Mavrky Law Student Center

Perception, Biases & Magna Carta

2008-10-12T10:58:00.000+08:00

On Judiciary & the Perception of Biases

Lord Denning said:

“…in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal or whoever it may be, who sits in a judicial capacity.

“It does not look to see if there was a real likelihood that he would, or did in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people.

“Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.

“Nevertheless there must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court would not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough.

“Justice must be root in confidence; and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased.’”

See: Metropolitan Properties Co (FGC) Ltd v Lennon (1969) 1 QB 577

Source: NST, Oct 12, 2008; Zainur Zakaria, Opinion Column, pg 23

To No One Shall We Deny Justice

Let Magna Carta Be Our Beacon Of Justice

Lord Denning said:

“…when the state itself is endangered, our cherished freedom may have to take second place.”

Lord Bingham said:

“Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms.

“There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom.”

Magna Carte C. 38:

"No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."

C. 39:

"To no one will we sell, to no one deny or delay right or justice.”

See: Lord Denning in R v Secretary of State (Home Department) ex parte Hosenball (1977)

Source: NST Oct. 12, 2008; Roger Tan, Opinion Column, pg 22

On the Risk of Negative Perception

“It does not matter whether perception is right or wrong. It is a negative perception and if not addressed it will harden into reality. Once people lose their trust and confidence in institutions, the country cannot function properly.

"People must believe in the effectiveness of the judiciary and law enforcement agencies. They must believe that the government is serious about fighting corruption.

"What I am trying to do is to formalise these changes.”

Statement made by the Prime Minister Abdullah Ahmad Badawi
October 12, 2008, NST, Prime news, pg 4

Haidar: "Don't be like that, Lah!"

2008-01-29T11:18:00.001+08:00

Don't do like that lah

Commission chairman Tan Sri Haidar Mohamed Noor said it was unwise for Anwar to release the clip on an instalment basis.

"Don't do it like that. We have a job to do here. Please tell your client that we cannot be dancing to his tune," he told Counsel M. Puravalen, who is representing Datuk Seri Anwar Ibrahim

Another commission member, Datuk Mahadev Shankar, said previously Anwar had broadcast the two earlier clips to the entire world.

"Now, he wants to share it with us," Mahadev said.

Businessman Loh Mui Fah said in a statement yesterday that he had asked his son Gwo Burne, who recorded the video, to do everything possible to recover all records of it.

The Commission of Inquiry to the Lingham's Video is getting insidious with the release of the 3rd installment of the video clips by Anwar Ibrahim.

It could possibly strike fear on many others, as slowly one by one of those in high places are implicated in the high profile scandals.

First, it was ex-CJ Fairuz; then it;s another ex-CJ Eusoff Chin. The exposure implicate names such as Mahathir, Tengku Adnan, Vincent Tan, ex-A-G Mohtar Abdullah.

Now, even our most honest CJ Dzaiddin is implicated. Who else have not?

Oh my dear, even Lawyer Robert Lazar's name has been added to the list.

I think it's putting fear into the commission members.

Did any members of the commission suffers nausea?

Read this joke:

Lawyer True Story

In a trial, a Southern small town prosecuting attorney called his first witness to the stand.

The witness was a grand motherly, elderly woman.

He approached her and asked, "Mrs.Jones, do you know me?"

She responded, "Why, yes I do know you, Mr. Williams. I've know you since you were a young boy,and frankly, you've been a big disappointment to me. You lie, you cheat on your wife, you manipulate people and talk about them behind their backs. You think you're a big shot when you haven't the brains to realize you never will amount to anything more than a two-bit paper pusher. Yes, I know you. "

The Lawyer was stunned.

Not knowing what else to do, he pointed across the room and asked,"Mrs. Jones. do you know the defense attorney?"

She again replied, "Why yes, I do. I've known Mr. Bradley since he was a youngster, too. He's lazy, bigoted and he has a drinking problem. He can't build a normal relationship with anyone and his law practice is one of the worst in the entire state. Not to mention he cheated on his wife with three different women, one of them was your wife. Yes, I know him."

The defense attorney almost died.

The judge asked both counselors to approach the bench, and in a very quiet voice, said,

"If either of you guys asks her if she knows me, I'll throw you in jail for contempt." ........

Human Rights Act 1998

2006-10-24T03:03:00.000+08:00

Human Rights Act 1998

UK is one of the original signatory of the European Conventions of Human Rights 1950(ECHR). It only came into effect in October 2000 when the Parliament passed the Human Rights Act 1998, giving effect to the main provision of the Convention rights in domestic law.

Prior to HRA 1998, Convention rights was only a persuasive authority in which the courts were not bound to give effect to Convention rights. When interpreting a provision, it would be presumed that Parliament had not intended to legislate in breach of treaty obligation.

This can be seen in the case of R v Secretary of State Home Dept exp Brind where the Hous eof Lords held that public bodies exercising discretion were not bound by ECHR terms as a precondition of acting ultra virus. The House of Lords recognised that 'to accept such a contention would amount to incorporation of ECHR via the back door.

Hence, litigants frequently had to take their cases to Strasburg for redress.

HRA 1998 is one of the most revolutionary pieces of legislation to be passed in the UK, to rank alongside the Bill of Rights, the Act of Union & the ECA. It was first introduced by the Labour Party in their manifesto of 1997 and subsequent white paper, “Bringing Rights Home’ to conclude that monumental change.

The HRA 1998 which came into effect in October 2000 finally incorporated the provisions of the Convention rights into domestic law.

Human Rights protection represents significant increase in individual rights. We cannot deny its fundamental importance. The clue to the status of Human Rights lies in the manner in which ECHR was incorporated into the UK law.

This was achieved without upsetting the delicate balance of constitutional arrangements built around the doctrine of Parliamentary Sovereignty.

In HRA 1998:

- S. 1(2) provides that in any ruling in the Convention, the court must ‘take into account’ the judgment of the European Court of Human Rights.

- S. 3 place a requirement on primary and secondary legislation to be read to give effect in a manner consistent with the Convention.

- S. 4 states that if legislation is to be incompatible with convention rights, the court is to make a declaration of incompatibility. However, it did not give the court the power to set aside an Act of Parliament which is inconsistent with Convention rights, but merely to allow certain courts to make a declaration of incompatibility which would basically serve notice to the legislators to make amendments.

-S. 6 makes it unlawful for a public authority to act in a way which is incompatible with convention rights.

- S. 7 allows a person who claims that a public authority has acted unlawfully, to bring proceedings against the authority.

- S. 19 requires a Minister to make a declaration of compatibility or otherwise, with ECHR for any legislature before the 2nd. Reading.

Essentially, while the UK had been an early signatory (1950) of the European Convention of Human Rights (ECHR), there was no means to redress in the domestic courts. Consequently, if a UK citizen believes his right had been encroached, he was forced to take action in Strasbourg. This is not to deny the existence of rights protected in English law protects the rights of individuals. (Example of existing statutory protection: Habeas Corpus, Police & Criminal Evidence Act 1984, Public Order Act 1986 (Freedom of assembly), Defamation Act 1996 (Freedom of expression).

What is found to be lacking until the enactment of HRA was a systematic Bill of Rights to be enforceable in domestic courts, which contained all the rights that an individual might enjoy under the law. Instead, UK citizen has been required to depend upon a body of statutes and the interpretation of that statute through case law.

Critics of English situation before 1998:

In the absence of a Bill of Rights, it is difficult for the individual to know the extent of his rights and how they may be enforced.
The level of protection afforded by the Pre-1998 regime. While action could be taken against the State, for breach of human rights, the level of those rights was often lower than the level of protection provided in the ECHR.

Incorporation of the ECHR into domestic law by the HRA has been considered revolutionary because it has most of the ECHR rights more directly applicable. Prior to incorporation, a UK court is bound by the presumption that when there is a conflict between ECHR and domestic law, the later must prevail (see: R v Secretary of Home Dept ex parte Thakrar & R. v Secretary of Home Dept. ex parte Brind)

The HRA has strengthened the place of HR in UK on the various key aspects:

By requiring Ministers to make a statement of compatibility (or otherwise) before the 2nd. Reading of a Bill.
By permitting courts to declare any existing legislation to be incompatible and providing for it to be speedily amended by Order of the Council. (Note: There is no positive obligation on a Minister to amend incompatible legislation although there will be political pressure).
The requirement under s.6 for public authorities to act in a way that is consistent with Convention rights. (Note: Breach of convention rights will be challenged under the domestic judicial review. Case ref: R. v Secretary Home Dept ex parte Daly).

HRA 1998 had been recognised as a constitutional statute. This means that it is not subjected to the process of implied repeal. If a later statute appears to conflict the HRA 1998, the court would only give effect if it is express stated in the Act. In addition, ministers presenting a Bill of Parliament is obliged to make a statement that it is Convention compliant.

The courts have been effective in implementing these Convention rights as accorded. Administrative actions that interferes with fundamental rights will no longer be able to hide behind as argument that they were not irrational.

Litigants now do not need to go to Strasbourg to argue Convention points as they can now do so in domestic courts.

Recent judicial events indicate that the judiciary are now more robust to defend and safeguard human rights by utilising s.3 HRA as a radical tool. This can be seen in the case of R v A (2001) where Lord Steyn did not declare the Youth Justice Criminal Evidence Act 1999 as incompatible (as per s. 4 HRA) but proceeded to declare s. 41 of the Act as 'too widely drafted and had made excessive inroads into the rights for a fair trial (Article 6 ECHR). Lord Steyn remarked that, as the Parliament had legislate to 'Bring Rights Home' from ECHR to UK courts, those rights could only be 'effectively brought home' if s. 3 HRA was the prime remedial measure and s. 4 is the measure of last resort.

An important point to note is that the HRA 1998 had been effective to provide better protection for individual rights because it has build an awareness of human rights that permeates all aspects of decision-making. The courts have also assumed as the guardian of human rights.

Given the extent to which the HRA has embedded rights within the English law, there can be no doubt that it is revolutionary statute. It must also be observed that there are also weaknesses in the system – the ability to pass incompatible legislation or refuse to amend such legislation by the Ministers. The HRA 1998 has not been accorded a 'special' or higher statute. Its existence and scope remains subject to the will of Parliament.

In conclusion, although the HRA does not provide any constitutional guarantee such as the Bill of Rights, it does however try to give precedence to Convention rights to the extent that it is consistent with continuing Sovereignty of Parliament.

The extent of HRA seen as entrenched Bill of Rights

In accordance with the Doctrine of Parliamentary Supremacy, Parliament cannot bind its successors. So the HRA could arguably be validly repealed.

- Lord Denning in McCarthy’s v Smith & Lord Diplock in Garland v British Rail & Engineering Ltd believes that Parliament had the power to repeal.

- HRA is probably not entrenched and considered as a Constitutional Bill of Rights.

- Political reality means that it is unlikely to be repealed.

In HRA, various provisions fall short of that provided by ECHR.:
1. Crucially, Article 13, the right to an effective remedy is not incorporated (no domestic remedy).
2. It is seen particularly, in a declaration of incompatibility which – while it may tend to legislative change – it is not necessary to do so. There is no express requirement on a Minister to amend legislation. At such, if primary legislation is declared incompatible, it may still remain active on the statute book.
3. Article 6 provides strong protection. There is growing body of case law to show how courts are now taking proper cognizance of human rights in application of judicial review (see: R. v Ministry of Defence ex parte Smith & R. v Secretary Home Dept ex parte Daly)
The fact that courts are themselves public bodies and will therefore need to be mindful of their obligations under the HRA and ECHR when ruling on disputes.

Conclusion

All of these limitations are not to acknowledge that the HRA has had a profound impact of the development of domestic law. In summary, the evidence of case law is that the HRA is having an impact and by the development of precedent some of the essential freedoms and rights of the ECHR are being embedded into domestic law.

Judicial Precedent - ELS

2006-10-24T03:00:00.000+08:00

Question 1:

People want 2 consistent things:

1. That the law shall be certain, and
2. That it shall be just and move with times

Rigid adherence to precedents will do. Paying lip service to precedent, while admitting the fine distinctions gives us the worst of both worlds.

On the other hand, too much flexibility leads to intolerance and uncertainty.

Discuss.

Answer guide:

What is precedent? Explain stare decisis.
Law made by judges – compare with parliament – the ultimate body that makes law – the people who are elected by the voters – whereas, judges are unelected.
How is precedent said to be certain?
Like cases are supposed to be treated alike – this in certain ways achieves certainty. Why?
Similar facts – similar decisions are supposed to be made by judges; but what’s the problem? Judges when making decisions have choices – what are the choices available to them?

They can follow previous cases
Distinguish
Overrule
Reverse
Disapprove

6. Judges often try to distinguish cases that the end results is sometimes illogical.
7. So how can the law be certain when judges are allowed to distinguish and make their own decisions which will then result in uncertainties?

8. Is there strict adherence to precedent by judges?
9. HL (1966) Lord Gardiner issued a practice statement – that HL can depart from their own previous decisions of which they had previously bounded by them (see: London Tramways Co Ltd v London Borough Council)

10. But do they do so? Initially No (see: R v Kansal; R v Lambert)
11. Later, they were more prepared to apply the practice statement (1966)
12. R v R – rape within marriages – wife no longer a property of husband.
13. Hall v Simons (2000) HL – refuse to follow earlier case of Randel v Worsley (1969) which had given barristers immunity against claims of negligence for their presentation of cases in court.

Court of Appeal (CA)

General rule – bounded by their own previous decisions – 3 exceptions

(i) Decisions made per incurium
(ii) 2 conflicting CA decisions
(iii) HL (implied) had overrule CA’s decision.

Dixon v British Broadcasting Corporation (1955)

- A decision on the construction of statutory provision was regarded as per incurium on the ground that other relevant provisions which threw light on the words in question had not been brought to the attention of the court.

Bonnlami v Home Secretary (1985)

- Failure to consider a statutory provision is one of the clearest cases in which the principles laid down in Young v Bristol Aeroplane, this court is not bound to follow its own decision.

Midland Banker Trust Co Ltd v Hatt Stubbs & Kemp

- Decline to follow decision of CA in Groom v Crocker on ground that inconsistent with subsequent decision of HL in Hedley Bryne Co Ltd v Heller & Partners Ltd.

14. But do judges really make laws?

15. What if there is no precedent laid down on principles or law for a new/novel case?

16. Judge will still have to come to a decision and they cannot say that they refuse to make a decision.

Donoghue v Stevenson

- Is the principle enunciated something new or is it a new principle or is it merely expanding or modified or altered to allow those who are not in a contractual relationship to claim remedies?

Hedley Bryne v Heller & Partners

- Is the case expressing a new point or principle or merely expanding it to cover economic loss? Bear in mind the principle was taken from the case of Donoghue v Stevenson.

- Look at the case of AIREDALE & RE: A (2002)

How are we to achieve consistency & certainty if judges are allowed to choose what mode they would want to use in deciding cases that come before them?

What do we achieve by having consistency and certainty in the law?

- Lawyers can plan ahead when advising their clients on whether they have a good or bad case and whether it should be litigated.

Flexibility

- Judges can make law. Changes in social policies and economic policies – these changes are faster than the parliamentary process of enacting legislation.

Uncertainty

- Ability of judges/judiciary to select which authority to follow through the use of ‘Distinguishing mechanism’.

So how do we actually achieve certainty?

- In the long run, this can only undermine a system which claims to operate on the basis of a hierarchy of binding precedent.

Conclusion

Weigh the advantage and disadvantages of flexibility, certainty and consistency against uncertainty, rigidity and inconsistency to see whether it has tilted the balance of convenience.

Broome v Cassell, Lord Hailsham (HL)

Principles: Exemplary Damages
Ratio Decidendi: Judicial Precedent & Usurpation of power by CA

“It is not open to the Court of Appeal to give gratuitous advice to judges to ignore decisions of the House of Lords in this way, if it were open to the court of Appeal to do so, it would be highly undesirable …the fact is, and I hope it will never be necessary to say it again that in the hierarchical system of Courts which exist in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tier. Where decisions manifestly conflict, the decision in Young v Bristol Aeroplane offers guidance to each tier in matters affecting its own decision.”

(Note: Young v Bristol Aeroplane Ratio Decidendi – Guidelines on doctrine of judicial precedence and stare decisis)

Question 2:

Consider how the doctrine of binding precedent works in the English Court, having particular regard to its advantage and disadvantages.

Answer guide:

1. Define judicial precedent and explain how it operates with reference to the ratio decidendi and obiter dicta.

2. Emphasize the authoritative hierarchy of the Courts structure.

3. Mention the European Court of Justices and ECtHR.

4. Note that HRA 1998 requires courts in UK to take into consideration all previous decisions of ECtHR, which now becomes binding precedent to UK courts.

5. Explain and consider the difference between criminal and civil divisions of the Court of Appeal.

6. Refer to the process of ‘Distinguishing’ cases based on their facts.

7. Consider the advantages and disadvantages.

Judicial Precedent Defined

Judicial precedent means judges are required to follow the rule of law established in the previous decided cases of the court of equal status or higher, if the legal principle involved is the same and the facts are similar.

A later court can circumvent an inconvenient precedent which would otherwise be binding, by distinguishing it on the facts of the case or on the legal principles involved.

Judicial precedent is a system of law-making by judges rather than by parliament. The general applicable decisions made by the judges, referred to as precedents, are used as models for future cases, and these are developed on a case-by-case basis to establish the area of law.

There are two major tasks for judges when deciding cases:

1. To establish what the facts are (that is, what actually happened), and
2. How the law applies to those facts.

Once decision is made, a future similar case with similar facts from the same hierarchical courts or lower courts must be treated in the same way. The decided case will thus become the stare decisis for the future case decisions. Stare decisis basically means “to keep the decisions of the past cases”.

The only binding part of the decided cases is the “ratio decidendi”. In the judgment, the explanation of the legal principles and the rule of law are referred to as the “ratio decidendi”. The notion of ratio decidendi simply means “Reason for the Decision”. Most case laws are made by Appellant Courts and the House of Lords which ultimately set the stare decisis. Judge made laws are decisions concerning application of principles or related principles from litigation proceedings and through the process of appeals to the higher courts.

Other than the ratio decidendi, there may also be other comments made by the courts but not an essential part of the ratio decidendi. Such statements are called “Obiter dicta” (which means ‘things by the way’) and they do not form part of a ratio decidendi but are used as persuasive authority which the judges might take into consideration and adopt if they consider it appropriate to do so. A good example of a highly influential dictum is the statement by Lord Atkin in Donoghue v Stevenson [1932]. The dictum is clearly obiter, but had been adopted in subsequent cases (example: The Dorset Yacht case).

Because of the lack of official agreement as to what the ratio of each decided case actually denotes, it reflects uncertainty and therefore no consistency and certainty in law itself. Ratio is always a difficult concept because Common Law is surrounded by uncertainty about what is the correct view of the law. Judges also do not state outright the ‘Ratio’ of which his decision is based on, and it is for the person reading the case to determine what the ratio is.

Advantages of Binding Precedents

1. Consistency

This refers to the fact that ‘like cases will be treated alike and are not subjected to the whims and fancies of individual judges.

2. Certainty

Lawyers and their clients are able to predict what the outcome of particular legal questions is likely to be in the light of previous judicial decisions. Once the legal rule has been established in one case, individuals can orientate their behavior with regard to that rule, relatively secure in the knowledge that it will not be changed by some later or lower court.

3. Efficiency

Cases to some extent are predictable and save time of the judiciary, lawyers and their clients for the reason that cases do not have to be reargued. At such would be much less costly for the parties to the dispute or for the prosecution and defendants.

4. Detailed rules

Case laws respond to real situation. Case laws shows detailed application of law to various circumstances and are more informative than statutes which are basically theory and logics.

5. Flexibility

Law need to be flexible to meet the needs of the ever changing society and case laws can make changes faster than parliament. There are various mechanisms by means of which judges can manipulate the Common Law provide with an opportunity to develop law in particular areas without waiting for Parliament to enact legislation. Example is the case of Airedale NHS Trust v Bland [1993] on the question of whether a life support machine should be switched off when a person was in a persistent vegetable state. Although it will contravene the Human Rights Act (the right to live), the House of Lords allowed the termination. In Re: A [2000], it dealt with the question whether a Siamese twin would be separated by an operation when the hospital recommended this, but where the parents had expressed clearly their objection. Here again, the House of Lords allowed the operation to proceed.

Hayek argued that there should be less legislation and more case laws. This is because, if a ‘ratio’ of a binding precedent do not work, the later judges can abandon them and the law would develop in response to demand for justice.

Disadvantages of Binding Precedent

1. Complexities and voluminous

Hundreds of thousands of decided cases comprise many thousands of pages of law reports and more added all the time. Judgments are very long, and not readable and the ratio decidendi are difficult to find. It is also difficult to pinpoint clearly the appropriate principles laid by judges for each of the decision of each case.

