We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 30 April 2015
This article examines the extent to which EU and European human rights law, following the enactment of the European Communities Act 1972 and the Human Rights Act 1998, have changed the manner in which English courts use comparative law in the private law field. Despite legislative intervention rendering EU law part of the national legal system and requiring the courts ‘to take into account’ the jurisprudence of the European Court of Human Rights, there remains evidence that private law courts retain a preference for comparisons within the common law world. This article will examine, with reference to a number of recent empirical studies, the reasons for this position and what this signifies in terms of future comparative law reasoning.
1 Simpson, AWB, ‘Common Law’ in Cane, P and Conaghan, J (eds), New Oxford Companion to Law (OUP 2008) 164Google Scholar. See also Samuel, G, ‘Common Law’ in Smits, JM (ed), Elgar Encyclopedia of Comparative Law (2nd edn, Edward Elgar 2012)Google Scholar.
2 Merryman, JH and Pérez-Perdomo, R, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (3rd edn, Stanford University Press 2007) 2Google Scholar.
3 Zweigert, K and Kötz, H, An Introduction to Comparative Law (3rd edn, Clarendon Press 1998) 68Google Scholar.
4 Van Caenegem, RC, The Birth of the English Common Law (2nd edn, CUP 1988) 89–92Google Scholar; Lundmark, T, Charting the Divide between Common and Civil Law (OUP 2012) 35Google Scholar.
5 See (n 3) 69–70.
6 See also Van Caenegem, RC, Judges, Legislators and Professors (CUP 1987)CrossRefGoogle Scholar and Howarth, D, Law As Engineering: Thinking about What Lawyers Do (Edward Elgar 2014) 148: ‘The world of the law, especially in common law countries, is … self-consciously practical, [it] disdains the merely theoretical and cares less about whether lawyers have well-stocked minds than about whether they know what they are doing’Google Scholar.
7 Holmes, OW, The Common Law (Little, Brown 1881) 1Google Scholar.
8 The Factortame litigation, in particular, highlighted that the principle of effectiveness requires that it should not be practically impossible to exercise EU rights in the national law: see Case C-213/89 R v Secretary of State for Transport, ex parte Factortame Ltd [1990] ECR I-2433 (full effectiveness of EU law impaired if rule of national law prevented court from granting interim relief against the Crown). See eg Craig, P, ‘Sovereignty of the United Kingdom Parliament after Factortame’ (1991) 11 YEL 221Google Scholar.
9 Proposal for a regulation on a Common European Sales Law COM (2011) 635 final.
10 Art 46, ECHR: Binding force and execution of judgments.
11 See (n 2) 1.
12 By which I mean the courts of England and Wales and the UK Supreme Court. It should noted that the Supreme Court does cite Scottish case law, but that this can be attributed to domestic constitutional arrangements and does not reflect on matters discussed in this article.
13 The influence of EU law on other areas of private law may be noted, but is beyond the scope of this article: see, for example, the law of unjust enrichment where the impact of the San Giorgio principle for illegally levied taxes has long been acknowledged: see Case 199/82 Amministrazione delle Finanze dello Stato v SpA San Giorgio [1983] ECR 3595 and the key English case of Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70, recently discussed in Elliott, S, Häcker, B and Mitchell, C (eds), Restitution of Overpaid Tax (Hart Publishing 2013)Google Scholar ch 1. In areas where harmonization is desirable in terms of legal security for the persons involved, such as conflicts of laws and commercial law, the impact of EU law has also been particularly significant, see Stone, P, EU Private International Law (3rd edn, Edward Elgar 2014)Google Scholar and Gullifer, L and Vogenauer, S (eds), English and European Perspectives on Contract and Commercial Law (Hart Publishing 2014)Google Scholar. Briggs has recently argued that European regulation now provides the framework for private international law, which bears the influence of over 40 years of European legislation: Briggs, A, Private International Law in the English Courts (OUP 2014)Google Scholar.
14 See eg Flanagan, B and Ahern, S, ‘Judicial Decision-Making and Transnational Law: A Survey of Common Law Supreme Court Judges’ (2011) 60 ICLQ 1Google Scholar, which surveys 43 judges from the UK House of Lords, the Caribbean Court of Justice, the High Court of Australia, the Constitutional Court of South Africa, and the Supreme Courts of Ireland, India, Israel, Canada, New Zealand and the US on the use of foreign law in constitutional rights cases. See, more generally, Rosenfeld, M and Sajó, A (eds), The Oxford Handbook of Comparative Constitutional Law (OUP 2012)Google Scholar.
15 Jaremba, U, ‘At the Crossroads of National and European Union Law. Experiences of National Judges in a Multi-Level Legal Order’ (2013) 6 Erasmus Law Review 190CrossRefGoogle Scholar, 196.
16 There is a wealth of literature discussing the meaning of ‘legal family’ and whether it is better described as a ‘legal tradition’ or ‘culture’ or even ‘mentalité’ to use the phrase of Pierre Legrand (see eg ‘European Legal Systems Are Not Converging’ (1996) 45 ICLQ 52Google Scholar). This article will not explore this debate, save to recognize the limitations of taxonomy in providing a definitive determinative link between any grouping of States.
