Doctrine of Parliamentary Sovereignty

Question 1

The doctrine of parliamentary sovereignty of the United Kingdom parliament is presented in a distinctive legal arrangement and is not subject to judicial review by the court. Unconditional power is giving to Westminster Parliament and according to the Parliament website:

‘the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution.’

(1. http://www.parliament.uk/about/how/sovereignty/ [accessed 03 March 2011])

This is different from the United States where their powers are cautiously limited by their constitution.

The application of parliamentary sovereignty has been limited by development of passed laws within and outside the UK. These laws included:

• • The devolution of power to bodies like the Scottish Parliament and Welsh Assembly.
  • The Human Rights Act 1998.
  • The UK’s entry to the European Union in 1972.
  • The decision to establish a UK Supreme Court in 2009, which ends the House of Lords function as the UK’s final court of appeal.

(2. http://www.parliament.uk/about/how/sovereignty/ [accessed 03 March 2011])

The European Union does not distinguish the notion of parliamentary sovereignty since joining the European Union in 1972 and limits the application of parliamentary sovereignty. The United Kingdom courts currently recognise the supremacy of European Union law but in theory the United Kingdom parliament could repeal these European Union law.

Question 2

Definitions of Doctrine of precedent on the Web:

• • Stare decisis (Latin: , Anglicisation: ) is the legal principle by which judges are obliged to obey the set-up precedents established by prior decisions. …en.wikipedia.org/wiki/Doctrine_of_precedent
  • 18.4 The Doctrine Of Precedentby Doctor Mark Cooray
  • The doctrine of judicial precedent is at the heart of the common law system of rights and duties. The courts are bound (within prescribed limits) by prior decisions of superior courts. Adherence to precedent helps achieve two objects of the legal order. Firstly it contributes to the maintenance of a regime of stable laws. This stability gives predicability to the law and affords a degree of security for individual rights. Secondly it ensures that the law develops only in accordance with the changing perceptions of the community and therefore more accurately reflects the morals and expectations of the community.
  • A system based on precedent will be rational (without making reason its god), will be adaptable to varied and changing circumstances, will take into account all the varieties of human experience, will be highly practical and will be composed by the finest minds of many generations, tuned to a fine balance and learned in the art of detecting legal issues and resolving legal problems. The gradual development of the system will avoid the pitfalls of hasty and counterproductive reformism.
  • http://ourcivilisation.com/cooray/btof/chap184.htm
  • [Latin, Let the decision stand.] The policy of courts to abide by or adhere to principles established by decisions in earlier cases.
  • In the United States and England, the Common Law has traditionally adhered to the precedents of earlier cases as sources of law. This principle, known as stare decisis, distinguishes the common law from civil-law systems, which give great weight to codes of laws and the opinions of scholars explaining them. Under stare decisis, once a court has answered a question, the same question in other cases must elicit the same response from the same court or lower courts in that jurisdiction.
  • The principle of stare decisis was not always applied with uniform strictness. In medieval England, common-law courts looked to earlier cases for guidance, but they could reject those they considered bad law. Courts also placed less than complete reliance on prior decisions because there was a lack of reliable written reports of cases. Official reports of cases heard in various courts began to appear in the United States in the early 1800s, but semiofficial reports were not produced in England until 1865. When published reports became available, lawyers and judges finally had direct access to cases and could more accurately interpret prior decisions.
  • For stare decisis to be effective, each jurisdiction must have one highest court to declare what the law is in a precedent-setting case. The U.S. Supreme Court and the state supreme courts serve as precedential bodies, resolving conflicting interpretations of law or dealing with issues of first impression. Whatever these courts decide becomes judicial precedent.
  • In the United States, courts seek to follow precedent whenever possible, seeking to maintain stability and continuity in the law. Devotion to stare decisis is considered a mark of judicial restraint, limiting a judge’s ability to determine the outcome of a case in a way that he or she might choose if it were a matter of first impression. Take, for example, the precedent set in roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, the 1973 decision that defined a woman’s right to choose Abortion as a fundamental constitutional right. Despite the controversy engendered by the decision, and calls for its repudiation, a majority of the justices, including some conservatives who might have decided Roe differently, have invoked stare decisis in succeeding abortion cases.
  • Nevertheless, the principle of stare decisis has always been tempered with a conviction that prior decisions must comport with notions of good reason or they can be overruled by the highest court in the jurisdiction.
  • The U.S. Supreme Court rarely overturns one of its precedents, but when it does, the ruling usually signifies a new way of looking at an important legal issue. For example, in the landmark case brown v. board of education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), the Supreme Court repudiated the separate-but-equal doctrine it endorsed in plessy v. ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896). The Court ignored stare decisis, renouncing a legal precedent that had legitimated racial Segregation for almost sixty years.