2. Distinguishing by judges

Judges are allowed to distinguish a binding precedent on the case before them if they consider the principles of the binding precedent to be inappropriate. This leads to mass number of cases establishing different precedents in varying circumstances which further complicates the Common Law.

3. Unpredictability

If too many kind of illogical distinctions are made, it is impossible to make out which precedent will be applied.

4. Rigidity and fixity

Judges have to follow a binding precedent even though they think it is bad law or inappropriate. Bad judicial decisions may become ossified on the basis of an unjust precedent, with the consequences that previous injustices are perpetuated for a long time before another similar case gets to a court high enough to overrule them.

5. Unconstitutional

Case laws are judicial decisions and the fundamental question refers to the fact that the judiciaries are overstepping their theoretical constitutional role by actually making law rather than applying it. Law reforms also give rise to the question as to how the law is to develop and change to cater for changed circumstances if cases are always to be decided according to precedent.

6. Dependence on chance

Case law changes only in response to those who had brought them through the various court hierarchies, that is, from High Courts to the Court of Appeals and then to the House of Lords. Only when a case is pushed far enough to the highest hierarchy of Appeal Courts would a new precedent be created.

The Authoritative Hierarchy of Court Structure

1. Reversing

A court higher up in the hierarchy can overturn a lower court’s decision on appeal.

2. Distinguishing

The main device for avoiding binding precedents is that of distinguishing. A case based on its own material facts, does not necessary had to follow a precedent case if judges wanted to avoid previous inconvenient decisions. This is possible when a court regard the facts of the case before it as significantly different from the facts of a cited precedent and thus consequentially, it will not find itself bound to follow that precedent.

3. Overruling

A court higher up in the hierarchy in a different later case can set aside a legal ruling established in a previous case. For example, the House of Lords are empowered to overturn or depart from its own previous decisions if the need arise. Overruling refers to the ratio of a case and not its decision. Overruling operates retrospectively, with the effect that the principle of law being overruled is held never to have been law. It has to be emphasized, however, that the courts will not shrink from overruling authorities where they see them as no longer representing an appropriate statement of law. This can be seen in the case of R v R [1992] which recognizes the possibility of rape within marriage. But Bellinger v Bellinger [2003] does also show that the courts’ are also reluctant to overrule cases and change the law where parliament is the appropriate forum for such change.

The European Court of Justice and ECtHR

The European Court of Justice (ECJ) is the judicial arm of the European Union (EU). In the field of community law, its judgment overrules those of national court. The ECJ decides whether any measures adopted, or rights denied, by the Commission, Council or any national governments are compatible with Treaty obligations. It also provides authoritative rulings, at the request of national courts, on the interpretation of points of Community law, under Art 234 of the Treaty of Rome. The European Court is not bound by its own decisions and it is always open to the ECJ to depart from its previous decisions when it considers it appropriate to do so. But its decision (ECJ) binds all European Courts, including the House of Lords in UK. The Human Rights Act 1998 (HRA) had incorporated the European Court of Human Rights (ECHR) into UK law, making the ECHR the supreme court in matters related to its jurisdiction.

Conclusion

The doctrine of binding precedent operates in theory to control and limit the ambit of judicial discretion. Following of precedent is easier in UK than in many other countries because England has a centralized legal system with only a small number of courts. The case law methods is sometimes said to be flexible. The making of law in decided cases offers opportunities for growth and legal development, which could not be provided by parliament.

The courts can move more quickly to lay down new principles, or extend old principles, to meet novel circumstances. Over the centuries, the UK legal system had built up substantial wealth of cases that are illustrative of vast numbers of principles of English law. However this could be considered a disadvantage too as its very bulky and complex, making it increasingly difficult to find the principles of law for each case.

Case laws are practical in character. It is based on the experience of actual cases brought before the courts rather than on logic and theory.

The interest of justice also demands impartiality from judges and this can be assured by the existence of a binding precedent.

Question 3:

“The effect of the doctrine of precedent is to render judicial decision-making a mechanical process. There is no room for judicial creativity at all.
Discuss.

Judicial precedent means judges are required to follow the rule of law established in the previous decided cases of the court of equal status or higher, if the legal principle involved is the same and the facts are similar.

According to the declaratory doctrine of common law, judges do not make law. There are, in Blackstone's word, "the depositories of the law, the living oracles, who must decided in all cases of doubt.

Judges express a part of the total, immanent wisdom of law which is assumed to be already existent before their decision. The judge works from within the law which is 'the repository of the experience of the community over the ages' (Postema 1986). Thus, even though the judge may reach a decision on a legal problem never before addressed by a common law court, he does so not as an original author of new legal ideas but as a representative of a collective wisdom greater than his own. He interprets and applies the law but does not create it, for the law has no individual authors. It is the product of the community grounded in its history.

The doctrine of the law is this: that precedents and rules must be followed, unless flatly absurd or unjust. But law, wiser than any individual is the perfection of reason, so an unjust or absurd decision cannot be declaratory of the law. It is not bad law but, in Blackstone's view, no law at all.

Once decision is made, a future similar case with similar facts from the same hierarchical courts or lower courts must be treated in the same way. The decided case will thus become the stare decisis for the future case decisions. Stare decisis basically means “to keep the decisions of the past cases”.

The only binding part of the decided cases is the “ratio decidendi”. In the judgment, the explanation of the legal principles and the rule of law are referred to as the “ratio decidendi”. The notion of ratio decidendi simply means “Reason for the Decision”. Most case laws are made by Appellant Courts and the House of Lords which ultimately set the stare decisis.

Other than the ratio decidendi, there may also be other comments made by the courts but not an essential part of the ratio decidendi. Such statements are called “Obiter dicta” (which means ‘things by the way’) and they do not form part of a ratio decidendi but are used as persuasive authority which the judges might take into consideration and adopt if they consider it appropriate to do so. A good example of a highly influential dictum is the statement by Lord Atkin in Donoghue v Stevenson [1932]. The dictum is clearly obiter, but had been adopted in subsequent cases (example: The Dorset Yacht case).

Thus, the act of complying with the doctrine of stare decisis results in case laws and judge-made laws, which becomes an important source of English Law. Judges have to follow previous decided cases of the court of equal status or higher. Stare decisis are therefore look at as being rigid and had been considered as mechanical. Judges have to follow a binding precedent even though they think it is bad law or inappropriate.

In the words of Prof Drewry, ‘An outdated precedent is a mummified corpse of long-dead social value.’ A rigid adherence to precedent does lead to injustice where a court may have to apply an out-dated decision of a superior court that may have stood for many years, because no attempt has been taken to bring them to the highest court.

While certainty is much desired, law needs to be flexible to meet the needs of the ever changing society. As proffered by Lord Geoff, ‘the law must be developed by judges and jurist in partnership.

In the practice statement (Judicial Precedent) 1996, their Lordships regard the case of precedent as indispensable as it provides at least some degree of certainty. Nevertheless, their Lordships recognize that too rigid adherence to precedent may lead to injustice which may unduly restrict the proper development of the law. While treating former decisions as binding, the HL may depart from any decision, when it appears it right to do so. However, this announcement is not intended to affect the use of precedent elsewhere than in the HL. Although this practice of departure was used sparingly, however, it had been seen that the HL had departed where the conditions in their earlier decisions no longer prevail or in modern conditions the law ought to be different (example: Miliangos v George Frank, R v Shirpuri, & Arthur JS Hall v Simons).

Nevertheless, instead of departing, the HL may distinguish an unpopular precedent (see: Conway v Rimmer).

There are various mechanisms by means of which judges can manipulate the Common Law to provide with an opportunity to develop the law in particular areas without waiting for Parliament to enact legislation. Example is the case of Airedale NHS Trust v Bland [1993] on the question of whether a life support machine should be switched off when a person was in a persistent vegetable state. Although it will contravene the Human Rights Act (the right to live), the House of Lords allowed the termination. In Re: A [2000], it dealt with the question whether a Siamese twin would be separated by an operation when the hospital recommended this, but where the parents had expressed clearly their objection. Here again, the House of Lords allowed the operation to proceed.

Hayek argued that there should be less legislation and more case laws. This is because, if a ‘ratio’ of a binding precedent does not work, the later judges can abandon them and the law would develop in response to demand for justice.

Although the doctrine of binding precedent operates in theory to control and limit the ambit of judicial discretion, the case law methods is sometimes said to be more flexible as they are practical in character.

It follows that the doctrine of precedent - the doctrine that judges must treat as binding on them the essential legal grounds of decision adopted in similar cases previously decided in courts of higher or perhaps equal status - is complex in classical common law thought. It is perhaps much more flexible than it is typically portrayed as being (Lobban 1991).

Case laws have shown to have responded to real situation. Case laws shows detailed application of law to various circumstances and are more informative than statutes which are basically theory and logics. They are based on the experience of actual cases brought before the courts rather than on logic and theory. The making of law in decided cases offers opportunities for growth and legal development, which could not be provided by parliament. The courts can move more quickly to lay down new principles, or extend old principles, to meet novel circumstances. Over the centuries, the UK legal system had built up substantial wealth of cases that are illustrative of vast numbers of principles of English law.

However this could be considered a disadvantage too as its very bulky and complex, making it increasingly difficult to find the principles of law for each case.

The interest of justice also demands impartiality from judges and this can be assured by the existence of a binding precedent.

Question 4: ZONE A, 2004

The doctrine of precedent has a dual function; it provides an image of certainty, consistency and clarity, while allowing the common law to continually adapt and develop. Discuss.

Judicial precedent means judges are to follow the rule of law of previous decided cases of the court of equal or higher. It also means: ‘like cases are to be treated alike.’ The decided cases will thus become the stare decisis for future case decisions.

The only binding part of the stare decisis is the ratio decidendi in the judgment which is the legal principles and the rule of law. Other than the ratio, there may also be other comments made by the judge which is referred to as the ‘obiter dicta’, which means: ‘things by the way’. They do not form part of the ratio but are used as persuasive authority which judges might take into considerations and adopt if they consider appropriate. A good example is the highly influential dictum of Lord Atkin in Donoghue v Stevenson (1932) on the neighbourhood principles. This principle had been widely adopted in subsequent cases (example: The Dorset Yacht case).

In essence, Judicial Precedent doctrine refers to the fact that a decision of a higher court will be binding on an equal or lower court. The House of Lords stands at the summit of this hierarchy and its decisions are binding on all courts. The next court in the hierarchy is the Court of Appeal, and further down are the Divisional Courts, High Courts, Crown Courts, County Courts and Magistrate Courts.

On joining the European Union, UK is now also subjected to EU laws. In other words, EU laws supercede any existing UK laws on the contrary. That is to say, the ECJ is superior to the House of Lords and its decision is binding on all UK courts. Also, as a consequence of the HRA 1998, the convention rights of ECHR are now part of the jurisprudence of the UK courts.

If ‘like cases are to be treated alike’, the on that basis, the law reflects consistency and clarity. It provides a firm foundation that permits lawyers and citizen to plan their affairs with confidence. It cut short legal arguments and enables lawyers to forecast the outcome of their clients’ cases with reasonable certainty in the light of established precedence.

Thus, the act of complying with the doctrine of stare decisis results in case laws and judge-made laws, which becomes an important source of English Law. Because judges have to follow strictly previous decided cases, adhering strictly to stare decisis are therefore look at as being too rigid and had been considered as mechanical. Judges may have to follow a binding precedent even though they think it is bad law or inappropriate.

In the words of Prof Drewry, ‘An outdated precedent is a mummified corpse of long-dead social value.’ A rigid adherence to precedent does lead to injustice where a court may have to apply an out-dated decision of a superior court that may have stood for many years, because no attempt has been taken to bring them to the highest court.

While certainty is much desired, law needs to be flexible to meet the needs of the ever changing society. As proffered by Lord Goff, ‘the law must be developed by judges and jurist in partnership’.

In view of the increasing judicial criticisms of the practice of stare decisis, in particular, it was said that the rule did not produce the desired certainty in the law, and that it sometimes produce absurd judgment, the Lord Chancellor issued a Practice Direction in 1966 where the House of Lords were allowed to depart from their own previous decisions when it appears right to do so. Although Lord Chancellor, Lord Gardiner, regards precedence as indispensable, nevertheless, he recognized that too rigid adherence to precedence may lead to injustice. Lord Gardiner emphasized that the change would enable the House of Lords to adapt English law to meet changing conditions.

Two years passed before the House of Lords first exercised the power to depart from its previous decision. That was in Conway v Rimmer (1968) on a question of the discovery of documents. In Miliangos v George Frank [1976], the HL overruled Re: Havana [1961] by allowing damages to be awarded in any foreign currencies if they are specified in the contract.

However, this flexible privilege is only accorded to the House of Lords and does not include the Court of Appeal and those courts below.

The Court of Appeal is still bound by the decisions of the House of Lords and their own previous decisions. The exceptions for departing from their own decisions is only permitted in accordance with the rules as laid down case of Young v Bristol Aeroplane (1944):

1. Where two previous Court of Appeal decisions are in conflict;
2. Where previous decisions of the Court of Appeal had been overruled by the House of Lords (HL), then the HL’s decision is binding; and
3. Where the previous decision has been given per incuriam.

In Miliangos v George Frank (1975), the Court of Appeal departed from the HL decision of Re: Havana (1960) by awarding damages in foreign currency. When the case went up to the House of Lords, the their Lordships held that the Court of Appeal had acted incorrectly, but nevertheless proceeded to depart from Havana.

The House of Lords were on number of occasions, unhappy over the manner of which the Court of Appeal seemed to defy the directives of the practice direction and the fundamental doctrine of stare decisis. Lord Chancellor, Lord Hailsham expressed his concerned on this matter when he rebuke the Court of Appeal’s decision in the case of Broome v Cassel [1971], that:

“It is not open to the Court of Appeal to give gratuitous advice to judges to ignore decisions of the House of Lords ... the fact is, and I hope it will never be necessary to say it again that in the hierarchical system of Courts which exist in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tier.”

However, judges do have many ways to depart from precedent. They can do it by distinguishing the material facts of the previous and the present cases. A superior court may also reverse the decision of an inferior court, and a superior court can also overrule the decisions of an inferior court.

Another way is for judges to look into the provisions of the Community law and the European Conventions for Human Rights (ECHR). With the enactment of the European Community Act 1972 and also the Human Rights Act 1998, Community law now prevails over domestic laws, and the courts were directed to comply with the Community laws and Convention rights. Under s. 3(1) of the Human Rights Act 1998, judges have a duty to strive to find a possible interpretation compatible with Convention rights. Under ordinary method of interpretation, a court may depart from the language of the statute to avoid absurdity. Undoubtedly, a court must always look for a contextual and purposive interpretation. Where the statute is inconsistent with Convention rights, certain courts may make declaration of incompatibility (s. 4 HRA 1998). In the view of Lord Steyn (R v A (No.2) [2001], a declaration of incompatibility should only be a measure of last resort.

Various later cases also show a positive development in English domestic law through its judicial decisions.

In the case of Airedale NHS Trust v Bland (1993), the question raised was whether a life support machine should be switched off when a person was in a persistent vegetative state. Although it contravenes the Convention rights (right to live), the House of Lords allow the termination.

Similarly, in Re A (2000), pertaining to a Siamese twin, the House of Lords allowed the operation to proceed as recommended by the hospital despite objections from the parent. The House of Lords took into consideration the state of law on murder and the defence of necessity, and decided that a balance had to be struck on some very difficult issues.

In another example in the case of R v R (Marital rape), the House of Lords abolished husband’s 250 year-old immunity from criminal liability for raping his wife. Their lordship justified the decision on the basis that the case was not concerned with the creation of a new offence but with their duty to act in order to remove from the common law a fiction which had become unacceptable. This decision was an example of the ability of the common law to evolve ‘in the light of changing social, economic and cultural development.

Being free of the shackles of binding precedent, the House of Lords is uniquely placed to develop English domestic law through its judicial decisions. In a way, it does prove that there are positive developments of allowing the common law to continually adapt and develop. As proffered by Lord Goff, ‘while certainty is much desired, the laws need to be flexible to meet the needs of the ever changing society.

The judge must attach great weight to previous decisions, not only for practical and political reasons, in order to maintain sufficient certainty in legal doctrine and to avoid usurping the legislative function, but also for theoretical reasons. Those decisions provide, in general, the best available evidence of the collective wisdom of the common law.

Judges must subordinate their own individual reasoning and values to those enshrined in the law. On the other hand, the reasoning and values of the law are greater not only than those of the presently deciding judges, but also of any of the precedent-creating judges of the past.

Hence, the theory of common law does not dictate a slavish adherence to precedent. Even where prior judicial decisions are thought to state accurately the common law, a later judge is bound not by those decisions but by the principles implicit in them (Postema 1986). Further, while classical common law thought denies that judges are creative as lawmakers, they are not merely passive as lawfinders (Levy-Ullmann). Judges are in fact the privileged representative of the community, entrusted with its collective legal wisdom and authorised to draw on it constructively to find solutions to novel issues raised before the court.

Judicial Appointment Commission - ELS

2006-10-24T02:27:00.000+08:00

Question 3b: 2004 - Zone A

The government is proposing to establish a Judicial Appointment Commission in England and Wales. Why was it thought necessary to reform the judicial selection process and should such a Commission have the power to appoint judges or merely to make recommendations?

The judiciary system is at the end of the day a service industry that must serve the purpose of the people." This statement was made by Mr. Austin Mitchell at the parliamentary debate on the Constitutional Reform Bill 2004.

It is fundamental that a judiciary system must be seen to be fair, just and an efficient administration of justice without partiality or prejudice and that it ensures every citizen have equal access to the law.

In the proposed Constitutional Reform Bill 2004, Clause 1 places the importance of judges to be independent and free from the influence of ministers especially cases involving a citizen and a government body. Ministers have a duty not to seek influence particularly judicial decision through any special cases to the judiciary.

Traditionally, the Lord Chancellor and the Prime Minister in Uk have the exclusive nominal control over the appointment of judges to the judiciary.

Professor Griffith has two views regarding the selection and appointment of judges. The first view is that the appointment of the judiciary is wholly in the hands of the politicians, which may lead to political cronyism in the selection process.

As an example, during the premiership of Lord Salsbury, there was the practice of making legal appointments and promotion as a reward for political 'right thinking'.

Secondly, Griffith is of the view that judges by their training and upbringing have acquired a strikingly homogeneous collection of attitudes, belies and principles which to them represents the public interest. However, judges may be impartial but then they are not neutral.

In the view of Griffith, the composition of judges do not reflect the social composition of the general population.

In the parliamentary debate on the Constitutional Reform Bill, Mr. Fraser, MP, voiced the concern that judges should be more representative of the communities that they serve. In his words, "judges are not masters of the community; they are its servants."

There was generally concern of the lack of women appointed to the judiciary, although they constitute the majority in the UK society. Similarly, there are also concerns of the lack of appointment of black people and other representatives of ethnic minorities.

Another concern is the number of appointments today which is now so much greater than when the system was traditionally under the control of the Lord Chancellor.

The overriding principle of the Constitutional Reform Bill pertaining to judicial appointments would be the independent and efficient administration of justice. There are also other targets and criteria which should be given to a judicial appointment commission who are capable to conduct them in a way that are free from political control.

The Commission for Judicial Appointment (CJA) which was first established in October 2000 was seen to be ineffective to solve the problems mentioned above. It was largely held that this body was merely a 'Half-way House' that does not have the power to select judges. They merely gave their opinion and the decision and appointment of judges was entirely left to the Lord Chancellor.

In response to these criticisms, the government has now set up the Judicial Appointment Commission (JAC) under the Constitutional Reform Act 2005. Under JAC, selection of judges shall be based solely on merits and that the selecting body must be satisfied that the appointee is of good character.

Literally, the power of appointing judges has now been taken away from the hands of the Lord Chancellor and placed on the Commission. However, the Lord Chancellor may issue guidance about procedures for the performance by the Commission relating to the functions of identifying persons willing to be considered for selection and assessing such persons for the purpose of selection. Before issuing any guidance, the Lord Chancellor must consult the Lord Chief Justice.

The next question arise is whether such a commission (JAC) should be empowered to appint judges or to merely make recommendations. As the main objective and the overriding principle of setting up such a Commission was to ensure that the system are independent and efficient in the administration of justice, at such, if the proposed set up of the JAC could ensure that they are capable to conduct their administration in a way that was free from political control, and that those selected as judges are based on their merits and are person of good character, then it would have fulfilled the objective. The question of who to recommend or select judges thus do not arise.

To ensure that the system is efficient and fair, the judicial system must be made accountable to the representative of the people. If the syystem are accountable to the House of Commons, we will see a better and more adequate system.

So long as appointment of judges are subjected to independent scrutiny and the selection body are seen to be independent of politics, and are transparent, the judicial system would be directed to the fair and efficient administration of justice without partiality or prejudice.

Statutory Intepretation - ELS

2006-10-24T01:43:00.000+08:00

Question 1:

Consider critically the rule of interpretation which guides judges in their interpretation of statutes and the presumptions they apply in the process.

