William Brett, 1st Viscount Esher

To my mind when a great Judge, a master of the whole subject, thinking it necessary for the decision of the case to carefully examine into and to state the practice, it is nothing to say as against that, that it was not necessary for the decision.

William Baliol Brett, 1st Viscount Esher, PC (13 August 1815 - 24 May 1899), known as Sir William Brett between 1868 and 1883, was a British lawyer, judge, and Conservative politician. He was briefly Solicitor-General under Benjamin Disraeli and then served as a justice of the Court of Common Pleas between 1868 and 1876, as a Lord Justice of Appeal between 1876 and 1883 and as Master of the Rolls. He was raised to the peerage as Baron Esher in 1885 and further honoured when he was made Viscount Esher on his retirement in 1897.

Quotes

• Working days in England are not the same as working days in foreign ports, because working days in England, by the custom and habits of the English, if not by their law, do not include Sundays.
  • Nielsen v. Wait (1885), L. R. 16 Q. B. 71.

• It seems to me that whenever circumstances arise in the ordinary business of life in which, if two persons were ordinarily honest and careful, the one of them would make a promise to the other, it may properly be inferred that both of them understood that such a promise was given and accepted.
  • Ex parte Ford (1885), L. R. 16 Q. B. D. 307; 55 L. J. Q. B. 407.

• I do not think that a Judge would wish any statement which he may have made in the course of a case, merely obiter and casually, to be treated as necessarily being an authority on the subject in question; but when a Judge has thought it necessary for the purpose of a case to make a deliberate examination of the practice of his Court, and to state such practice, I do not think the authority of such statement can be got rid of merely by arguing that it was not really necessary for the actual decision of the case. I think that such a statement if cited as an authority is entitled to great weight, though of course not binding on us as a decision.
  • Ex parte Rev. James Bell Cox (1887), L. R. 20 Q. B. D. 19.

• Personally, I detest any attempt to bring the law into maxims. Maxims are invariably wrong, that is, they are so general and large that they always include something which is not intended to be included.
  • Yarmouth v. France (1887), L. J. 57 Q. B. 9.

• To my mind when a great Judge, a master of the whole subject, thinking it necessary for the decision of the case to carefully examine into and to state the practice, it is nothing to say as against that, that it was not necessary for the decision.
  • Ex parte Bell Cox (1887), 57 L. J. (N. S.) Q. B. 103.

• Parties cannot by consent give to the Court a power which it would not have without it.
  • In re Ayhner; Ex parte Bischofishiem (1887), L. J. 57 Q. B. 168.

• The Court ought never to come to the conclusion that two cases in the same Court, or in Courts of co-ordinate jurisdiction, are in conflict, unless it is obliged to. I agree that if two cases are in conflict the Court must say with which of them it agrees.
  • Duke of Devonshire v. O'Connor (1890), L. R. 24 Q. B. D. 473.

• I agree that is the law, though I think it is a hard law; but we have nothing to do with the question of hardship.
  • In re Perkins (1890), L. R. 24 Q. B. D. 618.

• As to proceedings in Courts of justice, it is for the interest of all the public to hear what takes place in Court.
  • Pittard v. Oliver (1891), L. J. 60 Q. B. D. 221.

• I for one will not re-open the floodgates of Admiralty jurisdiction upon the people of this country.
  • The Queen v. Judge of City of London Court (1891), L. R. 1 Q. B. D. 299.

• Well, then, the moment there is a patent case one can see it before the case is opened, or called in the list. How can we see it? We can see it by a pile of books as high as this invariably... Now, what is the result of all this? Why that a man had better have his patent infringed, or have anything happen to him in this world, short of losing all his family by influenza, than have a dispute about a patent. His patent is swallowed up, and he is ruined. Whose fault is it? It is really not the fault of the law; it is the fault of the mode of conducting the law in a patent case. This is what causes all this mischief.
  • Ungar, v. Sugg (1892) 9 RPC 113, at 116

• Public policy requires that some hardship should be suffered by individuals rather than that judicial proceedings should be held in secret.
  • Kimber v. The Press Association (1892), L.R. 1 Q.B. [1893], p. 69.

• In the administration of justice, whether by a recognised legal Court or by persons who, although not a legal public Court, are acting in a similar capacity, public policy requires that, in order that there should be no doubt about the purity of the administration, any person who is to take part in it should not be in such a position that he might be suspected of being biassed.
  • Allinson v. General Council of Medical Education and Registration (1894), L. R. [1894], 1 Q. B. p. 758.

• An amendment ought not to be allowed if it will occasion injustice; but if it can do no injustice, and will only save expense, it ought to be made.
  • Roberts v. Plant (1895), L. R. 1 Q. B. D. [1895], p. 603.

• A great deal of difficulty has been caused in the administration of the law, and particularly of the common law, by decisions in which technical rules have been formulated which were not true—that is, were not in accordance with the facts of the case.
  • In re North, Ex parte Hasluck (1895), L. R. 2 Q. B. D. [1895], p. 269.

• Where a man calls himself by a name which is not his name, he is telling a falsehood.
  • Reddaway v. Banham (1895), L. R. 2 Q. B. D. [1895], p. 293.