the right way’: ibid, at 24.

41. [2002] 2 AC 164.

42. The other members of the Panel were Lords Nicholls, Steyn, Walker and Carswell. It is, of course, accepted that Lord Hoffmann's speech does not necessarily represent his views alone, but that is in part the point: see section 6 below.

43. [1995] 2 AC 378.

44. [2005] UKPC 23, [2005] 2 AC 580.

45. [2001] 1 AC 146.

46. Holley, above n 44, per Lord Nicholls for the majority at [1]. This effect on English law of the appeal was also accepted by Lords Bingham and Hoffmann in their minority opinion, at [68].

47. [2006] EWCA Crim 14, [2006] QB 588.

48. See, eg, D Ryan ‘Royal Brunei dishonesty: clarity at last?’ [2006] Conv 188.

49. Virgo, G The role of fault in the law of restitution’ in Burrows, A and Rodger, A (eds) Mapping the Law (Oxford: Oxford University Press, 2006) at p 86. Google Scholar

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51. Ibid, at [20].

52. Ibid, per Lord Steyn at [7] and Lord Hutton at [27]

53. R v Shivpuri [1987] AC 1 at 23. The decision in Shivpuri departed from Anderton v Ryan [1985] AC 560 on the question of whether it was a defence to charge of a criminal attempt that it would in fact have been impossible to commit the crime, which is itself related to the question posed in ‘The Adventure of the Empty House’, above n 1.

54. Hershovitz, above n 21, p 116.

55. Dworking, above n 18, pp 118–123.

56. Kleinwort Benson, above n 28, at 398.

57. [2004] EWCA Civ 1853 at [32] per Kennedy LJ.

58. [2004] EWCA Civ 1028, [2004] 1 WLR 2577 per Sir William Aldous at [26]–[27] and per Pill LJ at [44]–[45].

59. For example, Payne v Pensions Ombudsman [2003] All ER (D) 164 (Dec) and Morris and Others v Bank of India [2004] All ER (D) 378 (Mar).

60. ‘I must confess that I am doubtful whether the law as stated in Royal Brunei is clearer after Twinsectra’: Walker, R Dishonesty and unconscionable conduct in commercial life – some reflections on accessory liability and knowing receipt’ (2005) 27 Sydney Law Review 187 Google Scholar at 197.

61. ‘“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean – neither more nor less.”“The question is,” said Alice, “whether you can make words mean so many different things.”“The question is,” said Humpty Dumpty, “which is to be master – that is all.”’: Carroll, L Through the Looking Glass’ in Alice's Adventures in Wonderland and Through the Looking Glass (Oxford: Oxford World's Classics, 1985) p 190 Google Scholar (original emphasis).

62. Mackie, above n 9, at 15–16.

63. Above n 15.

64. Fairchild, above n 17, at [7] per Lord Bingham.

65. Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428.

66. Barker v Saint-Gobain Pipelines plc [2004] EWCA Civ 545, [2005] 3 All ER 661.

67. Barker v Corus, above n 15, at [23].

68. Ibid, per Lord Rodger at [68] and per Baroness Hale at [120]; see also Counsel for the defendants' argument [2006] 2 AC 572 at 575–577.

69. Barker, above n 15, at [120].

70. Stapleton, J Occam's Razor reveals an orthodox basis for Chester v Afshar’ (2006) 122 LQR 426 Google Scholar at 448, fn 77.

71. Barker, above n 15, per Lord Hoffmann at [35].

72. For a forensic assessment of Lord Hoffmann's approach to causation in tort in the cases of Fairchild, Barker and Chester v Afshar[2004] UKHL 41, [2005] 1 AC 134, see Steele, J “Breach of duty causing harm?” Recent encounters between negligence and risk’ (2007) 60 Current Legal Problems 296. CrossRefGoogle Scholar

73. The topic can only be adumbrated here, but may be considered in a subsequent project. To be clear, I do not intend to suggest that Lord Hoffmann should bear direct responsibility for this unhappy legislative intervention.

74. Dworkin, above n 4, at 3ff. See also the real case of Sindell v Abbott Laboratories 607 P 2d 924 (1980).

75. Barker, above n 15, at [44], citing the Supreme Court of California in Brown v Superior Court 751 P 2d 470 (1988); and at [45], citing the Court of Appeals of New York in Hymowitz v Eli Lilly & Co (1989) 539 NE 2d 1069.

76. Arrêt No 125 du 30 janvier 2007: société Plon SA c. M. Pierre Hugo (Hugo). See N Haynes ‘Les Misérables 2: how doubly depressing’ The Times 3 February 2007.

77. Above n 27.

78. Above n 1.

79. Ibid, p 12.

80. The characters of Holmes and Watson have themselves been the subject of litigation: Conan Doyle v London Mystery Magazine (1949) 66 RPC 312 and Tyburn Productions Ltd v Conan Doyle [1991] Ch 75, although the latter case concerned the justiciability of foreign intellectual property rights in English courts.