The roles of judiciary are merely to apply the law that had been enacted by parliament. This view is too simplistic to the extent that it denies or at least ignores the extent of which the judiciary has a measure of discretion and creative power in the manner in which he interprets the legislation that comes before him.

Legislation can be seen as a form of communication. It represents and passes on to the judiciary and society at large what parliament has determined should be the law governing a particular statute.

What is then the problem?

Uncertainty is inherent in any mode of communication. Conflicting aims of legislation gives rise to a particular problem of interpretation. These conflicting aims are the need to be clear whilst at the same time is general.

Clarity and precision tend to be achieved only in inverse proportion to generality, but legislation must endeavor to be general practicability.

There therefore in all legislation a number of uncertainty that can only be illuminated and made certain by judicial interpretation. Interpretation is therefore a creative process and inevitably renders the judiciary in the process of creating law.

How do judges actually interpret statutes?

In determining the actual meaning of legislation, they make use of the 3 rules of interpretation and a variety of secondary aides. The 3 rules are: Literal Rule, Golden Rule & Mischief Rule.

It must be emphasized that they are actually not rules but rather, general approaches. It cannot be treated as rules because judges have the discretion to choose which approach to use depending on how they want to interpret a particular statute that comes before them.

1. Literal Rule

Judges are required to consider what the legislation actually says rather than considering what it might mean. Judges have to give the words in the legislation its literal meaning, that is, in its plain, ordinary, everyday meaning, even if the effect is to produce what might be considered unjust, absurd or undesirable outcome.

Fisher v Bell

Court stood by their literal interpretation of the Act in question and refuses to extent the usual legal interpretation of the word ‘offer’.

2. Golden Rule

This rule may be used when application of Literal Rule will result in what appears to the court to be ‘absurd’.

Alder v George – Golden Rule

D was charged under OSA 1920 with obstruction in the vicinity of a prohibited area whereas the obstruction was actually inside the vicinity. The court was prepared not to restrict itself to the literal wording of the Act & found her guilty as charged.

3. Mischief Rule

Rules was established in Heydon’s case (1584)

It gives the court the justification for going beyond the actual wording of a statute in order to consider the problem that the particular statute was aim at remedying. The limitation of this rule is that, it must use previous Common Law to determine the mischief of the Statute in question was designed to remedy.

Corkery v Carpenter (1951) – Mischief Rule

D was charged for being drunk while in charge of a bicycle on the highway. Court held that bicycle was a ‘carriage’ for the purpose of s.12 of the Licensing Act 1872. The purpose of the Act was to prevent people who are in a state of intoxicated to use any form of transport on public roads.

It was suggested that the 3 rules ranked in a hierarchical order. But in essence, they are not. Literal Rule will be used unless it leads to absurdity which may lead to the use of the Golden Rule. But what determines whether any particular result is an absurdity other than the views of judges deciding the cases? These rules are contradictory at least to a certain extent, in a way no outsiders can determine which rule will be applied by the judges in a particular case. As such, they are merely devices which judges use to justify their decision.

Judges in interpreting statutes are also required by the HRA 1998 to construe statutes as far as possible to give effect to the rights as provided by the ECHR.
Since Parliament is sovereign, it can of course alter the common law by express enactment, but otherwise, a statute is presumed not to make any fundamental change to common law.

A statute does not impose criminal liability without proof of mens rea (Sweet v Parsley [1970]). Here the owner of the management premise which was used for smoking cannabis was acquitted as the House of Lords held that she would not know her property was being used for that illegal purpose and as such, she cannot be guilty for such offence.

But presumptions can be rebutted by express rewording of statute (example: Strict liability cases) or by implication (judges interpretation).

Statute is presumed not to operate retrospectively. But it is open to Parliament to enact such legislation as was done in War Damage Act 1965 – in order to prevent Burmese Oil Company from collecting damages which the court had decided were owed to it from the state.

Question 2:

Consider the implications of Pepper v Hart [1993] within the context of materials available to courts in the construction of legislation.

Answer:

The courts in interpreting the statutes apply 3 rules (Literal, Golden & Mischief Rules) and a variety of presumptions and secondary aids (intrinsic and extrinsic) to construct the meaning of the statutes.

Internal aids to construction of statute

Assistance is said to be intrinsic when it is derived from the statute which is immediately under consideration Example:

1. Title of the Act – it’s long title & short title

But these titles tend not to be used by courts in determining the purpose of legislation and any general intention derived from the title as it must give way when words are clear in the actual body of the Act. There are circumstances where courts will refer to the long title of the Act in making their decision as to what its effect and operation (Royal College of Nursing v DHSS)

2. Preambles

Preambles are Statement preceding the actual provisions of the Act which sets out its purpose, sometimes in full detail.

3. Schedules

Schedules to the Act appear as addition at the end of the main body of legislation. They form part of the Act and may be used to shed light on any obscurity in the main text.

4. Punctuations

Punctuations have an effect on the meaning of words and can be taken into consideration in determining the meaning of legislation.

External aids to construction of statute

This is the area where uncertainty exists. The case of Pepper v Hart (allowed to consult the Hansard) had the main impact for it had been seen as overturning the previous fundamentally restrictive approach of the court to what they can legitimately look at in order to determine the meaning and purpose of statute.

Other extrinsic aids are:

(i) Dictionaries – to determine non-legal words
(ii) Authoritative textbooks – on points of law

Historically, English courts have adopted a distinctive approach to what they are entitled to take into consideration although some judges such as Lord Denning have been ‘notorious’ for trying to avoid those restrictive rules.

The restrictive approach has been gradually relegated to the extent that judges can now use extrinsic sources to at least determine the mischief at which a particular legislation was aimed and in pursuit of this end, they are entitled to look at the Law Commission Reports and Royal Commission Reports.

But there have been a debate as to the access to the debates of Parliament as reported in the Hansard.

In Pepper v Hart, the House of Lords decides to overturn the prevailing rule that judges were not at liberty to consult the reports of Parliamentary debates recorded in the Hansard in order to assist them in their construction of legislation. In a majority decision, it was held that where precise meaning of legislation was uncertain or unambiguous or whose literal rule meaning of an Act would lead to a manifest absurdity, the court could refer to Hansard as to aid them in constructing the meaning of legislation. In the words of Lord Browne Wilkinson:

“There is good reason for making a modification to the existing rule – because such report might produce a clear indication of what Parliament had actually intended in using particular words.”

In permitting this extension, the House of Lords did not grant absolute freedom to future courts. Reference to Hansard should be made only to reveal the legislative intention of the statute rather than to find the precise meaning of statutory language.

Extension applies to the determination of the mischief at which the particular legislation is aimed rather than the determination of the precise explanation of the remedy provided. Only statements made by host minister or other sponsor responsible for the provision and passage of the legislation will be considered as authoritative in determining the mischief at which a particular statute was aimed.

Until 1980, there has been a Parliamentary rule that prevents counsel in any court case from citing debates in the House of Commons without prior permission of the House.

In Pepper v Hart, it was considered that whether the use of Hansard in court would challenge the freedom of Parliamentary debates and constitute a breach of the Bill of Rights, the House of Lords pointed out that relaxation of the old rule would lead to the court giving effect to the wishes of Parliament and thus could not in any way be seen as an infringement of Parliamentary privilege.

Operation of Pepper v Hart was extended in Three Rivers DC v Bank of England (No.2) [1996] to cover situations where legislation under question was not itself ambiguous, but might be ineffective in its intention to give effect to some particular European Court Directions.

In Melluish v BMI (No.3) [1995], the court refused to extend the rule to situation where ministers had made statements as to the meaning of statutes at some time other than at the passing of that particular piece of legislation.

Question 3:

“The traditional approach to statutory interpretation has lost its hold in recent years. Judges are now free in their approach to interpretation than previously.”
Comment.

The roles of judiciary are merely to apply the law that had been enacted by parliament. This view is too simplistic to the extent that it denies or at least ignores the extent of which the judiciary has a measure of discretion and creative power in the manner in which he interprets the legislation that comes before him.

In order for an Act of Parliament to have its proper effect, it must be understood and clear. Legislation therefore involves an inescapable measure of uncertainties that can only be made certain through judicial interpretation.

What is then the problem?

Uncertainty is inherent in any mode of communication. Conflicting aims of legislation gives rise to a particular problem of interpretation. These conflicting aims are the need to be clear whilst at the same time is general.

Clarity and precision tend to be achieved only in inverse proportion to generality, but legislation must endeavor to be general practicability.

There therefore in all legislation a number of uncertainties that can only be illuminated and made certain by judicial interpretation. Interpretation is therefore a creative process and inevitably renders the judiciary in the process of creating law.

How do judges actually interpret statutes?

In determining the actual meaning of legislation, they make use of the 3 rules of interpretation and a variety of secondary aides. The 3 rules are: Literal Rule, Golden Rule & Mischief Rule.

It must be emphasized that they are actually not rules but rather, general approaches. It cannot be treated as rules because judges have the discretion to choose which approach to use depending on how they want to interpret a particular statute that comes before them.

The traditional approach to statutory interpretation had always been what Denning called the “strict traditionist” view. What it means is that judges are required to consider what the legislation actually says rather than considering what it might mean. Judges have to give the words in the legislation its literal meaning, that is, in its plain, ordinary, everyday meaning, even if the effect is to produce what might be considered unjust, absurd or undesirable outcome. For example, in Fisher v Bell, the Court stood by their literal interpretation of the Act in question and refuses to extent the usual legal interpretation of the word ‘offer’.

The Golden Rule may be used when application of Literal Rule will result in what appears to the court to be ‘absurd’. It basically ‘fills in the gap’ and provides judicial repair of the statute. In Adler v George, D was charged under OSA 1920 with obstruction in the vicinity of a prohibited area whereas the obstruction was actually inside the vicinity. The court held the words “in the vicinity” should read “in or in the vicinity of” as otherwise the implication would create absurdity or and extraordinary result.

The Mischief Rule was established in Heydon’s case (1584). It gives the court the justification for going beyond the actual wording of a statute in order to consider the problem that the particular statute was aim at remedying. The limitation of this rule is that, it must use previous Common Law before the Act was passed to determine the mischief of the Statute in question was designed to remedy. In Corkery v Carpenter (1951), D was charged for being drunk while in charge of a bicycle on the highway. Court held that bicycle was a ‘carriage’ for the purpose of s.12 of the Licensing Act 1872. The purpose of the Act was to prevent people who are in a state of intoxicated to use any form of transport on public roads.

It was suggested that the 3 rules ranked in a hierarchical order. But in essence, they are not. Literal Rule will be used unless it leads to absurdity which may lead to the use of the Golden Rule. But what determines whether any particular result is an absurdity other than the views of judges deciding the cases? These rules are contradictory at least to a certain extent, in a way no outsiders can determine which rule will be applied by the judges in a particular case. As such, they are merely devices which judges use to justify their decision.

Modern approaches to interpretation also include Purposive Approach and Contextual Approaches. In purposive approach, the court finds the purpose of the Act and interprets the words to fulfill that purpose. This can be seen in the case of Pepper and Hart where the court can refer to parliamentarian debates (the Hansard) in order to aid them in interpretation of a statute. In the contextual approach, the words are interpreted in accordance with the context within which they are found in the Act.

Judges in interpreting statutes are also required under s. 3(1) of the HRA 1998 to construe statutes as far as possible to give effect to the rights as provided by the ECHR. In R v A (No.2), the court held taking into account of the interest of the defence, the victim and the society, and applying the Court’s interpretative obligation under s. 3 HRA 1998, the evidence and questioning of the alleged prior consensual sexual relations between the accused and the complainant is admissible under s. 41(3)(c) of the Youth Justice & Criminal Evidence Act 1999 (YJAEA 1999).

In Ghaidan v Mendoza (2004) HL, Lord Steyn states that, “In enacting the HRA 1998, Parliament legislated to ‘bring rights home’ from the ECHR to be determined in the Courts of UK. Therefore, rights could only be effectively ‘brought home’ if s. 3(1) HRA 1998 was the prime remedial measure and s. 4 a measure of last resort.

The question of whether the traditional approach to statutory interpretation has lost its hold in the recent years, it does seem that it did not. In Goodes v East Sussex City Council (2000), the HL held the statutory duty of highway authorities under s. 4(1) Highway Act 1980, to maintain the highway, did not include the removal of ice and snow though such removal might be expected by modern road-users; maintenance was thus interpreted as confined to keeping the fabric of the road in good repair. This interpretation is thus in conformance with the traditional literal rule. In Brimingham City Council v Oakley (2001), the HL held the concept of the words “premises in such a state as to be prejudicial to health” under s. 79(1)(a) Environmental Protection Act 1990, do not include the facilities such as the provision of washbasins in the lavatory. According to Lord Hoffman, “one should not use a word to express a broader concept than that intended by Parliament, such a step would tantamount to an illegitimate extension of the ordinary statutory meaning.” Again, in Gorringe v Calderdale (2004) HL, Lord Hoffman took a similar approach and held that the highway authority’s duty to maintain the highway (under s. 4(1)) did not include providing ‘road-signs’.

However, we can’t avoid the facts that judges are now freer in their approach to interpret the statute. The case of R v A (No.2) is clear support of this point where Lord Steyn had adopted the ‘implied provision test’ or the ‘expansion test’ which is a wider reading of s. 41 of JYAEA 1999. in that case, Lord Steyn enunciated that a declaration of incompatibility under s. 4 HRA 1998 is a measure of last resort. Therefore, R v A illustrated the judicial shift of parliamentary power to the judiciary.

In conclusion, the court now invokes whichever of the rules which produce a result that satisfies its sense of justice as proffered by Prof John Willis. As can be observed in Lord Reid’s judgment in Maunsell v Olins (1975), the rules of interpretation are not ‘rules in the ordinary sense of having some binding force. They are our servants not our masters … we must look at the particular circumstances and decide as a matter of judgment what weight to attach to any particular rule. In a wider sense, there are plenty of room for judiciary creativity and a freer approach to statutory interpretation than was previously.

Conventions - Public Law

2006-10-24T01:36:00.000+08:00

UK’s constitution is partly-written (Phillip Norton) and descriptive (LJ Stephen Sedley). Constitutions is typically thought of as a body of rules regulating the way in which an institution or organization operates. In the case of a state, the constitution will determine the institutions of government, the allocation of power between those institutions, and the procedure for resolving conflicts between institutions of government. A modern constitution is expected to detail the fundamental rights and duties of its citizens. The sources of the constitution are derived from Acts of Parliament, decisions of judges (Common Law), and constitutional conventions.

According to Marshall & Moodie, conventions are rules of constitutional behavior which are considered binding by and upon those who operate the constitution but which are not enforced by the law court.

In the view of Sir Ivor Jennings, Conventions are the ‘flesh which clothes the dry bones’ of the law.

It is submitted that if conventions are codified, it would make them certain and easily identified. It would also reduce the areas of potential conflict. Examples of vague conventions are – the position of the monarch and future monarch, and the uncertainties surrounding the doctrine of ministerial responsibilities. Furthermore, in UK, the term “unconstitutional” has no definition, whereas, in USA, ‘unconstitutional’ means illegal.

With codification, it would be possible that former non-legal constitutional practices could now be legally enforced by judges. Thus conventions would not be weak anymore – ending the long debate between Austin and Mitchell.

Another merit to codification is that it would deter the government taking advantage of the flexibility of convention to suit its own political aim.

Nevertheless, there are also demerits of codification.

A legal code is politically inconvenient as it may be difficult to keep in touch with the contemporary political needs and change. The flexibility of conventions can be illustrated by the practice of ‘Agreement to Disagree’.

Under the current position, constitutional development could occur without the necessity of adhering to formal legal mechanism. Thus, codification would ‘purchase certainty at the expense of flexibility’ (De Smith).

Even in countries with codified constitution, conventional practices exist side-by-side with the codified constitution.

There would also be problem of identifying which conventions are to be codified, as there are just too many of them in practice. Thus, view had been expressed that what is more important is actually the spirit rather than the letter.

Should conventions be crystallized into law, judges would then need to interpret them and they would be shouldering matters of extreme political sensitivity. Conventions had always provided the means of bringing about constitutional change without a formal change of the law. They allow the constitution to evolve and keep up to date with changing circumstances without the need for formal enactment and enforcement.

It is suggested that a more practical solution would be the ad hoc approach, rather than a complete codification. The essence of UK’s constitution lies not in its laws, but its conventions – rules that have evolved gradually transforming the system of government without subscribing to formality. Ultimately, all constitutions are political in that they can only have practical effect if they are seen by the majority of citizens to be legitimate.

As a concluding statement, Lord Hailsham’s comment deserved consideration:

“It is the acceptance of convention, which seems to make the British a nation of cricketers, and the Americans a nation of litigants.”

Royal Prerogative - Public Law

2006-10-23T21:34:00.000+08:00

Royal prerogative is the constitutional inheritence from the centuries prior to the existence of parliament. It is a collection of powers which are wide ranging and in terms of strict law, it belongs to the Crown alone. Today the majority of these powers are exercised by the government of the day or by the judiciary in the name of the Crown.

Blackstone defines prerogative as "that special pre-eminence which the King hath over and above all other people..."

AV Dicey refers it to the "residue of discretionary power or arbitrary authority left in the hands of the Crown .."

Therefore, it can be seen that prerogatives are basically common law powers which are recognised by the court. These prerogative powers legitimise executive actions without the need for an Act of Parliament.

Blackstone separates the prerogative into areas realting to foreign affairs and domestic affairs. Foreign affair prerogatives can be subsumed as:

The power to declare war or peace;
Power to enter treaties;
Recognition of foreign States;
Diplomatic relations; &
Disposition of armed forces overseas.

Within the domestic category falls:

Summoning and the dissolution of Parliament;
Appointment of ministers;
Royal assent to Bills;
Granting of honours;
Defence of the realm;
Protective jurisdiction (over children);
Power to stop criminal prosecution;
Granting of mercy and pardon;
Regulation of the terms and conditions of civil service; and
Rights to royal fish and swans.

The dissolution of Parliament lies within the prerogative of the Crown. The Crown has the right to disolve Parliament on its own initiative, and also the right to refuse a dissolution as requested by the Prime Minister.

The dismissal of His government by King William IV in 1835 reveals the constitutional danger of the exercise of monarchical power. The King misjudged the strength of public opinions against the government. Bahegot evaluates this situation and described it as the last precedent for royal onslaught on a ministry - they will leave a ministry trusted by Parliament to the judgement of Parliament. It is suggested that 'a Royal dissolution in our times will be unconstitutional' (Marshall, 1984). With parliamentary process of government functioning correctly, there should never be a situation arising in which an exercise of prerogative power by the Crown would become necessary.

In Divey view, a dissolution is allowable, or necessary, whenever the wishes of the legisture are, or may fairly be presumed to be, different from the wishes of the nation.

The UK constitution is founded on the idea of the Rule of Law which concerns the allocation of power and the control of its exercise.

The control of civil service is vested in the Crown. In reality, civil servants have no contractual relationship with the Crown as their salaries and benefits are prescribed by statute, but for the most part, the civil service is governed under the prerogatives.

Consistent with the doctrine of Parliamentary Sovereignty, Parliament has the right and power to abolish or preserve prerogative powerts. Parliament can through its scrutiny procedures call on the government to account for its exercise of the prerogative.

Parliament may declare certain former prerogative powers to be unlawful and place them firmly within parliament's power (example: The Bill of Rights 1689). However, unless the prerogative is expressly abolished, it will remain as a source of power but one which cannot be exercised while a statute regulating the same subject is in force.

In terms of judicial control, the courts have always taken the view that they are the arbiters of whether or not a prerogative power exists. The case of BBC v Johns (1965) makes it clear that no new prerogative can be extablished.

In the case of Laker Airways v Dept of Trade (1977), it was held by the court that a prerogative - in this case the treaty-making power - could not be used to defeat a right granted under an Act of Parliament.

Similarly, in R v Secretary of State for Home Dept ex parte Fire Brigade Union (1995), the House of Lords ruled that the Home Secretary had no power under the prerogative to amend the Criminal Injuries Compensation Scheme (which was set up under the prerogative), where an Act of Parliament provided for its amendment (eventhough the relevant provisions had not been brought into force).

As regard to Justiciability, the courts regard themselves as competent to review the existence of the prerogative. In the leading case of GCHQ, the House of Lords were unanimous in holding that prerogative powers are capable of judicial review in its exercise. The principles established in the GCHQ case is that (1) the courts had the jurisdiction to review prerogative acts in the same manner as under an Act of Parliament; and (2) the court would only review prerogative acts which do not involve matters of high policy best determined by the executives.

In conclusion, royal prerogative has been seen to be an elusive constitutional animal which is capable of appearing in any form and under any unforeseen circumstances. The case of Northrumbria Police Authority illustrate the fundamental difficulty of identifying and defining prerogative power.

It can be agreed that there is little to suggest that replacing such power by statute, even if they could be identified, would lead to fewer abuses of power. For this reason, the prerogative is unlikely to retain its uncertain form, thus leaving to government a residue of largely uncontrolled power.

