Aveneu Park, Starling, Australia

The crucial as the cases can be judged fairly

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


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.

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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
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.
For example in R v Howe Bannister (1987)9




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”.10
This can be clearly shown in Balfour v
Balfour (1919)11
and Merrit v Merrit (1971)12. Both of the
cases were for breach of contract between a wife and a husband. Only Merrit v Merrit13 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”14.
An example of this is use is Pepper v
Hart (1993)15
and Davis v Johnson (1978)16 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)17
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”18.



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”.19
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”.20 An example of this in use
is Fisher V Bell21 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 is due
to the fact that the literal rule follows the words of the parliament. 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”22
as the use of the literal rule. This can lead to harsh decisions as illustrated
on London and North Eastern Railway
v Berriman 194623 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)24 concerned a man using a
vote of a dead man. Literal rule was applied to this and the defendant was
claimed as not guilty. Due to this, the literal rule was condemned as it can
sometimes convey unfairness.


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”25
as this allows the judge to adjust decisions to ensure fairness and justice. As
example of this is


The mischief rule is applied as a last resort


Lastyle, the purposive approach


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’.








1 Antonin Scalia, A Matter of Interpretation

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 R v Howe &
Bannister 1987 2
WLR 568

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

11 Balfour
v Balfour 1919 2 KB 571

12 Merritt
v Merritt 1970 1 WLR 1211

13 Merritt v Merritt 1970 1 WLR 1211

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

15 Pepper v Hart  1992 3 WLR 1032

16  Davis v Johnson 1978 2 WLR 553

17 Farley v Skinner 2002 2 AC 732

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

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

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

21 Fisher V Bell 1961 1 QB 394 

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

23 London
and North Eastern Railway v Berriman 1946 AC 278

24 Whitely
v Chappel (1868) LR 4 QB 147

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


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