Figure 4.14: the two issues as set out by Lord Bridge—issue 2 As can be seen, a number of matters needing to be clarified arise from the mere identification of two issues. Note that Bridge gives the two issues a short-hand label: (1) the common law issue; and (2) the statutory issue. However, students often read and re-read without appreciating how to move from lack of understanding towards understanding. They do not notice how words can be clarified by an appreciation of the intertextual links and which words or phrases could be clarified by recourse to textbooks in the area. Again the two issues are found in a paragraph of Lord Bridge’s judgment. Reading carefully paragraphs in the immediate vicinity can assist in understanding. The responsibility of the reader is to read with understanding, therefore stopping to clarify points along the way. It is useful here to ensure that the procedural history of this case is understood. This will enable the student to obtain an appreciation of the differences in opinion by the various judges who have considered the case before its arrival in the House of Lords. Lord Bridge discusses the procedural history and it is set out in the headnote. The case was won by the plaintiffs (the buyers) in the trial court (the High Court) and the defendants (the sellers) appealed to the Court of Appeal, where

2012 ◽  
pp. 99-99
Keyword(s):  
Common Law ◽  
Trial Court ◽  
High Court ◽  
House Of Lords ◽  
History Of ◽  
The Common ◽  
Short Hand ◽  
Court Of Appeal ◽  
The Way

• Discusses the finding of the trial judge that under the common law the ‘relevant condition’ could not be relied upon by the sellers. The reason being the seed delivered was ‘wholly different’. (As we have already noted issue 2 (see Figure 4.14, above), the statutory issue, need only be dealt with if issue 1 (see Figure 4.13, above) is decided in favour of the sellers.) • Discusses the finding of Denning LJ in the Court of Appeal. Denning LJ thought the common law issue should be decided in favour of the sellers. He said that the wording of the condition was sufficient to cover the situation. Kerr and Oliver LJJ decided the common law issue against the sellers. • Kerr LJ’s reasoning was that the condition would only cover them for defects in the ‘correct’ named seeds. Not for delivery of the wrong seeds. • Oliver LJ’s reasoning was that the condition did not cover the breach because it only happened through the negligence of the seller. • The Court of Appeal, however, was unanimous in deciding the statutory issue against the sellers. • Lord Bridge discusses the way that Denning LJ traced the history of the court’s approach to such conditions. The conditions being ones that limit’ or totally ‘exclude’ a contractual party’s liability for any damage caused. • Lord Bridge picks out two relevant cases (Photo Production Ltd v Securicor Transport Ltd [1980] 1 All ER 101 and Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd [1983] 1 All ER 101) and uses these to explore the common law issue. Note that the judge is beginning to deal with cases decided previously and commenting upon them in relation to whether he is bound by the doctrine of precedent.

2012 ◽  
pp. 103-103
Keyword(s):  
Common Law ◽  
Trial Judge ◽  
Relevant Condition ◽  
History Of ◽  
The Common ◽  
Court Of Appeal ◽  
Photo Production ◽  
The Way

Discretion and Security: Excluding Evidence under Section 78(1) of the Police and Criminal Evidence Act 1984

1990 ◽  
Vol 49 (1) ◽  
pp. 80-90 ◽  
Author(s):  
C.J.W. Allen
Keyword(s):  
Common Law ◽  
The Other ◽  
Rule Of Thumb ◽  
The Common ◽  
Political Compromise ◽  
The Law ◽  
Law Of Evidence ◽  
Court Of Appeal ◽  
The Way

