Lord Gardiner’s statement is a wonderful example of legislators recognizing that precedent may stifle the appropriate outcome in a legal dispute. Comparisons can be made between other Western countries; for example, the US Supreme Court has reversed precedent that it set itself decades prior, such as the landmark case Brown v. Board of Education. Just like these countries, Lord Gardiner believed that Britain should not limit itself to decisions based solely on decisions in the past because the modern day situations that arise often require a more complex and systematic methodology for determining justice. In addition, but not adhering solely to precedent, the Supreme Court is able to reconcile itself with the legal framework set up by international governing agencies, including but not limited to the European Court of Justice and the European Court of Human Rights. This is a result of the United Kingdom playing an increasingly important role in the development of these vital institutions; in order to ensure that the smooth transition towards a healthy cooperation is established, in some cases legal precedent should not always be the sole deciding factor of a legal case.
It is important to point out that Lord Gardiner is not suggesting a complete abandonment of precedent as a principle. Legal precedent is defined as a case or issue decided by a court that can be used to set a rule to answer legal questions that arise in the future (Cornell Law, 2007). Precedent is the basis of a common law system where lower courts must follow the opinion of the higher law courts. Therefore, the concept of adhering to precedent is vital for the lower courts regardless as to whether or not the Supreme Court adheres or not. This issue rarely arises with the Supreme Court, as the highest court of law in the United Kingdom the Supreme Court sets the precedent rather than respond to it; it rarely involves itself in a case that has already been decided on precedent because it is the job of the lower courts to follow the Supreme Court’s example.
A short pause here is needed before examining the court cases that help demonstrate the importance of not strictly adhering to precedent. Previously the Law Lords were the highest court of appeals in the United Kingdom until the Supreme Court was established in 2009. Lord Gardiner’s statement was made in 1966, long before the concept of a UK Supreme Court was realized. It is important to recognize this because Lord Gardiner’s statement predicted the future, namely that contemporary judicial issues invoke slightly different issues than previously.
One of the most important cases that established how precedent would be regarded was the breakthrough case Anns v Merton London Borough Council (1977). This case was meant to determine whether or not city officials were liable for construction defects in houses built by local builders. A very short summary of the case is that in Wimbledon tenants of a building block began noticing cracks appearing because of the poor structural foundations. In 1972 writs were issued against the defendants; the first being the builders for breach of contract and damages. The second was against the city council due to presumed negligence under Section 6 of the Housing Act of 1957. In 1975 it was decided that the case was statute barred because of the time lapse between the first instance of problems with the structure of the entire block of buildings and the actual writ. This was keeping with the precedent set Dutton v Bognor Regis U.D.C. [1972], making this another case of prior precedent. Before the appeal, a case before the House Lords decided that the cause of action did not accrue before the discovery of the issue. That case was Sparham-Souter v. Town and Country Developments (Essex) Ltd. [1976]. The defendants then challenged whether or not the plaintiffs had the right to call them into a suit by challenging the clause established by the Dutton case. Therefore this case developed a dual dimension. It was decided in favor of the plaintiff, and that they did in fact have a right to bring it up because the duty of care was established when discovered, not when it was built. Lord Wilberforce also established what became known as the Anns Test which establishes whether or not a duty of care has been firmly established.
Decades later this case and precedent were overruled by the case Murphy v Brentwood DC (1991). This case arose when the defendant failed to inspect a building properly, and the plaintiff was forced to raise money seeking the repairs. As this proved difficult for the plaintiff, he was forced to sell the property and received a considerable loss. The plaintiff then sought to recover the damages from the defendant. The House of Lords ruled that because no physical damage had occurred, the defendant was not liable for any economic loss brought on as a result. Naturally this is a clear shift from the Anns v Merton London Borough Council decision. The rest of the Commonwealth kept the Anns test as a determinant, however. This was important because the House of Lords used the Public Health Act of 1936 of which the Anns test derived to prove that the purpose of the bill was to provide for the health of tenants, and there is no responsibility for the landlords to provide economic protection for tenants. This case set in stone the responsibilities and duties of each individual party as a result, and it is clear how it overruled Anns. In addition however, Murphy v Brentwood DC also overruled the Dutton case by changing the duty of care requirement. Murphy v Brentwood DC is a remarkable example of how judicial precedent could be changed in order examine a case similar but with slightly different circumstances. This is important because it proves that in a judicial system based upon common law, there is not much room for a ‘one size fits all’ perspective, as this can be highly detrimental towards the smooth operation of a legal system.
