The impact of ‘Brexit’ will cause a significant change if Accountants UKrelocates to Berlin, as they will have to follow the Civil Law system. This canplay at a disadvantage for the company, as they will have to follow a set ofsystematic rules.
The UK follows the English Common Law system, which has manyadvantages over the Civil Law system. In addition, the English Common Law hasmany features such as the Doctrine of Precedent and Statutory Interpretation,which is fundamental for applying decisions on cases. However, there are somedrawbacks of the English Common law as being undemocratic because it isjudge-made law.1 Thisresults in positive and negative aspects of the English Common Law system,which will be provided below. English Common Law system is derived frompublished precedential opinions which are then followed by the judge to makedecisions regarding the similar cases. One of the benefits of the EnglishCommon law is that “common law codes are not intended to be entire statement ofthe whole law..
.meant to be supplemented by the judicial opinions”.2This indicates that the cases are checked thoroughly and compared to theprevious precedents which are more flexible than the Civil Law as “it has thepower to draw upon the common law to act in the best interests of thevulnerable person”.3 This iscrucial as the cases can be judged fairly since the judges are not controlledby laws and codes which encourages justice. On the other hand, this can be seenas undemocratic since judges play the main role in making decisions. Doctrine of Precedent is an important aspect for the EnglishCommon law since the judges must check if similar cases have been publishedpreviously. It is based on ‘stare decisis’ which “binds all of the lower courtsof a jurisdication to determination rendered by the highest court in that samejurisdiction”4. Thejudges have to provide 2 types of states.
One of the state being ‘ratio decidendi’ meaning “reason fordecising”5which is applied in the future case decision. An example of the ‘ratiodecidendi’ in Donoghue v Stevenson (1932)6 was that “the manufacturer owed Mrs. Donoghue aduty of care in the absence of contractual relations contrary to establishedcase 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. Bindingprecedent is when it is mandatory to follow the precedent.
This signifies thatthe judge should obey the precedent as it is mandatory however, if theprecedent was set by an inferior court then the judge will not have tonecessary follow the precedent as the decision of lower courts are not bindingon courts higher in the hierarchy. Persuassive precedent is when the judes arenot 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 alsoprecedents made by lower courts. The advantages of precedents are they bring certainty andconsistency in law as the judges wll not be able to make biased decisions. Thiscreates fairness as cases will be treated the same way It also encouragesflexibility as judges in the higher court are consented to update the law associety is always evolving. In addition, precedents are judge made law which isseen as more practical as they are not obliged to follow codified statues likethe Civil law. It is used as a form of guidance for judges since the precedentsprevent them from committing faults.
This also averts any prejudice andinjustice as the precedents are binding. On the other hand, there are disadvantages regardingprecedents as the method is seen as rigidy since the precedents must befollowed by a judge even if it is outdated, The change can only occur in thehigher appeal courts. It can also be time consuming and complex to findrelevant law cases as there are so many cases issued and some may remainunjudicated. A judge can avoid precedents by four methods: distinguishing,overruling and reversing. Distinguishing “allows a court to escape a bindingprecedent”.9 This canbe clearly shown in Balfour v Balfour(1919)10 andMerrit v Merrit (1971)11. Bothof the cases were for breach of contract between a wife and a husband.
Only Merrit v Merrit12 was successful as there was a form ofagreement in writing which enabled distinguishing. Overruling is when “a law asstated in an earlier and differenct case is wrong and no longer represents thelaw”13.An example of this is use is Pepper vHart (1993)14and Davis v Johnson (1978)15 wherethe house of lords overruled using the Practise Statement 1996. Reversingoccurs when a higher court disagrees with the verdict of the lower courtinvolving the same case. This is illustrated in Farley v Skinner (2002)16 wherethe 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 givepleasure, relaxation or piece on mind”17.
