Is English common law at risk of becoming out of date?

l3English law took a “incorrect turning” around 35 years earlier, the lord chief justice of England and Wales stated in a lecture earlier this month.Lord Thomas of Cwmgiedd was referring to the aversion of the courts to review decisions reached behind closed doors by independent lawyers serving as arbitrators.You should hire a good branding law firms such as personal injury lawyer Bronx to help you.

Arbitration is often the chosen ways of dealing with commercial disagreements, not least because hearings are not open to the press or public.

Arbitrators chosen by the celebrations – often sitting as a panel of three – hear the arguments in similar method as a court then provide a ruling, referred to as an award.

In 2014, an arbitral tribunal purchased Russia to pay a record $50bn (29.5 bn) to former investors in the now defunct oil company Yukos.

Arbitration awards can be implemented in more than 150 countries around the globe, although Russia is presently challenging the Yukos decision.

The English courts will not agree to hear an appeal against an arbitrator’s award unless it is open to severe doubt, indicating that couple of such appeals come before the courts.

This has resulted in “a severe impediment to the advancement of the typical law”, according to the lord chief justice.

He was referring to the way in which the decisions of senior judges are treated as precedents and followed by other courts.

Typical law:

Common law is made by judges rather than by parliament

Attorneys research study reports of chosen cases and derive concepts from them that will be used by other judges in future. Find out best branding law firms here

In using old concepts to brand-new conditions, the judges develop the common law to meet modern needs

For this to work, the courts require a steady stream of new cases

A crime is stated to be an offence at common law if the judges have constantly treated it as a crime

Examples are murder, murder and typical assault

Other offences may be established by the judges, such as misconduct in public office

Parliament might modify a common law offence at any time, abolish it or replace it with a statutory offence

Some typical law offences fall into disuse and are regarded as obsolete

The chief justice’s concern was that without a stable diet of cases to feed upon, the typical law – efficiently the collective knowledge of judges previous and present – would become increasingly out of date.

It would change from a living instrument into exactly what another judge had described as an ossuary, he stated.

Which would make London a less attractive location for business to settle their disagreements.

There was a time when judges attempted to pretend that they did not make brand-new law – they simply proclaimed it.

In a lecture published in 1972, the terrific Scottish judge Lord Reid famously stated that some people seemed to believe the typical law was concealed in an Aladdin’s cave and judges were given the magic password on visit.

“But,” he continued witheringly, “we do not believe in fairy tales anymore.”.

Too much law.

The complaint now is that judges are making excessive law or taking the law in the wrong direction.

The Supreme Court judges who overturned a veto by the attorney general of the United States and enabled publication of letters composed to government ministers by the Prince of Wales, were charged in 2014 of a “tendency towards judicial supremacism”.

In a current paper, the think tank Civitas argued rather that judges must swear to support the sovereignty of parliament.

“The effect would be that judges who invent brand-new laws without public or parliamentary approval will be in breach of their oath and accountable to elimination from office,” said the paper’s author, Dr David Green.

In fact, though, judges have actually been developing English typical law for centuries.

Murder is a crime because the judges have always concerned it as illegal, not because parliament ever stated it was.

The ability of judges to establish the law was of particular importance in Scotland, which did not have a parliament of its own for 300 years.

Attorneys who try to encourage judges to extend the law are not in fairly the same position as cosmetic surgeons who may refine their abilities by checking out new techniques on patients.

Judges can modify the body of laws in a manner that doctors cannot modify the body of a patient.

But it is true to state that an adjustment of the law can be deserted in the same way as a discredited surgical technique.

We saw that in February when the Supreme Court ruled that earlier decisions on joint enterprise had actually been misinterpreted and altered the law.

It appears hard to strongly believe that the commercial court is running out of work.

Stark warning.

Some attorneys believed Lord Thomas was attempting to bring in crucial cases back to the courts, which in turn may convince leading attorneys to become judges, instead of sit as arbitrators.

The courts are containing it progressively hard to draw in the best employees, not least because of the huge pay cut that a full-time judicial post now involves for successful attorneys.

But the lord chief justice provided a stark warning.

