Theimpact of ‘Brexit’ will cause a significant change if Accountants UK relocatesto Berlin, as they will have to follow the Civil Law system. This can play at adisadvantage for the company, as they will have to follow a set of systematicrules. The UK follows the English Common Law system, which has many advantagesover the Civil Law system. In addition, the English Common Law has manyfeatures such as the Doctrine of Precedent and Statutory Interpretation, whichis fundamental for applying decisions on cases. However, there are somedrawbacks of the English Common law as being undemocratic because it isjudge-made law.
1 This results in positiveand negative aspects of the English Common Law system, which will be providedbelow. 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 is crucial as thecases can be judged fairly since the judges are not controlled by laws andcodes which encourages justice. On the other hand, this can be seen asundemocratic since judges play the main role in making decisions. Doctrine of Precedent is an important aspect for the English Commonlaw 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.
The judges have toprovide 2 types of states. One of the state being ‘ratio decidendi’ meaning “reason for decising”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 a dutyof care in the absence of contractual relations contrary to established caselaw”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.For example in R v Howe Bannister (1987)9 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 regarding precedents asthe method is seen as rigidy since the precedents must be followed by a judgeeven if it is outdated, The change can only occur in the higher appeal courts. Itcan also be time consuming and complex to find relevant law cases as there areso many cases issued and some may remain unjudicated. A judge can avoid precedents by four methods: distinguishing, overrulingand reversing. Distinguishing “allows a court to escape a binding precedent”.
10This can be clearly shown in Balfour vBalfour (1919)11and Merrit v Merrit (1971)12. Both of thecases were for breach of contract between a wife and a husband. Only Merrit v Merrit13 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 the law”14.
An example of this is use is Pepper vHart (1993)15and Davis v Johnson (1978)16 where the houseof lords overruled using the Practise Statement 1996. Reversing occurs when ahigher court disagrees with the verdict of the lower court involving the samecase. This is illustrated in Farley vSkinner (2002)17where the House of Lords reversed the decision for mental distress as LordSteyn said “it was sufficient if a major or important object of the contract isto give pleasure, relaxation or piece on mind”18. Statutory Interpretation is “a court’s power to give meaning tolegislation by clarifying ambiguites, providing limits, and ultimately applyingthat statutory law to a specific fact pattern in litigation”.19The 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 required toconsider what the legislation actually says rather than considering what itmight mean”.20 An example of this in useis Fisher V Bell21 where the display of an item was not an offer for sale but aninvitation to treat.
The benefits of the literal rule are it creates certaintyin the court and prevents unelected judges from constructing law. This is dueto the fact that the literal rule follows the words of the parliament. Thisallows the lawyers to predict the result as the law will be interpreted exactlyits written. However, “the judge sometimes refer to their own interpretation ofthe meaning”22as the use of the literal rule. This can lead to harsh decisions as illustratedon London and North Eastern Railwayv Berriman 194623 as the widow was notentitled to anything even though her husband died. The reason was because hewas not ‘relaying or repairing’ the tracks which made the claim futile.
Inaddition to this, another case Whitely v Chappell (1868)24 concerned a man using avote of a dead man. Literal rule was applied to this and the defendant wasclaimed as not guilty. Due to this, the literal rule was condemned as it cansometimes convey unfairness. The golden rule isused when ” the literal rule is likely to result in what appears to the courtto be an obviously absurd result”25as this allows the judge to adjust decisions to ensure fairness and justice. Asexample of this is The mischief rule is applied as a last resort Lastyle, the purposive approach To conclude, the English Common Law pronouncesmore advantages over the Civil law as the doctrine of precedents provide asense of fairness and justice in the court which can benifit ‘Accountants UK’. 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 R v Howe &Bannister 1987 2WLR 56810 Stephen R Wilson and others, English Legal System(Illustrated edn, Oxford University Press 2016) 18411 Balfourv Balfour 1919 2 KB 57112 Merrittv Merritt 1970 1 WLR 121113 Merritt v Merritt 1970 1 WLR 121114 Stephen R Wilson and others, English Legal System (Illustrated edn,Oxford University Press 2016) 18215 Pepper v Hart 1992 3 WLR 103216 Davis v Johnson 1978 2 WLR 55317 Farley v Skinner 2002 2 AC 73218 Stephen R Wilson and others, English Legal System (Illustrated edn,Oxford University Press 2016) 18419 Robert W. Emerson, Business Law (?Barron’s Educational Series,2009) 72720 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) 3923 Londonand North Eastern Railway v Berriman 1946 AC 27824 Whitelyv Chappel (1868) LR 4 QB 14725 Gary Slapper and David Kelly, The English Legal System(18th edn, Routledge 2017)