17 Criminal appeals to the Privy Council were ended in 1933. Civil appeals ended in 1949, when an amendment to the Supreme Court Act transferred ultimate appellant jurisdiction to Canada.
18 Culminating in the Australia Act 1986 (Cth). Appeals to the Privy Council from decisions of the High Court of Australia were effectively ended by the combined effects of the Privy Council (Limitation of Appeals) Act 1968 and the Privy Council (Appeals from the High Court) Act 1975. However, a right of appeal to the Privy Council remained from state courts, in matters governed by state law, until the passage of the Australia Acts, both state and Federal, in the 1980s.
19 Supreme Court Act 2003. The Act came into force on 1 January 2004, officially establishing the New Zealand Supreme Court, and at the same time ending appeals to the Privy Council in relation to all decisions of New Zealand courts made after 31 December 2003. This New Zealand legislation does not, however, affect rights of appeal from the Cook Islands and Niue.
20 See eg M Vranken, ‘Australia’ in Smits (n 1), Toohey, J, ‘Towards an Australian Common Law’ (1990) 6 AustBarRev 185Google Scholar; Cooke, R, ‘The New Zealand National Legal Identity’ (1987) 3 CantaLRev 171Google Scholar; Glover, K, ‘Severing the Ties That Bind? The Development of a Distinctive New Zealand Jurisprudence’ (2000) 8 WaikatoLRev 25Google Scholar.
21 The Supreme Court of Canada in Canadian National Railway Co v Norsk Pacific Steamship Co [1992] 1 SCR 1021, (1992) 91 DLR (4th) 289, for example, was quite willing to declare that ‘Murphy v Brentwood District Council [1991] 1 AC 398 does not represent the law in Canada.’
22 See Glenn, HP, ‘Persuasive Authority’ (1987) 32 McGillLJ 261Google Scholar and Justices Kirby (High Court of Australia) and Sharpe (Court of Appeal for Ontario) in ch 19: ‘The Old Commonwealth’ in QC, L Blom-Cooper, Dickson, B and Drewry, G (eds), The Judicial House of Lords 1876–2009 (OUP 2009)Google Scholar.
23 Mason, A, ‘Future Directions in Australian Law’ (1987) 13 MonLR 149Google Scholar, 154. See also Finn, P, ‘Common Law Divergences’ (2013) 37 MULR 511Google Scholar, 511, who states that ‘Today, it is abundantly clear that there are separate bodies of English and Australian common law.’
24 For example, in relation to the doctrine of vicarious liability in tort, see Lister v Hesley Hall Limited [2001] UKHL 22, [2002] 1 AC 215, para 27 per Lord Steyn: ‘I have been greatly assisted by the luminous and illuminating judgments of the Canadian Supreme Court in Bazley v Curry, 174 DLR (4th) 45 and Jacobi v Griffiths, 174 DLR (4th) 71. Wherever such problems are considered in future in the common law world these judgments will be the starting point.’
25 ‘The common law, though identifiable, is a weak identifier. It can float around the world, but in so doing it provides little reinforcement for national identities, and leaves much room for accommodation with other (personal) laws': Glenn, HP, Legal Traditions of the World (5th edn, OUP 2014) 260–1Google Scholar. Harris also comments that the ‘very idea of ‘the common law’ is notoriously elusive’: Harris, JW, ‘The Privy Council and the Common Law’ (1990) 106 LQR 574Google Scholar.
26 [1996] AC 624.
27 ibid 640.
28 See Oliphant, K, ‘Beyond Misadventure: Compensation for Medical Injuries in New Zealand’ (2007) 15 MedLRev 357Google Scholar and Todd, S, ‘Forty Years of Accident Compensation in New Zealand’ (2012) 28 TMCooleyLRev 190Google Scholar.
29 Commonwealth of Australia, Review of the Law of Negligence: Final Report (Canprint Communications Pty Ltd 2002)Google Scholar.
30 Bingham, TH, Widening Horizons: The Influence of Comparative Law and International Law (CUP 2010) 2Google Scholar.
31 Case 6/64 Costa v ENEL [1964] ECR 585, 593. See, generally, Craig, P and de Búrca, G, EU Law: Text, Cases and Materials (5th edn, OUP 2011)Google Scholar ch 9. See also art 19 TEU: ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.’
32 Section 2(1), European Communities Act 1972.
33 See art 258 TFEU, art 259 TFEU and the preliminary reference procedure under art 267 TFEU.
34 Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastungen [1963] ECR 1, [1964] CMLR 105 and Case 41/74 Van Duyn v Home Office [1974] ECR 1337. See, generally, Craig and de Búrca (n 31) ch 7.
35 Case 14/83 Von Colson v Land Nordrhein-Westfalen [1984] ECR 1891; Case C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECR I-4135; Cases C-397-403/01 Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2004] ECR I-8835.
36 As discussed by Staudenmayer, D, ‘The Way Forward in European Contract Law’ (2005) 13 ERPL 95Google Scholar.
37 See generally Lando, O and Beale, H (eds), Principles of European Contract Law Parts I and II (Kluwer 2000)Google Scholar; Lando, O, Clive, E, Prüm, A and Zimmermann, R (eds), Principles of European Contract Law Part III (Kluwer 2003)Google Scholar.
