The Common Law of Obligations

Divergence and Unity

Andrew Robertson, Michael Tilbury

• Publisher: Hart Publishing
• Year: 2016
• ISBN:
  9781782256571
• Edition: 1
• Topic: Law
• Subtopic: Contract Law
• Index: Law

The development of the law of obligations across the common law world has been, and continues to be, a story of unity and divergence. Its common origins continue to exert a powerful stabilising influence, carried forward by a methodology that places heavy weight on the historical foundations of legal principles. Divergence is, however, produced by numerous factors, including national and international human rights instruments, local statutory regimes, civil law influences, regional harmonisation, local circumstances and values and different political and legal cultures. The essays in this collection explore the forces that produce divergence, the countervailing forces that generate cohesion and consistency in the common law of obligations, and the influence that the major common law jurisdictions continue to exert over one another in this area of law.
The chapters in this book were originally presented at the Seventh Biennial Conference on the Law of Obligations held in Hong Kong in July 2014. A second collection, entitled Divergences in Private Law (ISBN: 9781782256601), will focus on particular departures from the common law mainstream and the causes and effects of those deviations.

1

Unity, Divergence and Convergence in the Common Law of Obligations

ANDREW ROBERTSON AND MICHAEL TILBURY

The development of the law of obligations across the common law world has been, and continues to be, a complicated story of unity, divergence and convergence. The common law jurisdictions of the United States broke away early and developed their own distinctive version of the common law. In major Commonwealth jurisdictions the common law of obligations for some time remained relatively uniform as a result of a number of different forces, some more formal and direct than others. The law of contract, tort, equity and restitution in these jurisdictions was held together: first, by the view that the common law remained essentially a single body of law; secondly, by the Privy Council acting as the ultimate appellate court for many jurisdictions; thirdly, by courts outside England treating decisions of the House of Lords as binding and, later, with deference. While those formal ties have loosened their grip over time, other less formal factors continue to play a unifying role.

The story of unity, divergence and convergence in the common law, as well as the theoretical underpinnings of that story, are addressed in the essays in this book, particularly in the context of the common law of obligations.

I.Unity

‘Unity’ has various shades of meaning. Two different kinds of ‘unity’ in the common law are referred to in this chapter: first, unity in the sense of a uniform, single body of law and, secondly, unity in the sense of a significant underlying commonality between bodies of law which differ in their particulars. To speak of the ‘unity’ of the common law in the first sense is to speak principally of the period in which the Judicial Committee of the Privy Council was the final appellate court from the countries comprising the British Empire and Commonwealth. By reason of the doctrine of precedent, all these countries were bound to follow the law set out in the ‘advices’ of the Privy Council. As James Goudkamp and John Murphy point out, the then prevailing declaratory theory of law meant that the Council understood its function as being to ensure the unity of the common law as far as was possible.¹ Because the Judicial Committee was largely comprised of judges who sat at the same time in the House of Lords, decisions of the House of Lords were also generally regarded as binding on the courts of the territories for which the Privy Council was the final court of appeal. The result was that it was the English version of the common law that defined the uniform common law.

The unity of the common law throughout the Empire and Commonwealth, and the supremacy of the English version of the common law, was subject to four qualifications. First, and most obviously, not all the jurisdictions from which the Privy Council heard appeals were common law jurisdictions. In such cases, the Privy Council had to apply the local law, whether it was civil law or Hindu law or Islamic law. Notwithstanding some use of local judges in such appeals, the Privy Council inevitably applied local law through English eyes, and this could result in local dissatisfaction. In his contribution to this volume, Andrew Burrows points out that, in the past, the House of Lords as the final court of appeal from Scotland (a mixed jurisdiction), has been criticised as promoting ‘an unwarranted Anglicisation of Scots law’, a criticism that has extended to the Scottish Law Lords.² South Africa provides an example of the ‘Anglicisation’ of its law by the Privy Council in a decision in the early 1930s, in which the Privy Council brought the Roman-Dutch common law of South Africa into line with the English law relating to penalties.³ A South African judge later referred to the Privy Council decision as a ‘blemish on our legal system which militates against good faith, trust and business morality’.⁴ The decision was overturned by legislation in 1962.⁵

