Asia (Other)

Screenshot 2020-11-18 at 5.11.24 PMBy David Lamb, CONYERS


The pursuit of happiness has been an inalienable right, at least in the United States, since July 4, 1776 when it originated as an “unalienable” right in the Declaration of Independence.

One ingredient of happiness is liberty. Pre-dating the Declaration of Independence by more than five centuries, it is arguable that the foundation of liberty in England, in symbolic terms at least, is the Magna Carta Libertatum, the royal charter of rights reluctantly sealed by King John at Runnymede on June 15, 1215 to appease his barons. On the 750th anniversary Lord Denning described the Magna Carter as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot”.

Humour is a close bedfellow of happiness. “A society that takes itself too seriously risks bottling up its tensions…. Humour is one of the great solvents of democracy. It permits the ambiguities and contradictions of public life to be articulated in non-violent forms. … It is an elixir of constitutional health.” said  Sachs J in Laugh It Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International and Another; 2005 (8) BCLR 743 (CC), a case involving a parody of “Oh, Pretty Woman”.

George Orwell wrote in Funny, but not Vulgar (1945): “A thing is funny when – in some way that is not actually offensive or frightening – it upsets the established order. Every joke is a tiny revolution. If you had to define humour in a single phrase, you might define it as dignity sitting on a tin-tack. Whatever destroys dignity, and brings down the mighty from their seats, preferably with a bump, is funny. And the bigger they fall, the bigger the joke. It would be better fun to throw a custard pie at a bishop than at a curate.”

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We are at liberty then to run around happily on manoeuvres, perhaps poking innocent fun at the establishment if not throwing custard pies and cheerily appreciate that the law accommodates a sense of humour. Outright buffoonery, playful contradictions or even the law being an ass, which should not be attributed to Lord Denning or even Charles Dickens in Oliver Twist but to George Chapman in his play Revenge for Honour (1654), there are many examples in English law: the oft quoted Salmon Act 1986 making it illegal to handle a salmon in suspicious circumstances; the Metropolitan Police Act 1839 making it illegal to carry a ladder home and to beat your carpet outside after 8:00 am and the London Hackney Carriages Act 1843 making it an offence to hail a taxi. Humour can be parlous but clever humour in the form of rhetoric and wit combined is a treasure to behold, perhaps even more so in court. “‘The appellants’ argument,…if correct’”, said Lord Pannick QC in the Supreme Court, “‘would mean that the 1972 [European Communities] Act, far from having a constitutional status, would have a lesser status….than the Dangerous Dogs Act.’” R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5.

Talking of bumps, none other than Humpty Dumpty has been cited in various cases. “‘When I use a word’, said Humpty Dumpty, ‘it means just what I choose it to mean – neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all.’” Lewis Carroll, Through the Looking-Glass (1872). Perhaps Humpty was thinking of an appeal which, for Bermuda, the Cayman Islands and the BVI whose companies, for jolly good reasons, dominate the HKEx, ultimately lies to the Judicial Committee of the Privy Council in London. If there is no single right answer to the interpretation of legal principles, at least in commercial transactions, there should be scope for freedom in structuring takeovers in masterful ways, two step short-form merger transactions being the latest creation. And therein lies the happiness in being an M&A lawyer. As long as you don’t take liberties and you have a sense of humour! And if you are in Bermuda so much the better: “You go to heaven if you want to. I’d rather stay here in Bermuda.” said Mark Twain.


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