38 See Weatherill, S, EU Consumer Law and Policy (2nd edn, Edward Elgar 2013)Google Scholar.
39 Council Directive 93/13/EEC of 5 April 1993 OJ L 95, 21 April 1993, 29–34.
40 Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 OJ L 171, 7 July 1999, 12–16.
41 Council Directive 90/314/EEC of 13 June 1990 OJ L 158, 23 June 1990, 59–64 (soon to be revised).
42 Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 OJ L 149, 11 June 2005, 22–39. Note also Directive 2000/31/EC on electronic commerce OJ L 178, 17 July 2000, 1–16.
43 Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 OJ L 304, 22 November 2011, 64–88.
44 SI 1994/3159 (replaced by SI 1999/2083 due to problems with transposition).
45 See Collins, H, ‘Good Faith in European Contract Law’ (1994) 14 OJLS 229Google Scholar.
46 Reg. 5(1) UTCC Regulations 1999: ‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.’
47 Sale and Supply of Goods to Consumers Regulations SI 2002/3045, amending the Sale of Goods Act 1979, the Supply of Goods and Services Act 1982, the Supply of Goods (Implied Terms) Act 1973 and the Unfair Contract Terms Act 1977.
48 Part 5A, Sale of Goods Act 1979 (additional rights of buyer in consumer cases) and similar provisions under Part 1B of the 1982 Act. See C Willett, M Morgan-Taylor and A Naidoo, ‘The Sale and Supply of Goods to Consumers Regulations' [2004] JBL 94; Adams, JN and MacQueen, H, Atiyah's Sale of Goods (12th edn, Pearson 2010) 522–7Google Scholar.
49 Compare, for example, how the UK and Australian courts dealt with the issue of the enforceability of bank charges in Office of Fair Trading v Abbey National Plc [2009] UKSC 6, [2010] 1 AC 696 and Andrews v ANZ Banking Group Ltd [2012] HCA 30, (2012) 290 ALR 595 (comment: Peel, E, ‘The Rule against Penalties’ (2013) 129 LQR 15Google Scholar).
50 See Giliker, P, The Europeanisation of English Tort Law (Hart Publishing 2014)Google Scholar ch 3.
51 Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products: [1985] OJ L 210, 29.
52 [2001] 3 All ER 289.
53 C-300/95 [1997] ECR I-2649, [1997] All ER (EC) 481.
54 Case C 52/00 Commission v France [2002] ECR I-3827.
55 [1932] AC 562.
56 So named after the leading case of C-6/90 Francovich v Italian Republic [1991] ECR I-5357, [1993] 2 CMLR 66.
57 Although see, recently, Delaney v Secretary of State for Transport [2015] EWCA Civ 172, [2014] RTR 25 (on appeal): exclusion of the MIB's liability to passengers known as the ‘crime exception’ was in breach of the UK's obligations under the EU Motor Insurance Directives, giving rise to Francovich liability.
58 Stanton, KM, ‘New Forms of the Tort of Breach of Statutory Duty’ (2004) 120 LQR 324Google Scholar; Giliker, P, ‘English Tort Law and the Challenge of Francovich Liability: 20 years on’ (2012) 128 LQR 541Google Scholar.
59 See eg C224/01 Köbler v Austria [2003] ECR I-239, [2004] QB 848 which provides that a court of final appeal may be sued for failing to refer a matter to the CJEU or for giving an erroneous ruling where it amounts to a manifest infringement of the applicable law.
60 See Beatson, J, ‘Has the Common Law a Future?’ (1997) 56 CLJ 291Google Scholar, 292–5, who speculates that England and Wales will become the Québec of Europe!
61 Provoking, perhaps predictably, a hostile response from some commercial lawyers: see eg McMeel, G, ‘The Proposal for a Common European Sales Law: Next Stop a European Contract Code?’ (2012) 27 BJIB&FL 3Google Scholar; Kenny, M, ‘The 2004 Communication on European Contract Law: Those Magnificent Men in Their Unifying Machines’ (2005) 30 ELRev 724Google Scholar.
62 See eg European Parliament: Resolution of 26 May 1989, OJEC C 158/401 of 26 June 1989; Resolution of 6 May 1994, OJEC C 205/519 of 25 July 1994.
63 von Bar, C and Clive, E (eds), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (Sellier 2009 and OUP 2010)CrossRefGoogle Scholar vols I–VI.
64 N Jansen and R Zimmermann, ‘A European Civil Code in All but Name’ [2010] CLJ 98.
65 Green paper from the Commission on policy options for progress towards a European Contract Law for consumers and businesses COM (2010) 348 final.
66 COM (2011) 635 final.
67 Website at <http://www.ectil.org>.
68 As Twigg-Flesner comments: ‘Legal reasoning at the national level cannot be purely domestic in areas affected by EU measures, with national courts required to adopt an interpretation which respects the autonomous status of EU law’: Twigg-Flesner, C, The Cambridge Companion to European Union Private Law (CUP 2010) 6Google Scholar.