Separation of Power - Public Law

2006-10-23T13:14:00.000+08:00

The separation of power is a constitutional principle designed to ensure that the functions, personnel and powers of the major institutions of the State are not concentrated in any one body.

Under the generally uncodified, largely unwritten UK constitution, there is no strict separation of powers that exists. It is basically a system for check and balances which ensures that powers are not abused.

The identification of the three lements of the constitution derives from Aristotle in his book 'The Politics'. The doctrine of Separation of Power can be traced back to the reign of King Edward I (1272-1307).

Montesqueiu systematically reformulated the doctrine of Separation of Power in his book, 'The Spirit of Law'. He distinguished it into three separate organs, i.e. legislature, executive, and the judiciary. He maintains that members of one organ should not be member of the other; neither should one organ exercise the function of the other.

UK basically adopted the system of 'Parliamentary Executive', blending legislature with the executives. For example, the Home Secretary who is a senior member of the cabinet (executive function) is also a member of the Hous eof Common (legislative function). He also exercise an adjudicative function (judicial) within the criminal process, such as, the granting of mercy and pardon in the name of the Crown.

Another example is the House of Lords, being the second chamber and the Upper House of the legislature, which is also the highest court of last resort in UK. Law Lords and Life Peers also takes part in parliamentary debates.

The prime Minister and his Ministers who are all members of Parliament sit in the House of Commons. These show that the executives are present at the heart of Parliament. By contrast, in USA, the President is not a member of the legislature (Congress) and is elected separately from Congressmen. This may result in the President being of a different political party from the majority of Congressmen. That cannot happen in UK as the Prime Minister will always be the leader of the political party that won a majority of seats in a general election.

Parliament may delegate law-making powers to the government through powers to draft subordinate or delegated legislation. Such legislation is subjected to the ultimate approval of Parliament. Delegated legislation, however, does raise questions about the Separation of Powers between the executive and legislature.

AS the UK constitution is largely unwritten and has eveolved over time, it can be seen that there is no strict separation of powers and the system lies in its constitutional conventions.

For example, the convention of ministerial responsibility ensures the accountability of government to Parliament. The doctrine of ministerial responsibility consists of conventions of collective responsibility and individual responsibility. Collective responsibility means members of the cabinet and non-cabinet ministers as a whole are answerable and accountable to Parliament. Ministers must collectively support the final decisions made by the cabinet, even if they are disagreeable. They must show unity by vote or speech and outside Parliament. If any minister would not support the policy adopted by the cabinet, by convention, he is expected to resign. An example is Michael Haseltine, the then Secretary of State for Defence who resign from office when he could not accept the Prime Minister’s directive to his ministers, that all issues pertaining to Westland Helicopters and any ministerial statements would first have to be cleared by the cabinet.

Individual responsibility means that ministers must be individually responsible and accountable for their own conduct as well as the conduct of their department. Ministers shall take the praise for success and also blames for its failures within their department. For departmental failure, a minister may face a vote of censure and may be required to resign.

In 1963, the Minister of Defence, Mr. John Profumo was found to have been having a sexual relationship with a prostitute, Christine Keeler. Ms Keeler was at the same time found to enjoy a close personal relationship with a Russian Attache’. When questioned, Profumo lied to the House. When the truth emerged, he resigned from office.

In the Crichel Down affair (1954), a public enquiry found that there had been inaccuracies in the report on the land. The report was not check by the relevant minister. The then Minister of Agriculture, Thomas Dugdale accepted responsibility and resigned.

However, there are also cases whereby the ministers may excused themselves from the responsibilities of failure due to departmental mismanagement. This can be seen in the matter of the Service Director of prison who was dismissed after it was revealed that arms and escape equipments were discovered in prison. The Home Secretary at that time, Michael Howard did not resign.

Scrutinising the efficiency and effectiveness with which government have used their resources is handled by the Public Accounts Committee (PAC). The PAC has the task to examine the reports of the Parliamentary Commissioner for Administration (PCA) and the Health Service Commissioner (HSC). Additionally the PAC also considers matters relating to the Civil Services.

Monitoring the privilege of Parliament and the conduct of Ministers is carried out by the Committee on Standards and privileges (CSP). Examining delegated leglislation is the task of the Select Committee on Statutory instruments.

Departmental Select Committees (DSC) established in 1979 provides for scrutinising ministers and bureaucracies to ensure effective control and stewardship.

It can be seen that the House of Commons performs a number of useful functions with varying results. However, it is clear that it could achieve far greater results through the use of more varied procedures, particularly in Committees and far greater use of pre-legislative scrutiny by the expert Select-Committee and Ombudmen, which has already shown some impact.

Recent development in Common Law had raise the issue of judicial encroachment in legislative functions. The incorporation of the ECHR into domestic law via HRA 1998 do raise the question about the preservation of the doctrine of parliamentary supremacy and separation of power. The caveat is to query to what extent membership in EU and ECHR had allowed the courts to adjudicate the legality and validity of the Acts of Parliament.

For example, in the case of R v A (2001), the House of Lords was seen to have utilised s.3 HRA 1998 as a radical tool that portrays a judiciary shift of power from legislative to judicial power. In this case, Lord Steyn did not declare the statute as incompatible but went on to declare s.41 of the Youth Justice Criminal Evidence Act 1999 as 'too widely' drafted in which the Law Lords contrued that the Act had made excessive inroad into the rights for a fair trial which is contrary to s.6 ECHR. In Lord Steyn words: "to bring rights home effectively, s.3 must be the prime remedial measure and s.4 HRA the measure of last resort," which in the words of Lord Simmonds would have been seen as "a naked usurpation of the legislative functions".

However, it must be noted that the HRA 1998 and the ECA 1972 are regarded as partially entrenched and are still subjected to the will of Parliament. It must be remembered that Parliament is still the supreme law-making body, elected by the people, and have the power to overturn judicial decisions. Therefore, there still exist a possibility of express repeal.

In conclusion, it is recognised that certain degree of power and functions between the three organs do overlap, which suggest that although each organ functions within it's own sphere, none is supreme. The sphere of power conceded to Parliament to enact law to regulate it's own procedure is clear example of the existence of Separation of Power. Therefore, the doctrine of Separation of Power is deemed to be a rule of political wisdom.

Separation of Power (note) - Public Law

2006-10-23T01:13:00.000+08:00

Separation of Power – Examination tips

Introduction

Many examination answers fall down because candidates simply recite the doctrine of separation of powers and proceed to give examples of how the British constitution observes the separation of powers or disregards it. Hence the role of the Lord Chancellor as a member of all three branches of government is cited as evidence that the British constitution pays only lip service to the doctrine. Similarly candidates cite the fact that ministers are members of the legislature that the Law Lords sit as members of the legislature in the House of Lords and that tribunals being part of the executive determine disputes as to the law.

Such an analysis is hopelessly unsophisticated as it fails to address the key underlying issues. First, it has to be stressed that breaches of the doctrine may not be important if there are effective checks and balances in place. Hence, a key aspect of the doctrine of the separation of powers is the application of judicial reviews, whereby the courts can rule on the legality of executive action. A more reflective analysis will be to reveal that some breaches of the separation of powers have a positive virtue. Ministers who are members of the legislature are more easily accountable to MPs; Law Lords sitting in the legislature can contribute to law reform measures; tribunals may be more effective, quicker and cheaper than courts of law in determining disputes in specialist area.

Similarly, in Royal prerogatives, Judicial reviews serves as the check and balances to ensure that executives (ministers do not abuse their powers.

(Read chapter 6.9 on Judicial Review in ELS Gary Slapper (page 236-257; 6th. Edition) and use the illustrations and cases cited there to illustrate the way courts had kept the check and balance to mitigate on executive abuses.

Rule of Law - Public Law

2006-10-23T00:56:00.000+08:00

The rule of law is considered the most fundamental doctrines of the constitution of UK. The constitution is said to be founded on the idea of the rule fo law.

AV Dicey's view on the rule of law cannot be ignored because of the lasting influence he has had. Dicey's views were derived from his understanding of the nature of democracy in UK as 'unitary and self-correcting in which the will of the people are expressed through Parliament, and in which Parliament controlled the government.

In setting out the rule of law, Dicey considered three distinct elements:

No punishment may be inflicted on anyone other than for a breach of the law;
Irrespective of rank and status, all men are equal under the law; and
The rights and freedom of citizen are best protected under the common law.

The first principle involves the absence of arbitrary power on the part of the government and prevent it from making retrospective penal law.This means that no men is punishable except for a distinct breach of the law of the land. In order to comply fully with this requirement, laws should be open and accessible, clear and certain.

Under social contract theories, the individual citizen transfers his rights to the government. To express it in another way, the individual citizen owe allegiance to the Crown in return for protection of the Crown. The doctrine of allegiance incorporates the idea of obedience to law - both on the part of the citizen and the government.

Under the rule of law, the extent of the State's power and the manner in which it is exercise is limited and controlled by law. This control is aimed at preventing the State from acquiring and using wide discretionary powers.

In Dicey's view, inherent in discretion is the possibility of it being used in an arbitray manner and will be open to abuses.

If retrospective penal law is imposed, the individual will be placed in the position where his conduct was lawful at the time of his action but, subsequently held to be unlawful.

The court has always construed penal statutes narrowly and will be slow to find that Parliament intended to impose retrospective liability. If the Act of Parliament is expressed in language which is fairly capable of either interpretation, then the court would elect to construe it as prospective only.

In Waddington v Miah (1974), the House of Lords interpreted the Immigration Act 1971 which denied retrospective effect using Article 7 of ECHR which guarantees freedom from retrospectivity.

The second principle is Equality before the law. Dicey emphasise the notion that government itself is also subjected to law and that everyone shall be subjected to the law, irrespective of rank and positions. In the words Lord Denning in Gouriet: "Be ye ever so high, the law is above thee."

The idea of equality before the law is subjected to so many exceptions. In so far as equal powers are concerned, it must be recognised that the police have powers over and above ordinary citizen (under common law and Criminal Evidence Act 1984). Ministers also do have power to enact delegated legislation and the government exercises prerogative powers. Members of Parliament have immunities not available to citizen. In the words of Sir Ivor Jennings, 'No two citizen are entirely equal.'

In the view of TSR Allan, "The constitutional principle of the rule of law serves to bridge the gap between the legal doctrines of parliamentary sovereignty and the political sovereignty of the people ... The rule of law therefore assists in preventing the subversion of the sovereignty of the people by manipulating the legal sovereignty of Parliament."

The evidence for the notion of equality before the law is neither clear nor uncontentious. There remains room for doubt and arguments.

The third principle deals with the protection of rights under Common law. Dicey's preference demonstrates a faith in the judiciary.

In Dicey's view, the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (example: the rights to personal liberty and the Rights for a fair trial) is with us the result of judicial decisions.

The third limb of Dicey may look unsustainable nowadays. The enactment of the HRA 1998 which incorporates rights protected under the ECHR includes the obligations of the government to respect human rights (Article 1), Rights to liberty and security (Article 3), Rights to a fair trial (Article 6), and no punishment without law (Article 7).

It is essential to recognise that Dicey was writing from a particular political perspective. Dicey is a committed believer of free market operations and was opposed to any increase in State activity that would regulate the economy.

Dicey laid great emphasis on government by law, rather than by men.

In conclusion, the rule of law represents a challenge to State authority and power, demanding both that power be granted legitimately and that their exercise is according to law. The law is not autonomous but rests on the support of those it governs. Whilst the rule of law places law above everyone, it remains paradoxically subjected to the ultimate judgement of the people.

The Rule of Law and Relevance in Contemporary Society

2006-10-23T00:02:00.000+08:00

In considering the meaning of the concept of "Rule of Law", one is to immediately drawn into a consideration of the work of AV Dicey on the English Constitution.

According to Dicey, the rule of law was of the key features which distinguishes the English constitution from its continental counterparts. In setting out the meaning of the rule of law, Dicey considered 3 distinct elements:

1) The extent of the State's power and the manner in which it exercise such power which should be limited and controlled by the law. This control is aimed at preventing the State from acquiring and using wide discretionary powers which are inherent in discretion and which lies the possibility of it being abused.

2) The second relates to equality before the law. No person should be above the law, irrespective of rank or class and the function of the State are to be subjected to the same law and legal procedures as ordinary citizens.

3) The thrid component relates to the fact that the rules of the English constitution were the outcome of the ordinary law of the land and were based on the provision of remedies by the courts, rather than on the declaration of rights in the form of written constitution.

Essentially, it must be recognised that Dicey was writing at a particular historical period and from a particular political perspective. Dicey is a committed believer of the free market operation and was opposed to any for of intervention by the State to regulate the economy. It is least arguable that at the time Dicey wrote his 'Law of the Constitution', he was trying to represent change which in fact had occurred in the UK polity.

Sir Ivor Jennings, in his book 'The Law and the Constitution' expressed that Dicey's version of the rule of law means "that the State exercises only the functions of carrying out external relations and maintaining order", which is not true as it would mean that if the State ought to exercise these functions only, it is a rule of policy for Whigs (Whigs were former political party).

Social thinker Friedrich Von Hayek followed Dicey in emphasising its essential component as the absence of arbitrary power in the hands of the State. According to Hayek in his "The Road to Sefrdom": "Stripped of all technicalities, the rule of law means that government in all its actions is bound by rules and announced beforehand."

According to Hayek, the rule of law implies limits on the scope of legislation, it restricts it to the kind of general rules as formal law; and excludes legislation directly aimed at particular people. Nor should law be aimed at particular goals.

In other words, the government has no place in usurping the authority of individuals by deciding their course of action for them. the job of law is therefore to set boundaries of personal action, and not to dictate the course of such action. Laws should also not be of particular in content or application, but should be general in nature, applying to all and benefiting no one in particular.

EP Thompson shares Hayek's distrust of the encroachments of the modern State and he is equally critical of the extent to which the contemporary State has intervened and interfered with the day to day lives of its citizens.

Thompson is concerned primarily with the way in which State has progressively lopped branches off the 'liberty tree' by increasingly interfering with civil liberties and rights of individual citizens such as the increases in police powers. The point is that there are general process in which the State had increase their power and at the same time remove exisitng rights from individuals.

In 'Whigs and Hunters' (1975), Thompson analyses the evolution of the doctrine of the rule of law and conclude that: "the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power's all-intrusive claims, seems to me an unqualified human good".

Other legal philosophers have recognised the need for, and have come to terms with State intervention in the pursuit of substantive as well as merely formal justice and have provided new ways of understanding the rule of law as a means of controlling discretion.

Joseph Raz took Hayek to task for disguising a socio-economic argument as a legal one, in order to strike at policies of which he did not approve as being contrary to the rule of law. Joseph Raz suggested that such reasoning was in danger of identifying the 'rule of law' with the rule of good law, that is, law of which Hayek approved. Joseph Raz recognises the need for the government of men as well as of laws and that the pursuit of social goals may require the enactment of both general and particular laws. To Raz, the law must be capable of guiding the individuals' behavior and that it must be prospective rather than retroactive. The law should also be clear and open in order to enable people to understand their actions in line with them. Laws should also be realtively stable and that the judiciary independence should be guaranteed. To Raz, the principle of natural justice should be observed and that the courts should have power to review the way in whichy the other principles are implemented.

However, it can be seen that contemporary State was no longer satisfied simply to provide a legal framework for the conduct of economic activity, but was increasingly, becoming actively involved in the direct co-ordination and regulation of economic activity in the pursuit of its own goals. The replacement of the free market by a planned economy has major consequences for the form of law, as clearly stated, and fixed general laws are replaced by open textured discretionary legislation, empowering State functionaries to take action as they considered necessary.

It can be noted that where the rule of law are reduced to a matter of mere parliamentary procedure, as arguably, as has been the case in the contemporary situation of the UK, it does not go far in protecting individual rights and general civil liberties from legislative encroachment. It is, perhaps, for this reason that there has been the substantial recent pressure for the UK to have either a written constitution, or to incorporate the ECHR into its law as a means of entrenching civil liberties and providing the safeguard that, arguably, the strict version of the rule of law used to provide.

It is argued that there remains a need for the limitation and control of State activity which, arguably, the rule of law provides, at least in certain formulations.

It can be seen that the HRA 1998 had reflected a move towards the entrenchment of rights recognised under the European Convention. The HRA 1998 has profound implications for the operation of the English legal system. In Lord Denning's word:

"No longer is European law an incoming tide flowing up the estuaries of England. It is now like a tidal wave bringing down our sea walls and flowing inland over our fields and houses - to the dismay of all."

(The Independent, 16 July, 1990)

Parliamentary Sovereignty - Public Law

2006-10-23T00:01:00.000+08:00

The reason that Parliament is sovereign (legislative supremacy) is a matter of fact is because the judges give it recognition. From a political perspective, sovereignty lies not in a law-making body (Parliament) but with the people. Legal sovereignty is dependent upon the acceptance of its authority by the people, who – if the legislature abuses its trust – may overthrow that authority and replace it.

In AV Dicey’s view, parliamentary sovereignty entails three principal aspects:

1. Parliament – the supreme law making body – may legislate on any subject matter.

2. No Parliament can be restricted by a predecessor or bound it’s successor.

3. Nobody, including the court, may question the validity of Acts of Parliament.

In theory, Parliament’s power remains absolute. To demonstrate the supremacy of Parliament, it can be seen that international laws cannot take legal effect within the law of UK unless brought into law by an Act of Parliament.

Until 1973, the only ‘law’ made by UK acting in agreement with other states was in the form of international treaties. As we have seen, treaties are incapable of creating rights or obligations enforceable in UK courts.

UK became a member of the European Communities in 1973. At such, the laws of the community together with the judicial decisions of the European Court are binding on all member states.

The acceptance of the Community Law was incorporated under the European Community Act 1972 – an Act of the UK Parliament. Accordingly, Community Law drives its forces and authority under this Act.

By the fact that Parliament had enacted an Act of Parliament directing the courts to comply with the Community Law, it clearly indicates that Parliament has been supreme.

However, membership of the community raises some unique questions of the sovereignty of Parliament. The principal issue for consideration is the attitude of the judges towards community law. From the perspective of the European Courts, Community Law prevails over domestic law and that UK legislatures have no power to enact binding legislation contrary to Community Law (s.2 ECA 1972)

As Community Law prevails over domestic law and that any Act of Parliament in UK shall be construed in conformance to Community Law, it can be argued that the Diceyan theory had been impaired.

Despite all appearance on the contrary, and the basis that UK voluntarily acceded to the European Community, the force of the Community Laws are derived from the ECA 1972 – an Act of Parliament of UK – sovereignty is thus prevailed.

In 1949, the council of Europe was established and the European Conventions of Human Rights (ECHR) was ratified by member States in 1951, coming into force in 1953. it was not until 1965 that UK government allowed its citizen to forward their petition on human rights to the ECHR. However, the courts regarded the convention as an aid to interpretation but has no jurisdiction directly to enforce the rights and freedoms under the convention. Accordingly, there existed (Pre-HRA 1998) no obligation on courts to rely on the convention if a source of authority could be found within domestic law.

In the Labour Party’s 1996’s general election manifesto, the party undertook to incorporate Convention rights. The manifesto declared to “Bring Rights Home – Labour’s plan to incorporate ECHR into UK law. The Human Rights Act finally came into force in October 2000. As a result, the ECHR rights and freedom have now become part of English domestic law by virtue of s. 1 of the 1998 Act.

Now, judges in interpreting statutes are required under s. 3(1) of the HRA 1998 to construe statute as far as possible to give effect to the rights as provided in the ECHR.

However, the HRA 1998 does not give the courts the power to set aside Acts of Parliament which are inconsistent with Convention rights, but merely to allow certain courts to make declaration of incompatibility (s. 4 HRA 1998)

In R v A (2001), the House of Lords held that the statutory provision under s. 41 of the Youth Justice and Criminal Evidence Act 1999 were in conflict with Convention rights under Article 6 (Rights to a Fair Trial). S. 3 HRA 1998 places a duty on the court to strive to find a possible interpretation compatible with Convention rights.

Where the courts are unable to interpret statutes in a manner which makes them compatible with Convention rights, a declaration of incompatibility under s. 4 HRA 1998 may be issued. This puts the government and Parliament ‘on notice’ that the statute requires amendment (R (Anderson ) v Secretary of State for Home Dept (2002) HL)

In conclusion, judges are seen to be more freer in their approach to interpret statutes. As shown in the case of R v A (No.2), Lord Steyn enunciated that a declaration of incompatibility under s. 4 HRA 1998 is only a measure of last resort.

Similarly, in R v Lambert (2001), Lord Steyn said: “It is clear that the 1998 Act must be given its full impact and that long or well entrenched ideas may have to be set aside; sacred cows culled.”

CLP Fraud

2006-06-19T21:25:00.000+08:00

How many lawyers currently practising had paid for their licence?

