Prospective Overruling Unravelled

Judges have a dual role: they decide cases and they determine the law. These functions are conventionally understood to be intertwined: adjudication leads to case law, and disputes over judge-made laws lead to adjudication. Because judgments involve the resolution of past disputes, judge-made law is retrospective. The retrospective nature of judicial law-making can seem to work an injustice in hard cases. It appears unfair and inefficient for novel judicial decisions to apply to conduct occurring prior to the date judgment is handed down. A proposed solution is to separate the law-making and adjudicatory functions of courts. This is the technique of “prospective overruling”. Utilising this technique, courts seek to change the law prospectively for future cases, while continuing to decide past disputes under the “old” legal rule that was thought to apply at the time those disputes arose. This article challenges the claims that the exceptional juridical technique of prospective overruling is justified by values of stability, reliance, efficiency, dignity, and equality. These values, when properly understood, actually support rather than undermine the retrospectivity of judge-made law. Prospective overruling is an injudicious instrument

Enforcing a Holding Deposit Agreement

Prospective tenants in England are often asked to put down a holding deposit as a condition of signing a tenancy agreement. A holding deposit is an up-front payment given to the landlord or the landlord’s agent to place a “hold” on the property from being rented to anyone else while the applicant’s references are checked. It is paid after the key terms of the tenancy (for example, the rent amount and move-in date) have been agreed. Its purpose is to give both parties peace-of-mind that the applicant is “locked in” to renting the property. In a previous contribution to the Landlord and Tenant Review, I described how the payment of a holding deposit is improperly used by some landlords as leverage for “renegotiating” the terms of the tenancy prior to handing over the keys. The inspiration for that article came from my own experience as a tenant and from discussions with fellow lawyers living in London. Last year, I put my rent where my mouth was: I sued my former landlord. For the benefit of tenants and landlords who find themselves in a similar predicament, I offer some brief reflections on my experience

What is Scholarly Legal Writing? An Introduction to Different Perspectives (On US Qualified Immunity Doctrine)

How do you write a law article? It turns out there is no one ‘right way’. Legal problems can be analysed from different angles. Law journals are full of diverse perspectives on the law.This document provides an introduction to the different types of legal scholarship that can be found in law journals. It illustrates using scholarship on the American judicial doctrine of qualified immunity, which shields government officials from legal liability for ‘constitutional torts’. Qualified immunity can be analysed from the perspective of doctrine, policy, comparative law, history, economics, empirics, sociology, and philosophy. One issue; many perspectives

Submission to House of Commons General Committee on Judicial Review and Courts Bill 152 2021-22 (Prospective Quashing Orders)

I disagree with the proposal in the Judicial Review and Courts Bill, clause 1(1)(29A)(1)(b), to create prospective-only remedies in judicial review, because:a. Prospective Quashing violates Professor A.V. Dicey’s canonical three meanings of the Rule of Law.b. The premise of Subsection (1)(b), ‘that legal certainty, and hence the Rule of Law, may be best served by only prospectively invalidating’ impugned acts, is contradicted by the leading mainstream theories of adjudication in the common law world.c. Prospective Quashing draws judges into making policy and encourages judicial activism.d. Prospective Quashing is inconsistent with the English common law judicial method and the declaratory theory of adjudication that underpins common law reasoning.e. Prospective Quashing is doctrinally unprincipled and has been denounced by prominent apex courts around the common law world.f. Prospective Quashing is unnecessary and has been rejected by scholars who have analysed the doctrine in England.Regarding the specific provisions of Clause 1, I favour removing subsections (1)(b) and (4) entirely; in any event, removing subsection (9) so as to leave the exercise of this new power to the discretion of the judge having regard to the context of each case

Submission the Ministry of Justice on Human Rights Act Reform Consultation — Q16: Should the Proposal for Prospective Quashing Orders Be Extended to Proceedings under the Proposed Bill of Rights?

I oppose the proposal in Question 16 of the Human Rights Act Reform Consultation to extend prospective quashing orders to proceedings under human rights law. I express no view here on suspended quashing orders, although I would urge the Government to consider experiences and critiques of this doctrine in comparable common law jurisdictions such as Canada before enacting this novel reform.I have previously expressed opposition to prospective quashing orders in my submissions to the Judicial Review Reform Consultation and the House of Commons General Committee on the Judicial Review and Courts Bill 152, as well as in a contribution on the UK Constitutional Law Blog. My reasons, in summary, are as follows:a. Prospective Quashing violates Professor A.V. Dicey’s canonical three meanings of the Rule of Law.b. The premise of prospective quashing, ‘that legal certainty, and hence the Rule of Law, may be best served by only prospectively invalidating’ impugned acts, is contradicted by the leading mainstream theories of adjudication in the common law world.c. Prospective Quashing draws judges into making policy and encourages judicial activism.d. Prospective Quashing is inconsistent with the English common law judicial method and the declaratory theory of adjudication that underpins common law reasoning.e. Prospective Quashing is doctrinally unprincipled and has been denounced by prominent apex courts around the common law world.f. Prospective Quashing is unnecessary and has been rejected by scholars who have analysed the doctrine in England.The Government should abandon its proposals to legislate for prospective quashing orders in the human rights and judicial review contexts.If the Government does proceed with introducing prospective quashing orders into English law, it should not be in the form currently presented in clause 1 of the Judicial Review and Courts Bill 152. Regarding the specific provisions of Clause 1, subsection (9) should not be part of the law. The exercise of this extraordinary power should be left to the discretion of the judge having regard to the context of each case