69 An issue brought to a head in the prisoners' rights case of Hirst v UK (74025/01) (2006) 42 EHRR 41 (ECHR Grand Chamber), discussed T Lewis, ‘‘‘Difficult and Slippery Terrain’’: Hansard, Human Rights and Hirst v UK’ [2006] PL 209. Note also the extrajudicial response of Lord Sumption, ‘The Limits of Law’ 27th Sultan Azlan Shah Lecture, 20 November 2013.
70 If the court is satisfied that a legislative provision is incompatible with a Convention right, it may make a declaration of incompatibility: section 4 HRA 1998.
71 See eg Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557 concerning a statutory tenancy. See A Kavanagh, ‘The Elusive Divide between Interpretation and Legislation under the Human Rights Act 1998’ 920040 24 OJLS 259.
72 See, recently, Crawford, C, ‘Dialogue and Rights-Compatible Interpretations under Section 3 of the Human Rights Act 1998’ (2014) 25 KLJ 34Google Scholar.
73 (23452/94) (2000) 29 EHRR 245.
74 (29392/95) (2002) 34 EHRR 3.
75 [2001] EWCA Civ 633, [2002] QB 74.
76 [2003] UKHL 40, [2004] 1 AC 816, para 33 per Lord Nicholls.
77 A helpful summary of their differences of opinion may be found in Conister Trust Ltd v John Hardman & Co [2008] EWCA Civ 841, [2009] CCLR 4, paras 110–111 per Lawrence Collins LJ. See also Beale, H (ed), Chitty on Contracts (31st edn, Sweet and Maxwell 2012)Google Scholar para 1–065; G McMeel, ‘Contract, Restitution and the Human Rights Act 1998′ [2004] LMCLQ 280; Shanshal v Al-Kishtaini [2001] EWCA Civ 264; [2001] 2 All ER (Comm) 601 (any breach of art 1 Protocol 1 justified on basis of public interest exception).
78 Salat v Barutis [2013] EWCA Civ 1499, [2014] ECC 2, para 26.
79 McKendrick, E, Contract Law (10th edn, Palgrave Macmillan 2013) 14Google Scholar. See also H Collins, ‘The impact of Human Rights Law on Contract Law in Europe’ [2011] EBLR 425. Indeed, Chitty on Contracts (n 77) devotes 33 paras to the topic: ‘The Human Rights Act 1998 and Contracts.
80 As noted, for example, by Lord Hoffmann in Matthews v Ministry of Defence [2003] UKHL 4, [2004] 2 AC 368, para 26. An obvious contrast may be made with EU law, as stated above, where the twin goals of improving inter-State trade and consumer protection have led to more intervention in the law of contract than that of tort.
81 See Young, AL, ‘Mapping Horizontal Effect’ in Hoffman, D (ed), The Impact of the UK Human Rights Act on Private Law (CUP 2011)Google Scholar.
82 Depending on whether one favours strong or weak indirect horizontal effect: see M Hunt, ‘The Horizontal Effect of the Human Rights Act’ [1998] PL 423; Phillipson, G, ‘The Human Rights Act, “Horizontal Effect” and the Common Law: A Bang or a Whimper?’ (1999) 62 MLR 824Google Scholar.
83 McKenna v British Aluminium Ltd [2002] EnvLR 30.
84 O'Shea v MGN Ltd [2001] EMLR 40.
85 See eg Barrett v Enfield LBC [2001] 2 AC 550 (refusal to strike out negligence actions by children in care); L (A Child) and another v Reading Borough Council [2001] EWCA Civ 346, [2001] 1 WLR 1575 (refusal to strike out negligence claim against police); W v Essex County Council [2001] 2 AC 592 (refusal to strike out parents' claim for psychiatric injury).
86 [2003] EWCA Civ 1151, [2004] QB 558 (also known as JD). The claim for breach of art 6 was rejected, consistent with Z v United Kingdom.
87 [1995] 2 AC 633.
88 For criticism, see Wright, J, ‘Immunity No More’ (2004) 20 PN 58Google Scholar.
89 [2012] UKSC 2, [2012] 2 AC 72.
90 Only parents of a minor who was never married or a civil partner may claim bereavement damages under the 1976 Act, section 1A(2)(b). For criticism that Rabone undermines the legislative intention of the 1976 Act, see Tettenborn, A, ‘Wrongful Death, Human Rights and the Fatal Accidents Act’ (2012) 128 LQR 327Google Scholar.
91 [2013] UKSC 41, [2014] 1 AC 52.
92 Steyn, Lord, ‘The Challenge of Comparative Law’ (2006) 8 EJLR 3Google Scholar, 4. See also Bingham, TH, ‘“There Is a World Elsewhere”: The Changing Perspectives of English law’ (1992) 41 ICLQ 513Google Scholar.
93 In view of the quality and detail of these studies and their contemporary nature, it would be a pointless exercise for the current author to replicate this work.
94 Bobek, M, Comparative Reasoning in European Supreme Courts (OUP, 2013)Google Scholar. His study examines secondary sources indicating the use of comparative arguments in the House of Lords and published decisions in 2009.
