Welcome to Scribd. Sign in or start your free trial to enjoy unlimited e-books, audiobooks & documents.Find out more
Standard view
Full view
of .
Look up keyword
Like this
1Activity
0 of .
Results for:
No results containing your search query
P. 1
“The courts across the common law world have consistently failed to provide an account of retrospectivity in judicial precedent that is doctrinally convincing”.

“The courts across the common law world have consistently failed to provide an account of retrospectivity in judicial precedent that is doctrinally convincing”.

Ratings:
(0)
|Views: 19|Likes:
An essay for the 2012 Undergraduate Awards Competition by Andrew Flynn. Originally submitted for Law and French at Trinity College Dublin, with lecturer Dr Desmond Ryan in the category of Law
An essay for the 2012 Undergraduate Awards Competition by Andrew Flynn. Originally submitted for Law and French at Trinity College Dublin, with lecturer Dr Desmond Ryan in the category of Law

More info:

Published by: Undergraduate Awards on Aug 31, 2012
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
See more
See less

05/13/2014

 
“The
courts across the common law world have consistently failed to provide an account
of retrospectivity in judicial precedent that is doctrinally convincing”.
 
This essay seeks to contribute to the discussion of a question which is inherent in any legalsystem which substantially relies on adjudicative precedent as a source of law: to what extent,if any, should a superior court decision which changes our understanding of the law apply toactions already taken under the prior legal arrangement? Any answer will impact fundamentalconcepts such as legality, which seeks to ensure that all persons are entitled to know inadvance whether their intended actions will be deemed lawful or unlawful, or the separationof powers, which seeks to restrict the role of judges in the legal system to declaring pre-existing legal principles.This essay sets for itself the modest but achievable goal of examining key concepts and issuesin the debate as derived from the seminal UK and Irish cases on the subject,
 In Re SpectrumPlus Ltd (In Liquidation)
and
 A v The Governor of Arbour Hill Prison
respectively. It thendemonstrates how these frameworks can be applied to other common law jurisdictions, suchas Australia and the United States of America, in order to assess the doctrinal consistency of their case law on the subject. It ultimately concludes that, while a sweeping condemnation of all common law jurisdictions is impossible, the general trend appears to be one of inconsistency within jurisdictions, between older and newer precedents, and between the jurisdictions themselves. It suggests that this flexibility may be the only acceptable andpracticable solution to this eternally vexed question, since any solution will always impact onfundamental and competing principles of our system of government.
 
“The
courts across the common law world have consistently failed to provide an account
of retrospectivity in judicial precedent that is doctrinally convincing”.
 
This is a strong statement that is very difficult to prove. To demonstrate consistent failure onthe part of the courts of the common law world would require a discussion of every accountof retrospectivity in judicial decisions from every judgment from every court from everycommon law jurisdiction. That is beyond the scope of this essay. What can be demonstrated isthat a variety of judicial accounts from various common law jurisdictions have sometimes
succeeded and sometimes failed in this task. “[D]octrinally convincing” is taken to mean
convincing as a clear test that can be applied consistently and predictably. The original
common law jurisdiction’s account will be examined in the House of Lords decision in
 In ReSpectrum Plus Ltd (In Liquidation)
1
(hereinafter
Spectrum
). This has been chosen because itsets out both the traditional common law approach to the issue and the various alternatives.
The Irish courts’ account of the issue in
 A v The Governor of Arbour Hill Prison
2
(hereinafter
 A
)
 
will then be examined in light of previous Irish accounts as a case solely concerned withretrospectivity of judicial precedent and an example of a jurisdiction with a judiciallyenforceable constitution. Samples of case law from Australia and the USA will then bediscussed in light of the two case studies. The contexts and backgrounds of the cases will beomitted.In
Spectrum
the House of Lords determined where English law stood on the temporal effectof a judicial decision. Lord Nicholls gave an outline of how the common law had traditionallyapproached the question. He noted that
the courts’ main role is
 
adjudicative: they “
decide the
legal consequences of past happenings.”
3
In this respect, the courts are almost alwaysapplying their decisions retrospectively. He then noted the long-established practice of treating previous decisions on points of law by superior courts as binding precedents. Thismeans that any subsequent adjudicative proceedings will be subject to relevant precedentsestablished in previous proceedings. This means that, depending on the date of proceedings, judicial decisions may be applied retroactively to facts: actions taken and transactions madebefore the relevant precedent was established but adjudicated upon after its establishment.This is in accordance with the traditional declaratory theory that common law judges do not
1
[2005] UKHL 41; [2005] 2 AC 680.
2
[2006] IESC 45; [2006] 4 IR 88.
3
[2005] 2 AC 680, at [4].
 
make the law, they only discover it.
4
Lord Nicholls then observed that there were exceptionsto this rule in the form of other common law rules of application
“such as limitation, laches,
and
res judicata
.”
5
The last rule is especially important as it means that finally decided casescannot be reopened, even in light of an important new precedent changing our understandingof the law. This means that judicial precedents are not normally applied to finally determinedproceedings. The principle of general retrospectivity can undoubtedly be harsh if a decisionradically alters our perception of the law; people may discover that they have been actingillegally when they could not have known so. Lord Nicholls, however, accepted that this
account of retrospectivity, “[w]hatever its faults … is straightforward.”
6
It is certainlydoctrinally convincing as it can be applied consistently and predictably; it clearly indicateswhen there would be exceptions in the form of other common law rules for claims. LordNicholls then ide
ntified the various types of prospective overruling. He identified a “pure”
type where decisions have prospective effect only: the parties to the litigation bringing about
the decision are not affected. He then identified two forms of “selective” overrulin
g. In thefirst form, the decision applies prospectively and retrospectively only to the parties in thelitigation. In the second form, the decision applies prospectively and retrospectively to theparties to the immediate litigation and to parties to cases pending before the courts. He notedsome of the discriminatory disadvantages of this system: it discriminates either against thosewho were lucky enough to be have their claim heard first or those who were lucky enough torealise they might have a claim.The House unanimously held that it did have jurisdiction to make prospective rulings under
its underlying objective “to administer justice fairly and in accordance with the law”.
7
Itwould only do so when necessary in exceptional cases. It further held that it could makeprospective rulings if it was acting in its capacity to modify and develop common law rules
and principles to bring them in line with “current social conditions and expectations”.
8
It alsounanimously held that it could not do so if it was correcting a mistaken or incorrect statementof the law. In those circumstances the declaratory theory would still apply. It split 4-3 withregard to statutory interpretation. The majority (Lords Nicholls, Hope, Walker and BaronessHale) held that if the House was interpreting a statutory provision beyond its original meaning
4
 
“[I]f it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence
was
bad law
, but that it was
not law
Sir William Blackstone
 per 
Lord Nicholls, [2005] 2 AC 680, at [34].
5
[2005] 2 AC 680, at [26].
6
 
 Ibid.
 
7
 
 Ibid.,
at [40].
8
 
 Ibid.,
at [32].

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->