Highland Tower Episode

2006-06-19T21:08:00.000+08:00

1993, Highland Tower in Kuala Lumpur Collapse

Dec 2002, Court of Appeal awarded the residents damages

February 2006, Federal Court ruled that Council was not liable to pay damages for negligence.

Muhammad Kamil vs Eusoff Chin

2006-06-19T20:51:00.000+08:00

Sri Ram vs RK Nathan

2006-06-19T20:45:00.000+08:00

Occupiers Liability & Vacarious Liability

2006-04-08T23:20:00.000+08:00

In my recent article Construction Site Supervisors are held liable for negligence? Khew Ah San, the sub-contractor supervisor for the Plaza Damas project, was charged in the court with manslaughter and abetment in causing the death of Dr Liew Boon Horng through negligence. I posed the question:

What about vicarious liability?

What about Occupiers Liability?

Some of my friends and readers asked me to explain.

Occupiers Liability law relates to such liability as regard to visitors and trespassers of property. It refers to the fact that an owner of a property will owe a duty of care to the person who come on the premise and this duty is basically to ensure that people are not harmed by the state of the premise or activity carried on to the premises (see: Fairchild v Glenhoven Funeral Services (2002)).

In United Kingdom, the law relating to such liability is largely to be found in the Occupiers Liability Act 1957 (for visitors) and the Occupiers Liability Act 1984 (as regard to non-visitors).

The Occupiers Liability Act 1957 sets out the duty of care to be imposed upon an occupier in respect of lawful visitors. By virtue of the Occupiers’ Liability Act 1957, the occupier of premises owes the same common duty of cure to lawful visitors to or on his premises. Note that the liability to compensate persons injured on premises owing to their dangerous state is in general upon the occupier and not the owner. The criterion for determining occupation is effective or sufficient degree of control. Thus one does not need to be in actual possession of the premises in question in order to be in occupation or to be deemed an occupier. It is sufficient if he/she has a substantial degree of control of the premises in question. He owes this duty of care to all lawful visitors to the premises except in so far as the duty is modified by agreement.

Under the Occupiers’ Liability Act 1984, a statutory duty is also owed by the occupier to persons other than his visitors – e.g. to trespassers. A trespasser is a person who intentionally goes on to land in the possession of another without lawful authority. Thus, for instance, members of the public who are admitted to a theatre are visitors to whom the occupier of the premises owes, prima facie, the common duty of care. They are visitors in the sense that a theatre ticket is a license coupled with an agreement not to revoke that licence until the termination of the performance. See the case of Hurst v Picture Theatres Ltd (1915) 1 KB 1 CA.

The question may be asked as to who is a visitor? At common law generally speaking, it was necessary to distinguish between invitees, licencees and trespassers on premises. The approximate distinction between invitees and licencees was that an invitee was requested to enter the premises in the interest of the occupier, where as a licencee was merely permitted to enter. But this does not seem too important any longer owing to the fact that "visitor: for the purposes of the occupiers Liability Act 1957 embraces those persons who are invitees or licencees at common law. See The Occupiers’ Liability Act 1957, Section 1 (2). This in essence includes anyone to whom the occupier gives any invitation or permission to enter or use the premises. In order to have a clearer understanding of this area of tort jurisprudence, it is still important to strike a distinction between those persons who are and those who are not visitors, since the former, (i.e. those who are visitors) are governed by the Occupiers’ Liability Act 1957 and those who are not visitors are governed by the Occupiers’ Liability Act 1984. The two legislations/Acts were enacted to have effect in place of the rules of common law. Note, however, that the common law imposed on the occupier a higher duty of care towards invitees than towards licencees. The Occupiers’ Liability Act 1984 determines whether any duty is owed by a person as occupier of premises to persons other than his visitors, in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them and if so, what the duty is.

Under the common law, the occupier owed a "humanitarian duty" to the trespasser. See the exemplification of this principle in the case of British Railways Board v Herrington (1972) AC 877 where the defendants owned an electrified line which was fenced off from a meadow where children lawfully played were held liable when some children got injured on the premises. In 1965 the fence had been in a dilapidated condition there for several months and through it people took a short cut across the line. The defendant’s stationmaster, who was responsible for that stretch of line, was notified in April 1965 that children had been on it, but the fence was not repaired. On June 7,1965, the Plaintiff, then aged six, trespassed over the broken fence from the meadow where he had been playing and was injured on the live rail. He brought an action claiming damages for negligence, and the judge held that the defendants were negligent in allowing the fence to fall and remain in a state of disrepair and were liable to the Plaintiff since the emergence of a child trespasser from the meadow on to the line was reasonably foreseeable [In tort jurisprudence the defendant is always liable for the damage or injury that he or a reasonable person can foresee and may not be liable for damage or injury which he or any reasonable person could not have foreseen .

Another case of importance is the decision of the Privy Council in the case of Overseas [U K ] Tankship Ltd v Morts Dock Engineering Co Ltd[The Wagon Mound] 1961, per Viscount Simonds.] The Court of Appeal in the case of British Railway Board v Herrington as mentioned earlier on, further held that the defendant acted in reckless disregard of the Plaintiffs safety. On further appeal to the House of Lords, it was held that the Defendants were in breach of their duty to the Plaintiff who was entitled to damages.

The Occupiers’ Liability Act 1984 was passed following a recommendation of the Law Commission that the duty expressed in varying terms by the House of Lords in the Herrington case.

Section 1 of the 1984 Act provides that it is to replace the common law rules concerning liability for personal injury to trespassers and other entrants outside the protection of the 1957 Act. Thus, a trespasser can bring an action for personal injury against occupier of premises in certain circumstances under the Occupiers’ Liability Act 1984. This does not include claims for property damage.

Section 1, sub-section 4 of the Occupiers Liability Act 1984 imposes on the occupier of premises a duty to take "such care as is reasonable in all the circumstances of the case" to see that the trespasser does not suffer injury on the premises" by reason of any danger on them, provided three conditions are met. These are (a) that the occupier knows, or ought to know, of the existence of the danger on his premises and (b) that he knows or ought to know that the trespasser is in the vicinity of the danger, or likely to come into it, and (c) that the risk is one against which in all the circumstances of the case, he may reasonably be expected to offer some protection. In essence we owe a duty of care to a thief or burglar who might sneak on to our premises to steal or rob under the Occupiers Liability Act 1984.

There is no law in Malaysia which is equivalent to the United Kingdom Occupiers' Liability Act, 1957. In such a situation, common law principles in United Kingdom will apply to Malaysian law (see: Section 3(2) Civil Law Act 1956).

If that is the case then the next question to ask is who is the occupier for Plaza Damas Project? Is it the developer, the property owner, the contractor, the sub-contractor or local authority or are all are jointly liable in their respective capacities?

This, I will have to leave it to the court to decide.

The next question to be asked is: "What about the law of negligence"?

The issue in this case is to establish the negligent act which resulted in the kind of damage that in fact occurred. It is also necessary to consider whether an action for vicarious liability (which means employer will be liable for employees negligent act) could be established in regard to the breach of a duty of care.

In order to hold an employer vicariously liable for the tort committed by the employee, the plaintiff must establish three elements: (1) that the employee (tortfessor) is under the employment of the defendant company; (2) that the employee had committed a tort; (3) and the employee had committed the tort during the course of employment. However, an employer is only liable for the tort of his own employees; not those of the independent contractors. So, for vicarious liability, it is necessary to distinguish between an employee and an independent contractor.

In Ready Mixed Concrete Ltd v Minister of Pensions & National Insurance (1968), it was held that there were 3 conditions for the existence of a contract of service. (1) The employee agrees to provide his work and skill in return for wages or other renumeration; (2) The employee agrees, expressly or impliedly to be directed as to the mode of performance; and (3) The other provisions of the contract are consistent with its being a contract of service.

In this case, Khew Ah Sum is employed by San Meng Construction, the sub-contractor, who then is employed by the main contractor and property developer. Who then should be held liable?

In Mersey Docks & Harbour Board v Coggins & Griffith Ltd (1967) the court held that the burden of proof rests upon the general or permanent employer to shift the prima facie responsibility to the hirer (in this case, the main contractor or property developer).

The important question is: "Who is entitled to give the orders as to how to do the work and how it should be done." The ultimate criteria is: "Who is in control over the method of performing the work?"

In the case of Plaza Damas, it seems that the sub-contractor, San Meng Construction holds the controlling power and influence over the methods of construction, and not Khew Ah Sum. At such, it is submitted that Khew could rely on this defence and be acquitted over the charge of manslaughter.

How is it that the prosecution had decided to indict Khew instead of San Meng Construction? It is a fact that the prosecution would be able to prove beyond reasonable doubt that San Meng Construction had breach the duty of care and will be liable. That way, justice would be seen to be done.

It seems that prosecutions will lose this cases ...

and the reasons ... lack of legal knowledge.

This is just my layman's opinion - that Khew need not fear. There are sufficient legal authorities to defend him. The prosecution may have to go back to law school. I can be wrong; this is just a legal discussion and not intended to form a subjudice. If it is of the opinion that it could constitute subjudice, then I will delete this post.

I believe the DPP would amend the charge for manslaughter Section 304(b) of the Penal Code or the alternative charge under Section 109 of the Penal Code to charges under section 24 Occupational Safety and Health Act 1994.

In Section 24 OSHA 1994,the general duties of employees at work are:

(1) It shall be the duty of every employee while at work

(a) to take reasonable care for the safety and health of himself and of other persons who may be affected by his acts or omissions at work;

(b) to co-operate with his employer or any other person in the discharge of any duty or requirement imposed on the employer or that other person by this Act or any regulation made thereunder;

(c) to wear or use at all times any protective equipment or clothing provided by the employer for the purpose of preventing risks to his safety and health; and

(d) to comply with any instruction or measure on occupational safety and health instituted by his employer or any other person by or under this Act or any regulation made thereunder.

(2) A person who contravenes the provisions of this section shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding three months or to both.

Under Section 51 OSHA 1994, the liability for offences upon conviction which is expressly provided for, under under section 24(2) will be upheld.

The charges under Penal Code is between 2-10 years jail term or a fine, or both.

The charge under OSHA is a fine not exceeding RM1,000 or a jail term not exceeding 3 months or both.

It's much lighter sentence and by the time the judgment is pronounced, Khew would have been considered to have served his term and be a free man.

Construction Site Supervisors are held liable for negligence?

2006-04-06T23:32:00.000+08:00

A sub-contractor's site supervisor, Khew Ah Sum, 48, employed by San Meng Construction for the Plaza Damas project will be charged in the court with manslaughter and abetment in causing the death of Dr Liew Boon Horng through negligence last year.

If convicted, he faces up to 10 years' jail, or a fine or both under Section 304(b) of the Penal Code. Khew Ah Sum also faces an alternative charge of abetting in causing the death of Dr Liew, 35, by negligence at the same place and time. He was said to have committed the offence with two construction workers – Hasibudin Abd Razak and Suradi Hassan. If found guilty, he can be jailed up to two years or fined or both under Section 109 of the Penal Code read together with Section 304A of the same Code.

DPP Zahruddin Mohamed Isa said Hasibudin and Suradi would be prosecution witnesses which means, the two workers will not be charged.

What about vicarious liability?

What about Occupiers Liability?

It seems the prosecution would rather adopt a simplistic approach to indict a supervisor while the employers just pay a fine.

This case should involve employer's liability and occupier's liability as the site supervisor works under the direction and supervision of the sub-contractor, main-contractor and property developer. In fact, the consulting engineers and architects form part of the acts of negligence and nuisances.

Dr Liew Boon Horng, the managing consultant of Ethos Consultant, was killed when an iron mould, weighing almost two tonnes, fell on his BMW as it was being driven into the car park of Plaza Damas that day. The iron mould fell off the 20th floor of one of the two condominium-cum-office blocks under construction. Dr Liew, who was seated in the front passenger seat, died on the spot while his wife Joanne Loy, 35, who sat behind the driver, was warded at the University Malaya Medical Centre with internal bleeding. The couple have two daughters, aged four and six. The driver, Ahmad Harun Jajuli, 50, sustained head injuries.

Rights of Easement

2006-02-16T00:34:00.000+08:00

You buy a house costing a million in upmarket Mount Kiara - hell of expensive, but you believe it's worth it as it's a good investment.

Suddenly, at the back of your house, the neighbour developer built a 10 meter high wall which blocks your rights to have good airflow and lights. Worse off, the wall develops crack and wet soil seeps out of the cracks.

Now, you are at risk that soon, you will be asked to move out of your house due to the high risk of collapse. Nobody wants to buy your house and you have hundreds of thousands in mortgage loan to settle with your bankers.

Read this story:

House owners in Villa Aseana, a new housing project in Mount Kiara are angry that a 10m high wall has been built behind their new houses.

The developer of the land next door, Merge Power S/B erected the wall so that it could fill up the land’s sloping terrain with earth for its building project.

The wall however has showed signs of cracks and soils from the other side are leaking through the cracks. The residents had written to city hall and City Hall had issued an order to the developer to tear down the wall. The approved plan only allowed a 1m high wall. City Hall said they had given the developer one month’s notice to take down the wall or sent in the amended drawings for approval. City Hall said they will continue to monitor the developer and ensure that they abide by the plan.

What will you do if you are the dominant owner? What is your rights against the servient owner?

Let's look at a few English cases:

Bernstein v Skyviews & General Ltd [1978] QB: The case establishs that a landowner does not have unqualified rights over the airspace over his land. Facts: Skyviews employee flew over Bernstein's land, took photograph of his house and offered it for sale to Bernstein. Bernstein too exception and sued for trespass. Griffith J. dicta: "I can find no support in authority for the view that a landowner's rights in the air space above his property extend to an unlimited height. The problem is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offers in the use of air space. This balance in my judgment is to restrict the rights to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it; and declaring that above that height he has no greater rights in the air space than any other member of the public."

Allen v Greenwood [1979]Court of Appeal: This case illustrate the important decision in respect of the easement of light. It makes clear that the amount of light which can be acquired as an easement is to be measured according to the nature of the building in question and the purpose for which it is normally used.

Colls v Home & Colonial Stores Ltd [1904] House of Lords: The amount of light which can be acquired as an easement is such amount as was required according to the ordinary notions of mankind for the beneficial use of premises.

Carr-Saunders v Dick McNeil Associates Ltd [1986] QB: In the case of business premises the right to light is sufficient light for the use of the premises for its ordinary uses. The case states that the question is not how much light has been taken but how much is left. The extent of the dominant owner's right is neither increased nor diminished by the actual use to which the dominant owner has chosen to put his premise or any rooms in them; for he is entitled to such access of light as will leave the premise adequately lit for all ordinary purposes for which they may reasonably be expected to be used. It will include all other potential uses to which the dominant owner may reasonably be expected to put the premises in the future.

Re Ellenborough Park, Powell v Maddison [1955] Court of Appeal: This is the leading authority on the essential characteristics which a right must possess in order to be capable of being an easement. First, easement cannot exist 'in gloss' (i.e. appurtenant to any land). Second, as to the need for an easement to accommodate the dominant tenement, this requirement would not be satisfied if the right is for the personal advantage of someone. Third, the requirement that the dominant and servient owners must be different persons arises from the fact that a person cannot have a right over his own land (i.e against himself). This requirement is satisfied if the two tenements are owned by the same person but are occupied by different person, Fourth, the right must be capable of forming the subject matter of a grant, i.e. the right must be sufficiently definite and that there must be both a capable grantor and grantee. The right must also be a kind already recognised as capable of being an easement.

Batchelor v Marlow (2001) Court of Appeal: the decision by the court demonstrates that a crucial factor in seeking to establish an easement is that the right claimed must leave the servient owner with reasonable use of the land.

Copeland v Green half [1952] Ch: This case laid down the principle that for a right to be an easement it must be a right against other land and not a right to possession of the other (i.e. servient) land.

Nickerson v Barraclough [1981] Court of Appeal: This case is about a landlocked except for an access to a highway over a bridge onto a lane belonging to the defendant who denied any right of way. The court of first instance held that an easement of necessity will exist if the land are made unusable and that there is a rule of public policy that no transaction should without good reason, be treated as effectual to deprive land of any means of access. However, the Appeal Court held that the doctrine by way of necessity was based on implication from circumstances and not public policy. Where an alternative route - albeit inconvenient - is available there can be no easement of necessity (Titchmarsh v Royston Water Co Ltd (1899).

Wheeldon v Burrows (1879) Court of Appeal: This is the leading authority on the acquisition of easements. The rule in Wheeldon is one of the ways in which an easement can be acquired by implied grant. The case laid down that on the grant of part of a tenement there would pass to the grantee as easements all quasi easements which were continuous and apparent; or necessary for the reasonable enjoyment of the land granted; and used by the grantor at the time of the grant for the benefit of the part granted.

In essence, the rights capable of being easements are:

#A right to receive light through defined aperture in a building;

#A right to the passage of air through a defined channel;

#A right to have a building supported by the wall of another building;

#A right to require the servient owner to fence his land;

#A right to park a vehicle in a defined area but must not leave the servient owner without any reasonable use of his land;

#A right to the passage of piped water across another person's land;

#A right to a view:

#A right to privacy;

#A right to general flow of air over land.

The fundamental rule of law is that user of the rights must not use force in order to enjoy the claimed right, nor must user take place under protest from the servient owner (Nec vi). User who enjoyed by permission cannot be as of right (Nec precario).

Paradox of Separation of Power

2005-10-17T10:09:00.000+08:00

SEPARATION OF POWERS

Today, Court of Appeal judge Datuk Abdul Kadir Sulaiman suggested that the Attorney-General recommend to the Government that the Dangerous Drugs Act 1952 be amended. "We are prepared to stand by if the laws are amended," he said, noting that the dadah problem was the number one threat in the country.

The judge said the DDA was a man-made law and could be amended to keep up with the times.

"There is a brick wall against you and so break it," he said.

Abdul Kadir made this remark when deputy public prosecutor Anna Ng Fui Choo was submitting an appeal against a decision of a lower court to reduce a dadah trafficking charge to possession.

A Federal Court ruling in February that the prosecution had to prove positive and affirmative possession in order to invoke presumption of trafficking.

The prosecution of trafficking cases was thrown into doubt after a Federal Court, by a 5-1 majority, upheld the rule against double presumption.

In 1998, the court decided that if the prosecution could not prove with actual and affirmative evidence that an accused person was in possession of drugs, the prosecution could not invoke the presumption that the accused was a trafficker.

To do so, the court ruled, would be tantamount to double presumption.

This means that the court must first presume that the accused had possession of the drugs, and again presume he was a trafficker.

CRITICAL ANALYSIS:

Montesquieu propounded the theory of Separation of Power in his influential work called 'The Spirit of the Laws' in 1748. The theory contends that the three main powers of government, namely the legislative, the executive and the judicial, should be organically and functionally separated so as to avoid the risk of abuse of power.

The theory requires that no member of one organ of government should at the same time be a member of another organ, and that no one should exercise more than one of the three functions of government, namely: (a) Law-making (Parliament); (b) Policy-making and Administration; and (The Executives), and (c) Interpretation and Application of the law (The Judiciary).

John Locke (1690) observed that the three organs of government should not be allowed to ‘get into one hand’. This is because of the temptation to wield power for private advantage and the potential threat to individual liberties was such that the making and execution of law had to be allocated to separate branches of government.

In terms of modern constitution, adherence to the doctrine would require mechanisms to ensure that there were no overlaps in terms of members of one branch of the government performing the functions of another.

In De Smith's view, Separation of Power was not the main issue that led to abuses in governmental system, but whether there exist a system of checks and balances to avoid tyranny. It is to the judiciary that citizens will look for the protection from abuses of executive power.

The question arises here is: "Why is the judge making suggestions and propositions to the prosecution to amend the Act of Parliament just because the prosecution and the law enforcers are incompetent in gathering their evidence sufficient for the judiciary to convict those accused?" The Rule of Law in a democratic countries is that: "A person is not guilty until proven so." It is the duty of the prosecution to prove beyond reasonable doubt that the accused had committed the Actus Reus (crime act), and had the necessary Mens Rea (intention or recklessness) to a crime act. Failure of the prosecution to prove beyond reasonable doubt, the duty of the judiciary is to acquint the defendant and set him free in accordance with the law of natural justice.

Datuk Abdul Kadir Sulaiman suggested to the Attorney-General recommending that the Government amend the Dangerous Drugs Act 1952 so that the judiciary "are prepared to stand by if the laws are amended," is indicative that the justice system is prepared to deviate from the Rule of Law governing judicial independence and which will be in direct conflict of the rule of natural justice.

Attorney-General Tan Sri Abdul Gani Patail in response to the recommendation by the judge said that his Chamber are looking at making amendments to the Act after a comprehensive study had carried out.

"We don’t make piecemeal amendments. This is not a matter of just getting a conviction. We don’t want easy convictions. We want to get them in a very fair manner," Gani Patail said.

