The Common Law on Implied Assertions Reconsidered: Wright v Tatham in the House of Lords
| Author | Samuel H. C. Wong |
| Published date | 01 December 2003 |
| Date | 01 December 2003 |
| DOI | http://doi.org/10.1350/ijep.7.4.270.21944 |
| Subject Matter | Historical Note |
270 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
HISTORICAL NOTES
T
HISTORICAL NOTE
The common law on implied assertions
reconsidered:
Wright
v
Tatham
in the
House of Lords
By Samuel H. C. Wong
Hong Kong
he House of Lords decision in R v Kearle y,1
insofar as it related to the
application of the hearsay rule to implied statements, was based on
Wright v Tatham, which was cited as authority on this point. However,
the extent to which the case was correctly relied upon is problematic. The
difficulty is that the citation referred to is the second Exchequer Chamber trial
instead of its later affirmation by the House of Lords. Thus:
The answer to the question given by the English authorities is clear
and unequivocal. In Wright v Doe d. Tatham, 7 Ad & E 313.2
... the general soundness of the views expressed by the Court of
Exchequer Chamber in Wright v Doe d. Tatham, 7 Ad & E 313, has not,
so far as I am aware, been challenged in or affected by subsequent
authority during the past 150 years.3
The fact that the views of the Exchequer Chamber have not been challenged is
partly because not many scholars appear to have noted that t he opinions of the
Chamber were equally divided on the question whether the hearsay rule applies
to implied assertions. Furthermore, over the last 150 years or so, the House of
Lords decision of Wright v Tatham has been, perhaps, either virtually unknown or
1 [1992] 2 AC 228 (HL).
2Per Lord Bridge of Harwich, ibid. at [243].
3Per Lord Oliver of Aylmerton, ibid. at [266].
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2003) 7 E&P 270–273
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