Wednesbury Unreasonableness Essay Contest

Contest Overview

Sponsored by: ABA Standing Committee on Lawyers' Professional Liability and Long & Levit, LLP

Deadline for Submission

ONLINE entries MUST be submitted by 11:59 PM CST on March 9, 2018.

MAILED entries MUST be postmarked by March 9, 2018.

Contest Mission

The contest encourages original and innovative research and writing in the area of legal malpractice law, professional liability insurance and loss prevention.

Prize

* Cash award of $5,000.

* All-expense-paid trip to the Spring 2018 National Legal Malpractice Conference in Washington, DC.

Sponsors

The Ed Mendrzycki Essay Contest is conducted by the American Bar Association Standing Committee on Lawyers' Professional Liability and the San Francisco law firm of Long & Levit LLP.

The 2018 contest is administered and judged by a subcommittee designated by the ABA Standing Committee on Lawyers' Professional Liability.

The Assignment

The 2018 Contest Essay Hypothetical involves the ethical concerns arising under the Model Rules of Professional Conduct where a law firm seeks to affiliate itself with litigation funding companies, including undertaking representation of one such company and, in turn, recommending its services to the firm's clients.

Contest Rules

Essay Requirements

Entries should be written as scholarly essays. All entries must be prepared for this contest and not previously published. Each entrant is required to assign to the ABA all rights, title and interest in the essay submitted. It is the policy of the ABA, however, to release all assigned rights in all but the winning essay.

Essays should not exceed 3,000 words, including quoted matter and citations. Footnotes are not permitted and citations should be incorporated into the main text.

Entrants may seek general feedback on their draft essays from professors, colleagues, and the like. An essay submitted to the competition, however, must be entirely the entrant's own work product and may not be written or edited by any other person.

The essay should be typewritten, double-spaced on 8 1/2" x 11" pages. The number of words on each page should be entered on the bottom right hand corner of each copy. The total number of words should be entered on the last page. In computing the number of words, all articles and prepositions should be counted. Count numbers and abbreviations as words. For example F.2d = 1 word; 746 F.2d 619 = 3 words.

Complete and sign one of the paper entry forms (PDF or Word) or you can use the Online Contest Entry & Agreement Form, providing your full name, address and telephone number as indicated.

Identification

For identification, an entry number will be assigned on receipt of the entry, and the entrant will be advised of the number. One cover sheet showing the name, address and telephone number of the entrant, together with the entrant's title for the entry, should be submitted with the essay. No identification other than the title should appear on the essays themselves. The cover sheet will be removed before the essay is read by the judges to assure objectivity in the judging process.

Eligibility

The contest is open to Young Lawyers Division or Law Student Division members of the ABA, in good standing as of March 9, 2018 according to the membership records of the Association. Excluded from the competition are previous winners; current ABA officers and members of the Board of Governors; employees of the ABA or its sections, divisions and committees; and officers and employees of the American Bar Foundation or the American Bar Endowment. Only one essay may be submitted by each entrant, and no co-authored essays will be accepted.

Judging

Essays will be judged by a subcommittee designated by the ABA Standing Committee on Lawyers' Professional Liability and the San Francisco law firm of Long & Levit LLP, whose decision will be final and whose names cannot be divulged. The ABA and the judges reserve the right to award no prize.

National Legal Malpractice Conference

The winner of the contest will receive round-trip coach airfare to the American Bar Association 2018 Spring National Legal Malpractice Conference in Washington DC,  lodging for up to two nights during the conference, and will be a guest at conference meals and events.

Additional Information

For further information, contact Marcia Yarbrough at marcia.yarbrough@americanbar.org or (312) 988-5763.

How to Submit Entries

Electronic Submissions

If you would like to submit your entry electronically, you will need to fill out and submit the Contest Entry & Agreement Form (Online) with your essay attached. Your essay should not exceed 2.5 MB and should be in one of the following formats: MS Word,  PDF, TXT, RTF, or HTML. Your entry must be submitted by 11:59 pm Central time on March 9, 2018.

Paper Submissions

If you would prefer to submit your entry by mail, you will need to download, print, and fill out one of our paper Contest Entry & Agreement Form (PDF or Word). The completed form and two copies of your essay should be mailed first-class, without folding, on or before March 9, 2018. U.S. Postal Service postmark will determine mailing date. The materials may also be sent via an express delivery service and shipped on or before March 9, 2018.

Entries should be mailed to:

American Bar Association
LPL Mendrzycki Essay Contest
ATTN: Marcia Yarbrough
FL 17
321 North Clark Street
Chicago, IL 60654

Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223 [1] is an English law case that sets out the standard of unreasonableness of public-body decisions that would make them liable to be quashed on judicial review, known as Wednesburyunreasonableness.

The court gave three conditions on which it would intervene to correct a bad administrative decision, including on grounds of its unreasonableness in the special sense later articulated in Council of Civil Service Unions v Minister for the Civil Service[2] by Lord Diplock:

So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

Facts[edit]

In 1947 Associated Provincial Picture Houses was granted a licence by the Wednesbury Corporation in Staffordshire to operate a cinema on condition that no children under 15, whether accompanied by an adult or not, were admitted on Sundays. Under the Cinematograph Act 1909, cinemas could be open from Mondays to Saturdays but not on Sundays, and under a Regulation, the commanding officer of military forces in a neighbourhood could apply to the licensing authority to open a cinema on Sunday.[3]

The Sunday Entertainments Act 1932 legalized opening cinemas on Sundays by the local licensing authorities "subject to such conditions as the authority may think fit to impose" after a majority vote by the borough. Associated Provincial Picture Houses sought a declaration that Wednesbury's condition was unacceptable and outside the power of the Corporation to impose.

Judgment[edit]

The Court held that it could not intervene to overturn the decision of the defendant simply because the court disagreed with it. To have the right to intervene, the court would have to conclude that:

  • in making the decision, the defendant took into account factors that ought not to have been taken into account, or
  • the defendant failed to take into account factors that ought to have been taken into account, or
  • the decision was so unreasonable that no reasonable authority would ever consider imposing it.

The court held that the decision did not fall under any of these categories and the claim failed. As Lord Greene MR said (at 229),

It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation [1926] Ch. 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.

Significance[edit]

The test laid down in this case, in all three limbs, is known as "the Wednesbury test". The term "Wednesbury unreasonableness" is used to describe the third limb, of being so unreasonable that no reasonable authority could have decided that way. This case or the principle laid down is cited in United Kingdom courts as a reason for courts to be hesitant to interfere with decisions of administrative law bodies.

In recent times, particularly as a result of the enactment of the Human Rights Act 1998, the judiciary have resiled from this strict abstentionist approach, recognising that in certain circumstances it is necessary to undertake a more searching review of administrative decisions. The European Court of Human Rights requires the reviewing court to subject the original decision to "anxious scrutiny" as to whether an administrative measure infringes a Convention right. In order to justify such an intrusion, the Respondents will have to show that they pursued a "pressing social need" and that the means employed to achieve this were proportionate to the limitation of the right.

The UK courts have also ruled that an opinion formed by an employer in relation to a contractual matter has to be "reasonable" in the sense in which that expression is used in Associated Provincial Picture Houses Ltd v Wednesbury Corporation: see The Vainqueur José [1979] [4] and Braganza (Appellant) v BP Shipping Limited and another (Respondents) (2015), UK Supreme Court.[5]

See also[edit]

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