Clearly, it is fortunate that we had an Attorney-General that is intellectually competent and who abides by the rule of law. It is the duty of law makers to ensure that anyone accused of a crime under the law are given a fair hearing and that the law are made to protect and ensure a peaceful and harmonious society. Criminals must be brought to face the law and be punished, but they should be given a fair hearing and should only be convicted when there are sufficient proof of actus reus and mens rea.

It is therefore the duty of the Government to ensure that they have prosecutors and law enforcers who are truly competent to carry out their duties and not by changing and amending laws to fill the gap of incompetencies. The weaknesses of the system should be corrected and improved by providing proper education, training and skill enhancement.

Contract Law - Undue Influence

2005-08-06T03:12:00.000+08:00

The equitable doctrine of undue influence typically provides relief from contract entered into under improper pressure not amounting to duress. It applies to cases where a claimant seeks to set aside a transaction based on the fact that the defendant had exercise undue influence to procure the transaction which is patently and strikingly unfavorable to the claimant. The courts will be willing to intervene where there is some relationship between parties which has been exploited and abused to gain an unfair advantage.

Sir John Salmond gave a useful pointer in Brusewitz v Brown [1923] NZLR 1106 at page 1109:

“The law in general leaves every man at liberty to make such bargains as he pleases, and to dispose of his own property as he chooses. However improvident, unreasonable, or unjust such bargains or dispositions may be, they are binding on every party to them unless he can prove affirmatively the existence of one of the recognized invalidating circumstances, such as fraud or undue influence.”

Equitable doctrines of undue influence

In recent development of equitable doctrine of undue influence in English law, there has been the tendency to categorize the different types of cases by reference to the precise relationship between the parties or the special situation of the weaker party. In Royal Bank of Scotland v Etridge1, a transaction can be set aside in equity if, because it had been procured by undue influence exerted by one party (A) on the other (B), where it cannot “fairly be treated as the expression of (B’s) free will.” Reliefs sought under undue influence are group into two categories:

1. Actual Pressure
2. Special Relationship

Actual Pressure

This refers to cases where there is no special relationship that exists between the contracting parties. Relief is given based on the ground of undue influence in which one party had induced the other to enter into the transaction by actual pressure which equity regard as improper but which does not amount to duress at common law because no element of violence to the person was involved. In this situation, it must be affirmatively proved that one party in fact exerted undue influence over the other and that the transaction resulted from that influence. For example, a promise to pay money can be set aside if obtained by a threat to prosecute the promisor or his close relative or his spouse for a criminal offence2. Undue influence can be exercised without making illegitimate threats or indeed any threats at all3. The party who claims relief on the ground of actual undue influence must show that such influence existed and had been exercised, and that the transaction resulted from that influence.

Special Relationship

This category refers to a special relationship that exists between the parties to the contract. Equity would also give relief for undue influence in which the relationship between the parties is such as to give rise to what has been called a “presumption of undue influence”4. Here, the equitable view is that undue influence must be presumed, that is, the undue influence may be presumed to exist or that it is presumed to have been exercised. Where the presumption applies, it is not necessary for the party claiming relief to show that the impugned transaction was in fact procured by undue influence. Relief can be given on the ground of undue influence even though the person to whom the promise was made obtained no personal benefit from it. A presumption is a rule of law by which, on proof of a specified fact or facts is taken to exist. Once that confidential relationship has been proved, the burden then shifts to the wrongdoer to prove that the claimant had actually entered into the contract based on his free exercise of independent will. The most usual way is to show that the claimant had received independent competent advice before entering into the transaction. Presumptions can be classified into two groups – irrebuttable presumption and rebuttable presumption. Irrebuttable presumption (or sometimes referred as conclusive presumption) are rules of substantive law which have nothing to do with ways of proving facts5. If the law says that, on proof of the basic fact, the presumed fact is irrebuttably taken to exist. A rebuttable presumption, by contrast, is a rule of law which, on proof of the basic fact (s), the presumed fact is assumed to exist in the absence of evidence negativing its existence. Such presumption may be those which requires the person against whom the presumption operates to show (on a balance of probabilities) that the presumed fact does not exist; and those which merely require that person to introduce some evidence to that effect, leaving it up to the proponent of the presumption to show that (on a balance of probabilities) that fact does, exist (often referred as evidential presumption).

To give rise to the “presumption of undue influence”, two basic facts must be established by the party claiming relief. The first is the existence of a relationship between (A) and (B) by virtue of which (B) either in fact reposed trust and confidence in (A), or is taken as a matter of law to have done so. The second fact relates to the nature of the impugned transactions. Once a relationship of trust and confidence is established, the transaction could be set aside on grounds of public policy, even though it was not in fact disadvantages to him. Where (A) stood in a fiduciary position to (B), the impugned transaction would not be allowed to stand and there will be no requirement to proof any form of “manifested disadvantage”.

Relationship presumption

Traditionally, the relationship in which the presumption applies is classified into two categories which became known as “class 2A” (where relationship is based on presumed trust and confidence) and “class 2B” (where relationships are based on actual confidence).

In the class 2A case refers to the existence of a relationship of trust and confidence between the wrongdoer and the claimant of such a nature that it is fair to presume that the wrongdoer abused that relationship in procuring the claimant to enter into the impugned transaction. The law presumes irrebuttably, that (A) had influence over (B) if their relationship is that of parent and child6, guardian and ward7, religious advisors and disciples8, doctor and patient9, solicitor and client10, and trustee and cestui que trust11. It does not apply to all relationships which are fiduciary in the sense that they give rise to a duty of disclosure. Examples are: husband and wife12, employer and employee13 & agent and principle14. The nature of the fiduciary relation must be such that it justifies interference. The presumption may apply even after the relationship has ceased if the influence continues, for example, between a solicitor and ex-client.

In the class 2B case, the claimant needs to prove a de facto existence of a relationship under which the claimant generally reposed trust and confidence in the wrongdoer, which will raise the presumption of undue influence that the wrongdoer has then to rebut. As long as the claimant succeeds by merely proving that he reposed trust and confidence in the wrongdoer, he need not have to prove that the wrongdoer had exerted actual undue influence. Thus, the relationship between (A) and (B) must be one in which (B) has in fact reposed trust and confidence in (A). It is necessary for (B) to establish this fact or that (A) has had acquired “domination” over (B).

In each such case, the main question that would be considered by the court would be whether the party seeking to set the transaction aside has reposed sufficient trust and confidence in the other.

Burden of prove

Where the necessary relationship is alleged to exist, the burden of proving that it does exist is on the party seeking to set aside the transaction15. Once this burden has been discharged, it is up to the party benefiting from the transaction to rebut the presumption of undue influence. The normal remedy in cases of undue influence is to set the impugned transaction aside. The court may make an award in the nature of damages giving the victim the difference between the amounts for which he parted with the subject matter and its fair value at the time of the transaction.

Rebuttal

The presumption of undue influence is rebutted if the party benefiting from the transaction shows that it was “the free exercise of independent will”. The usual way of doing this is to show that the other party had received independent advice before entering into the transaction. The independent advice must be given by a competent person and based on knowledge of all the relevant facts16.

Conclusion

The ratio decidendi in the case of undue influence is far from clear, but perhaps fair interpretation of the judgment is that the presumption will not arise unless the transaction is patently and strikingly unfavorable to the party who seeks its avoidance. The primary principle of equity was, and is, and is always more flexible in the way it grants or refuses relief. Equity has always acted in accordance to the principles of good consciousness.

Equity & Trust Law

2005-08-06T01:25:00.000+08:00

Doctrines of Equity & Trust

Equity is a body of rules or principles developed in the Court of Chancery before 1873. The doctrines of equity developed as a response to defects in the English common law system, defects which had resulted in rigidity and inflexibility. A knowledge of the principles of equity is therefore crucial to a complete understanding of the law in those areas of private law, particularly property and contract, where equity intervened to modify the operation of the rules of the common law. In that sense, the doctrines of equity form part of the law of contract and property.

The doctrine has also reached into other subject areas including taxation law, corporate law and succession. Equity also developed remedies, such as the injunction, which were unknown to the common law and which have a continuing influence in public law as well as private law.

Future trends and developments in equity

Author: Tina Cockburn and Melinda Shirley

The body of law called equity is founded upon the principles of fairness and conscience. Its piecemeal development took place over many years as a direct result of the injustices often caused by a strict application of the common law. As a result, equitable principles have also developed in a piecemeal and responsive way.

The principles of equity are founded on the concept of 'unconscionability' that is, where an act or omission is considered to be contrary to good conscience. In those circumstances equity will often step in and grant relief to a party whose trust has been breached or whose disadvantage has been used to the advantage of another.

Equitable remedies are both flexible and specific to the circumstances of each case and the granting of equitable relief is always discretionary. An understanding of the history and development of equity is fundamental to an understanding of this area of the law.

As equity became systematised in the 19th century, it began to attract criticism for being rigid and fixed. In much the same way as the common law it sought to enhance, it was criticised as having ceased to be responsive to the changing needs of society and for having become bound up in too many technical rules to perform its traditional role.

Indeed many modern judges have shown a reluctance to develop new equitable principles and both the House of Lords and the High Court have expressed the view that the development of equity should only occur through the legitimate processes of legal reasoning. In Muschinski v Dodds (1986) 160 CLR 583 at 615 Deane J stated that:

"the fact that the constructive trust remains predominantly remedial does not, however, mean that it represents a medium for the indulgence of idiosyncratic notions of fairness and justice".

Nor however, could equity be described as static. Through legitimate legal reasoning the High Court has demonstrated a willingness to apply established principles to a number of new situations in a socially responsive and often progressive way, the areas of constructive trusts, estoppel and mareva injunctions being good examples.

In Garcia v National Australia Bank (1998) 72 ALJR 1243, Kirby J (at 1251) makes reference to the way that equitable doctrines are refined by the High Court to ensure that they keep pace with societal change:

"somehow, by some means, there is a movement that takes place in the exposition of legal principle. The movement may be readily perceived at a distance. Yet, although we may sometimes be unable to say how the law gets from one point to another, no one doubts that movement occurs or that it is "in response to the developments of the society in which [the law] rules. Gummow has pointed out that the principles and doctrines of equity never pretended "like the rules of the Common Law?to have been established from time immemorial". Rather, they were "established from time to time - altered, improved, and refined from time to time". So it is in this case."

And later (at 1264) he says:

"equitable principles are themselves in a constant state of evolution in response to the developments of society. Borrowing against the family home to support a business venture is one such development which was not prevalent in earlier times. The changing nature of domestic relationships is another such development. Equitable doctrine is perfectly capable of adjustment to such changes. It does not need to use outmoded concepts, or anachronistic language, which pretend that things have remained the same as they were in 1939 when Yerkey (v Jones) was decided.

The function of trusts

Author: Howard K Insall and Gino Dal Pont

There are many reasons for creating express trusts, but essentially, persons create trusts because of the advantages which result from having their property owned by a third party who may be independent but nevertheless is subject to some sort of control by the person creating the trust.

Thus persons often create testamentary trusts because it enables them to control what happens to their property after their death. For example, a testator may not want his or her property to be subject to a simple division on his or her death (for example, half to the testator's spouse, a quarter to each of the testator's two children). The testator can exercise far more control over the property if, by his or her will, trustees are appointed and the property is given to them on trust to pay the income from the property to the testator's spouse for life, and on the spouse's death, to transfer the property to the two children. A testator's children may be very young when he or she dies and the use of a trust enables the testator to secure their future by delaying the transfer of property to them until their adulthood.

Trusts, especially inter vivos trusts, may have taxation advantages for the creator. A person (the settlor) may transfer his or property to a trustee so that income from that property is divided between named beneficiaries who may be in a lower tax bracket than the settlor. Although the settlor may no longer earn the income from that property, in setting up the trust, he or she can determine who is to receive the benefit of the property and income.

Trusts also have benefits in insolvency law. These stem principally from the insolvency law principle that property held by a person as trustee is not available to be distributed amongst his or her creditors on that person's bankruptcy. In other words, a person's creditors cannot claim property held by that person on trust in order to satisfy their claims, but only property that he or she holds beneficially.

In Australia trusts are also used as vehicles through which the provision of superannuation are structured. The principal use of the trust in this context is to provide an additional protective measure on funds that are earmarked to provide the retirement income of millions of people. The interrelationship between statute and the general law of trusts is illustrated by the Superannuation Industry (Supervision) Act 1993 (Cth), which, amongst other things, imposes additional duties on superannuation fund trustees.

Contract Law - Breach of Contract & Misrepresentation

2005-08-06T01:09:00.000+08:00

CONTRACT BREACH

If any party to a contract fails to stick to its part of the bargain, there is a breach. A breach of contract occurs when:

One party to a contract makes it impossible for the other parties to the contract to perform;
A party to the contract does something against the intent of the contract; or
A party absolutely refuses to perform the contract.

Not all breaches of contract are necessarily "contract killers" which would end up in a lawsuit. Much would depend on whether the breach is "material" or "immaterial" and who the parties are. What makes sense for you will depend on the facts. Where the matter is substantial, the advice of an attorney can help you.

Standard Forms of Contract may have its provisions as to the measure of damages in the event of a breach, such as determination of the contract, liquidated damages for delay in completion and the direct loss and/or expenses.

In the event of abandonment of contract or a total failure to complete performance, the promisee can elect to determine the contract. In the event of delay in completion due to inexcusable reasons, any liquidated ascertained damages specified in the contract will be treated as an promisee’s pre-estimate of all his damages arising from delay in completion.

In the case of defective works, the measure of damages recoverable by the promisee is the difference between the contract price of the work and the cost of making good in conformance to the contract.

General Damages

Any breach of contract will give the aggrieved party a right to damages at common law, unless expressly agreed (e.g. a liquidated damages clause).

The general rule on recoverability of damages will be what the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered as either arising naturally or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it [see: Hadley v. Baxendale 1854 & Victoria Laundry (Windsor) Ltd. V. Newman Industries Ltd. 1949].

In principle, most loss, which flows as a consequence from the breach, is recoverable unless it is not considered to have been within the reasonable contemplation of the parties.

It must be emphasized that the purpose of an award of damages is to put the plaintiff in the position he would have been had the breach of contract or duty not occurred.

So far as money is concerned, the party that sustains a loss by reason of a breach of contract is to be placed in the same situation as if the contract had been performed.

The key factor in an action for general damages is the need to be able to support the claim with evidence of the loss suffered as a result of the breach. Vague allegations of loss suffered are unlikely to be recognized in law.

As for the interest charges, in the absence of a contractual agreement to pay interest, it may not be payable.

Financial charges are recoverable under usual contractual provisions (e.g. under Direct Loss and/or Expense claim).

BREACH OF CONTRACT & MISREPRESENTATION

For breach of contract, the innocent party is entitled to terminate the contract if the breach is a breach of condition. For breach of warranty, he is only entitled to damages. For breach of an innominate term, he is only entitled to termination if that breach is so serious as to deprive him of substantially the whole benefit of the contract. The contract is not automatically terminated by the breach; the innocent party must indicate his acceptance of the breach and then he can rescind the contract. Otherwise, he will be taken to have affirmed the contract, and his obligation under it will continue (see: Photo production Ltd v Securicor Transport Ltd). Termination for breach discharges the innocent party from any further performance, and the contract will then be brought to an end prospectively.

A misrepresentation is a statement of fact made by one party to the contract to the other, which induces the other party to enter into the contract which is less advantages to him. In order to determine whether the statement made amounts to misrepresentation, they must be:

a statement of facts, not of opinion, intention or law
the statement was addressed to the innocent party, and that
it did induced the party to enter into the contract which is less beneficial to him.

Half-truth are also amounts to misrepresentation (Dimmock v Hallet).

As for misrepresentation, the remedy of rescission may be available to the innocent party.

The bars to rescission are: affirmation of contract, impossibility of restitution, and third party rights or delay.

Rescission sets the contract aside both retrospectively and prospectively, that is, the parties are put in the position, as far as possible, to where they were in before they entered into the contract.

Rescission may be available whether the misrepresentation is fraudulent, negligent (under s. 2(1) Misrepresentation Act 1967) or wholly innocent (s. 2(2) Misrepresentation Act 1967). Under s. 2(2) MA, the court could award damages in lieu of rescission.

For a breach of warranty, only damages would be available. For misrepresentation, s. 1 of MA 1967 provides that, if the innocent party would have been entitled to rescind the contract, he shall be so entitled notwithstanding that the misrepresentation has become a term of the contract. Thus, if the term, even when the term of the misrepresentation is only regarded as a warranty, the right to rescind remains.

The governing purpose of an award of damages for breach of contract is to put the plaintiff in the same position, as far as money can do so, as if the contract had been performed (Robinson v Harman). The limitation to this is when the damages are too remote in which case, the contract breaker will only be liable for loss that was in the reasonable contemplation of the parties (Hadley v Baxendale).

The right to damages for misrepresentation depends on the nature of the misrepresentation. If it is fraudulent, the remedy is in the tort of deceit, and the measure of damages is tortuous, which is to put the plaintiff in the he would have been in if the statement had not been made. Thus, there would not be entitlement to expectation loss.

In contrast, for contractual measure, the damages for fraud are that the defendant is bound to make reparation for all the actual damages directly flowing from the fraudulent inducement – the expectation loss (see: Doyle v Olby). A striking example of the application of this rule is the case of Smith New Court Securities Ltd v Scrimgeour Vickers where the defendants were held liable for a fall in the value of the shares which is unconnected with the fraud.

Fraud may be difficult to prove. But even if the misrepresentation was not fraudulent, the defendant may incur liability for misrepresentation under s. 2(1) MA 1967 which has the effect of imposing liability for negligent misrepresentation. Applying this section, the CA had held that the measure of damages under s. 2(1) MA is the same as for fraud, that is, the reliance measure, and not expectation measure (Royscott Trust v Rogerson). To avoid such liability, the defendant has the burden to prove that he had reasonable grounds to believe and did believe up to the time the contract was made that the facts represented were true. If the defendant succeeds, then he will only be liable for an indemnity (Whittington v Scale Hayne).

Contract Law - Common Mistakes

2005-08-06T00:42:00.000+08:00

MISTAKES

Where one party is mistaken as to the identity of the other party to a contract, this mistake can render the contract void. If the contract is void, no rights can flow from it as the subject matter did not passed to the imposter, and the owner can recover the goods from whoever has them in possession. If however, the misrepresentation merely renders the contract voidable, the original owner’s claim for recovery might be defeated by the operation of s.23 SOGA 1979. Under this section, where the imposter sells the goods to a third party, the seller has a voidable title to the goods. But if the title for the goods had not be avoided at the time the sale to the third party took place, then the third party would had acquired good title to the goods provided that he bought them in good faith and without notice of the defective title.

In Cundy v Linsay, the rogue, when ordering goods, had sought to give the impression that he was from the reputable firm Blenkiron & Co by styling himselfas Blenkarn and giving an address in the same street but at a different number. The owner believed that he was contracting with the firm he knew, dispatched the goods to the rogue who then sold them to an innocent third party. The HL held that the contract with the rogue was void for mistake. However, in the case of King’s Norton Metal Co Ltd v Edridge Merret, the rogue placed an order, describing himself as trading as Hallam & Co, which is fictitious. The CA held that as Hallam & Co did not exist, the intention could only have been to contract with the writer of the order, and therefore, the contract is only voidable and not void. This decision was followed in Phillips v Brooks Ltd. (CA).

On similar facts, a contrary decision was reached in Ingram v Little. In purchasing a car, the rogue had proffered a cheque in payment which the plaintiff found unacceptable and declared that the deal was off. Thereupon, the rogue falsely declared that he was a Mr. Hutchinson and furnished certain address. After checking the address, the plaintiff was satisfied and accepted the cheque. The rogue then sold the car to an innocent third party. However, the court held that it was a mistake as to identity and that the contract is void. The third party thus had no good title to the property. A case similar to this is Lewis v Avery, the facts of which are virtually indistinguishable from Ingram v little. Here a cheque was accepted in payment for the purchase of a car after the rogue produced a fraudulent document purporting to prove that he was Richard Greene (then a well known actor0. the CA held that this deceit only rendered the contract voidable, and not void, and the innocent third party’s rights prevailed.

The effect of holding the contract void thus prejudiced the third party who might have acted in perfect good faith. Therefore, the Law Reform Committee has recommended that:

‘ … Contracts which are at present void because the owner of the goods was deceived or mistaken as to the identity of the person with whom he dealt should on future be treated as voidable so far as third parties are concerned’: 12th. Report.

If this recommendation is legislated, it would bring a measure of certainty. Admittedly, it might cause hardship to deceived owners who would then have to manage their own risks.

