You are here:   Features > Will the genius of the common law survive?
 

As an illustration, we may focus on the legal rules relating to the wide exclusions of liability which are contained in the small print of many contracts. These are often found where the person tendering the contract is in an economically superior position, and can dictate terms to the consumer. The common law developed various techniques for mitigating the unfairness to which such situations could give rise, and in due course there was parliamentary intervention in the form of the Unfair Contract Terms Act 1977. This in turn gave rise to numerous judicial decisions on the Act; and the two together constituted a body of distinctively English law on the subject. However, all of this was cast to the winds by the EU’s 1993 Directive on Unfair Terms in Consumer Contracts, compulsorily enacted into our domestic law (and now reflected in the Consumer Rights Act 2015). The Directive ignored the anterior English position and introduced an approach based on the German Standard Contract Terms Act 1976 and similar legislation from the Netherlands and Luxembourg. English judges now have to grapple with the unfamiliar civil law concepts of “good faith” and “significant imbalance”, as interpreted by the European Court. To read an English textbook on the subject is now in large measure to read a European law textbook. Indeed this comment could be applied to many areas of English law.

Another benevolent creature of the English common law (in fact derived from Scottish law) is the doctrine of forum non conveniens. This provides that an English court can halt an action properly begun before it, provided that it is persuaded by the defendant that the case ought to be tried in the courts of some other country, because that would better serve the interests of all the parties and the ends of justice. This pragmatic and sensible rule finds no parallel in civil law systems. The European Court has therefore decreed that English courts are not to apply it in any case where jurisdiction is conferred on the English court by EU rules — even where the other country is outside the EU.

The UK government has made clear that it intends to seek a perpetuation of the existing jurisdictional rules post-Brexit. This approach is likely to be typical across the board. It is also unlikely that the Consumer Rights Act will be repealed. Nor is it just a question of the probable perpetuation of old arrangements. The question also arises to what extent English law in the future will be subject to new EU laws, on the content of which the British will have had no say. Predictions on Brexit are liable to be proved wrong sooner than most, but Lord Neuberger’s “blip” is more likely to prove a cloud on the horizon. EU law as a diminution of the common law is not only here to stay, but is of uncertain future ambit.

One footnote to the European dimension should be added. Despite comments to the contrary by some who cast envious eyes on the successful export of English legal services to the international community, there is nothing in Brexit which need make parties hesitate in continuing to choose English law or jurisdiction. The substance and quality of English commercial law itself (in particular English law’s highly developed law of contract) remain unaffected by the UK’s departure from the EU. Parties who enter shipping or sale or insurance contracts hereafter will receive the same blue riband product as before. Those who suggest otherwise do not do so in good faith.
View Full Article
Tags:
 
Share/Save
 
 
 
 

Post your comment

CAPTCHA
This question is for testing whether you are a human visitor and to prevent automated spam submissions.