Examiners’ reports 2019 Examiners’ reports 2019 LA1031 Legal system and method – Zone B Introduction The question paper followed the same format as in 2018 and was split into three parts. Part A was a series of short questions on the seen case, Part B was a choice of two essays from six and Part C was a problem question to be answered with reference to a seen statute, which was also provided in the examination. Comments on specific questions PART A Candidates must answer these COMPULSORY questions about the seen case Swift v Secretary of State for Justice [2013] EWCA Civ 193. General remarks on Part A The Swift case was identified as the case to be studied in preparation for Part A in November 2018. Candidates intending to sit the May/June examination were required to submit a case note by 13 March 2018 and, ideally, this case note would have been used as a revision aid in preparation for the examination. Part A of the examination focuses solely on the text of the case of Swift and candidates should not have referred to any material other than Swift in answering the questions in Part A. An indicative answer to each of the questions in Part A and an excellent answer would have included almost all of this detail. Common errors The inability to formulate the ratio of the case was the most common error; given that this is an element of the case note it must be assumed that most candidates did not prepare this part well when writing their case note. Many candidates provided too much detail in their answers and in doing so obscured their main points and strayed into answering another question. When questions are specific, it is important to answer the question asked and only that question. Question 1 Explain the claimant’s (Ms Swift) Convention claims under the European Convention on Human Rights. Ms Swifts’ claim was that s.1(3)(b) of the Fatal Accidents Act 1976 (FAA) was incompatible with her rights under Article 14 of in conjunction with Article 8 of the Convention because it unjustifiably discriminated against couples who lived together as husband and wife for less than two years, by excluding them, but not 1 those who have been cohabiting for two years or more, from the classes of family members entitled to claim damages for loss of dependency under the FAA. In the alternative, Ms Swift claimed, that the provisions of the FAA interfered with her right to respect for family life contrary to Article 8(1) of the Convention alone and that this interference was not justified under Article 8(2). Question 2 What reasons does Lord Dyson MR give for his conclusion that ‘a wide margin of discretion should be accorded to the legislature’ in this case? Lord Dyson MR took into account three factors in deciding that a wide margin of appreciation should be given to the legislature in Swift. First, he identified that a difference in treatment based on a cohabitation period was not founded on what are termed ‘suspect’ grounds of discrimination. These are grounds based on personal characteristics (including sex, race and sexual orientation), which an individual cannot change and would require greater scrutiny. Secondly, the difference in treatment in Swift is based on general measures of economic or social strategy and in such cases the ECtHR decisions allow a wide margin of appreciation. His Lordship referred to a number of cases to support his view including Draon v France and Mosley v United Kingdom. Thirdly, the decision about providing a statutory right of action to the dependant of a victim of a wrongful death for damages for loss of dependency also raises important and difficult issues of social and economic policy. These three factors mean that the court should give a generous or wide margin of discretion to Parliament in relation to the legislative choices that it made in enacting s.1(3) of the FAA. Question 3 Describe the ‘proportionality’ issue as explained by Lord Dyson MR. The proportionality issue relates to the period of time required for couples cohabiting as husband and wife to establish the necessary degree of permanence or dependency required for a right of action under the FAA. Lord Dyson MR said that it is not a question of whether the law is fair or could be made fairer or even if the law is the fairest way of pursuing the legitimate aim(s) of the Act. The obligation on the state is that it chooses a way which is proportionate. Question 4 What is the ratio decidendi of this case? This is an example of a wide formulation of the ratio in Swift: Where discrimination is alleged based on difference in treatment in breach of Article 8 (in conjunction with Article 14) of the Convention and the difference in treatment is based on general measures of economic or social strategy, the court should give wide discretion to the legislature’s decision. Question 5 In his judgment, Lord Dyson MR says: ‘The Act contained no provision for the right to claim damages for loss of dependency by cohabitants’. Which ONE of the following Acts is he referring to? a) The Fatal Accidents Act 1976. b) The Administration of Justice Act 1982. c) The Civil Partnership Act 2004. d) The Human Rights Act 1998. 2 Examiners’ reports 2019 Question 6 Eady J (the judge at first instance), cited by Lord Dyson MR, made a number of comments about the two-year period. Which ONE of the following did he NOT say? a) The two-year period is a bright line which provides a practical means of achieving a legislative objective. b) The two-year period is disproportionate and arbitrary. c) Where the balance should be struck is a matter of social policy. d) The two-year period is well within the broad margin of appreciation allowed in the context of decisions on social policy. Question 7 Which of the following, according to Lord Dyson MR, is the legitimate aim of section 1(3) of the Fatal Accidents Act? a) To confer a right of action on dependents of primary victims of fatal wrongdoing to recover damages in terms of their loss of dependency. b) To confer a right of action on dependents of primary victims of fatal wrongdoing to recover damages in terms of their emotional distress. c) To confer a right of action on dependents of secondary victims of fatal wrongdoing to recover damages in terms of their emotional distress. d) To confer a right of action on dependents of secondary victims of fatal wrongdoing to recover damages in terms of their loss of dependency. PART B Question 8 Describe the sources of English law and explain which takes precedence or primacy over the other. General remarks Very few candidates answered this question, probably because a question on this topic has not appeared in Part B of the examination in recent years. It is, nevertheless, a straightforward question and required candidates to (1) describe both the domestic (national) and European (international) sources of English law and (2) to explain the interactions between these sources in terms of primacy. Law cases, reports and other references you might use R v Secretary of State for Transport, ex p Factortame (No 2) (1991); R v Secretary of State for Transport, ex p Factortame (No 3) (1991); Human Rights Act 1998; Earl of Oxford’s Case (1615); Costa v ENEL (1964). Common errors There were insufficient answers to this question to note any common errors but a number of answers misunderstood the question and thought it was about the doctrine of binding precedent. 3 A good answer to this question would… start by describing the sources of English law. The module guide describes these as law made by Parliament; law decided in the courts; EU law and law made under the ECHR. Many textbooks split it into primary legislation; delegated legislation; common law as judge-made law; EU law and ECHR. It would also be legitimate to discuss the distinction between the judge-made law that emerged through the courts of common law and the judge-made law that emerged through the Court of Chancery (Equity). In terms of precedence/primacy, the most obvious way forward would be to discuss the primacy of EU law over national law and better answers would also discuss law made by Parliament prevailing over judge-made law and possibly that equity trumps common law. Poor answers to this question… described, or partially described, the sources of English law but did not discuss the issues of primacy or precedent. Question 9 ‘Only if judges follow the reasoning and decisions of their judicial colleagues will the common law become certain and predictable.’ Explain how judges follow the reasoning of other judges and discuss the benefits of having certainty in the law. General remarks This was a very popular question. In explaining how judges follow other judges’ reasoning the obvious starting points are the concepts of ratio decidendi and stare decisis and perhaps to highlight these as key features of the English common law. A discussion of the horizontal and vertical effects of binding precedent was also relevant in explaining in discussing how judges follow precedent. Reasons offered for maintaining certainty in the law might include: doing justice (like cases treated alike); enabling citizens to organise their affairs; efficiency and reducing the need for litigation. Law cases, reports and other references you might use The material you might use in answering the question depends on the approach taken.