COMMON MISTAKE

Case: Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd

The story concerns two vessels, the "Cape Providence" and the "Great Peace". In September 1999 the "Cape Providence" was on her way from Brazil to China with a cargo of iron ore when she suffered serious structural damage in the South Indian Ocean. The defendants learned that the vessel was in difficulties and offered their salvage services, which were accepted on the terms of Lloyd's Open Form of salvage agreement. To find a tug they approached a firm of London brokers, Marint. The individuals involved at Marint were Mr Graeme Little and Mr Andrew Holder. A tug was found, but it was going to take five or six days for the tug to reach the "Cape Providence" from Singapore. There was serious concern that in the meantime the vessel might go down with the loss of her crew. So Mr Little was asked by the appellants' representative, Captain Lambrides, to try to find a merchant vessel in the vicinity of the "Cape Providence" which would be willing to assist, if necessary, with the evacuation of the crew.

Mr Little contacted Ocean Routes, a respected organisation which provides weather forecasting services to the shipping industry and receives reports about vessels at sea. Ocean Routes gave Mr Little the names of four vessels reported to be in the area. He was told that the "Great Peace" , a vessel owned by the respondents, was the nearest to the "Cape Providence" and should be close to a rendezvous position within about twelve hours. Mr Little noted the name of the four vessels and the estimated position of the "Great Peace". Unfortunately the position which he was given was wrong.

At 20.30 on Friday 24 September 1999 Mr Little telephoned a contact number for the "Great Peace"'s managers, Worlder Shipping Limited of Hong Kong. The call was answered by Mr Pierre Lee. By Hong King time it was 03.30 on Saturday 25 September.

Mr Lee was a businessman with no seafaring experience. He had never personally negotiated the fixture of a vessel, because his company always used brokers. But it was the middle of the night and Mr Little explained that the situation was an emergency because of the potential danger to the crew. They did not discuss the exact position of either vessel. Mr Little simply advised Mr Lee that he believed from information received from Ocean Routes that the "Great Peace" was the closest vessel to the "Cape Providence". Mr Lee was not able to promise help there and then, because the "Great Peace" was under charter, carrying a cargo of soya beans from New Orleans to China, and the charterers would need to be consulted, but he asked Mr Little to send him details by fax.

Immediately after the conversation Mr Little faxed Mr Lee as follows:

Further to our telcon at 22.22 hours BST 24 September, we are working on behalf of the owners of a cape size bulk carrier which has suffered serious structural damage in the southern Indian Ocean. Her position at 10.27 hours BST today was 29 40S/80 20E. She is proceeding at 5 knots on course 050 degrees direction Sunda Strait. Owners have mobilised a tug from Singapore which should reach the casualty in the next 5/6 days. We understand from Ocean Routes that your vessel "Great Peace" is in close proximity to the casualty and have been asked by hirers to check whether it would be possible to charter the "Great Peace" on a daily hire basis to escort the casualty until arrival of the tug.

We would appreciate greatly if you can check soonest with charterers whether they can agree to the request, bearing in mind that the casualty is in serious danger.

Shortly after midnight, Mr Lee phoned Mr Holder (who had taken over from Mr Little) and put forward an offer for the chartering of the "Great Peace". During the conversation all the terms necessary for a contract were discussed. The contract was to be on the basis of a Bimco Towhire form of agreement. (This was somewhat odd because the "Great Peace" was a bulk carrier and was not going to be towing the "Cape Providence", but the circumstances were unusual and the Bimco Towhire agreement was the form of contract with which Mr Holder was familiar). The hire was to be for a minimum of 5 days. The purpose of the charter was to be to escort and stand-by the "Cape Providence" for the purpose of saving life. Delivery was to be at the "Great Peace"'s location at the time of the agreement and the hire would commence as soon as she was fixed and diverted (it being the mutual, and correct, assumption of Mr Lee and Mr Holder that there would be no practical difference between the vessel's position at the time of the agreement and at the time of deviation, since it was contemplated that there would have to be some alteration of course in order to effect a rendezvous and that the alteration of course would happen as soon as instructions could be given on the conclusion of the agreement).

During the conversation Mr Holder asked Mr Lee for the position and speed of the "Great Peace", and Mr Lee replied that he would check these matters with the master when he knew if the appellants were interested in the terms of the offer.

Captain Lambrides decided not to accept the offer at once, but at 0640 he gave instructions to Mr Holder to fix the vessel at a gross rate of US$16,500 per day (which Mr Holder knew would be acceptable to Mr Lee from their earlier conversation).

Mr Holder thereupon called Mr Lee. They went through and confirmed the terms of the fixture.

Afterwards Mr Holder sent a fax to Mr Lee thanking him for his assistance with the fixture of the "Great Peace" for the services of escort/stand-by to the "Cape Providence"; saying that he would complete the recap of the main fixture terms shortly, giving details of the "Cape Providence"'s latest position, course and speed in order to enable the vessels to rendezvous; and concluding:

Please instruct your master to contact the master of "Cape Providence" and alter course to rendezvous with the vessel as soon as possible.

As requested, Mr Lee faxed instructions to the master of the "Great Peace" to alter course towards the "Cape Providence". He sent a copy of the fax to Mr Holder.

At 08.17 Mr Lee gave Mr Holder contact details of the "Great Peace", which Mr Holder passed on to Captain Lambrides. A few minutes later, at 08.29, the master of the "Great Peace" sent a message to Worlder that he had contacted the "Cape Providence" to find her latest position and was altering course "right now".

Meanwhile, at 08.25, Captain Lambrides called Mr Holder to say that the vessels were 410 miles away from each other. This was not something known to Mr Holder or Mr Lee, so the likely inference is that the master of the "Cape Providence" must have reported the positions of the vessels to the appellants after his conversation with the master of the "Great Peace".

If the information previously given to Marint by Ocean Routes had been accurate, the vessels should have been only about 35 miles apart when the contract was concluded.
Captain Lambrides told Mr Holder that he was looking to cancel the "Great Peace", but not yet, because he first wanted to know if there was a nearer available vessel which could provide assistance to the crew of the "Cape Providence".

Mr Holder made a number of unsuccessful enquiries, about which he reported to the appellants, at 0924, recommending that the "Great Peace" should be allowed to continue her voyage towards the "Cape Providence".

About the same time as that message was being sent, the "Cape Providence" was passed by a vessel called the "Nordfarer". By chance the charterers of the "Nordfarer" were also the charterers of the "Cape Providence" and so had an interest in assisting her. At 10.10 the appellants told Mr Holder that they had contracted with the owners of the "Nordfarer" directly and instructed him to cancel the "Great Peace".

At 10.25 Mr Holder told Mr Lee that the "Great Peace" was no longer required, i.e. she was cancelled. They discussed possible financial terms.

At 11.00 Mr Lee sent a fax to Mr Holder, confirming the cancellation and saying that he would do his best to persuade the owners of the "Great Peace" to accept 2 days' daily hire in place of the minimum 5 days due under the contract. After speaking to the appellants, Mr Holder told Mr Lee that the appellants were not prepared to pay any sum. So the respondents issued proceedings.

The issues

The claimants claimed $82,500 as monies payable under the terms of the contract. Alternatively, they claimed the same sum as damages for wrongful repudiation of the contract.

The defendants contended that the purported contract had been concluded by reason of a fundamental mistake of fact in that both parties proceeded on the fundamental assumption that the "Great Peace" was "in close proximity" to the "Cape Providence", when she was not. It followed either that the contract was void in law, or that the contract was voidable and the defendants were entitled to relief in equity by way of rescission.

In oral argument in the court below, Mr Reeder QC for the defendants defined "close proximity" as meaning sufficiently close to enable the "Cape Providence" to have come up with the "Great Peace" in the space of a few hours.

Toulson J. rejected the defendants' contentions and awarded the claimants the sum claimed. By this appeal the defendants reassert their defence based upon mistake.

In the present case the parties were agreed as to the express terms of the contract. The defendants agreed that the "Cape Providence" would deviate towards the "Great Peace" and, on reaching her, escort her so as to be on hand to save the lives of her crew, should she founder. The contractual services would terminate when the salvage tug came up with the casualty. The mistake relied upon by the defendants is as to an assumption that they claim underlay the terms expressly agreed. This was that the "Cape Providence" was within a few hours sailing of the "Great Peace". They contend that this mistake was fundamental in that it would take the "Great Peace" about 39 hours to reach a position where she could render the services which were the object of the contractual adventure.

JUDGMENT

CA: Lord Phillips of Worth Matravers MR, May and Laws LJJ: 14 October 2002

There was no jurisdiction in equity to grant rescission of a contract on the ground of common mistake where that contract was valid and enforceable on ordinary principles of contract law.

The Court of Appeal so held, dismissing the appeal of the defendant, Tsavliris Salvage (International) Ltd, against the order of Toulson J who on 9 November 2001 had given judgment for the claimant, Great Peace Shipping Ltd, in the sum of US$82,5000 with interest on its claim for moneys payable under a contract, whereby the defendant had hired the claimant's vessel to escort and standby a severely damaged ship, or damages for wrongful repudiation of the contract.

The contract provided for a right to cancel the hire subject to the payment of a cancellation fee of five days' hire. When the contract had been made both parties had believed the vessels to be in close proximity. On discovering their mistake the defendant had not repudiated the contract until a closer vessel had agreed to assist.

Lord Phillips MR

Introduction

1. In 1932 in Bell v. Lever Brothers Ltd [1932] AC 161 Lord Atkin made a speech which he must have anticipated would be treated as the definitive exposition of the rules of law governing the effect of mistake on contract. In 1950 in Solle v. Butcher [1950] 1 KB 671 Denning LJ identified an equitable jurisdiction which permits the court to intervene where the parties have concluded an agreement that was binding in law under a common misapprehension of a fundamental nature as to the material facts or their respective rights. Over the last fifty years judges and jurists have wrestled with the problem of reconciling these two decisions and identifying with precision the principles that they lay down.

2. In the court below Toulson J. used this case as a vehicle to review this difficult area of jurisprudence. He reached the bold conclusion that the view of the jurisdiction of the court expressed by Denning LJ in Solle v. Butcher was "over-broad", by which he meant wrong. Equity neither gave a party a right to rescind a contract on grounds of common mistake nor conferred on the court a discretion to set aside a contract on such grounds.

32. Thus what we are here concerned with is an allegation of a common mistaken assumption of fact which renders the service that will be provided if the contract is performed in accordance with its terms something different from the performance that the parties contemplated. This is the type of mistake which fell to be considered in Bell v. Lever Brothers. We shall describe it as "common mistake", although it is often alternatively described as "mutual mistake".

33. Mr Reeder for the defendants puts his case in two alternative ways. First he submits that performance of the contract in the circumstances as they turned out to be would have been fundamentally different from the performance contemplated by the parties, so much so that the effect of the mistake was to deprive the agreement of the consideration underlying it. Under common law, so he submits, the effect of such a mistake is to render the contract void. Mr Reeder draws a close analogy with the test to be applied when deciding whether a contract has been frustrated or whether there has been a fundamental breach. The foundation for this submission is Bell v. Lever Brothers.

34. If the facts of this case do not meet that test, Mr Reeder submits that they nonetheless give rise to a right of rescission in equity. He submits that such a right arises whenever the parties contract under a common mistake as to a matter that can properly be described as "fundamental" or " material" to the agreement in question. Here he draws an analogy with the test for rescission where one party, by innocent misrepresentation, induces the other to enter into a contract – indeed that is one situation where the parties contract under a common mistake. The foundation for this submission is Solle v. Butcher.

50. It is generally accepted that the principles of the law of common mistake expounded by Lord Atkin in Bell v. Lever Brothers were based on the common law. The issue raised by Mr Reeder's submissions is whether there subsists a separate doctrine of common mistake founded in equity which enables the court to intervene in circumstances where the mistake does not render the contract void under the common law principles. The first step is to identify the nature of the common law doctrine of mistake that was identified, or established, by Bell v. Lever Brothers.

87. Two cases where common mistake has been held to avoid the contract under common law call for special consideration. A case which is by no means easy to reconcile with Bell v. Lever Brothers is Scott v. Coulson [1903] 2 Ch 249. A contract for the sale of a life policy was entered into in circumstances in which both parties believed that the assured was alive. The price was paid and the policy assigned. The contract price was little more than the surrender value of the policy. In fact, the assured had died before the contract was concluded and the policy thus carried with it entitlement to the full sum assured. The vendors succeeded, in proceedings in the Chancery Court, in having the transaction set aside. In the Court of Appeal, Vaughan Williams LJ described the position as follows:

If we are to take it that it was common ground that, at the date of the contract for the sale of this policy, both the parties to the contract supposed the assured to be alive, it is true that both parties entered into this contract upon the basis of a common affirmative belief that the assured was alive; but as it turned out that this was a common mistake, the contract was one which cannot be enforced. This is so at law; and the plaintiffs do not require to have recourse to equity to rescind the contract, if the basis which both parties recognised as the basis is not true.

89. The other case is the decision of Steyn J. in Japanese Bank v. Credit du Nord [1989] 1 WLR 257. The plaintiff bank entered into an agreement with a rogue under which he purported to sell and lease back four specific machines. The defendant bank agreed with the plaintiff bank to guarantee the rogue's payments under the lease-back agreement. The machines did not, in fact, exist. The rogue defaulted on his payments and the plaintiffs called on the guarantee. The defendants alleged (1) that on true construction of the agreement it was subject to an express condition precedent that the four machines existed; if this was not correct: (2) that the agreement was void at law for common mistake; if this was not correct the agreement was voidable in equity on the ground of mistake and had been avoided.

90. The first head of defence succeeded. Steyn J. went on, however, to consider the alternative defences founded on mistake. After reviewing the authorities on common mistake, he reached the following formulation of the law:

The first imperative must be that the law ought to uphold rather than destroy apparent contracts. Secondly, the common law rules as to a mistake regarding the quality of the subject matter, like the common law rules regarding commercial frustration, are designed to cope with the impact of unexpected and wholly exceptional circumstances on apparent contracts. Thirdly, such a mistake in order to attract legal consequences must substantially be shared by both parties, and must relate to facts as they existed at the time the contract was made. Fourthly, and this is the point established by Bell v. Lever Brothers Ltd [1932] A.C. 161, the mistake must render the subject matter of the contract essentially and radically different from the subject matter which the parties believed to exist. While the civilian distinction between the substance and attributes of the subject matter of a contract has played a role in the development of our law (and was cited in speeches in Bell v. Lever Brothers Ltd.), the principle enunciated in Bell v. Lever Brothers Ltd is markedly narrower in scope than the civilian doctrine. It is therefore no longer useful to invoke the civilian distinction. The principles enunciated by Lord Atkin and Lord Thankerton represent the ratio decidendi of Bell v. Lever Brothers Ltd. Fifthly, there is a requirement which was not specifically discussed in Bell v. Lever Brothers Ltd. What happens if the party, who is seeking to rely on the mistake, had no reasonable grounds for his belief? An extreme example is that of the man who makes a contract with minimal knowledge of the facts to which the mistake relates but is content that it is a good speculative risk. In my judgment a party cannot be allowed to rely on a common mistake where the mistake consists of a belief which is entertained by him without any reasonable grounds for such belief: cf McRae v. Commonwealth Disposals Commission (1951) 84 C.L.R. 377, 408. That is not because principles such as estoppel or negligence require it, but simply because policy and good sense dictate that the positive rules regarding common mistake should be so qualified.

93. Steyn J. held that the test of common mistake was satisfied. He held, at p.269:

For both parties the guarantee of obligations under a lease with non-existent machines was essentially different from a guarantee of a lease with four machines which both parties at the time of the contract believed to exist. The guarantee is an accessory contract. The non-existence of the subject matter of the principal contract is therefore of fundamental importance. Indeed the analogy of the classic res extincta cases, so much discussed in the authorities, is fairly close. In my judgment the stringent test of common law mistake is satisfied: the guarantee is void ab initio.

95. In Solle v. Butcher Denning LJ held that a court has an equitable power to set aside a contract that is binding in law on the ground of common mistake. Subsequently, as Lord Denning MR, in Magee v. Pennine Insurance Co. [1969] 2 QB 507 at 514, he said of Bell v. Lever Brothers:

I do not propose today to go through the speeches in that case. They have given enough trouble to commentators already. I would say simply this: A common mistake, even on a most fundamental matter, does not make a contract void at law: but it makes it voidable in equity. I analysed the cases in Solle v. Butcher [1950] 1 K.B. 671, and I would repeat what I said there, at p.693:

A contract is also liable in equity to be set aside if the parties were under a common misapprehension either as to facts or as to their relative and respective rights, provided that the misapprehension was fundamental and that the party seeking to set it aside was not himself at fault.

96. Neither of the other two members of the court in Magee v. Pennine Insurance Co. cast doubt on Bell v. Lever Brothers. Each purported to follow it, although reaching different conclusions on the facts. It is axiomatic that there is no room for rescission in equity of a contract which is void. Either Lord Denning was purporting to usurp the common law principle in Bell v. Lever Brothers and replace it with a more flexible principle of equity, or the equitable remedy of rescission that he identified is one that operates in a situation where the mistake is not of such a nature as to avoid the contract. Decisions have, hitherto, proceeded on the basis that the latter is the true position. Thus, in Japanese Bank v. Credit du Nord Steyn J. remarked at p.266 that it was clear that mistake in equity was not circumscribed by common law definitions.

Common mistake in equity prior to Bell v. Lever Brothers

99. The doctrine of common mistake at common law which we have identified cannot be said to have been firmly established prior to Bell v. Lever Brothers – see the comments of the High Court in McRae and of the authors of Meagher on Equity:

Doctrines & Remedies 3rd Ed. at p.372. Little wonder if litigants, confronted with what appeared to them to be agreements binding in law should invoke the equitable jurisdiction of the Court of Chancery in an attempt to be released from their obligations, when they considered justice so demanded. Nor is it surprising if the Chancery Court granted the relief sought on the basis upon which it was claimed. It is not realistic to infer that when such relief was granted, the court implicitly determined that the contract was binding in law.

Cooper v. Phibbs ( 1867) LR 2 HL 149

While a number of 18th and 19th century cases prior to the decision in Cooper v. Phibbs ( 1867) LR 2 HL 149 lend some support to the thesis that equity had taken that step, "no coherent equitable doctrine of mistake can be spelt from them" – see the discussion in Goff & Jones on the Law of Restitution, 5th ed. at pp.288-9 and Meagher at pp.375-6. Cooper v. Phibbs was however the decision primarily relied upon by Denning LJ in Solle v. Butcher – he described it as "the great case", and it is necessary to consider it with care. In this task we have been assisted by the analysis in "A Note on Cooper v. Phibbs" by Mr Paul Matthews in 105 LQR at 599 which was informed by access to the record of proceedings in the House of Lords.

101. At the heart of the case was a dispute as to title to a fishery in Ireland. The fishery, together with a cottage, was the subject of an agreement for a three year lease entered into by Phibbs, the respondent with Cooper the appellant. Phibbs was acting as agent for five sisters, who believed that they had inherited the fishery from their father. He, in the belief that he was the owner of the fishery in fee simple, had expended much money in improving it. Cooper contended that, after entering into the lease, he had discovered that the fishery had at all material times been trust property and that, in consequence of a series of events of very great complexity, he was entitled to an equitable life interest. It was ultimately not disputed, however, that the head lease of the cottage was vested in the sisters.

102. Cooper petitioned the Court of Chancery in Ireland seeking an order that the agreement be delivered up to be cancelled and that Phibbs be restrained from suing upon it. Cooper at all times made it plain that he was prepared to submit to any terms which the court might impose. The Lord Chancellor of Ireland dismissed the petition, without prejudice to the question as to ownership of the fishery, holding that no ground for the grant of relief had been made out. Cooper appealed, contending that the agreement ought to be set aside as made under mistake of fact and that he should be declared to have title to the fishery.

103. The House of Lords resolved the issue of title in favour of Cooper.

As Lord Westbury puts it in Cooper v. Phibbs : "If parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the result is, that that agreement is liable to be set aside as having proceeded upon a common mistake." Later authorities show that the language should be "is void" and any revival is made, not by electing not to set aside, but by a new contract."

The only criticism to be made on that statement of the rule is that the word "void" ought to have been substituted for the expression "liable to be set aside", as what really happens in such cases is that the agreement fails to become a contract.

116. Lord Atkin at p.218 cited Cooper v. Phibbs as an example of mistake as to the subject matter of the contract:

This is the case of Cooper v. Phibbs, where A agreed to take a lease of a fishery from B, though contrary to the belief of both parties at the time A was tenant for life of the fishery and B appears to have had no title at all. To such a case Lord Westbury applied the principle that if parties contract under a mutual mistake and misapprehension as to their relative and respective rights the result is that the agreement is liable to be set aside as having proceeded upon a common mistake. Applied to the context the statement is only subject to the criticism that the agreement would appear to be void rather than voidable.

118. These passages demonstrate that the House of Lords in Bell v. Lever Brothers considered that the intervention of equity, as demonstrated in Cooper v. Phibbs, took place in circumstances where the common law would have ruled the contract void for mistake. We do not find it conceivable that the House of Lords overlooked an equitable right in Lever Brothers to rescind the agreement, notwithstanding that the agreement was not void for mistake at common law.

