SOURCES OF LAW

By: DMAC

OBJECTIVES

Explain the doctrine of binding precedent and how it operates within the context of the system of courts in the Commonwealth Caribbean jurisdictions Distinguish between common law rules and rules of equity

COMMON LAW
An important source of law in the Commonwealth Caribbean is the common law or case law. This describes the legal principles derived from examining the judgments of cases where there are no applicable statutes. Common law or case law is both a legal and an historical source. It is a historical source because its existence is directly linked to the experience of colonization in the region.

COMMON LAW

Common law is important when there are no legal statutes for the case being tried. E.g. Shaw v DPP The appellant published a 'ladies directory' which listed contact details of prostitutes, the services they offered and nude pictures. He would charge the prostitutes a fee for inclusion and sell the directory for a fee. He was convicted of conspiracy to corrupt public morals, living on the earnings of prostitution and an offence under the Obscene Publications Act 1959. The appellant appealed on the grounds that no such offence of conspiracy to corrupt public morals existed. Appeal dismissed a new crime was created

HISTORY OF COMMON LAW

The unique characteristic of the common law as a legal source is its ad hoc nature. The judgments/rules can change constantly. Each case or judgment of the courts builds on the principles stated in the previous judgment. Its original conceptualization was oral, which means that it was pretty much a body of unwritten legal rules which were formulated by the Kings court in an informal and flexible manner. The Kings courts were: the Court of the Kings Bench, the Court of the Exchequer and the Court of Common Pleas

HISTORY OF COMMON LAW CONTD

Rigid procedures for administering common law legal rules were developed overtime, one such procedure is the writ, which regulates the initiation of legal proceedings in court.

JUDICIAL PRECEDENT
This is a principle that is derived from common law The principle of precedent is that decisions taken at a higher court are to be followed by a lower court.

JUDICIAL PRECEDENT
Territories of the Commonwealth Caribbean the decisions of the Privy Council (and in the case of Barbados the CCJ) are binding. Guyana abolished the Privy Council in 1967, so the decisions from the Privy Council are only persuasive and the courts in this territory are not bound to follow the decisions of the Privy Council. A high court is not obligated to follow the previous decisions of another high court, but may do so based on principles of stare decisis (which means standing by decisions and not disturbing settled points, simple translated to let the decision stand)

it must however follow the decisions of courts above, that is the Privy Council and the Court of Appeal for example: In Vierra v Winchester (1966) It was argued in the Court of Appeal of Trinidad and Tobago that its previous decision in the case of Camp v Harris was wrong. Justice of Appeal dissented: before the court could say that its own decision is wrong, it was bound by a principle and it is this: the Court of Appeal is bound by its own decisions unless it can be shown that such was given per incuriam (in error)

HIERARCHY OF COURTS
The operation of the doctrine of precedent depends on a system of the hierarchy of courts. Decisions of judgments from the Privy Council or the CCJ are the most authoritative Next in the hierarchical structure are Courts of Appeal, High Court or Supreme Court, Intermediate courts such as(family courts and RM courts), Inferior courts such as magistrates and Juvenile Court.

COURT STRUCTURE AND HIERARCHY

The structure of the Jamaican Judicial System is based on five basic tiers The lowest tier is the Petty Sessions Court. This court is presided over by Justices of the Peace. Appeals from this court are to the Circuit Court of the parish in which the Petty Sessions Court sits or by way of case stated to the Court of Appeal

RM COURT
The next tier of court is the Resident Magistrates Court This court is an inferior court of record and, as is the case with the Justices of the Peace jurisdiction, is governed entirely by statute. Resident Magistrates have the jurisdiction to try cases summarily as well as on indictment. The level of sanction, in terms of fines and imprisonment, are lower than that which may be imposed in the Supreme Court.

RM COURT
Apart from exercising jurisdiction in criminal cases, Resident Magistrates preside over the Coroners Court, Traffic Court, Drug Court, Tax Court, Family Court, Juvenile Court and Civil Court. Appeals from the Resident Magistrates Court are also to the Court of Appeal.

SUPREME COURT

At the third tier, the Supreme Court is the highest first instance court. It is a superior court of record and has unlimited jurisdiction. The Supreme Court has jurisdiction in Civil, Criminal, Family, Commercial, Succession and Admiralty cases. There are also specialised courts which also exercise superior jurisdiction which are presided over by Supreme Court Judges. These are the High and Circuit Court Divisions of the Gun Court and the Revenue Court Appeals from the Supreme Court are also made to the Court of Appeal.

