London’s influence on common law jurisdictions reviewed here

At the invitation of the chief justice and the judges of the Grand Court, Lord Justice Matthew Thorpe last week presented a guest lecture to Cayman’s legal community on the extent to which the voice of the House of Lords is still heard in other common law jurisdictions.

In his presentation on Wednesday, 23 March, Lord Justice Thorpe focused on London’s influence on “big money” family law cases.

He summarised the evolution of the financial rights and obligations that result from a dissolution of marriage and explained how legislators in the UK had invested judges with the widest discretion to protect the vulnerable and achieve a fair outcome.

This common law solution has as a beneficial consequence that “judges may shift the perception of fairness to reflect changing social values and expectations” and thereby increase the longevity of statutory law, he said.

In appeal cases, the House of Lords has over the years brought about massive change, for example to the compensations awarded in big-money divorce cases. By moving away from an initial judicial concept of “reasonable requirements” as the benchmark by which the wife’s claims were judged to the presumption of equality, according to which matrimonial assets should be divided more or less equally, the cases White, Miller and McFarlane led, among others, to significantly larger awards, he explained.

“Statutory revisions enacted to ensure that deserted wives were not left destitute have been turned by judicial ingenuity into what a cynic might say is the easiest way for a woman to make an effortless fortune,” Lord Justice Thorpe said.

This evolution and the authority of House of Lords decisions in other jurisdictions were, however, questioned by courts in Australia, South Africa, Hong Kong and other parts of the common law world.

The application of English cases was limited, it was argued by the courts, because they either emanate from the application of statutory provisions that are different and are construed against an entirely different system of law than South Africa’s or because they did not reflect the different social and cultural norms of a jurisdiction like Hong Kong.

This was later rejected by the court of final appeal in Hong Kong.

London’s influence

But the influence of London on common law is not a one-way street, Lord Justice Thorpe noted, by showing that New Zealand’s concept of compensation was later adopted by the House of Lords.

Canada, meanwhile, had introduced a fair distribution of resources to alleviate the economic consequences of marriage or its breakdown for both spouses, regardless of gender, long before a similar notion was raised by the House of Lords.

In the Cayman Islands, as the most prominent jurisdiction in big-money ancillary relief cases in the Caribbean, courts have applied English authority, stating that although Cayman legislation is on balance even broader, House of Lords appeal cases are as applicable to the Cayman jurisdiction as they are to English jurisdiction.

Lord Justice Thorpe also made mention of the case of Justice Priya Levers, who had appealed to the Privy Council. The case was an illustration, he said, of the Privy Council as the supreme repository of justice. “It provided a tribunal consisting of seven judges, including the president of the Supreme Court, the Lord Chief Justice and two lady justices of appeal. If I had to submit to judgment of any court I could not think of a court that could more completely guarantee a form of legal justice,” he said.

Of course the role of the Privy Council in the Commonwealth is very much diminished, he acknowledged, “but wherever throughout the world it has historically served as the Supreme Court of Justice, the strong influence of the common law and therefore London precedent lives on”.

After his presentation, Lord Justice Thorpe made a case for international family law, which is largely based on the United Nations Convention on the Right of the Child, the 1980 Hague Convention and the Hague 1996 Child Protection Convention. In particular, the Hague Conventions are in need of more ratifications and a greater commitment from common law jurisdictions, including those in the Caribbean, he said. In addition, he noted, there should be huge potential for judicial activism, and he explored the idea of a regional concordat in the Caribbean to deal with abductions within the Caribbean jurisdictions and as a means of speaking with a common voice in the international arena.

Asked to present his views on mediation, Lord Justice Thorpe said, “Mediation is an infinitely better way of resolving a family dispute”. He also pointed out that mediation represents “fashionable political thinking” in the UK. Those who applied for public funding in family cases in the past required either mediation or a certificate freeing them from mediation, but from 6 April this year nobody will be able to go into litigation without having first explored the possibility of mediation, he said.