The repercussion of diverting claims from courts to arbitrators, he said, “has actually been the weakening of the means through which much of the common law’s stamina – its ‘quality’ – was established, a risk not merely to those taken part in dispute resolution in London however, more significantly, to the development of the common law as the framework to underpin the global markets, trade and commerce”.

When the most senior judge in England and Wales states the typical law remains in risk, we need to take heed.

Video ‘reveals hunt law breached

The BBC has acquired secret video footage of a fox hunt in the Scottish Borders, which has actually caused two males being accused of wild animal’s offences.Campaigners claim the ban on searching with dogs is routinely being flouted.

Hunt supporters insist they take terrific care to respect the law.

The Jedforest Hunt was secretly filmed by the League Against Cruel Sports in February. The males who have actually been charged are because of appear at Jedburgh Sheriff Court at a later date.

The case comes as Lord Bonomy carries out an evaluation of the law on hunting in Scotland.

Click here to enjoy David Miller’s film examining the arguments on both sides of the fox searching debate.

In 2002, the Scottish Parliament passed legislation that prohibited searching with canines.

Packs of hounds can still legally be used.

The law allows hunts to use hounds to drive foxes from cover and to waiting gunmen.

The League Against Cruel Sports states its hidden surveillance shows that did not happen in this case.

The video footage appears to show a fox being pursued by a pack of hounds on two occasions.

On the second celebration, the animal disappears from view while still being pursued.

‘Hunting, not flushing’.

Describing the video, the League’s director in Scotland, Robbie Marsland, said: “That’s searching, that’s not flushing with guns and we didn’t see that fox again, I’m scared.”.

MrMarsland is calling for the law to be tightened up.

He said: “We believe there are some fairly little modifications that can be made to the legislation which would stop it being possible to take a pack of hounds out into the countryside and chase and kill wild animals.

“The parliament wouldn’t have to stress over it anymore and the Scottish people would know and be safe in the understanding that fox hunting was really prohibited in Scotland.

“Scotland would be the top place in the UK to truly prohibit fox searching.”.

The Scottish Countryside Alliance says huntsmen go to fantastic lengths to guarantee they stay within the law.

Its director, Jamie Stewart, told BBC Scotland: “We would hope quite that Lord Bonomy will review and acknowledge that the act is enforceable and certainly imposed.


“There’s been 210 cases since 2002.

“It’s got a 57 % conviction rate, so the general public must feel confident that the cops have the ability to identify areas where there is criminal activity and prosecute those who’re responsible.

“The procedures within the installed packs is such that there has actually not been an effective prosecution against them simply because there’s been no proof of any unlawful action.”.

Court case.

A cop’s spokesperson stated: “Police Scotland has charged 2 men, aged 23 and 65, under the Protection of Wild Mammals (Scotland) Act 2002.

“Both males will appear at Jedburgh Sheriff Court at a later date.

“We work carefully with a variety of partners to take on wild animal’s criminal offense.

“We would advise members of the public to report any suspicious activity to us as rapidly as possible to allow us to investigate thought criminal activities quickly.”.

The Jedforest Hunt informed BBC Scotland it would be inappropriate to comment at this phase in proceedings.

EU referendum: 12 European cases that have shaped UK work law

The Brexit referendum on whether the UK should withdraw from the European Union happens on 23 June 2016. Stephen Simpson rounds up 12 key European cases that have actually had a major influence on UK work law.

  1. Terms and conditions of work throughout a TUPE transfer

ForeningenafArbejdsledereiDanmark v Daddy`s Dance Hall A/S (1988).

The simple reference of the influential Daddy`s Dance Hall case is enough to send TUPE specialists into a fit of excitement.

This is the 1988 decision in which the ECJ decided unconditionally that modifications to an employee`s terms and conditions of employment are void if the only reason for the modifications is a TUPE transfer, and that staff members cannot agree to pull out of their TUPE rights.


While the concept has been deteriorated to some level, it is still a crucial one for employers to think of when starting the sale or get of a company.

Under the present TUPE Regulations 2006, a variation of contract is void if the sole or principal reason for the variation is the transfer unless:

the sole or principal reason for the variation is an economic, technical or organizational (ETO) reason involving changes in the workforce, supplied that the company and staff member agree the variation; or.

the regards to the staff member`s contract permit the company making the variation.