Statutory Interpretation is “a court’s power to give meaningto legislation by clarifying ambiguites, providing limits, and ultimatelyapplying that statutory law to a specific fact pattern in litigation”.18The methods of Statutory Interpretation are not inspected Parliament, but bythe judges. There are four rules concerning the Statutory Interpretation: The literal rule which suggests that “the judge is requiredto consider what the legislation actually says rather than considering what itmight mean”.19 Anexample of this in use is Fisher V Bell20 where the display of an item was not an offer forsale but an invitation to treat. The benefits of the literal rule are itcreates certainty in the court and prevents unelected judges from constructinglaw. This allows the lawyers to predict the result as the law will beinterpreted exactly its written. However, “the judge sometimes refer to theirown interpretation of the meaning”21as the use of the literal rule. This can lead to harsh decisions as illustratedon London and North Eastern Railwayv Berriman 194622 asthe widow was not entitled to anything even though her husband died.
The reasonwas because he was not ‘relaying or repairing’ the tracks which made the claimfutile. In addition to this, another case Whitely v Chappell (1868)23 concerneda man using a vote of a dead man. Literal rule was applied to this and thedefendant was claimed as not guilty. The golden rule is used when ” theliteral rule is likely to result in what appears to the court to be anobviously absurd result”24as this allows the judge to adjust decisions to ensure fairness and justice.
Asexample of this is Adler v George (1964)25as the defendant was near a prohibited place but not actually in it. Theadvantages of the golden rule are it allows the judge to choose the mostreasonable meanings, as there could be more than one meaning. This also dealswith the unfairness of the literal rule as there is a wider interpretationallowed with the golden rule. However, the golden rule has its drawbacks sinceit is limited and only used if the literal rule leads to absurdities.Additionally, it is difficult to comprehend absurdities, as there are noguidelines for judges.
For example in LNER v Berriman (1946)26the literal rule was used, which was seen as unfair. The mischief rule is applied as a lastresort and it doesnt rely on the meaning of words but Parliament’s intention.For example, The Smith v Hughes(1960)27The advantages of the mischief rule are itdoesnt rely on the literal meanings of the words which allows the judge to lookback at the law while following Parliament’s intension. It also encouragesflexibility in order to meet social and economic changes in the society. Oppositely,judicial law making can take place as unelected judges are creating laws withtheir own views. Lastyle, the purposive approach interprets specific menaingof phrases or words in the act by looking at Parliament’s intentions.The advantagesare 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 moreadvantages over the Civil law as the doctrine of precedents provide a sense offairness and justice in the court which can benifit ‘Accountants UK’. They aremore flexible and efficient as there are previous precedents available whichguides the judge and gives directions.
However, Common law can change asconditions change since the law is always advancing. Whereas Civil law is fixedand more predictable due to the codes presented. 1 Antonin Scalia, A Matter of Interpretation9(1997)2 Robert W. Emerson, Business Law (?Barron’sEducational Series, 2009) 93 Alisdair Gillespie, The English Legal System (5th edn,OUP Oxford 2015) 134 Robert W.
Emerson, Business Law(?Barron’s Educational Series, 2009) 85 Catherine Elliot & Frances Quinn, English Legal System (7thedn, Pearson, 2016) 146 Donoghue vStevenson 1932 AC 5627 Winterbottomv Wright152 E.R. 402, (1842) 10 M. & W.
109.8 Stephen R Wilson and others, English Legal System (Illustrated edn,Oxford University Press 2016) 1629 Stephen R Wilson and others, English Legal System(Illustrated edn, Oxford University Press 2016) 18410 Balfourv Balfour 1919 2 KB 57111 Merrittv Merritt 1970 1 WLR 121112 Merritt v Merritt 1970 1 WLR 121113 Stephen R Wilson and others, English Legal System (Illustrated edn,Oxford University Press 2016) 18214 Pepper v Hart 1992 3 WLR 103215 Davis v Johnson 1978 2 WLR 55316 Farley v Skinner 2002 2 AC 73217 Stephen R Wilson and others, English Legal System (Illustrated edn,Oxford University Press 2016) 18418 Robert W. Emerson, Business Law (?Barron’s Educational Series,2009) 72719 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) 3922 Londonand North Eastern Railway v Berriman 1946 AC 27823 Whitelyv Chappel (1868) LR 4 QB 14724 Gary Slapper and David Kelly, The English Legal System(18th edn, Routledge 2017)25 Adler v George 1964 2 QB 726 London and NorthEastern Railway v Berriman 1946 AC 27827 Smith v Hughes 19601 WLR 830