Introduction
The objective test in law is a fundamental principle employed across various legal domains to evaluate conduct, intentions, and beliefs based on an external standard rather than the subjective mindset of the individual involved. This approach assesses actions and states of mind against what a hypothetical reasonable person would have done, intended, or believed in similar circumstances. The technical principle underpinning this test involves examining behaviors and decisions from the standpoint of an ordinary person with a level of knowledge and awareness deemed typical within society. This method is widely implemented to ensure consistency, fairness, and impartiality in legal judgements. The key requirement of the objective test is that the assessment is based on evidence and circumstances that would be apparent to an outside observer, moving away from private mental states. This formal language is crucial for the consistent and equitable application of legal principles.
Application of Objective Tests in Contract Law
In contract law, an objective test is essential when determining whether an agreement has been formed. This does not focus on what each party privately thought; rather it looks to what a reasonable person would infer from the words and actions of those involved. The concept is well illustrated by RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH, where the Supreme Court emphasised that the intention to create legal relations is to be inferred based on what reasonable and honest business people would expect. The ‘subject to contract’ clause was deemed waived because the parties’ conduct and communications indicated a clear intention to be bound. This illustrates a focus on external manifestations of intent as opposed to internal thought processes. This shows, therefore, that an intention to create legally binding obligations is not to be determined by the mental state of parties, but how a reasonable person would interpret their actions.
Similarly, in cases involving mistake in contract law, the objective test determines whether a mistake renders a contract void. If one party knows or ought to know that the other party made a mistake, the contract may be invalidated. However, if the mistake is hidden and no reasonable person would have identified it, the contract will be binding. Smith v Hughes demonstrated the courts’ preference for an objective approach, holding that contractual obligations are based on the reasonable inferences that one's actions would support, rather than the subjective intent of the parties. This was further affirmed in Centrovincial Estates PLC v Merchant Investors Assurance, stating that a contract is complete when a party does what was requested by the other.
Objective Standard in Tort Law
In tort law, negligence is often determined by the standard of the “reasonable person”. For example, in Re D’Jan of London, the High Court established that a director’s duty of care is measured against the standard of a reasonably diligent person with the knowledge and experience that a director of that position would possess. The judgment of Hoffmann LJ makes clear that while the director may be a busy individual and not thoroughly review the form before signing, doing so is negligent because it does not meet the standard of an ordinary director.
Furthermore, the objective standard is crucial in assessing recklessness as well as whether or not there has been a breach of duty. The landmark decision of R v G and R rejected the objective Caldwell test for recklessness, instead adopting a subjective test: a person is considered reckless if they are aware of a risk and unreasonably proceed to take that risk. This shows a move towards a more individualized assessment that still retains an objective element, as it is “unreasonable to take the risk.” However, this contrasts with the objective test of the “reasonable person” in DPP v Newbury and Jones, where the court confirmed that to determine if there was a dangerous act, the test is whether a reasonable person, not the accused, would recognise the danger. This demonstrates the legal position that whilst the accused’s thoughts are not the test, what a reasonable person would have thought is.
In R v Martin (Tony), which concerned self-defence, the court ruled that while a jury must consider a defendant’s honest belief as to the circumstances, the use of force must be objectively reasonable and proportionate. Therefore, even if the defendant believed force was necessary, if that belief is not supported by what a reasonable person would have done, the claim fails. The subjective mental state is important, but the objective actions of the individual is paramount.
The Objective Test in Criminal Law
In criminal law, the objective test is prominent in various areas, notably in determining recklessness and in the defence of duress. As discussed earlier, R v G and R replaced the Caldwell test with a subjective form of recklessness, but the overall evaluation is still based on whether it was reasonable to take a risk.
With regards to duress, the defence is not available for those who put themselves in situations where they ought reasonably to foresee the risk of being coerced into committing criminal acts, as was demonstrated in R v Hasan. This demonstrates the importance of what a reasonable person would have foreseen as opposed to the subjective belief of the defendant when seeking to excuse their conduct. Thus, the standard of assessment is that of a reasonable person, and the standard must be an objective standard that can be measured, not a subjective view which may be unique to an individual.
The case of Ivey v Genting Casinos (UK) Ltd is an important judgment which provides an objective test to assess dishonesty by removing the subjective second limb of the Ghosh test which considered the accused's own understanding of the definition of dishonesty. The court decided to move towards an entirely objective test to determine dishonesty: first, ascertain the facts, and secondly determine if the conduct was dishonest according to ordinary, decent people. The reasoning of this decision was not restricted to civil law as the Supreme Court made clear that this test applies to criminal law too.
