Lecture

• Author: Sir Geoffrey VOS Chancellor of the High Court of England and Wales.
• Publication year: 2019
• Citation: (2019) 31 SAcLJ 30
• Published date: 01 December 2019
• Date: 01 December 2019

I. Introduction

1 Whenever you hear English commercial judges talk about the common law, the first thing you will hear them say is that its greatest virtues are its certainty and its predictability. These characteristics are said to place it ahead of any code-based system of law, because its structure of basic principles and rules can more easily be applied to fast-changing commercial situations and new technologies such as smart contracts and artificial intelligence. In contrast, any code-based system depends on the interpretation of something written in a past age for the circumstances of that past age, which makes it less predictable and certain when applied to new commercial situations of the kind I have mentioned.

2 What I want to explore in this lecture is how important those qualities of certainty and predictability really are, and whether in the real world they are as ubiquitous as many common law judges suggest. As I said in the second of my three recent lectures (this being the third), recent UK Supreme Court decisions have not always been followed by other Commonwealth common law jurisdictions, the development of the common law has not always been as incremental as it perhaps should be, and judges in the UK at least have been prone to make some over-enthusiastic changes to the common law and to approach some landmark legal situations with a blank sheet of paper.

3 I want to start with an examination of the scope of the common law, since this is an aspect that has not received much recent attention. Then I will look briefly at some of the more striking examples of seismic change, before returning to the question of how important certainty and predictability really are, as compared to more imaginative and case-specific judicial solutions in the resolution of particular disputes.

II. The scope of the common law

4 When researching this lecture, I was surprised to not be able to find a ready explanation of the scope of the common law. It is frequently contrasted with statutory law or constitutional law, or with equity, or with European law in the modern context of Brexit. But the subject areas in which the common law holds sway are not often defined.

5 Historically, in England since the Norman conquest, the common law has developed in both the public and the private law field. For example, until the last century, most criminal law consisted of common law rather than statutory offences. In private law, in the most general terms, the law developed from actions in debt, trespass and in assumpsit to the action on the case, allowing for the vindication of contractual rights based on specialties and otherwise, and for claims in negligence.

6 Another attempted definition of the common law relates to its incremental development by the process of deciding cases, rather than by the interpretation of statutes. But this does not really do the common law justice, since there are aspects of the process of statutory interpretation that seem to me anyway to be functions of the common law.

7 The areas in which the common law is most obviously engaged are the law of contract, the law of torts, and the law of personal property.1 But since the so-called fusion of law and equity in 1875, there are many equitable doctrines that are very much within the ambit of the common law. One can think of the law of estoppel, the law of fiduciary relationships, of resulting and constructive trusts, and even of restitution and unjust enrichment as examples.

8 Even in the public and administrative law field, there are common law influences in questions of illegality, legitimate expectations, bias, and procedural fairness, to take just a few examples. I recently sat in the Court of Appeal on an important case on legal professional privilege,2 where the court3 said expressly that:4

… [i]t is undoubtedly desirable for the common law in different countries to remain aligned so far as its development is not specifically affected by different commercial or cultural environments in those countries.

We continued by saying that:5

… legal professional privilege is a classic example of an area where one might expect to see commonality between the laws of common law countries, particularly when so many multinational companies operate across borders and have subsidiaries in numerous common law countries.

I will return to this as we progress.

9 So, the tentacles of the common law are rather more far-reaching than one might at first sight think, and this makes it all the more important that we understand what it is about its certainty and predictability that we value, and how that fits into the national and the international context. Apparently, one-third of the world's citizens live in common law countries – that is a lot of people, and we should think carefully about the legal approach that underpins their governance.

10 Sir Edward Coke said in the early 17th century that:6

… the common law is the best and most common birth-right that the subject hath for the safeguard and defence not onely of his goods, lands and revenues, but of his wife and children, his body, fame and life also.

The extent of its reach was clear even then.

III. Some striking examples

11 In the second lecture to which I have referred, I took a number of examples of UK Supreme Court decisions which had not been followed in Singapore and elsewhere. I don't want to dwell on the fact of these departures today. Rather, I want to look at some examples of the reasons that common law courts have expressed for declining to follow their colleagues in other common law jurisdictions or their own previous determinations in important cases.

A. Patel v Mirza7

12 We can look first at the most celebrated of these recent decisions, namely Patel v Mirza, where the Supreme Court changed the common law approach to the illegality defence. Instead of the “reliance test” adumbrated in Tinsley v Milligan,8 and in place of the old rule-based approach, the Supreme Court introduced a three-stage test. That involves, first, asking whether the purpose of the prohibition transgressed would be enhanced by denial of the claim. The second stage is to ask whether denial of the claim might impact on any other relevant public policy. The final question is whether denial of the claim would be a proportionate response to the illegality.

13 When I said about Patel v Mirza that the new approach represented a sea change “from a series of strict rule-based tests to a series of flexible tests driven by policy considerations”,9 I was met with the retort that the UK Supreme Court had in fact founded its new approach on two Commonwealth cases, Hall v Hebert10 in the Supreme Court of Canada in 1993, and Nelson v Nelson11 in the High Court of Australia in 1995. Whilst there was indeed support for a policy-driven approach to the resolution of illegality issues in these earlier Commonwealth cases, it would hardly be right to say that they justified the introduction of an entirely discretionary series of tests across the law of illegality.12 But that aspect of what is undoubtedly an interesting debate is not the primary focus of this lecture. I am content to refer to what Lord Sumption (who was in the minority of three judges in the Supreme Court in Patel v Mirza) said about the question of certainty.

14 Lord Sumption said that the appeal exposed:13

… a long-standing schism between those judges and writers who regard the law of illegality as calling for the application of clear rules, and those who would wish to address the equities of each case as it arises.

It raised, he said, “one of the most basic problems of a system of judge-made customary law such as the common law”. The common law, said Lord Sumption, was:14

… not an uninhabited island on which judges are at liberty to plant whatever suits their personal tastes. It is a body of instincts and principles which … is developed organically, building on what was there before.

15 Lord Sumption then explained that there was a price to be paid for the common law's greater inherent flexibility and greater capacity to develop independently of legislation than codified systems. That price included “pragmatic limits to what law can achieve without becoming arbitrary, incoherent and unpredictable”.15 He said that it would be

wrong for the Supreme Court to “transform the policy factors which have gone into the development of the current rules, into factors influencing an essentially discretionary decision about whether those rules should be applied”.16 He rejected the “range of factors” test as “unprincipled”, pointing to its devaluation of the “principle of consistency, by relegating it to the status of one of a number of evaluative factors, entitled to no more weight than the judge chooses to give it in the particular case”.17 As he pointed out, “the criminal law [which] … is in almost every case the source of the relevant illegality, is a critical source of public policy”, and, in the criminal law, knowledge of the illegality is of no relevance. It was, therefore, “difficult to see why it should be any more relevant in a civil one”.18 It would be wrong to leave so much “to a judge's visceral reaction to particular facts”.19 Lord Sumption concluded by saying that the majority's approach would “[f]ar from resolving the uncertainties created by recent differences of judicial opinion … open a new era in this part of the law”.20 He warned that “[a] new body of jurisprudence would be gradually built up to identify which of a large range of factors should be regarded as relevant and what considerations should determine the weight that they should receive”.21

16 A consideration in Singapore of Patel v Mirza would not be complete without a mention of the Singapore Court of Appeal's decision in Ochroid Trading Company v Chua Suok Lui,22 rejecting the “range of factors” approach in Patel v Mirza and broadly endorsing the approach...