  1. Pregnancy and maternal discrimination.

Dekker v StichtingVormingscentrumvoorJongeVolwassen (VJV-Centrum) Plus (1990).

The value of this case for plaintiffs who are saying that they were discriminated because of pregnancy cannot be overemphasized.

The ECJ made it clear that alleviating women unfavorably because of pregnancy or pregnancy leave is direct sex discrimination.

According to this case, it is not needed for the woman to determine a non-pregnant comparator in similar circumstances to demonstrate discrimination.

This principle can now be contained in the Equality Act 2010, which sets out pregnancy and pregnancy as one of the nine protected attributes.

The Act forbids damaging treatment (rather than less favorable treatment) because of pregnancy or pregnancy. This indicates that there is no requirement for a comparison with another individual not having a kid.

  1. Equal pay: work of equal value.

Enderby v Frenchay Health Authority and Secretary of State for Health (1993).

This long-lasting equivalent pay case sets out an important concept in equal pay claims where one group is saying that they do work of equal value to another group made up predominantly of employees of the opposite sex.

The ECJ choice in Enderby developed that, where the statistics are sufficiently compelling to show inconsonant effect in between the 2 groups made up mostly of various genders, the concern of proof switches to the employer to show that there was a real material element besides sex to describe the distinction.

The ECJ in Enderby, which included female speech therapists arguing that they were paid less for doing work of equal value to male pharmacists and psychologists, stated:.

if the pay of speech therapists is significantly lower than that of pharmacists and if the former are virtually solely women while the latter are mainly males, there is a prima facie case of sex discrimination, a minimum of where the two jobs in question are of equal value and the data explaining that scenario stand.

Where there is a prima facie case of discrimination, it is for the company to show that there are objective reasons for the distinction in pay.

  1. Cap on discrimination compensation.

Marshall v Southampton and South-West Hampshire Area Health Authority (No. 2) (1993).

The main issue in this historic discrimination case was whether or not it was valid for the Sex Discrimination Act 1975 to have an upper limit on the amount of compensation that might be awarded.

The tribunal wanted to award Ms Marshall practically 20,000 for sex discrimination, but her payment underwent a limit (8,500 at the time).

Ms Marshall challenged the payment limit as contrasting EU law. The ECJ held that member states cannot take care of a ceiling on payment for loss and damage suffered as an outcome of sex discrimination.

Both the Sex Discrimination Act 1975 and Race Relations Act 1976 were subsequently amended to get rid of the cap on discrimination awards.

To this day, discrimination claims are feared by companies precisely because payment is potentially unrestricted.

The record award was made in 2011 in Michalak v The Mid Yorkshire Hospitals NHS Trust, in which a previous NHS medical professional was granted 4.5 million for sex and race discrimination.

  1. Pregnancy and pregnancy discrimination.

Webb v EMO Air Cargo (UK) Ltd (1994).

This decision, which works together with Dekker (see above), repeated that a pregnancy discrimination case cannot be safeguarded on the basis that a sick guy absent for the exact same amount of time would have been treated in the same method.

The complainant in this case was taken on as a clerk, at first to cover another staff member`s maternity leave, but anticipated to stay on after the other worker`s return.

Several weeks after starting work, the claimant found out that she was pregnant and notified the employer.

The employer took the view that it had no alternative however to dismiss the claimant.

When the case got to Europe, the ECJ made it clear that it contrasts EU law to dismiss a woman who, soon after her recruitment, is presented to be pregnant.

  1. Gender reassignment discrimination.

P v S and Cornwall County Council (1996).

Gender reassignment is now among the 9 protected attributes under the Equality Act 2010.

Discrimination versus transgender people was at first prohibited through a change to the now rescinded Sex Discrimination Act 1975, following this ECJ decision.

P was dismissed by a council after informing it of an objective to undergo gender reassignment surgery. P commenced action versus the council on the basis that the termination amounted to sex discrimination.

When the case got to Europe, the ECJ held that an individual dismissed because she or he intends to go through, is undergoing or has actually gone through gender reassignment is treated less favorably than persons of the sex to which he or she was deemed to belong prior to undergoing gender reassignment.

  1. Sexual preference discrimination.

Grant v South-West Trains Ltd (1998).

