Developing the Common Law: How Far Is Too Far?
Walker, Robert, Melbourne University Law Review
This piece examines situations in which judges are called upon to develop and modify the common law. By reference to a number of recent developments in the United Kingdom and Australia, namely the law of evidence and common law privilege, the right to privacy, and causation in the tort of negligence, the author elucidates the manner and extent to which judges have and are able to develop the law in the absence of parliamentary intervention.
CONTENTS I Introduction II The Law of Evidence and Common Law Privilege III The Right to Privacy IV Causation in the Tort of Negligence V When Should the Court Develop the Common Law? VI Conclusion
In Kleinwort Benson Ltd v Lincoln City Council, Lord Goff addressed the question of when a judge (1) should effect changes in the common law:
Nowadays, he derives much assistance from academic writings in interpreting statutes and, more especially, the effect of reported cases; and he has regard, where appropriate, to decisions of judges in other jurisdictions. In the course of deciding the case before him he may, on occasion, develop the common law in the perceived interests of justice, though as a general rule he does this 'only interstitially,' [that is, by filling in gaps] to use the expression of O W Holmes] in Southern Pacific Co v Jensen (1917) 244 US 205, 221. This means not only that he must act within the confines of the doctrine of precedent, but that the change so made must be seen as a development, usually a very modest development, of existing principle and so can take its place as a congruent part of the common law as a whole.... Occasionally, a judicial development of the law will be of a more radical nature, constituting a departure, even a major departure, from what has previously been considered to he established principle, and leading to a realignment of subsidiary principles within that branch of the law. (2)
These are just two short extracts from a luminous speech which led the way in making a radical change in the English common law rule as to mistake of law. The speech as a whole is a good introduction to the topic of this piece. Lord Goff was an eminent legal scholar as well as a distinguished judge, and as one of the founding fathers of the English law of unjust enrichment he had strong feelings about mistake of law. He regarded the traditional English rule on mistake of law as antiquated, irrational, and out of step with Commonwealth authority. Nevertheless, in his speech he carefully considered not only the arguments in favour of change, but also a number of principled objections to significant changes in the common law being made by judges.
The objections include, first, the uncertainty that may arise as to the scope and limits of any change. Judges are not legislators, and even the highest appeal court must hesitate before laying down the law in a way that goes far beyond the facts of the particular case before it. Second, there is the courts' lack of access and capacity to process the complex economic, social and scientific data by which much modern legislation is influenced. Third, there is the declaratory (or to be realistic, retrospective) character of judge-made changes in the law. A retrospective change in the law may cause hardship, possibly amounting to injustice, to large numbers of people who are not concerned in the litigation. Whether the court can avoid such hardship by directing that its judgment shall be prospective only--that is, that its effect should be limited to future events--is an issue of some difficulty. The fourth objection is the most important of all, and to some extent it underpins all the others. In a representative democracy, changes in the law are in principle a matter for Parliament, often acting on the advice of an expert law reform commission, and not for unelected judges.
I want to examine these points by reference to a number of topics on which the United Kingdom's highest appeal tribunal--the House of Lords until mid-2009, and since then the Supreme Court--has been asked to make significant changes in the common law. …