Lloyd's Maritime and Commercial Law Quarterly
HUMPTY DUMPTY AND RISK MANAGEMENT
Lord Mustill*
The means by which parties’ intentions are recorded and given effect is a form of risk management, requiring an understanding of what parties actually want and of the meaning of language and the different kinds of risk involved in its use. Even the conscious adoption of risk management strategies will fail to give effect to parties’ intentions if the uncertainties of those strategies are insufficiently appreciated. The parties’ intentions can only be properly fulfilled by being given more careful initial consideration, fuller discussion and a more precise record than is commonly accorded to them at present.
The topic of my address is “Humpty Dumpty and Risk Management”. The rather catchpenny title could suggest at first glance that the speaker intended to consider the unfortunate experiences of the London Market during recent years in the assumption of risks, and that Humpty Dumpty would come in, because, as we know, after his misfortune all the king’s horses and all the king’s men could not put him together again. This would be a misapprehension. To any former law student the reference to Humpty Dumpty is an unmistakable signal that the topic will include the choice and interpretation of language. In the darkest days of the Second World War powers were exercised enabling the Home Secretary to detain any person whom he had reasonable cause to believe was of hostile associations. The question arose whether it was sufficient for the Minister to certify in good faith that he had reasonable cause to believe that a certain person fell within the regulation, or whether he must go further and show that he did have reasonable cause so to believe.
In Liversidge v. Anderson
1 the House of Lords by a majority preferred the former view. The dissenting speech of Lord Atkin is justly famous, for several reasons. In the present instance I want to call up his protest against imputing a strained construction to words which have a natural meaning:2
I know of only one authority which might justify the suggested method of construction: “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’s all.”
Lord Atkin continued:3
* Lord of Appeal in Ordinary 1992–1997; President of the Association of Average Adjusters 1996–1997. This paper is the text of an Address delivered at the Annual General Meeting of the Association of Average Adjusters in London on 8 May 1997.
1. [1942] A.C. 206.
2. Ibid., 245.
3. Ibid.
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