Historical Landmarks in the Development of Law

You have 10 minutes to read the following text and to remember as much as you can about the given personalities and their contributions to the development of the law. Below the text you have a Reading Comprehension activity which will check your understanding and memory. You will have just 10 minutes to do it, therefore read the information carefully.

People Who Have Had A Great Influence On The Development Of The Law

http://www.duhaime.org/LawMuseum/LawArticle-46/The-Laws-Hall-of-Fame.aspx

Read only the 7 topic sentences of the given text below. They are all in bold. Try to guess the kind of information each paragraph will develop. Take notes if you need. Now read carefully the text. Were you right?

The Judicial Achievements of Lord Denning

Alfred Thompson, Lord Denning was one of the greatest judges working in the English legal system during the 20th century. Many of his judicial decisions have had a wide impact on many aspects of the law. He became famous for his landmark judgments. He established the principle of equitable estoppel and ensured that the small print on the back of a ticket could not be used by companies to avoid their legal obligations.

Denning also made some controversial judgments that some jurists believe damaged his reputation. Despite strong evidence in their favour, he did not allow an appeal by a group of Irish republicans, known as the Birmingham Six, against their conviction on terrorism charges, on the grounds that, to do so, would indicate the police investigating the crime had been corrupt. The police had, in fact, interfered with the evidence and after a long campaign the men were eventually released. They had been wrongfully imprisoned for more than ten years.

As Master of the Rolls, the most senior judge in the Civil Division of the Court of Appeal, Denning challenged the principle of stare decisis (judicial binding precedent). He believed that if a rule had been made by the Court of Appeal, it could also be changed by it. In the well-known case of Spartan Steel and Alloys Ltd v Martin and Co [1972) 3 All ER 557, CA Denning did not follow precedent and based his judgment on a thorough analysis of the facts of the case.

In Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 Denning appeared to dispute the concept that in a contract there must be consideration. The facts of the case were that the plaintiffs rented out their property, a block of flats in central London, to the defendants at a fixed rent agreed by both parties. After this agreement was made, World War II started and the defendants found it difficult to find tenants for the flats. The plaintiffs promised to cut the annual rent by half. After the war ended, the flats again became fully occupied and the plaintiffs wanted to receive the original rent. The court decided that they were entitled to the full rent but starting only from the end of the war. Denning argued that the plaintiffs’ promise to reduce the rent stopped them from enforcing the original contract, even though the defendants had not given any consideration. This promise estopped, or prevented, the plaintiffs from enforcing their strict legal rights.

Denning adopted his famous common-sense approach in Thornton v Shoe Lane Parking [1971] 1 All ER 686, CA. The plaintiff bought a ticket to park his car in the defendants’ car park. The ticket was issued subject to the conditions displayed on a notice in the car park. These conditions, in very small print, stated that the owners of the car park were not liable for any injuries caused to their customers. The plaintiff was injured, partly as a result of the defendants’ negligence. The court held that the plaintiff was not bound by the conditions. Denning stated that: ‘In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it.’ The defendants could not avoid their duty of care unless they informed their customers about the conditions for parking in a clear and appropriate way.

Denning’s judgments were written in clear and comprehensible English. They were very different from the legalistic language used by many of his fellow judges. The reasons for his decisions could be understood by people who were not lawyers. One of his most famous judgments was in Miller v Jackson [1977] QB 966, CA in what became known as ‘the cricket case’. This involved the traditional English summer sport. A family that had just bought a house next to a cricket ground complained that cricket balls were being hit into their garden and disturbing their right to its peaceful enjoyment. Denning began in the following way:

In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where young men play and old men watch. In the village of Linz in County Durham [in the north of England], they have their own ground where they have played these last 70 years ... yet now after these 70 years a Judge of the High Court has ordered they must not play there anymore.

Despite the simplicity of his language, the ideas and concepts he expressed were often extremely complex and challenged the rigidity imposed by the common law. Although some of his decisions were overturned by the House of Lords, many of the causes he championed were written into statutes. Examples of these are the right of deserted wives to remain in the marital home, and the concept that a person who makes a negligent misstatement cannot later rely on it.

Vocabulary Notes:

1. Estoppel                                                                                                                          

A rule of law that when person A, by act or words, gives person B reason to believe a certain set of facts upon which person B takes action, person A cannot later, to his (or her) benefit, deny those facts or say that his (or her) earlier act was improper.

2. Equitable Estoppel

A bar to a party from asserting a legal claim or defense that is contrary or inconsistent with his or her prior action of conduct.

3. Promissory Estoppel

A promise made to another party to a contract that the contract will not be enforced in whole or in part and which, once acted upon, prevents subsequent proceedings to enforce the contract as against the person who relied on the promise.

