5)Distinguish between the political function of the House of Lords and its judicial function. Why is the judicial function of the House of Lords about to cease? By what will it be replaced and when? (100 words)
UK parliament is a bicameral system which comprises the House of Commons and the House of Lords. The House of Lords’ political function involves questioning the Government on its activity on any matter, analysing and improving laws on matters discussed, providing independent expertise on technical matters. But the House of Lords is also the highest court of appeal in the UK, acting also on devolution and in criminal matters for Northern Ireland, Scotland and Wales[1].
Its decisions bind all courts below and therefore constitute the source of case law.
According to the Constitutional Reform Act 2005[2], the judicial functions of the House of Lords are to be transferred to a newly created Supreme Court of United Kingdom in October 2009. The Law Lords will then be the first judges in the new Supreme Court. The newly appointed judges joining them in the future will not be given peerage.
6) From your independent research identify one decision of the House of Lords, sitting in its judicial capacity, within the last three years and, in general terms, the subject matter of the decision. Record the title of the case and the names of the judges who decided it in the House of Lords (100 words).
The case chosen is entitled: West Tankers Inc (Respondents) v RAS Riunione Adriatica di Sicurta SpA and others (Appellants) – 21 February 2007. The appellate comitee regroups: Lord Nichols of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Mance.[3] The subject matter is about a conflict between EC regulation 44/2001, which allows the parties to seek prosecution in the court of another member state while they are bound not to sue by an arbitration agreement in the UK, and “no-suit injunctions” issued by a UK jurisdiction following contract arbitration provision, but which is only valid in the UK territory. The decision taken by the House of Lords was that the question should be referred to the European Court of Justice with an advice on how it could be resolved.
Part C –Legal skills: Inspiron v. E2
Answer A:
The global feeling is that this answer is not very technical and does not contain enough legal sources. The language is more spoken style (“pub style”) than legal style. The first sentence is very characteristic of the global lack of legal syllogism: “the two parties have made a contract to give one party extra money to finish the job”. The answer should have been giving the facts, then the legal principle of binding contracts, and finally assessed and discussed whether there was a contract or not (which is the main problem of the case). There is an attempt to describe the logic of the situation, but it remains very economic and not very legal. In order to improve this answer, I would first try to get back to a) describe the facts without qualifying them or imagine things (like “when they are playing golf or out drinking”) as there is no word of that in the question. Then expose the different legal theory applicable and relevant case law solutions. And finally discuss applicability of case law to the facts. The question of likelihood of success on the E2 legal arguments is not answered.
Answer B:
The structure of the answer is more a classical one: introduction exposes the problem and clarifies the legal question to be solved. Then the answer exposes the different legal theories pertaining to different case law and the possible solutions to the question. There is also an interesting insight into court strategy and which legal theory would be more suitable for the client. In my opinion, the legal theory is still a little bit short, and the court strategy assessment takes too much space. It is very good to play a chess game when pleading, but there also has to be some solid legal argument behind in order to succeed.
The last part of the answer would have needed more work, as its’ subject is a key element in this case: how do you prove that there has been the different elements which characterise a contract amendment? The question is very central as you may have the law with you, if you cannot prove it, you have nothing to succeed.
Answer C:
Poor language “the two parties had dealt with each for so long” (the word “other” is missing”), etc…this answer is somewhere in between Answer A and Answer B. There is still not enough legal syllogism, not enough precise description of case law with quotes, main principles, dates etc…. The answer to the question is given too straightforwardly: “will fail” but does not explain exactly on which legal basis it will. There is an allusion to the lack of proof elements, but nothing on case law on this specific question.
Actavis UK Ltd v Merck & Co Inc
[2008] EWCA Civ 444
a) From which court was the decision in this case appealed?
This case is judged in front of the civil division of the court of appeal, which decided to depart from previous decision of its’ own court.
This is a very specific case as usually, once a ruling is made by a court on an issue, it is not possible to rule a second time on the same facts. In Actavis case, the Court of Appeal has ruled before the case was settled in front of the European Patent Office (“EPO”) Court of Appeal. Its’ ruling does not follow EPO’s ratio decidendi. Considering that the purpose of precedent rule is to allow certainty in legal assessments, the Court of Appeal has decided to use its’ free (and not binding) possibility to appeal on its’ own decision. In order to justify this unusual decision, it also states that the judge did not follow another case law which did not contain a clear ratio decidendi.
b) What do you understand by the term “ratio decidendi”?
Ratio decidendi refers to “the point in a case which determines the judgement”[4], or “the principles which the case establishes”[5]. Basically, when referring to case law, there has to be two kind of elements a counsel or a judge will use: the factual elements of the case (facts, proof, circumstances, etc..) and the legal reasons used to justify the decision made. These elements have to stand clear in order to allow the case to be used in an efficient way. In fact, there are plenty of court decision which are not as clear as would be needed, but this is the rule it should be following.
In this precise case, the judge used “Bristol Meyers-Squibb v.Baker Norton” in order to justify his ruling, but as the ratio decidendi was not clear enough, his decision had to be re-ruled in appeal, using the elements given by the EPO.
The ratio decidendi is a very important part of a court’s decision as it is binding for the lower jurisdictions and will therefore be applied to other cases.
c) What was the ratio decidendi of the Court of Appeal in this case on the law of judicial precedent?
In the Actavis case, the Court of Appeal considered that the ruling was based on Bristol Meyers-Squibb v. Baker Norton (BMS case) precedent, which did not contain a clear and precise ratio decidendi. Therefore, it was not possible to use it as a precedent as it would lead to uncertainty in the legal order. The problem was that once the BMS precedent was deemed not usable, it had to find another precedent to follow.
In this case, the Court of appeal decided that it was to use the Young v. Bristol Aeroplane decision principle which, in this situation, allows the court to rule according to the ratio decidendi of an earlier decision. In Young v. Bristol Aeroplane, the Court considered that the fact that the ratio was obscure was a reason to consider that it is not so binding and to use a former precedent.
Therefore, the Court of Appeal decided to allow the appeal (84)
Moreover (85), the Court of Appeal decides that even if Young v.Bristol Aeroplane was not to be applied, the simple fact that a European Patent Organisation had been created was exceptional enough to justify the appeal on appeal.
[1] http://www.parliament.uk/documents/upload/HofLBpJudicial.pdf
[2] http://www.justice.gov.uk/guidance/supreme-court.htm
[3] http://www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd070221/westt-1.htm
[4] Black’s Law Dictionnary, p.1135, 1979
[5] Barron’s Law Dictionnary, p.385, 1984
