ADMINISTRATIVE TRIBUNALS AND INQUIRIES
| Date | 01 June 1958 |
| Published date | 01 June 1958 |
| DOI | http://doi.org/10.1111/j.1467-9299.1958.tb01047.x |
Correspondence
ADMINISTRATIVE TRIBUNALS AND INQUIRIES
Questions
of
Fact
MR.
G.
P.
WILSON, Solicitor to the Midlands Electricity Board, writes
:-
I
cannot understand why
Mr.
Marshall has succumbed to the luxury of
a generalisation which seems irrelevant to his article
:
I
refer to the statement,
in parenthesis (lines
9
and 10 from the foot of page
353
of the Winter issue),
“
but when lawyers talk about questions of fact they usually mean what a
layman would call matters of opinion”
:
but as a practising lawyer over
more than
20
years
I
am quite satisfied, at any rate when
I
am talking to
lawyers, that we usually agree
on
what are questions of fact and what
are
matters
of
opinion and
I
would not have thought that the class of layman who
could reasonably be expected to take an intelligent part in discussions of
that kind would themselves have been in any doubt.
It
may well be that
in
order to decide what is a question of fact matters
of
opinion may have to
be considered: but
in
my view that does not in the least affect the sharp
definition between the two
things.
For example, the question might be how
long it took
Mr.
Marshall to write
his
article: that
I
would regard as a
question of fact.
It
might then be argued that one must define the question
:
is
it
to
be
limited to the physical act
of
writing, or
is
it
to include the time
taken up
in
research? And if research is to be taken into account should
time taken
on
research undertakec primarily in respect of other work be
included? What elements have to be taken into consideration in arriving
at the time
it
took to write the amcle may be matters of opinion but
I
would
have thought that the answer is a question
of
fact.
Suppose a man is accused of murder and it is established that the deceased
was stabbed with a
knife
known
to
belong to the accused. Are not those
questions of fact even to a layman? Supposing expert evidence is given
that death took place at a certain time: that
I
would have thought is a matter
of mixed fact and opinion, the evidence being based upon certain facts,
condition of the corpse, etc.
The opinion that the parenthesis
is
to be resisted
is
borne out by the fact
of
this
one.
Reply by MR.
GEOFFREY
MARSHALL.
This was a semi-serious generalisation.
I
would not be
so
rash as to
deny that lawyers (and other people) have for normal evidential purposes
adequate common-sense distinctians between facts and opinions. My point
was that one important sense given to
“
questions of fact
”
in legal usage
does not correspond to the sense in which
it
is frequently used in ordinary
language.
All
unsupported generalisations are perhaps luxuries but
I
do
not feel that this one, if true, is irrelevant.
The Franks Committee Report and Minutes of Evidence make a number
of references to questions
of
fact, e.g.,
(1) There should be an appeal
on
fact,
law and merits from
a
tribunal
185
of first instance (Recommendation
25).
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