example, in the case of British Rail v Herrington (1972) the House of Lords
used their new Practice Statement powers to overturn previous law and
encourage large organisations, like British Rail, to ensure that the
environment was a safe place for everyone, including children. The
Abortion Act 1967 (now modified by the Human Fertilisation and
Embryology Act 1990) raised emotive concerns, but one thing which it
accomplished was a reduction in the number of ‘back street’ illegal
abortions, undertaken in dangerous conditions.
Policy issues
Policy is another area which you can illustrate by calling on material
already studied in law. It not difficult to think of cases where the court
wished to formulate and uphold ‘rules’, but at the same time bring about a
result which reflected a certain line of thought or behaviour. In the
performance of an existing duty, for example, the court in Collins v
Godefroy would not have wanted to endorse the right of a lawyer to claim
extra money for obeying the summons of the court to appear as a witness.
However, they obviously felt in Williams v Roffey that it was important to
support commercial arrangements made within the context of a building
trade in recession. When the case of Re Selectmove raised a similar
argument regarding payment to the Inland Revenue of outstanding tax,
however, this more flexible approach was not evident, and one can only
wonder whether the outcome would have been the same had the debt been
owed to an individual rather than a government body. Lord Denning had,
after all, stretched the idea of ‘extra’ duty to its limits in order to find
payment for the single mother in Ward v Byham.
Such cases should follow a line of precedent, of course, but it is almost
always possible to distinguish cases on the facts, if the courts so wish. How
much they should do this is a debatable point. If they do not make decisions
in cases which are acceptable to society, then it is a lengthy process to
appeal to the House of Lords or to legislate to correct the mistake. However,
the opposite argument is that we leave some important law-making in the
hands of a small body of judges who are not democratically elected.
So, it can be seen, that to succeed in the kind of synoptic paper which
asks you to make these links, what is needed is a good knowledge of your
area of substantive law (contract law in this case), a working knowledge of
the material studied on the English legal system, and the initiative to take
an overview, combine the two, and apply what you know to the question
under discussion.
Contract law in context 263