Donoghue v Stevenson tops the Poll: reflections on 200 years

In July 1930, a full bench of the High Court of Justiciary heard an appeal against conviction in relation to a series of sexual assaults against female employees in a “drapery establishment” at 186 Argyle Street Glasgow.  A few months later in November 1930 the Second Division of the Inner House of the Court of Session heard an appeal by a lady who was averred to have consumed “snail-tainted ginger beer” in the Wellmeadow Café Paisley.  Lord Clyde, as Lord Justice General and Lord President, sat in both cases as did the Lord Justice Clerk (Alness), Lord Ormidale and Lord Anderson.

Now, some 90 years later, the cases of Moorov v HMA 1930 JC 68 and Donoghue v Stevenson 1932 SC (HL) 31 have been voted by the readers of Session Cases as the top two cases in the 200 years of the Session Cases law reports.

There can be few other cases which are talked about so frequently in 2021 as these two.

Scarcely a day goes by without a judge or sheriff somewhere in Scotland explaining Moorov to a jury.  

Beyond Scotland, the decision of the House of Lords in Donoghue v Stevenson has had such a profound effect on the law of so many countries that it is still today regularly cited in court decisions worldwide, and taught and discussed in universities and beyond. In pre-vaccination times it was even used to combat Covid:  read aloud or recited from memory, Lord Atkins’ famous dictum lasts the exact length of the time of handwashing required to kill the virus:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

That passage is another clue to the enduring popularity of these two cases.  These cases are not mere lawyers’ law, delighting in technicalities or in complexities of legal reasoning.  They are grounded in vivid, down to earth, easy to understand stories: we can all relate to a story about going to a café with a friend, and the Me Too Movement has brought stories of sexual abuse at work to the forefront of public awareness.   They are also grounded in the human condition, and grapple with issues with which humanity has grappled for millennia. Lord Atkin’s question is the same as that posed in the New Testament.  The reasoning in Moorov can be traced back through medieval canon lawyers to a trial said to have taken place in the sixth century BCE. Against that long background it is perhaps not surprising that courts today still grapple with the limits of Donoghue v Stephenson and Moorov.

Both junior counsel for Mr Moorov and junior counsel for Mrs Donoghue later became members of the Scottish Council for Law Reporting (SCLR), which was formed to take over publication of Session Cases from the Faculty of Advocates after the Second World War.  That is an example of one of the great strengths which has contributed to Session Cases’ longevity: the practical expertise of those involved in producing them.  From the earliest days Session Case reporters have brought with them the insights gathered through experience of arguing cases as well as reporting them, and that tradition continues today with all reporters being practising advocates and solicitor-advocates with rights of audience in the courts whose cases they report.  The opinions are approved by the judges before publication.  The members of the SCLR bring their insights as judges, lawyers and legal information professionals. Indeed, sometimes an ex-member of the Council even appears in the readers’ poll as a litigant (Cherry v Advocate General for Scotland 2020 SC (UKSC) 1).

MacCormick v Lord Advocate 1953 SC 396 appears in the number three spot in the readers’ poll, with Cherry at number four. That reminds us that law reports are about more than just crime and punishment or civil disputes between particular persons  and that public law cases have important things to say about the way our society is governed.  Readers who are interested in public law need no longer wait until a full report of an important constitutional law case appears in print, as Session Cases reporters may be in court for these highly significant cases listening to each day’s proceedings and tweeting daily updates of the arguments.  

For 200 years Session Cases has produced authoritative law reports, moving with the times from leather bound volumes to electronic publication and social media.  It is well placed to now move into its third century, and continue to provide new and authoritatively reported cases for readers to vote for in another hundred years’ time.

Andrew F. Stewart QC, Lord Ericht, Editor of Session Cases (2000 – 2016)