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The importance of multi-jurisdictional content to legal research

The importance of multi-jurisdictional content to legal research

Posted by zenaira-khan | 16 January 2017

Why should I consider cases from other jurisdictions when I’m undertaking legal research? This is a question that no doubt resonates with students and others when tasked with preparing for a case, assignment or other work requiring extensive research.

With the shared legal history of common law countries such as England, Canada and Australia, it is not unheard of to have important cases heard in one jurisdiction’s court system that change the legal landscape for other common law countries by setting precedent, re-interpreting law and treating cases in new ways.

For academics and practitioners, having an awareness of how another jurisdiction’s judiciary has treated a case is particularly important where that case has not yet received treatment before their domestic courts. The treatment it receives abroad could provide insight into how judges in England and Wales (or other jurisdictions) may treat it and furthermore may bring to light new points of discussion that would otherwise have not been considered.

In Australia, for example, the decision of the Judicial Committee of the Privy Council (‘Privy Council’) in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (Wagon Mound) (No. 2) [1967] 1 AC 617 was a landmark ruling on the test for breach of duty of care in negligence. In the Wagon Mound No. 2 Lord Reid formulated the idea of the reasonable person, which is now a cornerstone of tort law.

“It follows that in their Lordships view the only question is whether a reasonable man, having the knowledge and experience to be expected of the chief engineer of the Wagon Mound, would have known that there was a real risk of the oil on the water catching fire in some way.” [718-719]

Within contract law the Canadian case of Canada Steamship Lines Ltd v R [1952] UKPC 1 on the interpretation of unfair terms contra proferentem, has proved incredibly influential in similar cases across the common law world. It is now firmly established that parties must clearly state their intention to exclude liability for negligence under a contract.

In neighbouring America we can’t forget the case of Roe v Wade 410 U.S. 113 (1973) which has had a tremendous impact on the area of medical law and ethics worldwide. It sparked debate and catalysed a change in the law after ruling that a termination is permitted up until the stage at which a feotus is viable outside of the womb. There are only limited exceptions to this in the United Kingdom under the Abortion Act 1967 for reasons of medical necessity such as where the mother’s life is endangered.

In equity and trusts we are now also aware that a bribe or secret commission accepted by an agent is held on trust for his principal, following the case of Attorney‐General for Hong Kong v Reid [1993] UKPC 36. Last year the decision in FHR European Ventures LLP v Cedar Capital Partners LLC [2014] UKSC 45 reaffirmed this by finally laying to rest the conflict that existed between Reed and Lister & Co v Stubbs (1890) 45 Ch.D. 1 when it found in favour of Reed, overruling Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2011] EWCA Civ 347 which had previously followed the decision of Lister. 

Closer to home, the Scots law case of Moncrieff v Jamieson [2007] UKHL 42 which was brought before the House of Lords from the Court of Session determined that a right to parking easement exists ancillary to a right of vehicular access if necessary for the enjoyment of the servitude of access. Notwithstanding that Scots law is built upon common law and Roman law foundations it has still provided valuable case law, including Donoghue v Stevenson [1932] UKHL 100, that have shaped the laws of England.

Without these cases the law would not be as rich as it has proved itself to be. It would be a great shame if we forego our research of these cases when they have added so much to the common law system. This model encourages some degree of uniformity across a plethora of countries that have adopted the common law.

There is nevertheless argument that with the increase in Commonwealth countries rejecting the jursidiction of the Privy Council, significant differences in the application of the common law may arise. Even if this were to occur the fundamental tenets that created the common law as we know it would still apply but it may be the direction it takes in the future that has more freedom to change.

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