How Common is the Common Law? Some Differences and Similarities in British and American Superior Court Decisions

Del-Bove, Marion Charret; Francoz-Terminal, Laurence

doi:10.14198/raei.2015.28.04

RAEI

2015

DOI: 10.14198/raei.2015.28.04

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How Common is the Common Law? Some Differences and Similarities in British and American Superior Court Decisions

Marion Charret Del-Bove¹,

Laurence Francoz-Terminal²

Abstract: American law and English law belong to the same legal tradition, the common law, characterized by a case-law system based on judicial decisions and the rule of precedent. There are indeed common features between the American and the English common law systems. There is a common language with close expressions, but also similar concepts, principles and procedures. But how common are in fact the American and British legal systems? This paper aims at finding some possible answers through a legal and linguistic an… Show more

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“…Supposing the aggrieved persons were to sue the polluters and claim compensation, the possible outcome of the trial is discussed in this chapter based on previous courts rulings. According to [13], Malaysia is a common law country, with the same adherence to the doctrine of precedence, which includes the concepts of ratio decidendi, obiter dictum, stare decisi, res judicata, etc., as found in the United Kingdom, most other commonwealth countries, and the United States [14]. Some suggestions to improve and strengthen the environmental legislation …”

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Environmental Laws: To Sue or Not To Sue

Ramli¹

2017

IOSR JESTFT

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(MSOPA, 1994) [3]. They were awarded RM 20,000 as compensation after the Judge Vernon Ong satisfied that they have the right to claim under the law but allowed only 50 plaintiffs to be compensated as the others were unlicensed fishers as such lost their rights. The law, MSOPA 1994 provides the aggrieved persons to claim damages as result of oil pollution caused by the owner of the polluting ship. Unlike Wahab bin Ibrahim's case, the failed claim by fishers caused by coastal reclamation works is illustrated in Mohd Nor bin Jamil and 123 ors V i) Pengerang Independent Terminal Sdn Bhd., ii) Dialog E & C Sdn Bhd., iii) Kerajaan Negeri Johor. In his judgment, Judge Teo Say Eng dismissed the claim with RM 8,000 cost [4]. Although some of them were allowed to claim since they were licensed fishers, the plaintiffs had failed to prove, inter alia, their right to fish is premised upon their constitutional right or common law right if any or statutory right.Claiming losses caused by pollution other than oil spill, or other man-made catastrophe by fishers is almost impossible in Malaysia. As is it now, the laws are not compassionate enough to the environmental victims. Ansari [5] said the judicial delineation of tortuous remedy has utterly failed to control environmental pollution and to bring justice to the doorstep of the indigent and poor people. In the court of law, the primary concern is whether a plaintiff has the right to sue in public property damages. It was shown in Ketua Pengarah Jabatan Alam Sekitar & Anor V Kajing Tubek & Ors where the court took a more restricted view and denied the native residents locus standi to raise this matter in the court for the following reasons, inter alia; there was no special injury suffered by the respondents over and above the injury common to others [6]. Fishers have no property rights over the sea and its natural resources; so, do they possess the right to claim for compensation for damage of goods that do not belong to them? Fishers are merely given a right to fish by way of licenses [7] within a stipulated period of time [8], where license may be renewed [9], and subjected to conditions as specified by the authority [10]. In Jan De Nul (UK) Ltd. V NV Royale Belge [11] , Judge Moore-Bick concurred with the counselors of the defendant that only those claimants who could show legal ownership or a possessory title to property damaged by siltation could pursue a claim in negligence. Similarly, in the tort of nuisance, Lord Goff in Hunter V Canary Wharf [12] pointed out that an action of private nuisance will usually be brought by a person in actual possession of the land affected, either as the freeholder or tenant of the land in question, or even as a licensee with exclusive possession, but a mere licensee on the land has no right to sue. This paper is devoted into establishing whether fishers or any other persons aggrieved by the environmental impairment have the right to be compensated for the economic loss incurred. Supposing the aggrieved persons were to sue the polluter...

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Environmental Laws: To Sue or Not To Sue

Ramli¹

2017

IOSR JESTFT

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How Common is the Common Law? Some Differences and Similarities in British and American Superior Court Decisions

Cited by 1 publication

References 6 publications

Environmental Laws: To Sue or Not To Sue

Environmental Laws: To Sue or Not To Sue

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