95 Gelter, M and Siems, MM, ‘Citations to Foreign Courts—Illegitimate and Superfluous, or Unavoidable? Evidence from Europe’ (2014) 62 AmJCompL 35Google Scholar, covering England and Wales, Ireland, Germany, Austria, Switzerland, France, Belgium, Italy, Spain and the Netherlands. See also Gelter and Siems, ‘Networks, Dialogue or One-Way Traffic? An Empirical Analysis of Cross-Citations between Ten of Europe's Highest Courts’ (2012) 8 UtrechtLRev 88Google Scholar.
96 Stanton, K, ‘Comparative Law in the House of Lords and Supreme Court’ (2013) 42 CLWR 269CrossRefGoogle Scholar.
97 For the differences between qualitative and quantitative research, see Bryman, A, Social Research Methods (4th edn, OUP 2012)Google Scholar.
98 E Mak, ‘Why Do Dutch and UK Judges Cite Foreign Law?’ [2011] CLJ 420. See also Mak, E, Judicial Decision-Making in a Globalised World (Hart Publishing 2013)Google Scholar.
99 Bobek (n 94) ch 2. See also Gelter and Siems (n 95) Table 3.
100 Consider, for example, the comments of Baroness Hale in Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] 2 AC 72, paras 96–97, ‘[Strasbourg's] tendency is to state the principle in very broad terms, without defining precisely the circumstances in which it will apply. … Such broad statements of principle are hard to interpret and even harder to apply.’
101 Stanton (n 96) finds that of the 110 House of Lords/Supreme Court cases surveyed (1990–2013), 73 (66.4 per cent) contain references to the law of other common law jurisdictions, while only 12 (11 per cent) of cases made use of civil law materials. See also Table 10 in Gelter and Siems (n 95) which identifies the low citation rate in core civil law cases (in contrast to commercial law) and Bobek (n 94): in 2009 24 per cent of Supreme Court cases referred to material from outside the UK, but only one reference to legal materials from outside the common law world.
102 [2002] UKHL 22, [2003] 1 AC 32.
103 [1995] UKHL 5, [1995] 2 AC 207.
104 See eg Markesinis, BS and Fedtke, J, Engaging with Foreign Law (Hart Publishing 2009)Google Scholar.
105 See Stanton (n 96) 295–6; Mak (n 98) 429. Markesinis himself has noted the extent to which the education and experiences of individual judges influence their willingness to refer to ‘foreign’ law: Markesinis, BS, ‘Judicial Mentality: Mental Disposition or Outlook as a Factor Impeding Recourse to Foreign Law’ (2006) 80 TulLRev 1325Google Scholar.
106 Stanton (n 96) 286: Australia (used in 53 of 110 cases), the United States (39), Canada (34) and New Zealand (29). Bobek (n 94) agrees: 85–6. Mak (n 98) 436 again notes a preference for Australia, Canada and New Zealand together with the US legal system. This analysis is supported by the earlier study of Örücü, E, ‘Comparative Law in British Courts’ in Drobnig, U and van Erp, S (eds), The Use of Comparative Law by Courts (Kluwer 1999)Google Scholar which specifically sought to examine whether the entry of the UK to the EU had made any difference to citation patterns and the quantitative study of Siems, M, ‘Citation Patterns of the German Federal Supreme Court and the Court of Appeal of England and Wales’ (2010) 21 KLJ 152Google Scholar.
107 Stanton (n 96) 286. Gelter and Siems (n 95) 64 identify that a preference for common law sources may also be identified in the Irish High Court with a high level of citation of English law in the field of civil law.
108 See eg Mak (n 98) 423 and Gelter and Siems (n 95) 57–8.
109 Stapleton, J, ‘Benefits of Comparative Tort Reasoning: Lost in Translation’ in Andenas, M and Fairgrieve, D (eds), Tom Bingham and the Transformation of the Law (OUP 2009) 784Google Scholar. See also Lady Hale in Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17, para 83.
110 Mak terms these ‘organisational variables' (n 98). See also Mak, E, ‘Reference to Foreign Law in the Supreme Courts of Britain and the Netherlands: Explaining the Development of Judicial Practices’ (2012) 8 UtrechtLRev 20Google Scholar, 2.3.
111 Mance, Lord, ‘Foreign and Comparative Law in the Courts’ (2001) 36 TexIntlLJ 415Google Scholar, 420. See also Lord Steyn (n 92) 7: ‘in seeking guidance from comparative law materials the court must always be alive to structural differences between legal systems’.
112 Jones v Kaney [2011] UKSC 13, [2011] 2 AC 398, para 76.
113 See (n 94) 93.
114 Notably when comparing systems of human rights: McCrudden, C, ‘A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights’ (2000) 20 OJLS 499Google Scholar. Gelter and Siems (n 95) observe that the two countries in their study which performed least well on their corruption index (Italy and Spain) are rarely (if ever) cited: 57–8.
115 Bell, J, ‘The Relevance of Foreign Examples to Legal Development’ (2011) 21 DukeJComp&IntlL 433Google Scholar.
116 Lord Neuberger, ‘Cambridge Freshfields Annual Law Lecture 2014: The British and Europe’ 12 February, 2014, paras 37–38.