is also important to revise the House of Lords and the Court of Appeal and their own previous decisions. (The 1966 Practice Statement & Young v Bristol Aeroplane (1944)).

Judicial Precedent refers to the way in which the law is made and amended through the decisions of judges.

Stare Decisis – Stand by the Decision

The doctrine of judicial precedent is based on the principle of stare decisis, this means that like cases should be treated alike. The general rule is that all courts are bound to follow decisions made by courts higher than themselves in the hierarchy and appellate courts are usually bound by their own previous decisions.

Original Precedent

Where there is no previous judicial decision on a point of law before the court then the decision made in that case on that point of law will be original precedent. The way in which a judge will come to their decision in this situation is to look at cases which are similar to the one in question. These cases are not binding on the court but they are persuasive.

Binding and Persuasive Precedent

A previous decision will be binding on the court if:

• • The legal point involved in the case is the same as the one in the previous decision
  • The facts of the current case are similar to the previous case (they do not have to be identical)
  • The earlier decision was made by a court higher in the hierarchy, or at the same level as the current court (and it is bound by its own previous decisions)

Only the ratio decidendi of the earlier case is binding.

A previous decision will only be persuasive on the court where:

• • The dissenting judgment in a House of Lords decision
  • Ratios from decision in courts lower in the hierarchy
  • Decision from courts in other jurisdictions, i.e. Australia
  • Obiter dicta statements by a court higher in the hierarchy than the current court. For example inR v Gotts (1992) where the Court of Appeal followed an obiter dicta statement by the House of Lords in R v Howe (1987) on the availability of the defence of duress when charged with attempted murder.

Ratio Decidendi and Obiter Dicta

A judgment by the court is split into three parts:

• • the material facts
  • the principle of law
  • the decision of the court

Only the principles of law that are relevant to the decision are the ratio decidendi of the judgment. Any other statements of law that are not relevant to the decision are obiter dicta.

Distinguishing

Distinguishing is a ‘tool’ used by judges to avoid following a previous decision which they would otherwise be bound to follow. An advantage of distinguishing is that it helps to keep judicial precedent and the law flexible.

Where a judge considers the material facts of the present case to be sufficiently different from the earlier case they may distinguish the two cases and refuse to follow the earlier decision. For an example of distinguishing in practice see Merritt v Merritt (1971) and Balfour v Balfour (1919).

Judicial Law Making

Many areas of our law have been developed by the decisions of judges, for example, the tort of negligence. The speed at which the law develops can depend on whether the judge is an active or passive law maker.

Active law making can be seen in the case of R v R (1991) where the House of Lords ruled that rape within marriage was a criminal offence. An example of passive law making is seen in the case of C v DPP (1995) where the House of Lords refused to change the presumption about criminal responsibility of children under the age of 14, feeling that it was the job of Parliament to make such major changes to our law.

Advantages and Disadvantages of Judicial Precedent

Advantages

• • Certainty- It creates certainty in the law and means solicitors and barristers can advise their clients on the probable outcome of their case. Fairness – Similar cases are treated in a similar way, this is in the interests of justice and fairness.
  • Time Saving – It saves court time as for most situations there is already an existing solution.
  • Law Development – it allows the law to develop alongside society R v R (1991) – this case overturned a centuries old legal principle that a man could not rape his wife.

