Lady Arden appointed to the UK Supreme Court
On occasion, one finds oneself privy to a conversation so esoteric, that cannot help but listen in quiet, curious amusement. I recently had such an experience.
It was October 1 and I was in the library. I was sitting on the upper level when I heard some students discussing the controversial UK Court of Appeal decision in Pennington v Waine. For those of you who have not studied trust law, there was a longstanding principle that, once a person had done everything within his or her power to effect a gift, but factors beyond the settlor’s control impeded the transfer of assets, a court would find that the intended gift was held in trust until the transfer could be completed. Or, the court would at least estop the transferor from revoking his or her intention to effect the gift.
However, in Pennington v Waine, Lady Justice Arden appeared to find that it was sufficient that a person believes (on reasonable grounds) that he or she has done everything necessary to effect a gift, for his or her intention to effect the gift to crystalize. In that case, an aunt attempted to transfer some shares to her nephew. But, instead of giving her nephew or the company the relevant documents for registration, she gave them to the company’s auditor. The auditor told the aunt that she need not do anything more to complete the share transfer, but he was wrong. The nephew then accepted a directorship at the company—a position reserved for shareholders—on the mistaken belief that he owned his aunt’s shares at common law.
When the aunt died, one of the beneficiaries of her will, Waine, relied on the traditional rule and argued that the shares were an imperfect gift, which should result back to the aunt’s estate; the shares could not be held on trust by the aunt’s estate for the nephew, because the aunt had not done everything in her power to effect the transfer. Waine lost, because Arden LJ found that it was sufficient that the aunt had completed all of the necessary paperwork to effect the transfer.
Anyway, when I tuned into the conversation, the trusts pupils were decrying her Ladyship’s “heavy-handed application of the bankrupt and hackneyed idea that what is unconscionable must depend on the court’s evaluation of all the relevant considerations.”
“She’s mad,” the first pupil dourly avowed, shaking his head. “After all, that is why she failed to become the second woman on the UK Supreme Court. It’s bad enough that her husband, Lord Mance, is there; he’s a deranged Europhile.”
The other two pupils began to laugh, the third one repeating in jest, “a ‘deranged Europhile’ — damn him!” Meanwhile, the second pupil appeared to have inquired into the matter of her Ladyship’s rejection.
“I hate to contradict you,” he began, “but Wikipedia says, ‘Arden’s appointment to the Supreme Court of the United Kingdom was announced in June 2018—’”
“Surely not!” the first pupil exclaimed in genuine surprise, cutting off his friend, who paused to looked up from his computer.
“Speak of the Devil,” the third pupil began to sing, in what sounded like a Chris Isaak impression.
“Wait. There’s more,” the second pupil continued “‘…to take effect from 1 October 2018’.”
There was a silence. The three pupils looked briefly around at each other, as if to confirm that they were all witness to this spooky coincidence. Then the second pupil continued once more, “And, she is preceded as a Justice of the Supreme Court by…” He again paused to allow the other two to conjure their worst suspicions.
“No way,” whispered the third pupil, in a voice filled half with excitement and half with dread for the name he already knew was coming.
“The Lord Mance.” There was another brief silence, and then the third pupil continued his Chris Isaak impression.
“the Devil appears.”
[Editor’s Note: the word count on this article was 666.]