Further proof for abandoning past precedent is found in two cases. The first, DPP of Northern Ireland v Lynch (1975), firmly established that duress was available to a participant in a murder that did not perform the actual killing. The second, R v Howe (1987), overrule DPP though the situations were remarkably similar. In DPP, the appellant was ordered by a member of the IRA to drive a car; though the appellant did not know the IRA member personally, he had heard of his reputation. The appellant believed he would be shot if he did not comply. Several men in balaclavas got into the vehicle, and they shot a policeman. The appellant made a defense that he only drove the vehicle under duress. The House of Lords found the appellant innocent. Lord Morris’ statement also demonstrated that the court would view people forced to take a life innocent as well if the killer was held under extreme duress and it could be proven substantially.
In R v Howe, the situation was a little different. Two men, the appellants, were ordered to murder three men by a man under the name Murray. The two were also told that if they did not do so, they would have the same done to them. The appellants murdered two of the men but the third escaped. The trial was eventually brought to the House of Lords, where it was found that murder under the first and second degree was not protected by the rule establishing duress. It is unclear exactly why the House changed its judicial opinion, but this case reestablished the duress clause. If we assume that the Law Lords in the case simply wanted to change precedent to discourage activity from the IRA. If this were the case, then it is a clear example of judicial activism, where the House of Lords came to a legal decision to alter the decision making processes of members of the general public. Even so, historically this time saw an increased number of attacks by the IRA and that would have made the decision by the House of Lords all the more applicable, as they saw setting a new precedent as vital towards protecting the public from the dangerous IRA.
Other examples of the Law Lords using and changing precedent to protect the public exist. One of the most interesting is Sidaway v Board of Governors of the Royal Bethlehem Hospital (1985). In the Sidaway case, the appellant needed a surgery to decompress a nerve in her neck in order to protect from the pain she felt in her neck and shoulders. Her surgeon prepped her with information, but did not inform her of the very remote side effects, such as the one percent chance that she would develop paraplegia. Unfortunately for the appellant, the worst occurred, and she sued the hospital as a result. Her claims were rejected by a somewhat divided court, which ruled that her agreement to participate in the operation did not require the surgeon to inform her of everything; essentially, it was almost as if the House of Lords was saying that she should have asked first! In dissent, Lord Scarnman invoked the Bolam test and believed that the surgeon had a responsibility as a qualified medical professional to provide the best care available for the patient.
Interestingly enough, this case was overruled in Montgomery v Lankashire Health Board (2015), making it a very recent case in terms of the law. The appellant gave birth to a baby boy, but unfortunately due to complications at birth, the baby was born with severe disabilities. The appellant attributed those complications to the doctor and gynecologist in charge of her at the time, Doctor Dina McClellan. The courts advanced two grounds of negligence on behalf of the appellant. The first was that the appellant was not given enough pre-natal advice about the shoulders of her son being unable to pass through the pelvis, and of the alternative possibility of birth via a caesarean section. It was believed in court that Doctor McClellan had failed to use a C-section when necessary.