Retroactive Adjudication

This Article defends the retroactive nature of judicial lawmaking. Recent Supreme Court judgments have reignited debate on the retroactivity of novel precedent. When a court announces a new rule, does it apply only to future cases or also to disputes arising in the past? This Article shows that the doctrine of non-retroactive adjudication offers no adequate answer. In attempting to articulate a law of non-retroactivity, the Supreme Court has cycled through five flawed frame-works. It has variously characterized adjudicative non-retroactivity as (1) a problem of legal philosophy; (2) a discretionary exercise for balancing competing right and reliance interests; (3) a matter of choice of law; (4) a remedial issue; and (5) a contingency of last resort. This Article rejects these paradigms and instead offers an alternative framework grounded in conventional common-law reasoning: that judicial precedent is inherently retroactive. The “equitable considerations” animating this body of law can best be fulfilled by judicial abandonment of non-retroactivity doctrine. Instead, courts should respond to “new” law by turning to a long-held value in our legal system: that equity aids the vigilant, not those who sleep on their rights

Submission to the Ministry of Justice on Judicial Review: Proposals for Reform – ‘Prospective Invalidation/Overruling’

The Government Response to the Independent Review of Administrative Law proposes to provide judges a discretionary power to grant prospective-only remedies in judicial review proceedings. It further proposes to legislate a presumption or a requirement of prospective-only remedies when statutory instruments are quashed. The Government’s Report relies on arguments made in Sir Stephen Laws QC’s IRAL Submission advocating for prospective-only judicial remedies. My submission responds to the content of both documents.The Government should abandon its proposal to legislate in favour of Prospective Invalidation in the judicial review context (and in any other context) because:a. Prospective Invalidation violates the rule of law as propounded by Professor Albert Venn Dicey in his seminal treatise on The Law of the Constitution.b. Prospective Invalidation is inconsistent with the English common law judicial method and the declaratory theory of adjudication that underpins common law reasoning.c. Prospective Invalidation effects bad policy. The Government’s interest in this doctrine is surprising given that the Prospective Invalidation doctrine is well-recognised to be the ultimate instrument of ‘judicial activism’. The doctrine was developed by jurists who favour judicial activism and who sought to implement radical judicial changes in the law untethered from the usual retrospective effects of judicial decision-making. It leads to more uncertainty and instability in the law, not less.d. Prospective Invalidation has been denounced by prominent apex courts around the common law world, even while it has increasingly found acceptance with civilian and European courts. The Government’s proposal would isolate the courts of the United Kingdom from comparable common law jurisdictions. It would push UK judges to adopt reasoning and remedies more commonly employed by European courts.e. Prospective Invalidation is unnecessary and has been rejected by scholars who have analysed the doctrine in England.Instead of Prospective Invalidation, if the Government considers that the burdens of a particular judgment against it are too great to bear, the preferable alternative is for the Government to rely on remedial retroactive legislation in response.Instead of Prospective Invalidation, there may be merit in providing judges a discretion to quash government acts with suspended effect. Suspended Quashing Orders should be discretionary, not presumptive or mandatory. Any legislation in favour of Suspended Quashing Orders should clarify that it is only the remedy that is suspended, not the reasons underlying the order.Finally, I agree with the proposals regarding the desirability of reforming the time limits for bringing a judicial review claim

Introduction to Volume I [of the Canadian Law of Obligations III Conference]: The Power and Limits of Private Law

Private law issues touch the everyday experiences of individuals and businesses. Contracts, torts, trusts and other areas of private law and the law of obligations evolve with jurisprudential and statutory changes. The Power and Limits of Private Law is a timely compilation of papers developed from a conference on the subject at the University of British Columbia’s Green College in June of 2022. The contributors are eminent scholars in their respective fields and their commentaries and observations on developments in private law provide a useful reference for lawyers, judges, academics and students who confront private law issues in their work. The material in this collection covers a wide spectrum of issues, including Indigenous perspectives in contract law, the deterrent function of medical negligence law, exclusion of liability clauses, the doctrine of frustration, joint and several liability, good faith in the performance of contracts, justifications for judicial innovations in private law, and adaptations of the law of fiduciary obligations to problems from the age of technology. These topics which appear in this volume are just a sampling of the important issues of private law addressed by the conference and by its theme of The Power and Limits of Private Law. I enthusiastically recommend this volume to anyone interested in private law or the law of obligations. I commend Professors Marcus Moore and Samuel Beswick for organizing the conference that led to the publication of this volume. Their work in putting together this compilation will enable The Power and Limits of Private Law to make an enduring contribution to our understanding of these areas of law