Disadvantages

• • Rigidity – The system is too rigid and does not allow the law to develop enough.
  • Injustice – The strict rules of judicial precedent can create injustice in individual cases
  • Slow Development – The law is slow to develop under the system of judicial precedent. The law cannot be changed until a case on a particular point of law comes before one of the higher appellate courts.
  • Confusion – Hundreds of cases are reported each year, making it hard to find the relevant precedent which should be followed.
  • Complexity – The law is too complex with thousands of fine distinctions.

Question 3

Question 4

Question 5

rm: remoteness of damage

Not all damages are recoverable by a claimant has suffered loss or damage at the hands of a defendant by reason of breach of contract. There are two tests in assessing remoteness of damages: causation and reasonable foreseeability. There must be a sufficient connection between the breach and the loss in order to recover damages for the breach of contract. The damage or loss itself must be caused by the breach of contract. Damage suffered by reason of an intervening act by a third party which the defendant could not have reasonably foreseen will not be recoverable from the defendant.

In the event that the loss is sufficiently caused by the breach of contract, damages claims are also limited by the losses that the defendant reasonably ought to have foreseen to have flowed from the breach, and is judged at the time the contract was formed, not the time of the breach.

The successful claimant is entitled to recover all the losses that would naturally flow from the breach – the losses that are reasonably and fairly considered to arise in as a result of the breach that any claimant would suffer. That is, the losses that would be suffered by any claimant for the particular type of contract. In addition to this, where special knowledge is possessed by the defendant at the time of the contract, further damages are able to be recovered as the defendant is deemed to have an “expanded” knowledge of the claimant’s circumstances and thus the reasonable foreseeability of damage likely to be suffered is wider. http://www.gillhams.com/dictionary/319.cfm

http://www.brewerconsulting.co.uk/cases/CJ0506RR.htm

cases

Remoteness of damage

Remoteness of damage relates to the requirement that the damage must be of a foreseeable type. In negligence claims, once the claimant has established that the defendant owes them a duty of care and is inbreach of that duty which has caused damage, they must also demonstrate that the damage was not too remote. Remoteness of damage must also be applied to claims under the Occupiers Liability Acts and also to nuisance claims.

Remoteness of damage is often viewed as an additional mechanism of controlling tortious liability. Not every loss will be recoverable in tort law. Originally a defendant was liable for all losses which were a direct consequence of the defendant’s breach of duty:

Re Polemis & Furness Withy& Company ltd. [1921]3 KB 560 Case summary

This was largely considered unfair as a defendant could be liable for damage which was not foreseeable and therefore could not take steps to prevent it. The direct consequence test was overruled in the Wagon Mound no 1 and replaced with a new test for deciding if damages are too remote:

The Wagon Mound no 1 [1961] AC 388 Case summary

Followingthe Wagon Mound no 1 the test for remoteness of damage is that damage must be ofa kind which was foreseeable. Once damage is of a kind that is foreseeable the defendant is liable for the full extent of the damage no matter whether the extent of the damage is foreseeable

The Wagon Mound test was considered and applied in:

Hughes v Lord Advocate [1963] AC 837 Case summary

Doughty v Turner Manufacturing Company [1964] 1 QB 518 Case summary

There has been some confusion as to whether for remoteness of damage, in addition to being damage of a type which is foreseeable, the damage must occur in a foreseeable manner. Hughes v Lord Advocate suggests not but see:

The Egg shell skull rule

A final aspect of remoteness of damage is the egg shell (or thin) skull rule. This means a defendant must taketheir victim as theyfind them. Ie if the victim is particularly vulnerable or has a pre-existing condition resulting in them suffering greater injury than would be expected in an ordinary person, the defendant remains responsible for the full extent of the injury: