Deceit The Lie of the Law




2.1 The tort of deceit is grounded in morality. Telling the truth is often seen as a moral duty and lying regarded as immoral conduct. The reported judgments of the courts bristle with the collective outrage of the judiciary towards deception and deceit. It is thus important to understand the breadth of moral feeling concerning lies. This is not to suggest that the tort’s past or future development was based on abstract moral philosophy. Judges are accustomed to applying “common sense”,1 and insofar as this embraces moral principles, it involves an intuitive moral assessment,2 influenced by innate notions of fairness and current social opinion. Nevertheless, if deceit is a right of action dependent on the breach of a moral duty, as much as a legal duty, it is worth inquiring more closely into the morality of lying, because there is at least a perception that lies are not always morally bad. Indeed, it is a perception with which many people have a deeply-held sympathy. 2.2 For the purposes of considering the morality of a lie, the act of lying must be defined. Aquinas characterised a lie as a misstatement of one’s state of mind.3 If a person utters the proposition X as a fact, he or she will lie not only if X is untrue,4 but if they do not believe X to be true. Equally, if X represents not an external fact, but that person’s state of mind, whether it be an expectation, a belief, an opinion, a fear or an intention, if X is untrue, he or she will be taken to have lied. This is entirely consistent with the definition of a deceit, an actionable lie, adopted by the House of Lords in Derry v. Peek, that is, a false statement made in the knowledge that it is untrue and with the intention that the statement be relied upon as true. That is, a “lie” is the deceit defined in Derry v. Peek.5


2.3 As the evolution of the tort of deceit reveals, the judges apply their own moral judgement to legal principle. That is, the moral position of an educated, possibly enlightened, individual, the judge, is adapted to a general principle of law which applies to society and its members. This is achieved through the fiction or ideal that society has a uniform approach at least to certain issues of morality and that the judge’s moral view is that shared by the community at large.6 Such values expressed by the courts often include those of veracity, integrity and honesty. 2.4 A reasoned rule of morality and a reasoned rule of law are interconnected, but distinct. The law, including the law of tort, is suffused with moral influence and, in England at least, always has been.7 In Britten v. Hughes,8 Park, J said that “courts of law are never better employed than in supporting the rules of morality”. 2.5 Even recently, in a leading case on deceit, Smith New Court Securities Ltd v. Scrimgeour Vickers (Asset Management) Ltd,9 Lord Steyn (with the agreement of Lords Keith and Jauncey) said that: “The law and morality are inextricably interwoven. To a large extent the law is simply formulated and declared morality”. 2.6 Not long afterwards Lord Steyn recalled this judgment in McFarlane v. Tayside Health Board,10 a case involving a claim by a mother against the defendant health board for damages reflecting the cost of maintaining her child, who was born after the father’s failed vasectomy operation. In this case, Lord Steyn said:11

“It is possible to view the case simply from the perspective of corrective justice. It requires somebody who has harmed another without justification to indemnify the other. On this approach the parents’ claim for the cost of bringing up Catherine must succeed. But one may also approach the case from the vantage point of distributive justice … It is my firm conviction that where courts of law have denied a remedy for the cost of bringing up an unwanted child the real reasons have been grounds of distributive justice. That is of course, a moral theory. It may be objected that the House must act like a court of law and not like a court of morals. That would only be partly right. The court must apply positive law. But judges’ sense of the moral answer to a question, or the justice of the case, has been one of the great shaping forces of the common law. What may count in a situation of difficulty and uncertainty is not the subjective view of the judge but what he reasonably believes that the ordinary citizen would regard as right.”

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