117 Lundmark (n 4), 212–13; Giliker (n 50) ch 2.
118 Giliker (n 50) 33; Frankenberg, G, ‘Critical Comparisons: Re-thinking Comparative Law’ (1985) 26 HarvIntlLJ 411Google Scholar.
119 Van Hoecke, M and Warrington, M, ‘Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law’ (1998) 47 ICLQ 495CrossRefGoogle Scholar, 533.
120 See eg Lord Neuberger in Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17, [2014] AC 366, para 193: the United States represents ‘a highly developed common law country, where the issue has been considered in far greater depth and by almost infinitely more judges than here’. Glenn also notes the importance of esteem based on shared political ideals: Glenn, HP, ‘Persuasive Authority’ (1987) 32 McGillLJ 261Google Scholar, 271. Stapleton (n 109) notes, however, a tendency not to fully engage with US case law and to cite cases selectively: 785.
121 A Watson, ‘Comparative Law and Legal Change’ [1978] CLJ 313.
122 See (n 14).
123 Discussed in S Weatherill, ‘Competence and European Private Law’ in C Twigg-Flesner, The Cambridge Companion to European Union Private Law (n 68) and also Vogenauer, S and Weatherill, S, ‘The European Community's Competence for a Comprehensive Harmonisation of Contract Law—An Empirical Analysis’ (2005) 30 ELRev 821Google Scholar.
124 Green Paper on the Review of the Consumer Acquis COM (2006) 744 final. For a taste of some of the criticism accompanying earlier versions of the Directive, see Twigg-Flesner, C, ‘No Sense of Purpose or Direction? The Modernisation of European Consumer Law’ (2007) 3 ERCL 198Google Scholar; Twigg-Flesner, C and Metcalfe, D, ‘The Proposed Consumer Rights Directive—Less Haste, More Thought?’ (2009) 5 ERCL 368Google Scholar; Micklitz, H-W. and Reich, N, ‘Crónica de una muerte anunciada: The Commission Proposal for a ‘Directive on Consumer Rights’ ’ (2009) 46 CMLRev 471Google Scholar.
125 The resulting 2011 Consumer Rights Directive 2011/83/EU is far narrower, primarily covering only two of the original eight directives, see Weatherill, S, ‘The Consumer Rights Directive: How and Why a Quest for “Coherence” Has (Largely) Failed’ (2012) 49 CML Rev 1279Google Scholar.
126 Contrast regulations which, under art 288(2) TFEU, have general application. They are binding in their entirety and directly applicable in all Member States.
127 Syrett, K, The Foundations of Public Law (2nd edn, Palgrave Macmillan 2014) 255Google Scholar.
128 (BIS, 2013) BIS/13/774, available at <https://www.gov.uk/government/publications/guiding-principles-for-eu-legislation>. The aim is to avoid ‘gold-plating’, that is, the extension of consumer protection beyond that required by EU law, on the basis that this would place an extra burden on UK businesses.
129 ‘Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.’
130 See eg Wennerås, P, ‘Sanctions against Member States under Art 260 TFEU: Alive but Not Kicking?’ (2012) 49 CMLRev 145Google Scholar. As Bieber and Maiani observe, one problem is that all measures and procedures taken vis-à-vis Member States are embedded in a legal system that conceives of State compliance with EU law as a voluntary act, thereby relying on the co-operation of the State and imposing structural limits on any enforcement procedure: Bieber, R and Maiani, F, ‘Enhancing Centralized Enforcement of EU law: Pandora's Toolbox’ (2014) 51 CMLRev 1057Google Scholar, 1060–1.
131 [1997] ECR I-2649, [1997] 3 CMLR 923.
132 See eg Case C-203/99 Veedfald v Arhus Amtskommune [2001] ECR 1–3569, [2003] 1 CMLR 1217 (Product Liability Directive) and C237/02 Freiburger Kommunalbauten GmbH Baugesellschaft & Co KG v Hofstetter [2004] ECR I-3403 (Unfair Terms Directive), although Micklitz and Reich note more recently a more proactive approach by the CJEU to the 1993 Directive: Micklitz, H-W and Reich, N, ‘The Court and Sleeping Beauty: The Revival of the Unfair Contract Terms Directive’ (2014) 51 CMLRev 771Google Scholar.
133 Case 283/81 CILFIT and Lanificio di Gavardo SPA v Ministry of Health [1982] ECR 3415: no preliminary reference is needed when the correct application of EU law may be said to be so obvious that there is no scope for any reasonable doubt how the matter in question should be resolved.
134 See Office of Fair Trading v Abbey National plc [2009] UKSC 6, [2010] 1 AC 696, and Three Rivers District Council v Bank of England (No 3) [2000] UKHL 33, [2003] AC 1.
135 See eg J Wright, ‘Interpreting Section 2 of the Human Rights Act 1998: Towards an Indigenous Jurisprudence of Human Rights' [2009] PL 595; Hale, Lady, ‘Argentoratum locutum: Is Strasbourg or the Supreme Court Supreme?’ (2012) 12 HRLRev 65Google Scholar; F Klug and H Wildbore, ‘Follow or Lead? The Human Rights Act and the European Court of Human Rights’ [2010] EHRLR 621; R Masterman, ‘Section 2(1) of the Human Rights Act 1998: Binding Domestic Courts to Strasbourg?’ [2004] PL 725.