Secondly, the application of English law was subject to valid local statutory provisions. Paul Finn notes early local dissatisfaction in Australia, Canada and New Zealand with the Privy Council’s record in interpreting local statutes, and cites the example of a special sitting of New Zealand’s Court of Appeal at which the Chief Justice referred to the Privy Council’s record of acting under a ‘misapprehension or an ignorance of our local laws’, adding that the Council ‘knows not our statutes, or our conveyancing terms, or our history’.⁶ Dissatisfaction was particularly acute in cases where the statute involved was, effectively, the territory’s Constitution. This proved a long-running sore in Canada where the Privy Council’s favouring of the powers of the provinces at the expense of the federal government represented a ‘pre-conceived, but ill-informed, notion of the proper form of a federal system’.⁷

Thirdly, however expressed, and whether expressed in relation to judge-made law or statute, effect was only given to English law so far as local circumstances permitted.⁸ Whatever the exact import of this qualification, it is clear, as Goh Yihan points out in respect of Singapore, that it was not sufficient to provide the basis for the development of a local jurisprudence distinct from English law.⁹

Fourthly, the unity that the Privy Council was able to bring to the common law was a formal one. Not every case went, or was going to go, on appeal to the Privy Council. This meant that local courts could arrive at acceptable solutions applying traditional common law techniques such as reinterpreting English decisions or simply distinguishing them. Writing about the historical development of Australian law, Bruce Kercher has pointed out that it is too simple to assume that the High Court of Australia simply copied the English common law in the first 50 or 60 years of its existence.¹⁰ Moreover, there were bodies of law that may have flourished in local courts at a time at which that law was simply not the subject of a great deal of attention or litigation in England. An example is the development of equity jurisprudence in New South Wales in the course of the twentieth century, made possible by the long delay in introducing the Judicature reforms in that state.¹¹ This helped to foster a particular ‘Australian’ attitude to equity at a time when equity jurisprudence in England was, in Finn’s words ‘petrified, if not forgotten’.¹² It follows that the common law may not in fact have been entirely uniform throughout the British Empire and Commonwealth even during the period in which the Privy Council exercised ultimate control over its development.

Ultimately, the unity of the common law that existed in the period of the Privy Council’s supremacy was overwhelmed by forces that produce divergence. Foremost among those factors was the establishment of local ultimate appellate courts and the abolition of appeals to the Privy Council in several major common law jurisdictions. That development was accompanied by an abandonment of the practice of invariably following decisions of the House of Lords, and a broader decline in the deference and precedential weight accorded to decisions of English courts.

There is not, however, a simple causal link between the breakdown in the unity of the common law and the ending of Privy Council appeals. Finn illustrates this by reference to the experience of the three major common law jurisdictions that form a focus of the discussion in this book, namely, Canada, Australia and New Zealand.¹³ The process of abolishing appeals to the Privy Council was completed in Canada in 1949, yet, for much of the next two decades, the Supreme Court of Canada continued to bear the appearance of an English court applying English law in Canada. In contrast, in Australia, where the process of dismantling appeals to the Privy Council was only completed in 1986, it was clear from about 1975 that the development of the common law in Australia was not constrained by English authority. Again, while the abolition of Privy Council appeals only occurred in New Zealand in 2003, it was clear by the 1980s that a distinct common law of New Zealand was developing.

What this illustrates is that, apart from the abolition of Privy Council control, at least one other ingredient was necessary to the development of distinct common laws in Australia, Canada and New Zealand—the motivation and desire to do so. That came as local judges witnessed their own jurisdictions assume their independent identities among the nations of the world as the sun set on the British Empire. It involved a change in mindset. Judges had to free themselves from the shackles of what Kercher has called an ‘internalised imperialism’,¹⁴ so that the English imprimatur on developments in local common laws was no longer seen as necessary. Canadian, Australian and New Zealand experience also shows that the process of the localisation of common law was facilitated by judicial champions, notably, Bora Laskin and Brian Dickson in Canada, Anthony Mason and William Deane in Australia, and Robin Cooke in New Zealand.¹⁵ In contrast, the change of judicial attitude in Singapore seems to have been more of a co-operative programme of the executive government, the legislature and the judiciary, and was manifested in the enactment of the Application of English Law Act in 1991 and a number of complimentary measures.¹⁶