The Objective Test and Human Rights Law
Human rights law also uses the objective standard to protect fundamental rights and freedoms. In R (A) v Secretary of State for the Home Department, it was held that a policy is unlawful if it permits or encourages unlawful conduct. The court, in using the objective test, considered what an ordinary person would believe the policy to be stating, thereby preventing the subjective interpretation of an individual from being determinative.
This objective standard applies to other types of laws, such as in cases dealing with discrimination. R (Elias) v Secretary of State for Defence used a four part proportionality test to consider whether a law is justifiable or was indirectly discriminatory by objectively determining the effects of the law, and did not focus upon a subjective understanding of a particular individual.
Practical Implications and Limitations
The use of objective tests provides consistency and promotes equality in the application of the law, particularly where there are vulnerable individuals involved in the situation. However, the application of such a test also has its limits. Whilst the test has often been applied to maintain public order, this objective approach can often ignore the subjective experiences, perceptions, and beliefs of those impacted. In other words, it may be necessary to focus more upon individual intent in certain instances.
In cases of negligence, the objective standard may sometimes feel like too high of a hurdle for claimants to overcome. For example, despite the courts attempts to objectively measure, they have failed in providing a single, clearly identifiable way of assessing negligence. The courts use all the tools they have but still often come to conclusions that are often subjective value judgements, which, in turn create uncertainty. An objective test in contract and criminal law provides certainty, whereas in tort, there has been a lack of clarity in the law.
Conclusion
The objective test in law serves as a vital tool for maintaining fairness and consistency in legal judgements. By applying an external and impartial standard that is measured by what a reasonable person would have done, intended, or believed, the law aims to avoid the pitfalls of individual biases and subjective interpretations. This has been seen across all areas of law from contract to criminal law as well as tort. However, while the use of an objective approach promotes fairness and is necessary to uphold the law, it also reveals the limitations of a one-size-fits all approach and demonstrates that some claims require more subjective evaluation of the evidence. The objective test, while a valuable framework, is an illustration that law itself cannot be without interpretation and judgement, requiring courts to engage in both to reach a just and defensible conclusion.
Primary Sources
Cases
- RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH [2010] UKSC 14
- Smith v Hughes (1871) LR 6 QB 597
- Centrovincial Estates PLC v Merchant Investors Assurance [1983] Com LR 158
- Re D’Jan of London [1994] 1 BCLC 561
- R v G and R [2003] UKHL 50
- DPP v Newbury and Jones [1977] AC 500
- R v Martin (Tony) [2001] EWCA Crim 2245
- R v Hasan [2005] UKHL 22
- Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67
- R (A) v Secretary of State for the Home Department [2021] UKSC 37
- R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213
Secondary Sources
Journals
- P Shine, ‘ Knowledge, notice, bad faith and dishonesty: conceptual uncertainty in receipt based claims in equitable fraud’ (2013) International Company and Commercial Law Review 293
- N Kiri, ‘Recipient and accessory liability – where do we stand now?’ (2006) Journal of International Banking Law and Regulation 611
- C Harpum, ‘The stranger as Constructive Trustee’ (1986) 102 Law Quarterly Review 114
- M Bryan, ‘Cleaning up after breaches of fiduciary duty – The liability of banks and other financial institutions as constructive trustees’ (1995) 7 Bond Law Review 12
- P Birks, ‘Misdirected Funds: restitution from the recipient’ (1989) Lloyd’s Maritime and Commercial Law Quarterly 296
- J Dietrich and P Ridge, ‘The receipt of what?’: Questions concerning third party recipient liability in equity and unjust enrichment’ (2007) 31 Melbourne University Law Review 48
- D Chua, ‘Knowing, Dishonest or Plain Unjust? – A commentary on the past, present and future of knowing receipt’ (2007) 25 Singapore Law Review 53
Books
- A Oakley, ‘Constructive Trusts’ (Sweet and Maxwell 1997, 3rd ed)
- Robert Alexy, A Theory of Constitutional Rights (OUP 2010)
- Smith and Hogan’s Criminal Law, 14th Ed
- W. E. Peel and J. Goudkamp Tort (19th edn, Sweet & Maxwell, 2014)
