Several weeks ago in London, en route to Tate Britain (the original Tate Gallery, now with a trendy name), I took the no. 88 bus from Regent Street. I then noticed that the ultimate destination of the bus was Clapham Common, and it suddenly dawned on me that I had become “the man on the Clapham omnibus”.
As this phrase is well known both to lawyers and to the general public, I decided to look into it further. It is, of course, a classic description of the “reasonable man” or “ordinary reasonable man” whose conduct can be used as a standard against which the reasonableness of other conduct can be measured. Yet its origins are not entirely clear.
The first judicial use seems to have been in 1903 in an appellate case in which it was held not to be the correct standard to apply in the circumstances (McQuire v. Western Morning News Co., [1903] 2 K.B. 100 at 109). In that case, Sir Richard Collins, Master of the Rolls, attributed the phrase to Lord Bowen but did not provide a citation of any kind. Other sources suggest that Bowen (Charles Synge Christopher Bowen, 1835-94), long before he became a Lord of Appeal, used the phrase (presumably in oral argument) as junior counsel in the sensational Tichborne Claimant Case of the 1870s and 80s.*
Following the McQuire case, the phrase has recurred intermittently down through the years. Using “man on the Clapham omnibus” as a search term, I found 70 cases in Westlaw UK and 104 journal articles in Lexis Library. It has to be said, though, that in some of these the tone suggests (if I have read correctly between the lines) that the opportunity has been taken simply to use a quaint phrase from legal folklore. This supposition is perhaps supported by the fact that the phrase is used (and then only briefly) in fewer than half of the major textbooks on tort law.
Nonetheless, the Clapham omnibus, whether quaint or not, has entered the public consciousness and can be found in numerous places on the internet. The legal use of the phrase is discussed by Laura Oliver of Hogan Lovells in an excellent article on the Lexology newsfeed service (http://www.lexology.com/library/detail.aspx?g=c100e069-8827-4a3c-b55a-46b120b3710e). It is also discussed (briefly) in the blog Walking London One Postcode at a Time, after which there is an interesting and perceptive description of the area around each of twelve bus stops used by the no. 88 bus on its journey through Clapham (http://londonpostcodewalks.wordpress.com/2013/07/25/sw4-the-man-on-the-clapham-omnibus). The writer, identified only as “Stephen”, is apparently a qualified London tourguide, and I strongly recommend his blog to anyone who loves London. The internet further reveals that there is an arts centre in Clapham called Omnibus (http://www.omnibus-clapham.org). Interestingly, a number of commentators make the point that, with rising house prices in London, it is increasingly difficult for an ordinary person (reasonable or otherwise) to live in Clapham.
As for me, I hope that I’m a reasonable man; it appealed to my sense of history to be a passenger on the Clapham omnibus; and I wonder if there are any other legal metaphors of which one might aspire to be the incarnation.
* The Tichborne Claimant Case, one of the most sensational cases of the Victorian era, involved the claim by an apparent imposter to be the heir to the Tichborne baronetcy. The claim was rejected and the claimant was later convicted of perjury and sentenced to a total of fourteen years imprisonment (two consecutive seven-year terms). The civil trial in the Court of Common Pleas (Tichborne v. Lushington, 1872) and the criminal trial in the Court of Queen’s Bench (R. v. Castro, 1874) were among the longest trials up to that time. Although they do not appear in the standard law reports, numerous books and articles were written about them, of which we have an entire shelf of volumes in the Law Library (KB65.ENG.TIC). There were other proceedings as well. Even before the criminal trial ended, the claimant and three of his supporters, two of whom were members of Parliament, were held to have been in contempt of court for coments made at public meetings, which were said to have been prejudicial to the trial (an issue that is still relevant today) (R. v. Castro (Onslow’s and Whalley’s Case; Skipworth’s and the Defendant’s Case) (1873), L.R. 9 Q.B. 219). After his conviction for perjury, the claimant requested a new trial, largely on obscure procedural grounds, and this was was rejected (R. v. Castro (1874), L.R. 9 Q.B. 350). In further proceedings several years later, the Court of Appeal and then the House of Lords affirmed the imposition of consecutive (rather than concurrent) terms of imprisonment (another issue of contemporary relevance) (R. v. Castro (1880), 5 Q.B.D. 490; Castro v. R. (1881), 6 App. Cas. 229). Many of the most prominent (or later to be prominent) legal figures of the time were involved in these various proceedings, either on the bench or as counsel. They included (in adition to Charles Bowen) Sir Alexander Cockburn (Lord Chief Justice), Sir John Duke Coleridge (a future Lord Chief Justice), Henry Hawkins, Judah Benjamin, and Hardinge Giffard (the future Earl of Halsbury).
By Ronald Richenburg