COURT OF APPEAL
The Court of Appeal is the court to which all appeals are first referred Its procedure is governed by statute. It may confirm, overturn or vary judgments in any cases in which there are appeals from any of the first-instance courts In the majority of cases the decisions of the Court of Appeal may be subject to appeal to the Judicial Committee of the Privy Council (The Privy Council).

PRIVY COUNCIL
he Privy Council hears the appeal and makes a recommendation to the Sovereign as to the manner in which the appeal is to be resolved. It may recommend confirmation, overturn or variation of the judgment of the Court of Appeal. The Privy Council is the fifth and highest tier of the Jamaican Court System. Appeals to the Privy Council are restricted to cases of a certain monetary value or where they are of exceptional public importance.

CHALLENGES TO COMMON LAW

Common law actions were begun by a writ, which was a kind of royal court order setting out the cause of action. Only a limited amount of writs existed and if there was no writ for a particular cause of action, then the complainant had no legal redress. In common law, money damages were the only remedy. The law favoured the rich and many rights were not recognized. No right of subpoena existed to compel witnesses to give evidence.

RISE OF EQUITY
Equity was created to alleviate the harshness of the Common Law. It was created to provide additional remedies and to provide additional causes of actions that an aggrieved litigant can obtain. The common law was found to be too harsh and inflexible as only one remedy applied- damageswhich was either compensation or money. Many litigants (one engaged in a suit) did not want compensation for damage, but rather harsher measures to be taken by the court.

WHAT IS EQUITY
Equity is a body of laws which derived from common law that brings fairness and justice in law. It was in the 1615 Earl of Oxford case where it was stated that where conflict arises between the common law and equity, equity shall prevail. There was much debate on equity and the common law as litigants preferred going to the Court of Chancery. Equity makes decisions more fair, predictable, flexible, consistent and practical. It is not too harsh or limited in remedies.

There are rights in equity. These rights are such as the right of beneficiary to a trust. Trust allows the ownership of property to be transferred legally from one person to another. There is right of equitable ownership where persons wishing for example, to have ownership of land, are given the right to do so. There is also right of parties to a contract.

EQUITABLE REMEDIES
The Anton Pillar Order the Court issues or allows the inspection and/or disposal of goods and documents which may be needed in a trial. Rule derived from Anton Pillar v Manufacturing Processors Ltd (1976)

ANTON PILLAR V MANUFACTURING PROCESSORS LTD (1976)

P, a German manufacturer of frequency converters for computers, alleged that D was in secret communication with other manufacturers and giving them secret information about a new converter that P had been working on. P claimed this could be damaging for them Judge offered an injunction but not an inspection or removal of document.

P appealed Held, allowing the appeal, that in most exceptional circumstances, where plaintiffs had a very strong prima facie case, actual or potential damage to them was very serious and there was clear evidence that defendants possessed vital material which they might destroy or dispose of so as to defeat the ends of justice before any application inter partes could be made, the court had inherent jurisdiction to order defendants to "permit" plaintiffs' representatives to enter defendants' premises to inspect and remove such material; and that in the very exceptional circumstances the court was justified in making the order sought on the plaintiffs' ex parte application

ESTOPPEL
The estoppel is another equitable remedy which is often used by the Courts. It was first espoused by Denning J, as he then was, in Central Trust Properties v High Trees Ltd (1949) as promissory or proprietary estoppel.

Estoppel is an equitable doctrine which can stop a person giving or denying any information known to be true, whether in law, by his own deeds, express or implied. E.g Someone goes back on a promise; tells a lie or half truth; deliberately omit information

RECTIFICATION

Rectification is an equitable remedy which is applied where, in the interest of an equitable outcome, the Court rectifies the terms of a document and applies principles which enable the contract to be performed, equitably, applying reasonable intentions to the parties.

RECTIFICATION - EXAMPLE
Example Mike wants to sell his car to Mary. They agreed to $1.7 million. On the contract an error was made and $170,000 was listed as the sale price. The courts role would be to translate the correct information in writing

MAREVA INJUNCTION

Mareva injunction, the name of which also derives from a leading case, Mareva Compania v International Bulk (1975). There, the court issued and ordered the defendants assets to be frozen in circumstances where the interest of the plaintiff would otherwise have been prejudiced or lost.

MAREVA INJUNCTION - EXAMPLE

Mary borrows $200,000 from her boyfriend Mark to open a business. They split and Mary refuses to pay because Mark had cheated on her with Mandi. Mark takes Mary to court but can prove that Mary would rather sell her business and run to another country than pay. The court can order of a mareva injunction to prevent Mary from doing so.