This case focused on whether or not it was sexual preference discrimination for the employer to restrict travel concessions to partners and dependants.

The female claimant said that the rule victimized her because her female partner might not benefit from the concessions.

The case went to the ECJ, which decided too many individuals surprise that European security against discrimination on the basis of sex did not encompass sexual preference.

The Equal Treatment Framework Directive subsequently made express arrangement for sexual orientation, which is now a secured particular under the Equality Act 2010.

  1. Working time and on-call working.

Landeshauptstadt Kiel v Jaeger (2003).

This German reference is among the most crucial in a line of cases where the ECJ has given a liberal technique to exactly what counts as working time.

The ECJ chose that medical professionals on-call task, during which they were required to be physically present in the medical facility however were allowed to rest when they were not needed, made up working time.

The case continues to be a crucial impact in UK working time cases. It was pointed out in the recent EAT decision in Edwards v Encirc Ltd

. There, the EAT held that the time worker representatives invested attending trade union and health and wellness conferences constituted working time under the Working Time Regulations 1998.

  1. Rolled-up vacation pay.

Robinson-Steele v RD Retail Services Ltd and other cases (2006).

Rolled-up holiday pay arrangements offer that a specific part of a worker`s incomes represents vacation pay.

As payment in respect of a duration of vacation is spread out throughout the year, the employee is then paid absolutely nothing when she or he physically takes the holiday.

This practice utilized to be typical until the ECJ decision in Robinson-Steele, which chose that the method of rolling up holiday pay into salaries is unlawful.

The issues was described Europe after the UK courts and tribunals could not come to a conclusion on this point.

  1. Associative disability discrimination.

Coleman v Attridge Law (2008).

It is unusual for European choices to present an entire brand-new type of claim into employment tribunals, but that is what took place in this case.

Ms Coleman declared that her company discriminated against her because she is the primary career for her disabled boy, consisting of an unsympathetic attitude when she looked for to take some time off to take care of her kid.

At the time, UK impairment laws provided security only for a disabled individual discriminated against because of his/her disability.

Ms Coleman effectively argued in the ECJ that EU law does cover direct discrimination and harassment on the ground of an association with a handicapped individual.

This type of discrimination, now commonly described as associative discrimination, is covered in the Equality Act 2010. A number of associative discrimination claims have been successful in work tribunals.

  1. Yearly leave throughout long-term authorized leave.
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Stringer v HM Revenue and Customs sub nom Commissioners of Inland Revenue v Ainsworth; Schultz-Hoff v Deutsche Rentenversicherung Bund (2009).

The Working Time Regulations 1998 expressly prohibit the carrying over to another vacation year of the European minimum of four weeks yearly leave. There is no right to payment for statutory leave that a worker has failed to take by the end of a leave year.

The ECJ in 2009 held that the right to paid annual leave continues to accrue during authorized leave and an employee on sick leave must be allowed to bring leave over into subsequent leave years.

The ECJ stated that, on termination of the employment relationship, an employee who has been on authorized leave and unable to take paid yearly leave is entitled to a payment in lieu.

However, uncertainty continues to be as to how long companies need to permit workers on long-term authorized leave to rollover vacation leave.In Plumb v Duncan Print Group Ltd, the EAT suggested that missing workers should have the ability to carry forward the untaken annual leave for as much as 18 months from the end of the leave year in which the leave arises.

The uncertainly has not been helped by the UK Government s failure to modify the Working Time Regulations 1998 to appraise European case law.

  1. Vacation pay calculations.

Williams v British Airways plc (2011).

In 2011, the ECJ provided its choice in an apparently mystical work law case about whether pilots on yearly leave are entitled to remain to receive allowances for the amount of flying time and time away from their base airport.

While the case did not receive much excitement at the time, it has actually handled added significance in the previous couple of years because of the subsequent Lock and Bear Scotland cases, with which every HR professional will be familiar.

Williams successfully cleaned away the orthodox view from UK case law that vacation pay has to consist of just a worker`s base pay, and not extra payments such as overtime pay and commission.

The choices in Lock and Bear Scotland, which were heavily depending on the ECJ decision in Williams, suggest that UK companies now have the additional concern of needing to calculate employees vacation pay with these additional consisted of.