In the actual court Lord Banntyne, the Lord Ordinary, rejected both grounds of fault. He used the Sidaway case and expert medical advice to establish that the danger of shoulders not being able to pass through the pelvis was marginally important and would not have made an impact on the decision of the mother anyway. In addition, it was determined that the appellant would not have had a C-Section anyway because of the advice, making it effectively useless. Using expert medical advice, the court found that there was no need to immediately perform a C-section because of the numerous non-surgical methods for dislodging the shoulders of the baby naturally. This case also placed considerable emphasis on the patient’s failure to question the doctor, as if the patient made inquiries, the doctor would have been obliged to inform the patient about everything. However, the majority of the court found favor with the appellant and awarded her roughly twenty-five million pounds in damages. The Supreme Court formerly rejected the Bolam test, which centered on whether or not a doctor should discuss issues with patients in regards to their level of experience. Instead, the Court chose to focus on patient-oriented care, and it was deemed that Ms. Montogmery should have had the option to receive a C-section if she so desired. Therefore, the Supreme Court used its powers to redefine the doctor-patient relationship, which is interesting regarding its role. Lord Gardiner, in his statement so long ago, may have ignored the fact that sometimes precedent simply changes when the individual opinions of the judges reflect different ideologies. Logically this could be damaging to the rule of law as justice is supposed to be blind. However, this case is extremely important because it is in line with the European Court of Human Rights, which may help mark a suitable shift away from the tradition British perspective in order to ensure a harmonization of legal principles.
While the House of Lords and the Supreme Court of the United Kingdom are relatively bound by their past decisions, the EU law courts are not. This is because they were founded by the civilian legal models that came from Germany and France, a natural consequence of the European Union’s formation; this is clearly because those countries were responsible for its foundation. The European Court of Justice can freely change its mind from case to case, which in many ways does not represent a consistent system and may place the EUCJ in a legal quagmire. However, the Supreme Court can also abandon prior precedent provided that there is a substantial reasoning for doing so. This aspect can help harmonize the legal procedures of both law courts. It is very important to note that these two legal systems rarely come into contact with each other because of their separate spheres of influence; the EUCJ is concerned primarily with matters that pertain to the EU.
Many argue that the rulings of the EUCJ are more reliant upon abstract methods and less reliant on actual factual evidence from the cases. Anyone examining the previously mentioned cases would note that the British legal system is based solely on what happened in order to best ensure that the legal system fits the case. This is an irreconcilable difference between the two legal systems. While many believe that it is necessary for the EUCJ to maintain its current flexible practices, it can be dangerous considering that the EUCJ does not steep itself in a legal tradition that provides a certain level of credibility and legitimacy. This is a natural effect of the common law system, as all participants can study and examine past rulings to anticipate the outcome of future law suits.
What is most alien to British experts is that the EUCJ can be completely subjected to the individual opinions of whatever judge sits in the designated chair. If a similar case appears after twenty years and the court is composed of entirely different judges, there may be a higher risk of a reversal or difference of opinion. This is possible in the British legal system, but highly unlikely. Indeed, all of the case previously mentioned involve different facts regarding the case, and a different decision was the natural consequence. For example, the Sidaway and Montgomery cases both involved separate circumstances and different levels of perceived neglect, and one dealt specifically with the birth of the child. Precedent is necessary here to firmly establish the root of law, whereas blanket laws and flexible opinions would not be able to adequately protect the appellants or the defendants. This has developed into a sizable conflict overall because many member states may believe that the EUCJ and its decisions may sometimes conflict with the constitutions of its individual member states; in the growing and changing political climate of the EU today, this may be dangerous and lead to more states seeking to leave the Union. However, while a common law system would provide a complete legal integration of its members as it did the differing English regions after the Norman Conquest, it would be foolish to consider that the EU could implement such a system. This means that the best thing to do would be for both institutions to keep the status quo and to discover new means of working together, at least until the United Kingdom formerly leaves the European Union. Therefore, the EUCJ and the British legal system cannot ever be formerly reconciled, but perhaps that is for the best, considering the many years of tradition and precedence that accompany the British Supreme Court and House of Lords.
References
Anns v Merton London Borough Council, (1977), http://www.bailii.org/uk/cases/UKHL/1977/4.html (last visited Jan 10, 2017)
Cornell Law. (2007, August 6). Precedent. Retrieved January 11, 2017, from Cornell Law, https://www.law.cornell.edu/wex/precedent
DPP for NI v Lynch, (1975)
Montgomery v Lankashire Health Board, (2015)
Murphy v Brentwood DC, (1990), http://www.bailii.org/uk/cases/UKHL/1991/2.html
R v Howe & Bannister, (1987)
Sidaway v Board of Governors of the Bethlem Royal Hospital, (1985)
