The Common Lands of England and Wales

The English legal system is based on the common law. The common law system in England and Wales developed from the decisions of judges whose rulings over the centuries have created precedents for other courts to follow and these decisions were based on the ‘custom and practice of the Realm’. The system of binding precedent means that any decision of the Supreme Court—the new name for the former House of Lords (the highest court in the UK)—will bind all the lower courts, unless the lower courts are able to distinguish the facts of the current case and argue that the previous binding decision cannot apply, because of differences in the facts of the two cases. However, since the UK joined the European Union (EU), the decisions of the European Court of Justice (ECJ) now supersede any decisions of the domestic courts and require the English national courts to follow its decisions. (Scotland has a system based on Dutch Roman law, and some procedural differences although no fundamental differences in relation to employment law.) The Human Rights Act 1998 became law in England and Wales in 2000 (and in Scotland in 1998) in order to incorporate the provisions of the European Convention on Human Rights into UK law. The two most important Articles applicable to employment law are Article 8(1), the right to respect for privacy, family life, and correspondence, and Article 6, the right to a fair trial.

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Liability in negligence for building defects in Ireland, England and Australia

International Journal of Law in the Built Environment ◽

10.1108/ijlbe-06-2017-0019 ◽

2017 ◽

Vol 9 (3) ◽

pp. 178-192

Author(s):

Deirdre Ní Fhloinn

Keyword(s):

Design Methodology ◽

Common Law ◽

Economic Loss ◽

Legal Environment ◽

England And Wales ◽

Content Type ◽

The Common ◽

The Cross

Purpose The purpose of this paper is to consider decisions of the courts of three jurisdictions: Ireland; England and Wales; and Australia, in relation to recovery of economic loss in negligence for building defects and to identify the extent to which the legal environment of each jurisdiction has informed the approach of the courts to the issue. Design/methodology/approach The approach taken for this purpose is to review the extent of legislative intervention in each jurisdiction to provide measures of protection for home buyers, and whether that intervention has limited the scope of what may be recovered in negligence for defects. Findings The findings of the research indicate that the retreat from recovery for defects, led by the courts of England and Wales through a series of cases in the 1980s and 1990s, may be regarded in part as a product of their environment, and that legislative intervention in the area of remedies acted as a limitation on the scope of the duties that the courts were prepared to impose. Originality/value Although the issue of recovery for building defects in negligence has been covered extensively in the literature and jurisprudence, the cross-referencing of the common law position with the legislative context in the jurisdictions considered provides insights into the approaches of courts and why the position of the courts of England and Wales may not transpose comfortably to other jurisdictions.

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The Common Lands of Hampshire

Economic Geography ◽

10.2307/142487 ◽

1958 ◽

Vol 34 (3) ◽

pp. 280

Author(s):

K. C. Edwards ◽

L. Ellis Tavener

Keyword(s):

The Common ◽

Common Lands

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The Mental Capacity Act 2005 and its potential impact on the use of restraint

Psychiatric Bulletin ◽

10.1192/pb.bp.107.016436 ◽

2008 ◽

Vol 32 (4) ◽

pp. 124-126 ◽

Cited By ~ 3

Author(s):

Arthur O. Owino

Keyword(s):

Common Law ◽

Mental Capacity ◽

Best Interest ◽

England And Wales ◽

Time Section ◽

Mental Capacity Act 2005 ◽

The Common ◽

Potential Impact ◽

Care And Treatment ◽

Mental Capacity Act

The staged implementation of the Mental Capacity Act 2005 (further referred to as the Act) began in April 2007 and was completed in October 2007. The Act provides a comprehensive statutory framework for making decisions for people in England and Wales, aged 16 years and over, who lack capacity to make a particular decision at a particular time. Section 5 of the Act codifies the common law doctrine of necessity and provides a defence to anyone who performs an act in connection with the care and treatment of another person – in that person's best interest – reasonably believed to lack capacity in that matter.

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European Perspectives on a Judicial Appointments Commission

Cambridge yearbook of European legal studies ◽

10.5235/152888712802759467 ◽

2004 ◽

Vol 6 ◽

pp. 35-54

Author(s):

John Bell

Keyword(s):

Common Law ◽

Critical Assessment ◽

Judicial System ◽

England And Wales ◽

Judicial Appointments ◽

European Experience ◽

The Common

The natural models for English debates on judicial appointments have been from the common law. Although England and Wales remain very much within the common law world and its problems, we are increasingly drawn into a European world, where many of our ideas and standards are shaped by our participation in European agendas. There are important lessons to be learnt from European experience in this area. Based on that European experience, one can see a tension between the desire to give the judiciary greater independence from the executive and the practice of leaving the judiciary increasingly in charge of the processes of appointment and management of the judicial career and, even, of the judicial system itself. These tensions are much stronger in many other parts of Europe and these may serve as useful points of reference. There is an emerging European judicial model to which English debates are now referring, but which needs critical assessment.

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Time for an English Commercial Code?

The Cambridge Law Journal ◽

10.1017/s0008197300098561 ◽

1997 ◽

Vol 56 (3) ◽

pp. 516-536

Author(s):

Dame Mary Arden

Keyword(s):

Common Law ◽

Law Reform ◽

England And Wales ◽

Commercial Code ◽

Unique Experience ◽

The Common ◽

Systematic Development ◽

The Law ◽

Lord Chancellor ◽

Law Commission

Parliament has imposed on the Law Commission the duty to review the law of England and Wales “with a view to its systematic development and reform, including in particular the codification of [the] law … and generally the simplification and modernisation of the law”. There are a number of points which flow from this. First, as a body which reviews great swathes of the common law to see if they require to be modernised or simplified, the Law Commission has a unique standpoint from which to view the strengths and weaknesses of the common law method. Second, it has unique experience of law reform and the Parliamentary process. Third, in discharge of its functions, it has an interest in seeing that, if codification is appropriate, a recommendation to that effect is made to the Lord Chancellor. It need not be the Law Commission which carries out the recommendation, and indeed the Law Commission could not carry out a project purely of its own initiative.

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Lies, Collateral Lies and Insurance Claims: The Changing Landscape in Insurance Law

Edinburgh Law Review ◽

10.3366/elr.2018.0484 ◽

2018 ◽

Vol 22 (2) ◽

pp. 237-265

Author(s):

Baris Soyer

Keyword(s):

Common Law ◽

Good Faith ◽

Insurance Fraud ◽

England And Wales ◽

Insurance Law ◽

Significant Challenge ◽

The Common ◽

Utmost Good Faith ◽

The Law ◽

Definition Of

Determining the scope of the fraudulent claims rule in insurance law has posed a significant challenge for the courts, particularly in the last two decades. In the shadow of the doctrine of utmost good faith, the law in this area has developed in an uncompromising fashion introducing draconian remedies against an assured who submits a fraudulent claim. The Supreme Court's most recent intervention has provided much needed guidance on the state of the law. This article, taking into account the fact that in other areas of law more proportionate remedies have gradually been introduced, discusses the boundaries of the fraudulent claims rule in insurance law as it applies in England and Wales and Scotland. Considering that the insurers might be tempted to introduce fraudulent claims clauses into their contracts to expand the common law definition of insurance fraud at the claims stage, this article also evaluates the wording of such clauses often used in practice and concludes that they lack the desired clarity.

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