The can be judged fairly since the

The impact of ‘Brexit’ will cause a significant change if Accountants UK
relocates to Berlin, as they will have to follow the Civil Law system. This can
play at a disadvantage for the company, as they will have to follow a set of
systematic rules. The UK follows the English Common Law system, which has many
advantages over the Civil Law system. In addition, the English Common Law has
many features such as the Doctrine of Precedent and Statutory Interpretation,
which is fundamental for applying decisions on cases. However, there are some
drawbacks of the English Common law as being undemocratic because it is
judge-made law.1 This
results in positive and negative aspects of the English Common Law system,
which will be provided below.

 

English Common Law system is derived from
published precedential opinions which are then followed by the judge to make
decisions regarding the similar cases. One of the benefits of the English
Common law is that “common law codes are not intended to be entire statement of
the whole law…meant to be supplemented by the judicial opinions”.2
This indicates that the cases are checked thoroughly and compared to the
previous precedents which are more flexible than the Civil Law as “it has the
power to draw upon the common law to act in the best interests of the
vulnerable person”.3 This is
crucial as the cases can be judged fairly since the judges are not controlled
by laws and codes which encourages justice. On the other hand, this can be seen
as undemocratic since judges play the main role in making decisions.

We Will Write a Custom Essay Specifically
For You For Only $13.90/page!


order now

 

Doctrine of Precedent is an important aspect for the English
Common law since the judges must check if similar cases have been published
previously. It is based on ‘stare decisis’ which “binds all of the lower courts
of a jurisdication to determination rendered by the highest court in that same
jurisdiction”4. The
judges have to provide 2 types of states. One of the state being ‘ratio decidendi’ meaning “reason for
decising”5
which is applied in the future case decision. An example of the ‘ratio
decidendi’ in Donoghue v Stevenson (1932)6  was that “the manufacturer owed Mrs. Donoghue a
duty of care in the absence of contractual relations contrary to established
case law”7.
Another sate is called ‘obiter dicta’
meaning ‘things said by the way’ which “do not carry the same weight as the ratio decidendi of a case”8.

 

 

 

There are two types of precedents: binding and persuassive. Binding
precedent is when it is mandatory to follow the precedent. This signifies that
the judge should obey the precedent as it is mandatory however, if the
precedent was set by an inferior court then the judge will not have to
necessary follow the precedent as the decision of lower courts are not binding
on courts higher in the hierarchy. Persuassive precedent is when the judes are
not obliged to follow the precedent but can use them for abundant reasoning.
This is seen as more flexible as judges are free to use ‘obiter dicta’ and also
precedents made by lower courts.

 

The advantages of precedents are they bring certainty and
consistency in law as the judges wll not be able to make biased decisions. This
creates fairness as cases will be treated the same way It also encourages
flexibility as judges in the higher court are consented to update the law as
society is always evolving. In addition, precedents are judge made law which is
seen as more practical as they are not obliged to follow codified statues like
the Civil law. It is used as a form of guidance for judges since the precedents
prevent them from committing faults. This also averts any prejudice and
injustice as the precedents are binding.

 

On the other hand, there are disadvantages regarding
precedents as the method is seen as rigidy since the precedents must be
followed by a judge even if it is outdated, The change can only occur in the
higher appeal courts. It can also be time consuming and complex to find
relevant law cases as there are so many cases issued and some may remain
unjudicated.

 

A judge can avoid precedents by four methods: distinguishing,
overruling and reversing. Distinguishing “allows a court to escape a binding
precedent”.9 This can
be clearly shown in Balfour v Balfour
(1919)10 and
Merrit v Merrit (1971)11. Both
of the cases were for breach of contract between a wife and a husband. Only Merrit v Merrit12 was successful as there was a form of
agreement in writing which enabled distinguishing. Overruling is when “a law as
stated in an earlier and differenct case is wrong and no longer represents the
law”13.
An example of this is use is Pepper v
Hart (1993)14
and Davis v Johnson (1978)15 where
the house of lords overruled using the Practise Statement 1996. Reversing
occurs when a higher court disagrees with the verdict of the lower court
involving the same case. This is illustrated in Farley v Skinner (2002)16 where
the House of Lords reversed the decision for mental distress as Lord Steyn said
“it was sufficient if a major or important object of the contract is to give
pleasure, relaxation or piece on mind”17.