81. A Conan Doyle ‘How I made my List’ Strand 73 (June 1927) 611–612. Conan Doyle concluded by reflecting on the invidious role of a judge: ‘(It) is proverbially a mistake for a judge to give his reasons, but I have analysed mine if only to show any competitors that I really have taken some trouble in the matter’.

82. [1991] 2 AC 548 at 580.

83. For example, the judgment of Munby J in Commerzbank AG v Price-Jones [2003] EWCA Civ 1663 at [48].

84. R Goff and G Jones The Law of Restitution (London: Sweet & Maxwell, 1st edn, 1966).

85. Above n 53.

86. Kornhauser, LA and Sager, LG Unpacking the court’ (1986) 96 Yale LJ 82. CrossRefGoogle Scholar See also at 67–68.

87. For ease of discussion here, this section will refer in general to the structure of the House of Lords, whilst noting that the Privy Council's structure has related but distinct problems owing to a larger pool of judges and the general practice of issuing univocal judgments.

88. Professor Dickson has recently published a valuable appraisal of the practical aspects of the House's institutional structure, in anticipation of the transition to the Supreme Court for the United Kingdom: Dickson, B The processing of appeals in the House of Lords’ (2007) 123 LQR 571, Google Scholar especially 589–593.

89. Master of the Rolls, Review of the Legal Year 2001–2002, available at http://www.hmcourts-service.gov.uk/cms/files/review_legal_year_2002.pdf.

90. Mance, J Exclusive jurisdiction agreements and European ideals’ (2004) 120 LQR 357. Google Scholar

91. [1972] AC 1027.

92. Ibid, at 1084–1085. See also Reid, Lord The judge as law-maker’ (1972) 12 Journal of the Society of Public Teachers of Law (NS) 22 Google Scholar at 29.

93. Likewise, coherence might be aided by the customary practice of the Privy Council of providing single majority judgments, with rare dissents if necessary.

94. OBG Ltd and Another v Allan and Others, Douglas and Others v Hello! Ltd and Others (No 3), Mainstream Properties Ltd v Young (Conjoined Appeals) [2007] UKHL 21, [2007] 4 All ER 545 at [303]. Continuing the theme of this paper, it should be observed that one of the protagonists in the Mainstream appeal was a Mr Moriarty.

95. Ibid.

96. I am grateful to Professor Briggs for this clarification. See also Mackie, above n 9.

97. [2003] UKHL 52, [2004] 1 AC 309.

98. Although further consideration of Rees is beyond the scope of this article, it should be noted in passing that the majority decision, in which Lord Bingham joined, itself placed a revelatory gloss on a previous decision of the House of Lords, McFarlane v Tayside Health Board [2000] 2 AC 59.

99. Yeo, TM Dishonest assistance: restatement from the Privy Council’ (2006) 122 LQR 171 Google Scholar at 172: Lord Walker also agreed with Lord Hoffmann in Barker.

100. Under s 42(1) of the Constitutional Reform Act 2005, the new Supreme Court is to adopt the existing practice in the House of Lords in this respect: any composition of judges will be permissible for a panel, subject to a quorum of three members and that there must be an odd number of judges. Conservatism on this point was favoured by a majority of responses to the government's consultation paper: see text to question 19 in the Summary of Responses to the Consultation Paper Constitutional Reform: A Supreme Court for the United Kingdom (January 2004), available at http://www.dca.gov.uk/consult/supremecourt/scresp.htm#part3. The Society of Legal Scholars (SLS) had advocated a shift to en banc, so as to avoid ‘speculation about what the outcome might have been had different judges sat’; see SLS Response to the Consultation Paper CP11/03, available at http://www.legalscholars.ac.uk/documents/cp.11.03.pdf. Of course, if the House were to sit en banc, it would be necessary to change the number of judges on the Appellate Committee to an odd number, to avoid the risk of an evenly split decision. The Supreme Court is to continue with 12 permanent members: s 23(2) of the Constitutional Reform Act 2005.

101. Kornhauser and Sager, above n 86, at 117. It should be noted that Kornhauser and Sager do not direct these conditions specifically at the House of Lords per se, but it is submitted that their conclusion is applicable.

102. For an account of different uses of ‘coherence’, see generally Raz, above n 33.

103. Baylen, JO A letter from Conan Doyle on the “novelist-journalist”’ (1958) 12 Nineteenth-Century Fiction 321 CrossRefGoogle Scholar at 321–322.

104. Ibid, at 322–323 (original emphasis).

105. Sir Arthur Doyle, Conan Memoirs and Adventures (London: John Murray, 2nd edn, 1930) p 116. Google Scholar