June 25, 2005
Blind-eye Knowledge?
Posted by Caroline Bradley

English judges used to refer to “Nelsonian knowledge” which is pretty much the same as wilful ignorance. In a House of Lords decision from 2002  Lord Millett said:

It is dishonest for a man deliberately to shut his eyes to facts which he would prefer not to know. If he does so, he is taken to have actual knowledge of the facts to which he shut his eyes. Such knowledge has been described as "Nelsonian knowledge", meaning knowledge which is attributed to a person as a consequence of his "wilful blindness" or (as American lawyers describe it) "contrived ignorance".

I think this is a great example of a difference between US and English jurisprudential styles - the US phrases “wilful ignorance” and “contrived ignorance” are pretty matter of fact, and good solid descriptive terms. The English “Nelsonian knowledge” is less understandable unless you know who Nelson is, but ultimately is much more colourful. It reeks of tradition and conjures up a powerful picture of the Admiral holding a telescope to his blind eye and claiming to see no ships. How disappointing to find out that English judges now seem to be using the term “blind-eye” knowledge (for example Lord Justice Mummery in this case )- a term that has neither the solid descriptive advantages of wilful ignorance nor the colour of Nelsonian knowledge. It's probably more easily understood - even those who don't know anything about Nelson have heard of turning a blind eye to an issue (and for those who have and know that people used to talk about Nelsonian knowledge some of the old resonance remains). But it's a clumsy and unattractive phrase all the same. This is one case where some legal transplanting might have been a good idea.

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Comments (4)

1. Posted by Christine on June 25, 2005 @ 21:23 | Permalink

Is there a different term used across the pond for "legal fiction"? That is one of my favorite concepts from law school. I use it hyperbolically mostly: "In the U.S., we have agreed to the legal fiction that shareholders exercise control through voting."

2. Posted by Gordon Smith on June 26, 2005 @ 5:41 | Permalink

Caroline, The words "Nelsonian knowledge" should connote something more than simply "wilful blindness." Nelson placed the telescope to his blind eye during the Battle of Copenhagen because he did not want to see Sir Hyde Parker's signal to withdraw. Thus, Nelson's action was borne of courage, not cowardice, and it should be commended, not condemned. I would think that such blindness would have limited application in judicial proceedings.

3. Posted by Caroline Bradley on June 26, 2005 @ 10:44 | Permalink

It is a bit weird that a phrase which originated with an act of courageous disobedience should be used in cases where a person is being accused of complicity in someone else’s fraudulent acts. But the phrase has traditionally been used that way. Here’s an example from Lord Scott of Foscote:

(Para 112) "Blind-eye" knowledge approximates to knowledge. Nelson at the battle of Copenhagen made a deliberate decision to place the telescope to his blind eye in order to avoid seeing what he knew he would see if he placed it to his good eye. It is, I think, common ground - and if it is not, it should be - that an imputation of blind-eye knowledge requires an amalgam of suspicion that certain facts may exist and a decision to refrain from taking any step to confirm their existence.

I don’t know if the move to “blind-eye knowledge” is motivated by admiration for Nelson rather than by concern that people who read judgments won’t know who he was. I looked up both terms on lexis and from a very brief review the cases which use the term “blind-eye knowledge” seem to be cases where the sea is involved in some way (e.g marine insurance cases) and the cases where “Nelsonian knowledge” appears don’t seem to have this sort of connection. The very recent Morris case is an example of a non-sea-related case which uses the “blind-eye knowledge” term. I don’t know what to make of this.

I still think wilful ignorance is a better term for what gives rise to liability than “blind-eye knowledge”. I understand the phrase turning a blind eye to cover a range of different circumstances but definitely including ignoring one’s child’s minor naughtiness.

4. Posted by Ger Mal on November 7, 2008 @ 6:03 | Permalink

is it fraudulent misrepresentation for an employee, who does not wish to work his notice period and, in support of this, claims he is going to go travelling,but then fails to do so?

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