136 R v Spear [2002] UKHL 31, [2003] 1 AC 734; R v Horncastle [2009] UKSC 14, [2010] 2 AC 373.
137 R (Alconbury Developments Ltd and Others) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 26 per Lord Slynn.
138 R (on the application of Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, para 20, stating the so-called ‘mirror principle’.
139 R (on the application of Nicklinson) v Ministry of Justice [2014] UKSC 38, [2014] 3 WLR 200, para 70 per Lord Neuberger.
140 Consider eg Laws, J, ‘Lecture III – The Common Law and Europe’, The Hamlyn Lectures 2013: The Common Law Constitution (CUP 2014)Google Scholar and Lord Judge, ‘Constitutional Change: Unfinished Business', University College London, 4 December 2013.
141 See Wright (n 135) 616: ‘In many claims before English courts, there will be no ECHR case law to guide the way.’ See also N Bratza, ‘The Relationship between the UK Courts and Strasbourg’ [2011] EHRLR 505 in which the former President of the ECtHR concedes that the court should strive for greater clarity in the way it expresses its judgments and avoid the over-frequent use of the terms ‘in principle’ and ‘as a rule’.
142 See Tyrer v United Kingdom (1979–80) 2 EHRR 1; N Bratza, ‘Living Instrument or Dead Letter—The Future of the European Convention on Human Rights' [2014] EHRLR 116.
143 Arts 1 and 13 ECHR respectively make it clear that primary responsibility for securing the rights and freedoms provided by the Convention lies with national authorities. See Greer, S, The European Convention on Human Rights: Achievements, Problems and Prospects (CUP 2006) 216Google Scholar.
144 Handyside v United Kingdom (5493/72) (1976) 1 EHRR 737; A v UK (3455/05) (2009) 49 EHRR 29, para 184: ‘The doctrine of the margin of appreciation has always been meant as a tool to define relations between the domestic authorities and the Court.’ See also Lord Bingham in Kay v Lambeth LBC [2006] UKHL 10; [2006] 2 AC 465, para 44 and Hutchinson, MR, ‘The Margin of Appreciation Doctrine in the European Court of Human Rights’ (1999) 48 ICLQ 638Google Scholar.
145 McKendrick (n 79) 219: ‘English law recognises no general principle that a party must exercise his contractual rights ‘‘reasonably’’ or ‘‘in good faith’’.’
146 See eg Murphy, J and Witting, C, Street on Torts (13th edn, OUP 2012)Google Scholar where it is placed in a special section entitled ‘Torts involving strict or stricter liability’. It may also be noted that Francovich liability receives similar treatment. If mentioned at all in a tort textbook, it will be found in a brief subsection of the chapter on ‘breach of statutory duty’ or simply labelled ‘Euro-torts': see Street on Torts 527–8 and Jones, M (ed), Clerk and Lindsell on Torts (21st edn, Sweet and Maxwell 2014)Google Scholar ch 9, section 3(g).
147 Schulze, R and Morgan, J, ‘The Right of Withdrawal’ in Dannemann, G and Vogenauer, S (eds), The Common European Sales Law in Context: Interactions with English and German Law (OUP 2013) 313Google Scholar. See also RJC Munday, ‘The Common Lawyer's Philosophy of Legislation’ Rechtstheorie 14 (1983) 191, 199–200.
148 See Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457; G Philllipson, ‘Privacy’ in D Hoffman (ed), The Impact of the UK Human Rights Act on Private Law (n 81).
149 It has long been a point of contention whether this is a distinct tort in its own right or merely a subset of the equitable action for breach of confidence: P Giliker, ‘English Tort Law and the ‘’Tort’’ of Breach of Confidence’ [2014] Juridical Review 15. The Court of Appeal in Vidal-Hall v Google Inc [2015] EWCA Civ 311, [51] confirmed recently that the misuse of private information action should be recognised as a tort, at least for the purposes of the rules of service out of jurisdiction.
150 McKennitt v Ash [2006] EWCA Civ 1714, [2008] QB 73, para 11.
151 See eg Clift v Slough BC [2010] EWCA Civ 1484, [2011] 1 WLR 1774, noted by K Hughes, ‘Defamation and the Human Rights Act 1998′ [2011] CLJ 296. More generally, see K Oliphant, ‘Defamation’ in Hoffman (ed), The Impact of the UK Human Rights Act on Private Law (n 81).
152 See Kaye v Robertson [1991] FSR 62.
153 [2008] UKHL 50, [2009] 1 AC 225.
154 ibid, para 82 per Lord Hope. See also Jain v Trent AHA [2009] UKHL 4, [2009] 1 AC 853 and, more recently, the majority of the Supreme Court in Michael v The Chief Constable of South Wales Police [2015] UKSC 2 where Lord Toulson argued that the courts should seek to avoid ‘gold-plating’ Convention rights by providing compensation on a different basis to that of the HRA 1998: see paras 125–127.