Among rules of law Karl Llewellyn noted at one extreme the “rule-of-thumb, in which the flat result is articulated, leaving behind and unexpressed all indication of its reason”. At the other extreme was “the way of principle, in which the reason is clearly and effectively articulated, and that articulation is made part of the very rule”. The vice of principle, he observed, “can be a vaporish vagueness, and the techniques of its effective formulation are not easy to isolate for communication and use”. Partly for this reason, partly perhaps because of its origin in a last-minute political compromise, section 78(1) of the Police and Criminal Evidence Act 1984 at first confounded attempts to predict the manner of its application. One commentary suggested that it was “of no practical use”; there were dicta in the Court of Appeal to the effect that it did “no more than to re-state the power which judges had at common law before the Act of 1984 was passed”. A leading work on the law of evidence expressed the view that the sub-section was “cast in terms of such vagueness and generality as to furnish little guidance to the court”. There has been some development since those early days. It now seems clear that the Police and Criminal Evidence Act 1984 is to be regarded as a codifying Act which has to be looked at on its own wording. Section 78(1), therefore, does not merely re-state the position at common law. It is also clear that in its operation it overlaps section 76 and, through section 82(3), some of the common law. Section 78(1) may be applied in a variety of situations, with or without the presence of some element of impropriety in the way in which the evidence was obtained. Basic questions about its operation nevertheless remain.

• Lord Bridge felt no doubts about the decision of the Court of Appeal over statute. • Lord Bridge refers to an earlier point in para 15 that it is wise to ‘refrain from interference’ in matters of legitimate judicial difference (see Appendix 1, p 313, para 15). • ‘If I were making the original decision, I should conclude without hesitation that it would not be fair or reasonable to allow the appellants to rely on the contractual limitation of their liability.’ • Appeal dismissed. A quick review of the paragraphs begins to show the patterns of argument delivery. Re-reading the paragraphs looking at the statutory diagrams (Figures 4.16 and 4.17, above) allows the argument to be reviewed whilst looking at the entire provision. The paragraph approach has also allowed the common law issue and the statutory issue to be isolated. Reviewing Figure 4.12, above, dealing with the facts, issues and procedural history enables the appreciation of the differences between the reasoning in the Court of Appeal and the House of Lords, although both courts reached the same decision. It should be possible at this stage to identify the precise rationale behind the court’s view of the common law issue and the statutory issue. In relation to the statutory issue, it should be possible to pinpoint precisely the statutory areas of relevance and how the court dealt with the issue. A summary of this information has been put into diagrammatic form in Figure 4.18, below. As proficiency is developed, it is possible to read carefully and move straight away to a diagrammatic representation, although, ultimately, a brief conventional textual note should be made to supplement the diagram. Brief, of course, as you will have seen, does not mean easy or simple!

2012 ◽  
pp. 112-113
Keyword(s):  
Common Law ◽  
Diagrammatic Representation ◽  
House Of Lords ◽  
The Common ◽  
Court Of Appeal

2. Sources of employment law and institutions

2019 ◽  
pp. 24-45
Author(s):  
Stephen Taylor ◽  
Astra Emir
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Health And Safety ◽  
Employment Law ◽  
European Court Of Justice ◽  
High Court ◽  
European Court ◽  
The Supreme Court ◽  
The Common ◽  
Court Of Appeal

This chapter discusses the sources of UK employment law and relevant institutions, and looks at court structure. The main source is statutes—Acts of Parliament, regulations and EU law. The common law is judge-made and has evolved over centuries as cases are brought to court and appealed up through the court hierarchy. The laws of contract, trust and tort all play a part in employment regulation. Most cases relating to common law matters are brought to the County Court or the High Court. Employment tribunal cases can be appealed to the Employment Appeals Tribunal (EAT) and then the Court of Appeal, the Supreme Court and, if concerning an EU matter, to the European Court of Justice. Other important institutions in the employment law include the Advisory, Conciliation and Arbitration Service (ACAS), the Equality and Human Rights Commission (EHRC) and the Health and Safety Executive (HSE).