Of course, there remain aspects of the inherited law in which common law jurisdictions have maintained commonality, whether in doctrine, taxonomy, underlying approaches, philosophies, principles or policies. As Goh’s empirical study shows, that commonality is manifest in the principal reason for the citation of foreign (especially English) cases in Singapore courts, including in the law of obligations, namely, the acknowledgment of the origin of the rule or principle in question. It also explains the reason why Singaporean cases themselves are most cited by courts that share Singapore’s common legal heritage, namely, the courts in Australia, England and Hong Kong.¹⁷

Even where the common law of obligations has not remained entirely uniform at the level of doctrines and rules, an underlying unity may nevertheless be identified. One example of this is the fundamental commitment to party autonomy, which shapes numerous doctrines in the common law of contract, explored in Chapter 14 by Sarah Worthington.¹⁸ Worthington argues that it is only in very limited circumstances that the common law’s commitment to party autonomy is trumped by the need to give effect to other social values. She argues that the penalties jurisdiction constitutes an unjustified interference with party autonomy, but in this regard stands alone in the common law of contract, where autonomy otherwise reigns supreme. This argument will no doubt find favour in jurisdictions like Hong Kong (a financial centre) and Singapore (a potential centre of international commercial dispute resolution), which are anxious to develop reputations as jurisdictions that, like England, are strong supporters of party autonomy. On the other hand, the recent expansion of the penalties jurisdiction in Australia appears to throw a strict view of party autonomy open to question.¹⁹ Referring to a pattern of remedial legislation in Australia dealing with unconscionable conduct, unfair terms and unjust transactions, the High Court suggested that there was a ‘need for caution in dealing with the unwritten law as if laissez faire notions of an untrammelled freedom of contract provide a universal legal value’.²⁰ At the same time, the Court appeared to endorse one of its own recent decisions²¹ in which it had recognised that the penalties jurisdiction was exceptional because of its interference with freedom of contract.²²

II.Divergence

The forces causing divergence between common law jurisdictions are revealed in the reasons that led to local dissatisfaction with the Privy Council as the final court of appeal for common law jurisdictions. The central force was the conviction that the House of Lords or the Privy Council had, in a number of cases on appeal from overseas jurisdictions, simply gotten the (local) law wrong. There is nothing unusual about this. Appellate courts operating independently of one another will sometimes simply adopt different views as to what justice or policy requires in particular circumstances, particularly in relation to questions that are finely balanced. Inevitably, issue will be taken with the articulation of doctrine and the results in particular cases, particularly where the approach does not accord with views taken in other appellate courts, especially if a majority view is challenged in dissenting judgments. Disagreement and dissent of this nature are an essential part of the development of the common law. They do not result in a change in the hierarchy of courts. Local dissatisfaction with the unified common law model did. This wa...

Table of contents

• Cover
• Title Page
• Preface
• Contents
• List of Contributors
• Table of Cases
• Table of Legislation
• Table of International Instruments
• 1. Unity, Divergence and Convergence in the Common Law of Obligations
• 2. The Influence of Comparative Law on the English Law of Obligations
• 3. Unity, Then Divergence: The Privy Council, the Common Law of England and the Common Laws of Canada, Australia and New Zealand
• 4. A Conscious Effort to Develop a ‘Different’ Common Law of Obligations: A Possible Endeavour?
• 5. A Common Law of Tort: Is there a European Rift in the Common Law Family?
• 6. A Judicial Perspective on the Development of Common Law Doctrine in the Light of Statute Law
• 7. Public Actors and Private Obligations: A Judicial Perspective
• 8. The Tort Liability of Public Authorities: A Comparative Analysis
• 9. We’ll Meet Again: Convergence in the Private Law Treatment of Public Bodies
• 10. How to have a Common Private Law: The Presuppositions of Legal Conversation
• 11. The Philosophies of the Common Law and their Implications: Common Law Divergences, Public Authority Liability and the Future of a Common Law World
• 12. Obligations, Governance and Society: Bringing the State Back In
• 13. Divergent Evolution in the Law of Torts: Jurisdictional Isolation, Jurisprudential Divergence and Explanatory Theories
• 14. Common Law Values: The Role of Party Autonomy in Private Law
• Index
• Copyright Page