155 The claim under the HRA 1998 failed in Van Colle where the claimant was unable to satisfy the onerous criteria for breach of art 2 ECHR stated in Osman v UK (1998) 29 EHRR 245. See, however, Michael v The Chief Constable of South Wales Police [2015] UKSC 2 (HRA claim based on art 2 allowed to proceed to trial) and DSD v Commissioner of Police for the Metropolis [2014] EWHC 436 (QB) (HRA claim successful against the police for breach of art 3 ECHR due to systematic failings in investigating a series of rapes and sexual assaults).
156 [2012] UKSC 2 (discussed in section II(b)).
157 [2013] UKSC 41 (discussed in section II(b)).
158 This has been followed in relation to other torts eg private nuisance (Dobson v Thames Water Utilities Ltd [2009] EWCA Civ 28, [2009] 3 All ER 319), false imprisonment (Austin v Commissioner of Police of the Metropolis [2007] EWCA Civ 989, [2008] QB 660—appealed to House of Lords on art 5 only [2009] UKHL 5, [2009] 1 AC 564) and misfeasance in public office (Watkins v Secretary of State for the Home Department [2006] UKHL 17, [2006] 2 AC 395, para 26 per Lord Bingham).
159 ‘Negligence and Human Rights Law: The Case for Separate Development’ (2013) 76 MLR 286Google Scholar, distinguishing between public law/human rights norms and those of private law, remarking at 302: ‘the process of convergence would serve to distort the law of negligence both by undermining established principles and by introducing alien concepts'.
160 J Wright, ‘A Damp Squib? The Impact of Section 6 HRA on the Common Law: Horizontal Effect and Beyond’ [2014] PL 289.
161 Although section 3 HRA 1998 does permit the courts to review statutes to see if they are convention-compliant, this will have limited impact on areas of private law which remain dominated by case law.
162 [2011] UKSC 13, [2011] 2 AC 398.
163 See also Arthur JS Hall & Co v Simons [2002] 1 AC 615: review of the immunity of advocates from negligence actions in the wake of Osman v UK.
164 [2011] UKSC 13, para 74.
165 See Bell, J, ‘The Argumentative Status of Foreign Legal Arguments’ (2012) 8 UtrechtLRev 8Google Scholar, 12. Watson also argues that drastic legislative change would have been necessity to break the ties of the common law world: A Watson, ‘The Future of the Common Law Tradition’ [1984] DalhousieLJ 67.
166 See Lord Bingham in Fairchild v Glenhaven Funeral Services Ltd & Ors [2002] UKHL 22, who nevertheless does also spend considerable time considering case law from other common law jurisdictions.
167 McLoughlin v O'Brien [1983] 1 AC 410, 430.
168 Gearey, A, Morrison, W and Jago, R, The Politics of the Common Law: Perspectives, Rights, Processes, Institutions (2nd edn, Routledge 2013) 139Google Scholar.
169 Consider eg Lord Rodger's comment in Barker v Corus UK Ltd [2006] UKHL 20, [2006] 2 AC 572, para 91: ‘Nor do I find useful guidance for the position in this country in the examples of several liability from the United States.’
170 See (n 98) 434.
171 She reports that UK judges felt a closer ideological affinity with the ECHR compared to the ‘too liberal’ human rights jurisprudence of the Canadian Supreme Court: (n 98) 432–3. One might question to what extent the training given to judges prior to the implementation of the HRA 1998 might have encouraged a more positive response.
172 Bobek (n 94) 41 and 283.
173 Consider eg the Consultative Council of European Judges (CCJE), the Association of European Administrative Judges (AEAJ) and the Network of the Presidents of the Supreme Judicial Courts of the EU. For a critical appraisal, see Claes, M and De Visser, M, ‘Are You Networked Yet? On Dialogues in European Judicial Networks’ (2012) 8 UtrechtLRev 100Google Scholar.
174 Lord Neuberger, ‘Why a European Law Institute?’ ELI Conference, 1 June 2011. Lord Mance is also a Founding Member of the European Law Institute and serves on its Arbitral Tribunal.
175 See Giliker (n 50) ch 1: for judges taking their law degree before 1991, EU law would not have been a compulsory option in their qualifying degree.
176 See eg B Pillans, ‘Private Lives in St Moritz: Von Hannover v Germany (No 2)’ [2012] Communications Law 63, discussing Von Hannover v Germany (No 1) (59320/00) (2005) 40 EHRR 1 and Von Hannover v Germany (No 2) (40660/08) (2012) 55 EHRR 15.
177 Both are matters of contention in the May 2015 UK general election.
178 eg the concept of ‘duty of care’ in tort or ‘promissory estoppel’ in contract law. For a recent example, see Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17 (to identify the characteristics of the common law tort of malicious prosecution).
179 See Bell, J and Ibbetson, D, European Legal Development: The Case of Tort (CUP 2012) 24–32Google Scholar, who note that this tendency is increased by the propensity of lawyers to reason by analogy, drawing from established legal rules and principles; Siems, M, Comparative Law (CUP 2014) 239–40Google Scholar; Hathaway, OA, ‘Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System’ 86 IowaLRev 601 (2001)Google Scholar.
180 See (n 102) para 32.