• Lord Bridge says that Kerr LJ (in the Court of Appeal) in finding for the seller had in fact misinterpreted what Lord Fraser had said about The Canada Steamship v R [1952] 1 All ER 303 in the Ailsa Craig case! This is an excellent paragraph for demonstrating the way in which judges argue about other cases, following, distinguishing, overruling or stating the precedent or a case erroneously. • Lord Bridge decides the common law point in favour of the sellers in agreement with Lord Denning in the Court of Appeal. • Lord Bridge turns to discuss the ‘statutory’ issue. We now begin to understand the reference to ‘the Act’ in issue (2) as set out by Lord Bridge at Appendix 1, p 310, para 2. • The modified s 55 of the Sale of Goods Act 1979 is set out. • The Sale of Goods Act 1979 was a statute that was pure consolidation. (This means that it merely collected together the existing law and put it in one place.) • Modified s 55 preserves the law between 18 May 1973 (the date that the Supply of Goods (Implied Terms) Act came into force) and 1 February 1977 (the date that the Unfair Contract Terms Act 1977 came into force). • Section 55, sub-ss (1), (4), (5) and (9) are set out. Students need to study s 55 carefully to ensure that they understand what it is providing for and that they can follow the discussion of it by Lord Bridge. So, let us stop here for a moment… for a statutory diversion.

2012 ◽  
pp. 105-105
Keyword(s):  
Common Law ◽  
The Common ◽  
The Law ◽  
Court Of Appeal ◽  
The Way

scholarly journals Ignorance of the Law as a Defence to Rape: The Destruction of a Maxim

2012 ◽  
Vol 76 (4) ◽  
pp. 336-347
Author(s):  
Kenneth J. Arenson
Keyword(s):  
Common Law ◽  
Mens Rea ◽  
Sexual Offences ◽  
The Poor ◽  
House Of Lords ◽  
Long Line ◽  
The Common ◽  
The Law ◽  
Sexual Offences Act 2003 ◽  
Court Of Appeal

In DPP v Morgan, the House of Lords correctly concluded that an accused who entertained a genuine belief that a woman was consenting to carnal knowledge of her person could not be convicted of the common law crime of rape as such a belief and the requisite mens rea to convict were mutually exclusive of one another. Though England and Wales have resiled from this position by virtue of the Sexual Offences Act 2003, s. 1(b), which allows for conviction upon proof that the accused did not reasonably believe that the complainant was consenting, the Morgan principle has retained its vitality at common law as well as under the various statutory crimes of rape that exist throughout Australia, most notably the provisions of s. 38 of the Crimes Act 1958 (Vic). Despite a long line of Victorian Court of Appeal decisions which have reaffirmed the Morgan principle, the court has construed s. 37AA(b)(ii) of the Act as leaving open the possibility of an acquittal despite the fact that the accused acted with an awareness that one or more factors that are statutorily deemed as negating consent under s. 36(a)–(g) of the Act were operating at the time of his or her sexual penetration; specifically, the court held that the foregoing factors do not necessarily preclude a jury from finding that the accused acted in the genuine belief that the complainant was consenting. This article endeavours to explain how the accused could be aware of such circumstances at the time of penetration, yet still entertain such a belief. The article ultimately concludes that such an anomaly can only be explained through a combination of the poor drafting of s. 37AA(b)(ii) and the court's apparent refusal to follow the longstanding precept that ignorance of the law is never a defence to a crime, ostensibly prompted by its adherence to the cardinal precept that legislation is not to be construed as superfluous.

Restrictive covenants, use of land, and the restraint of trade doctrine

2021 ◽  
Vol 72 (1) ◽  
pp. 132-140
Author(s):  
David Capper
Keyword(s):  
Northern Ireland ◽  
Common Law ◽  
Commercial Activity ◽  
Restrictive Covenants ◽  
House Of Lords ◽  
The Supreme Court ◽  
The Common ◽  
Article 5 ◽  
Court Of Appeal ◽  
Restraint Of Trade

The common law doctrine of restraint of trade has a well-established presence in relation to contracts of employment and contracts for the sale of a business. Beyond those specific areas it reared its head from time to time, but the legal test for its applicability was not a model of clarity. Where the covenantor ceded a pre-existing freedom to engage in commercial activity, the decision of the House of Lords in Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd [1968] AC 269 brought it within the doctrine, but the recent decision of the Supreme Court in Peninsula Securities Ltd v Dunnes Stores (Bangor) Ltd [2020] UKSC 36, on appeal from the Northern Ireland Court of Appeal [2018] NICA 7, has discarded that test in favour of one based on the structure of a trading society. Peninsula Securities was a case concerned with the applicability of the restraint of trade doctrine to covenants affecting the ability of a landowner and its successors in title to use the land in a way that potentially competed with the business of an adjoining occupier. The decision that the restraint of trade doctrine was not engaged in these circumstances was set against the power of the Lands Tribunal to modify or extinguish covenants affecting land under article 5 of the Property (NI) Order 1978.  