 

Statutory Interpretation is “a court’s power to give meaning
to legislation by clarifying ambiguites, providing limits, and ultimately
applying that statutory law to a specific fact pattern in litigation”.18
The methods of Statutory Interpretation are not inspected Parliament, but by
the judges. There are four rules concerning the Statutory Interpretation:

The literal rule which suggests that “the judge is required
to consider what the legislation actually says rather than considering what it
might mean”.19 An
example of this in use is Fisher V Bell20 where the display of an item was not an offer for
sale but an invitation to treat. The benefits of the literal rule are it
creates certainty in the court and prevents unelected judges from constructing
law. This allows the lawyers to predict the result as the law will be
interpreted exactly its written. However, “the judge sometimes refer to their
own interpretation of the meaning”21
as the use of the literal rule. This can lead to harsh decisions as illustrated
on London and North Eastern Railway
v Berriman 194622 as
the widow was not entitled to anything even though her husband died. The reason
was because he was not ‘relaying or repairing’ the tracks which made the claim
futile. In addition to this, another case Whitely v Chappell (1868)23 concerned
a man using a vote of a dead man. Literal rule was applied to this and the
defendant was claimed as not guilty.

 

The golden rule is used when ” the
literal rule is likely to result in what appears to the court to be an
obviously absurd result”24
as this allows the judge to adjust decisions to ensure fairness and justice. As
example of this is Adler v George (1964)25
as the defendant was near a prohibited place but not actually in it. The
advantages of the golden rule are it allows the judge to choose the most
reasonable meanings, as there could be more than one meaning. This also deals
with the unfairness of the literal rule as there is a wider interpretation
allowed with the golden rule. However, the golden rule has its drawbacks since
it is limited and only used if the literal rule leads to absurdities.
Additionally, it is difficult to comprehend absurdities, as there are no
guidelines for judges. For example in LNER v Berriman (1946)26
the literal rule was used, which was seen as unfair.

 

The mischief rule is applied as a last
resort and it doesnt rely on the meaning of words but Parliament’s intention.
For example, The Smith v Hughes
(1960)27

The advantages of the mischief rule are it
doesnt rely on the literal meanings of the words which allows the judge to look
back at the law while following Parliament’s intension. It also encourages
flexibility in order to meet social and economic changes in the society. Oppositely,
judicial law making can take place as unelected judges are creating laws with
their own views.

 

Lastyle, the purposive approach interprets specific menaing
of phrases or words in the act by looking at Parliament’s intentions.The advantages
are it gives judges more discretion than the literal meanings of the words.
However, judges are given too much power to improve law by the power of Parliament.

 

To conclude, the English Common Law pronounces more
advantages over the Civil law as the doctrine of precedents provide a sense of
fairness and justice in the court which can benifit ‘Accountants UK’. They are
more flexible and efficient as there are previous precedents available which
guides the judge and gives directions. However, Common law can change as
conditions change since the law is always advancing. Whereas Civil law is fixed
and more predictable due to the codes presented.

 

 

 

 

 

 

 

1 Antonin Scalia, A Matter of Interpretation
9(1997)

2 Robert W. Emerson, Business Law (?Barron’s
Educational Series, 2009) 9

3 Alisdair Gillespie, The English Legal System (5th edn,
OUP Oxford 2015) 13

4 Robert W. Emerson, Business Law
(?Barron’s Educational Series, 2009) 8

5 Catherine Elliot & Frances Quinn, English Legal System (7th
edn, Pearson, 2016) 14

6 Donoghue v
Stevenson 1932 AC 562

7 Winterbottom
v Wright152 E.R. 402, (1842) 10 M. & W. 109.

8 Stephen R Wilson and others, English Legal System (Illustrated edn,
Oxford University Press 2016) 162

9 Stephen R Wilson and others, English Legal System
(Illustrated edn, Oxford University Press 2016) 184

10 Balfour
v Balfour 1919 2 KB 571

11 Merritt
v Merritt 1970 1 WLR 1211

12 Merritt v Merritt 1970 1 WLR 1211

13 Stephen R Wilson and others, English Legal System (Illustrated edn,
Oxford University Press 2016) 182

14 Pepper v Hart  1992 3 WLR 1032

15  Davis v Johnson 1978 2 WLR 553

16 Farley v Skinner 2002 2 AC 732

17 Stephen R Wilson and others, English Legal System (Illustrated edn,
Oxford University Press 2016) 184

18 Robert W. Emerson, Business Law (?Barron’s Educational Series,
2009) 727

19 Gary Slapper and David Kelly, The English Legal System
(18th edn, Routledge 2017)

20 Fisher V Bell 1961 1 QB 394 

21 Alisdair Gillespie, The English Legal System (5th edn,
OUP Oxford 2015) 39

22 London
and North Eastern Railway v Berriman 1946 AC 278

23 Whitely
v Chappel (1868) LR 4 QB 147

24 Gary Slapper and David Kelly, The English Legal System
(18th edn, Routledge 2017)

25 Adler v George 1964 2 QB 7

26 London and North
Eastern Railway v Berriman 1946 AC 278

27 Smith v Hughes 1960
1 WLR 830