The effect of Solle v. Butcher

119. The material facts of Solle v. Butcher can shortly be summarised as follows. The defendant agreed to let a flat to the plaintiff for £250 a year. The flat had previously been let at a rent of £140. Substantial work had been done on the flat and both parties believed that this so altered the nature of the premises as to free them from relevant rent control. In this they were mistaken. The defendant would have been able to charge the plaintiff an increased rent of £250 to reflect the work done on the flat had he complied with the requisite formalities but, under the influence of the mistake, he failed to do so. In the result he could not lawfully charge a rent higher than £140. The plaintiff obtained a declaration in the county court that the rent was restricted to £140 and an order for repayment of rent overpaid. The Judge rejected the contention that the contract had been concluded under a common mistake of fact, holding that the mistake was one of law.

120. The Court of Appeal, by a majority, reversed this decision. Bucknill LJ held that the parties had concluded the agreement under a common mistake of fact, namely that the alterations had turned the premises into "in effect, a different flat". He held that this common mistake was on a matter of fundamental importance and that the defendant was entitled to rescind the agreement under the principle in Cooper v. Phibbs (1867) LR 2 HL 249. He remarked that he had read the judgment of Denning LJ and agreed with the terms proposed by him on which the lease should be set aside.

121. Jenkins LJ dissented. He held that the common mistake was one of law, namely whether or not the flat was subject to rent control. He held that no right to rescind could be based on an error of law.

125. Denning LJ held that the lease should be set aside because there had been "a common misapprehension, which was fundamental". The terms on which the lease was set aside were such as, in effect, to give the tenant the option of substituting the lease for one at the full rent which the law permitted.

126. Toulson J. described this decision by Lord Denning as one which "sought to outflank Bell v. Lever Brothers". We think that this was fair comment. It was not realistic to treat the House of Lords in Bell v. Lever Brothers as oblivious to principles of equity, nor to suggest that "if it had been considered on equitable grounds the result might have been different". For the reasons that we have given, we do not consider that Cooper v. Phibbs demonstrated or established an equitable jurisdiction to grant rescission for common mistake in circumstances that fell short of those in which the common law held a contract void. Insofar as this was in doubt, the House of Lords in Bell v. Lever Brothers delimited the ambit of operation of Cooper v. Phibbs by holding, rightly or wrongly, that on the facts of that case the agreement in question was void at law and by holding that, on the facts in Bell v. Lever Brothers, the mistake had not had the effect of rendering the contract void.

Chitty on Contracts, 26th ed. (1989), vol. 1, para. 401; Treitel, The Law of Contract, 8th ed. (1991), p.276; and Cheshire, Fifoot and Furmston's Law of Contract, 11th ed. (1991), p.245. The difference may be that the common law rule is limited to mistakes with regard to the subject matter of the contract, whilst equity can have regard to a wider and perhaps unlimited category of "fundamental" mistake.

Summary (Great Peace Case)

153. A number of cases, albeit a small number, in the course of the last 50 years have purported to follow Solle v. Butcher, yet none of them defines the test of mistake that gives rise to the equitable jurisdiction to rescind in a manner that distinguishes this from the test of a mistake that renders a contract void in law, as identified in Bell v. Lever Brothers. This is, perhaps, not surprising, for Lord Denning, the author of the test in Solle v. Butcher, set Bell v. Lever Brothers at nought. It is possible to reconcile Solle v. Butcher and Magee v. Pennine Insurance with Bell v. Lever Brothers only by postulating that there are two categories of mistake, one that renders a contract void at law and one that renders it voidable in equity. Although later cases have proceeded on this basis, it is not possible to identify that proposition in the judgment of any of the three Lords Justices, Denning, Bucknill or Fenton Atkinson, who participated in the majority decisions in the former two cases. Nor, over 50 years, has it proved possible to define satisfactorily two different qualities of mistake, one operating in law and one in equity.

155. A common factor in Solle v. Butcher and the cases which have followed it can be identified. The effect of the mistake has been to make the contract a particularly bad bargain for one of the parties. Is there a principle of equity which justifies the court in rescinding a contract where a common mistake has produced this result?

156. "Equity is ... a body of rules or principles which form an appendage to the general rules of law, or a gloss upon them. In origin at least, it represents the attempt of the English legal system to meet a problem which confronts all legal systems reaching a certain stage of development. In order to ensure the smooth running of society it is necessary to formulate general rules which work well enough in the majority of cases. Sooner or later, however, cases arise in which, in some unforeseen set of facts, the general rules produce substantial unfairness ..." (Snell's Equity, 30th edn. Paragraph 1-03)

157. Thus the premise of equity's intrusion into the effects of the common law is that the common law rule in question is seen in the particular case to work injustice, and for some reason the common law cannot cure itself. But it is difficult to see how that can apply here. Cases of fraud and misrepresentation, and undue influence, are all catered for under other existing and uncontentious equitable rules. We are only concerned with the question whether relief might be given for common mistake in circumstances wider than those stipulated in Bell v. Lever Brothers . But that, surely, is a question as to where the common law should draw the line; not whether, given the common law rule, it needs to be mitigated by application of some other doctrine. The common law has drawn the line in Bell v. Lever Brothers. The effect of Solle v. Butcher is not to supplement or mitigate the common law; it is to say that Bell v. Lever Brothers was wrongly decided.

158. Our conclusion is that it is impossible to reconcile Solle v. Butcher with Bell v. Lever Brothers. The jurisdiction asserted in the former case has not developed. It has been a fertile source of academic debate, but in practice it has given rise to a handful of cases that have merely emphasised the confusion of this area of our jurisprudence. In paragraphs 110 to 121 of his judgment, Toulson J. has demonstrated the extent of that confusion. If coherence is to be restored to this area of our law, it can only be by declaring that there is no jurisdiction to grant rescission of a contract on the ground of common mistake where that contract is valid and enforceable on ordinary principles of contract law. That is the conclusion of Toulson J. Do the principles of case precedent permit us to endorse it? What is the correct approach where this court concludes that a decision of the Court of Appeal cannot stand with an earlier decision of the House of Lords? There are two decisions which bear on this question.

What a court should do when faced with a decision of the Court of Appeal manifestly inconsistent with the decisions of this House is a problem of some difficulty in the doctrine of precedent. I incline to think it should apply the law laid down by the House and refuse to follow the erroneous decision.

161. We have been in some doubt as to whether this line of authority goes far enough to permit us to hold that Solle v. Butcher is not good law. We are very conscious that we are not only scrutinising the reasoning of Lord Denning in Solle v. Butcher and in Magee v. Pennine Insurance Co, but are also faced with a number of later decisions in which Lord Denning's approach has been approved and followed. Further, a Division of this Court has made it clear in West Sussex Properties Ltd v. Chichester DC that they felt bound by Solle's case. However, it is to be noticed that while junior counsel in the court below in West Sussex had sought to challenge the correctness of Solle, in the Court of Appeal leading counsel accepted that it was good law unless and until overturned by their Lordships' House. In this case we have heard full argument, which has provided what we believe has been the first opportunity in this court for a full and mature consideration of the relation between Bell v. Lever Brothers Ltd and Solle v. Butcher. In the light of that consideration we can see no way that Solle v. Butcher can stand with Bell v. Lever Brothers. In these circumstances we can see no option but so to hold.

162. We can understand why the decision in Bell v. Lever Brothers Ltd did not find favour with Lord Denning. An equitable jurisdiction to grant rescission on terms where a common fundamental mistake has induced a contract gives greater flexibility than a doctrine of common law which holds the contract void in such circumstances. Just as the Law Reform (Frustrated Contracts) Act 1943 was needed to temper the effect of the common law doctrine of frustration, so there is scope for legislation to give greater flexibility to our law of mistake than the common law allows.

166. Next Mr Reeder submitted that it was not legitimate for the Judge to have regard to the fact that the appellants did not want to cancel the agreement with the "Great Peace" until they knew whether they could get a nearer vessel to assist. We do not agree. This reaction was a telling indication that the fact that the vessels were considerably further apart than the appellants had believed did not mean that the services that the "Great Peace" was in a position to provide were essentially different from those which the parties had envisaged when the contract was concluded. The "Great Peace" would arrive in time to provide several days of escort service. The appellants would have wished the contract to be performed but for the adventitious arrival on the scene of a vessel prepared to perform the same services. The fact that the vessels were further apart than both parties had appreciated did not mean that it was impossible to perform the contractual adventure.

167. The parties entered into a binding contract for the hire of the "Great Peace". That contract gave the appellants an express right to cancel the contract subject to the obligation to pay the "cancellation fee" of 5 days hire. When they engaged the "Nordfarer" they cancelled the "Great Peace". They became liable in consequence to pay the cancellation fee. There is no injustice in this result.

168. For the reasons that we have given, we would dismiss this appeal.

Order: Appeal dismissed with costs to be assessed on an indemnity basis. Agreed sum of £45,000 to be paid on account of costs. Counsel to prepare agreed minute of order.

MISTAKES

1. RES EXTINCTA – where the subject matter no more exist
2. RES SUA - where the things already belong to the buyer
3. MISTAKE AS TO IDENTITY or ATTRIBUTE
4. COMMON MISTAKE
5. MUTUAL MISTAKE

NON EST FACTUM – this is not my deed

1. RES EXTINCTA

Couterier v Hastie
Fact: Shipment of corn; did not exist anymore
Held: Total failure of consideration. Contract Void.

McRae v Commonwealth Disposal Commission
Fact: No oil tanker.
Held: S. 6 of Sales of Goods Act 1979 states: where parties have entered into a contract for specific goods which have perished, the contract is rendered void.

2. RES SUA

Cooper v Phibbs
Facts: Purchase a fishery which he already owns. Contract void.

3. MISTAKE AS TO IDENTITY OF PERSON

Cundy v Lindsey
Facts: Sales of handkerchief on credit.
Held: If mistake is to identity, contract is void. If mistake is to attribute, contract valid.

King’s Norton Metal v Edridge Merret
Held: Mistake as to attribute. Contract valid.

Where dealing face to face:

Phillips v Brooks (Attribute)
Facts: Bought jewellery - paid by cheque - dishonoured – buyer claimed he was someone.
Held: Mistake as to attribute. Contract valid.

Lewis v Avery (Attribute)
Facts: Bought items – claim to be an actor – pay with cheques – dishonoured.
Held: Mistake as to attribute. Contract valid.

Lake v Simmonds (Identity)
Facts: Bought jewellery – wanted to show to husband who was regular customer – a mistress.
Held: Mistake as to identity. Contract void.

Ingram v Little (Identity)

Fact: buy a car – claimed to be Hutchinson – paid by cheque – dishonoured – seller checked buyer’s credibility.
Held: Mistake as to identity. Contract void.

4. COMMON MISTAKE

Shogun Finance v Hudson (HL) (Identity)
Fact: Stole B. Pattel’s driving licence – took a car loan – then sold the car.
Held: Mistake as to identity.

Bell & Smelling v Lever Bros. (Quality)
Common mistake must relate to something which both parties must necessarily have accepted in their minds as an essential element of the subject matter.

Galloway v Galloway (Quality)
Fact: he thought wife died – married another – later found wife still alive – refused to pay 2nd wife compensation.
Held: Fundamental mistake; contract void.

Scott v Coulson (res estincta)
Fact: The insured has died before a contract for life insurance was bought in his name.
Held: The subject matter no more exist. Contract void.

Harrison v Bunten (Quality)
Fact: Bought kapuk & get inferior product.
Held: not a fundamental mistake as to quality.

Oscar Chess v Williams
Fact: car sold as 1948 Model but was 1939 Model.
Held: No mistake – not sufficiently fundamental to avoid contract.

Great Peace Shipping v Tsarliris
Equity should not exist on common mistakes and the decision should be based on the principles of Bell v Lever Bros.
Overruled Solle v Butcher, Grist v Bailey, Magee v Pennine Insurance

5. MUTUAL MISTAKE

Where parties had intended to contract on different terms.

Raffles v Wichelhaus
Fact: cotton was to be shipped by ‘Peerless’ from Bombay. Unknown to both, there was 2 ship named Peerless.
Held: No consensus ad idem. Contract void.

Smith v Hughes
Fact: Smith was not at obligation to tell Hughes that the oats are new. Contract valid.

Contract Law - Doctrine of Frustration

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DOCTRINE OF FRUSTRATION

Frustrated contract – automatic discharged.

Types of frustrated contracts:

1. Impossible contract: Taylor v Caldwell (1863) Lord Blackburn

Concert was impossible to be held because building was burnt down.

2. Unavailable for performance:

Condor v Barron Knights; Robinson v Davison: Contract for personal performance frustrated because illness made it impossible to perform.

3. Method of performance impossible:

Nickoll & Knight v Ashton Edridge: Sales of cottonseed; specified to be shipped by steamship Orlando from Alexandria in January. Orlando was grounded and could not make the journey. Held: that the contract requiring performance in a stipulated manner had been frustrated.

Tsarkiroglou v Noblee Thorl: Suez canal closed. Journey can continue with a much longer route. Performance had only become onerous or more expensive; performance still possible; manner of performance not specified. Contract not frustrated.

Davis Contractor v Fareham UDC: Labor shortage caused delay and cost more. Held: that the risk events can reasonably be expected to occur. Circumstances did not make performance radically different from what was expected. Performance only become more burdensome and did not change the nature of what was expected to do. Contract not frustrated.

4. Supervening event illegal: Fibrosa Case: War was declared and port was occupied by enemy. Illegal to trade with enemy.

5. Performance made pointless:

Krell v Henry (1903)

Rented suite room to watch coronation procession. Price of room reflected the significant event. Coronation was called off due to king’s illness. Held: that the procession was the foundation of the contract and event renders the contract incapable of performance due to non-existence of express condition which goes to the root of the contract which is essential to its performance. Contract was frustrated.

Herne Bay Steam Boat v Hutton (1903)

Hired steamboat to watch naval review during the King’s coronation day. Held: that inability to watch naval review during coronation was not fundamental to the contract as pleasure trip still possible. Contract is not frustrated.

6. Self-induced frustration: St. Cuthbert Case

Both parties aware that ship requires a licence from government before it can be legally operated. Charterer had a choice but decided not to use one of the available licences for Cuthbert.

The Super Servant Two (1990)

Contract to carry drilling rig in one of the two vessels owned. SS II sanked and D claimed contract frustrated. Held: D had chosen to use SS I on another contract as SS I contract was made after SS II. D negotiated extra payment to use SS I. This indicates that D attempted to use frustration to avoid an agreement which had become inconvenient.

7. Where one party had made what turns out to be a bad deal: Amalgamated Investment and Property v John Walker (1977)

Redevelopment became difficult and impossible. Held: that it did not mean that there was no purpose at all to the contract. It only had become not so lucrative as expected. Contract not frustrated.

Time of Frustrating Event

Event must occur after contract had been made. If event occurs before contract made, then it is Mistake.

Theory of Frustration – Common Law

Traditional View – any loss resulting from frustration should lie where it fell. If advance payment made before frustrating event, it will not be recoverable.

Fibrosa Case – court enunciated that advance payment could be recovered if there is a total failure of consideration. Advance payment will not be able to be recovered if the other party had received some benefits (‘All-or-Nothing Approach’). Criticism: receiving little benefit but lose all money paid. Total failure of consideration would allow recover-back which in some circumstances can be unfair to payee.

Camerco v ICM/Fair Warning (1995) – Court concluded that there ‘is no indication in the Act or relevant literature that the Court is obliged to incline towards total retention or equal division. The task of the judiciary is to do justice in a situation where neither parties contemplated, nor provided for, and to mitigate the possible harshness of allowing all loss to ‘lie where it had fallen’.

Law Revision Committee 1939 Report

Reported that the Act was based on the fact that contracting parties who did not negotiate for advance payment would be voluntarily assuming the risk of loss.

Criticism: Since frustration concerns events which cannot be foreseen, it is hard to see how contracting parties could consciously assume the risk that the risk events might happen.

Theoretical Basis for Doctrine of Frustration

Two school of thoughts (1) Implied Term Theory, & (2) Imposed Term Theory

Implied Term Theory: suggest that contract is discharged because, by implication, the parties have agreed that it will no longer be binding if the frustration event occurs. This approach was adopted by Blackburn J in Taylor v Caldwell.

Imposed Term Theory: approach adopted in Gamerco SA v ICM?Fair Warning (Agency) where the court is to do justice in a situation where neither parties contemplated, nor provide for, and to mitigate the possible harshness of the ‘all-or-nothing’ maxim.

Criticism: most commentators wish to see the court as intervening to impose a fair solution where circumstances make the whole situation completely different.

Law Reform (Frustrated Contracts) Act 1943

s.1(1): where a contract…becomes impossible of performance …and the parties been discharged from the further performance of the contract, …the following provisions shall apply:

s.1(2): All sums paid shall be recoverable and all sums payable shall ceased to be so payable. Court may allow the party who had received the money to deduct direct expenses incurred.

s.1(3): The other party is entitled to claim a just sum if the payee had enjoyed a valuable benefit. Court would consider the direct expenses incurred, and the effect, in relation to the said benefit..

At the time of Bell v. Lever Brothers the law of frustration and common mistake had advanced hand in hand on the foundation of a common principle. Thereafter frustration proved a more fertile ground for the development of this principle than common mistake, and consideration of the development of the law of frustration assists with the analysis of the law of common mistake.

The foundation of the law of frustration was Blackburn J's famous judgment in Taylor v. Caldwell (1863) 3 B.& S. 826. The parties had entered into an agreement for the hire of a music-hall for concerts on four specified nights. The hall burnt down before the first of these. Blackburn J., giving the judgment of the Court of Queen's Bench held that performance of the contract was excused by reason of an implied term:
as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing, without default of the contractor ... The principle seems to us to be that, in contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance. In none of these cases is the promise other than positive, nor is there any express stipulation that the destruction of the person or thing shall excuse the performance; but that excuse is by law implied, because from the nature of the contract it is apparent that the parties contracted on the basis of the continued existence of the particular person or chattel."

Taylor v. Caldwell was a case in which the subject matter of the contract was destroyed, so that performance of the letter of the contract was rendered impossible. The principle of frustration thus established, its ambit of operation was then extended. Claims for frustration were advanced, not where a supervening event had made it impossible to perform the letter of the contract, but where performance of the letter of the contract had become something radically different from that which the parties contemplated when it was concluded.

Lord Radcliffe in Davis Contractors Ltd v. Fareham UDC [1956] AC 696 at 728 and Lord Simon advanced the following refinement of that test:

Frustration of a contract takes place when there supervenes an event (without default of either party and for which the contract makes no sufficient provision) which so significantly changes the nature (not merely the expense or onerousness) of the outstanding contractual rights and/or obligations from what the parties could reasonably have contemplated at the time of its execution that it would be unjust to hold them to the literal sense of its stipulations in the new circumstances; in such case the law declares both parties to be discharged from further performance.

Initially the effect of frustration was to terminate the parties' respective obligations from the date of the frustrating event, but to leave outstanding any accrued obligations. This harsh result was mitigated to a degree by the decision of the House of Lords in the Fibrosa case [1943] AC 32 and to a greater degree by the Law Reform (Frustrated Contracts) Act 1943.

What do these developments in the law of frustration have to tell us about the law of common mistake? First that the theory of the implied term is as unrealistic when considering common mistake as when considering frustration. Where a fundamental assumption upon which an agreement is founded proves to be mistaken, it is not realistic to ask whether the parties impliedly agreed that in those circumstances the contract would not be binding. The avoidance of a contract on the ground of common mistake results from a rule of law under which, if it transpires that one or both of the parties have agreed to do something which it is impossible to perform, no obligation arises out of that agreement.

In considering whether performance of the contract is impossible, it is necessary to identify what it is that the parties agreed would be performed. This involves looking not only at the express terms, but at any implications that may arise out of the surrounding circumstances. In some cases it will be possible to identify details of the "contractual adventure" which go beyond the terms that are expressly spelt out, in others it will not.

Just as the doctrine of frustration only applies if the contract contains no provision that covers the situation, the same should be true of common mistake. If, on true construction of the contract, a party warrants that the subject matter of the contract exists, or that it will be possible to perform the contract, there will be no scope to hold the contract void on the ground of common mistake.

This test is applicable whether or not the event occurs as a result of the default of one of the parties to the contract, but the consequences of the event are different in the two cases. Where the event occurs as a result of the default of one party, the party in default cannot rely upon it as relieving himself of the performance of any further undertakings on his part, and the innocent party, although entitled to, need not treat the event as relieving him of the further performance of his own undertakings. This is only a specific application of the fundamental legal and moral rule that a man should not be allowed to take advantage of his own wrong. Where the event occurs as a result of the default of neither party, each is relieved of the further performance of his own undertakings, and their rights in respect of undertakings previously performed are now regulated by the Law Reform (Frustrated Contracts) Act, 1943.

English Legal System

2005-08-01T10:50:00.000+08:00

This is the beginning. Will blog study guides to English Legal System. May be helpful for those attempting LLB