NB: Equitable estoppel is a doctrine where a person is prevented (estopped) from insisting on what would otherwise be legal rights if it would be unfair (inequitable) to do so. It is sometimes known as promissory estoppel because it may occur when a person promises to do something or not to do something which may originally have been a term of the contract and then goes back on his word.

As Lord Denning MR put it in Moorgate Mercantile v Twitchings [1976] 1 QB 225 at 241: ‘It comes to this: when a man, by his words or conduct, has led another to believe in a particular state of affairs he will not be allowed to go back on it when it would be unjust or inequitable for him to do so’

4. Precedent

A case which establishes legal principles to a certain set of facts, coming to a certain conclusion, and which is to be followed from that point on when similar or identical facts are before a court.

5. Stare Decisis

Latin: stay with what has been decided, the principle of judicial binding precedent.

6. Statutes

The written laws approved by legislatures, parliaments or elected or appointed houses of assembly.

Read the following text.

Judicial Precedent

Judicial precedent can be defined as the principle whereby judges are required to follow the decisions made in previous cases which have sufficient similarity. Cases decided by lower courts must always follow the precedent set by higher courts.  The aim of stare decisis (Latin for ‘the decision must stand’) is to provide consistency and predictability in the decision-making process of various courts.

The judgment may fall into two parts: the ratio decidendi (the reason for the decision) and the obiter dictum (something said by the way). The ratio decidendi always applies to the precise facts of the case and is binding. In other words, it sets a precedent that must be followed. The obiter dictum is where a judge speculates on what might have happened if the facts had been different. This part of the judgment is persuasive rather than binding and so does not have to be followed. In the High Trees case, Lord Denning decided that the plaintiffs were entitled to payment of the full rent only after the war had ended. This was the ratio decidendi. He speculated that the plaintiffs would not be entitled to the full rent from the start of the war as they had promised to cut the rent by half to ease the defendants' financial difficulties. However, as this was not based on the strict facts of the case, this part of the decision was obiter dictum.

The court hierarchy dictates the way in which judicial precedent operates. Under section 3(1) of the European Communities Act, the decisions made on matters of European Community Law are binding on all courts within the English legal system, including the Supreme Court. If matters of European Community Law are not involved, the Supreme Court is the highest court in the land. The Supreme Court is bound by its own decisions unless the court decides in a particular case that this is not right. This was laid down by Lord Gardiner in the Practice Statement in 1966. Supreme Court decisions are binding on all lower courts.

The Court of Appeal (Civil Division) must follow the decisions of the Supreme Court even if it is considered wrong to do so. In Young v Bristol Aeroplane Co Ltd [1944] KB 718, CA, the Court of Appeal decided it is also bound by its own decisions except where:

• previous decisions in the Court of Appeal conflict. It must then decide which one to follow.
• a decision of its own conflicts with a Supreme Court decision, even if that decision has not been expressly overruled by the Supreme Court.
• a decision of its own was made per incuriam; in other words, by mistake.

The Court of Appeal (Criminal Division) generally has the same rules of stare decisis as the Civil Division. However, because decisions might affect the liberty of the individual, the rules of precedent are not followed as rigidly. This principle was laid down in R v Taylor [1950] 2KB 368, where it was held that if questions involving the liberty of a subject had either been misapplied or misunderstood, the court should reconsider the decision.

The High Court is bound by decisions of the Supreme Court and the Court of Appeal. It is not bound by previous High Court decisions. However, these are of strong persuasive authority and are usually followed. Decisions of High Court judges are binding in the county courts. Decisions made on points of law by judges in the Crown Court are not binding. They are only of persuasive authority, so other Crown Court judges need not follow them. The decisions of the county courts and the magistrates' courts are not binding.

Courts can avoid following a binding precedent in a case by using a legal device called ‘distinguishing’. Cases can be distinguished on either the facts or the points of law. In a case involving a joint enterprise, where two people take part in a robbery, and in the course of the robbery one of the people kills the person they are stealing from, the person who does not actually do the killing may still be liable if he could foresee that this action was likely to follow. If someone is armed with a gun, murder is more foreseeable than if someone is armed only with a stick. In R v Powell (Anthony) and English [1999] 1 AC 1, HL, Lord Hutton made this distinction.

Judicial precedent provides stability and consistency within the legal system. However, there are cases where its rigidity has led to injustices. The arguments are whether these injustices should be rectified by Parliament through a change in the law, or whether it is up to judges to use their skills to avoid a precedent where it would, in the circumstances of the case, be unjust to follow it.