The Predicament of Modern Law: Parker's History of a Law Without a History that Matters

2015 ◽  
Vol 40 (01) ◽  
pp. 238-244
Author(s):  
Marianne Constable
Keyword(s):  
Nineteenth Century ◽  
Common Law ◽  
Legal Thought ◽  
History Of ◽  
The Common ◽  
Democracy In America ◽  
The Way

Kunal Parker's Common Law, History, and Democracy in America, 1790–1900: Legal Thought Before Modernism shows how nineteenth‐century thinkers thought about law and history differently than do post‐Holmesian modernist sociolegal scholars, whose ahistorical law appears contingent on politics, power, or will. Understanding time and history to be essential to law, nineteenth‐century jurists conceived of a common law that was able to work with and to shape democracy, Parker argues. Contra modernist histories then, Parker claims that the common law was not a reactionary force that stood in the way of democracy and economy. His history of legal thought before modernism suggests, further, the predicament of antifoundationalist modern law and modernist scholars: stripped of time and without its own history, how can law be anything other than politics, power, or will?

they are called the appellants, and again lost. They then appealed to the House of Lords, where they also lost. There was a lot of money at stake: the difference between the £201.60 that the seeds cost as awarded by the Court of Appeal or the £90,000+ that the trial judge awarded. Consider, for a moment, what you have read and what you know so far. Does it seem fair to you that George Mitchell won? If so, why? If not, why not? So far we have considered: (a) Procedural history. (b) Facts. (c) The operative rules of law: • It is known that both common law rules and statutory rules are relevant to the case. • Further, it is known that if the common law rules are found to apply in the seller’s favour he still has to jump the hurdle presented by the statutory rules. • Recall, if there is a clash between common law rules and statutory rules, the statutory rules prevail. (d) A verbatim account of the two issues in the case (however, these are probably not fully comprehended yet, despite Figures 4.13 and 4.14, above!): • It is clear that Lord Bridge will argue through each of the issues. • If the appellants succeed in issue 1 they may still fail overall if they fail over issue 2. (Can you understand why? The answer is in the first sentence of text setting out ‘the second issue’. See Figure 4.14, above.) • Logically, one would expect Lord Bridge to commence with the arguments over issue 1, the common law issue, as this is the gateway to an argument over issue 2 which will only take place if issue 1 is decided in the appellant’s favour (and this is contentious limitation clause what he does). (e) Understanding the clause. This is set out in Figure 4.15, below. Until all of these matters are linked and understood it is not possible to fully comprehend the reasoning in the case. Now take time to consolidate the information we have so far and return to the judgment of Lord Bridge, concentrating on his arguments concerning issue 1 (Appendix 1, p 310, para 3). 4.5.2.5 Stage 4: breaking into Lord Bridge’s speech You will have already read Lord Bridge’s speech by now. It is also now appreciated that the arguments in this case are quite complex and the initial method of breaking into the text for understanding is to look at each paragraph. Paragraphs are intended to convey a new idea. So each paragraph represents an idea or a cluster of ideas. Careful ordering of paragraphs is essential in a piece of writing if a sense of progression is to be maintained. Therefore when reading for understanding a précis of each paragraph begins the process of understanding.

2012 ◽  
pp. 100-100
Keyword(s):  
Common Law ◽  
Text Setting ◽  
Trial Judge ◽  
House Of Lords ◽  
Stage 4 ◽  
The Common ◽  
The Difference ◽  
Court Of Appeal ◽  
Initial Method
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