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Red Rocket
Rank; Captain Gordon
United Kingdom
223 Posts |
 Posted - 05/04/2008 : 12:37:06
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I posted this on another thread. I realise its a lot of stuff but its worth looking over it all. The founders of TCC are probably well ahead of me. Comments please.
Natural justice
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Natural justice is a legal philosophy used in some jurisdictions in the determination of just, or fair, processes in legal proceedings. The concept is very closely related to the principle of natural law (latin: jus naturale) which has been applied as a philosophical and practical principle in the law in several common law jurisdictions, particularly the UK and Australia.[1][2]
According to Roman law certain basic legal principles are required by nature, or so obvious that they should be applied universally without needing to be enacted into law by a legislator. The assertion in the United States' Declaration of Independence, "We hold these truths to be self-evident," expresses some of this sentiment. The rules or principles of natural justice are now regularly applied by the courts in both common law and Roman law jurisdictions. Natural justice operates on the principles that man is basically good, that a person of good intent should not be harmed, and one should treat others as one would like to be treated.[3]
Natural justice includes the notion of procedural fairness and may incorporate the following guidelines:
A person accused of a crime, or at risk of some form of loss, should be given adequate notice about the proceedings (including any charges).
A person making a decision should declare any personal interest they may have in the proceedings.
A person who makes a decision should be unbiased and act in good faith. He therefore can not be one of the parties in the case, or have an interest in the outcome. This is expressed in the latin maxim, nemo judex in sua causa: "no man is permitted to be judge in his own cause".
Proceedings should be conducted so they are fair to all the parties - expressed in the latin maxim audi alteram partem: "let the other side be heard".
Each party to a proceeding is entitled to ask questions and contradict the evidence of the opposing party.
A decision-maker should take into account relevant considerations and extenuating circumstances, and ignore irrelevant considerations.
Justice should be seen to be done. If the community is satisfied that justice has been done, they will continue to place their faith in the courts.[4]
Common law are laws that have been developed through court decisions rather than through statutes. In common law legal systems, the law is created and/or refined by judges: a decision in the case currently pending depends on decisions in previous cases and affects the law to be applied in future cases. When there is no authoritative statement of the law, common law judges have the authority and duty to make law by creating precedent.[1] The body of precedent is called "common law" and it binds future decisions. In future cases, when parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, it will decide as a "matter of first impression." Thereafter, the new decision becomes precedent, and will bind future courts under the principle of stare decisis.
In practice, common law systems are considerably more complicated than the idealized system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of non-appellate courts are only non-binding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity. However stare decisis, the principle that similar cases should be decided according to similar rules, lies at the heart of all common law systems.
Common law legal systems are in widespread use, particularly in those nations which trace their legal heritage to Britain, including the United Kingdom, most of the United States and Canada, and other former colonies of the British Empire but not in India where legal system goes by written law.
Tax zone
News
Court finds taxpayers can sue HMRC for damages
The Court of Appeal has found that HM Revenue and Customs do owe a duty of care to a taxpayer if it makes mistakes. As a consequence of the decisions in Neil Martin v Commissioners for HMRC [2007] EWCA Civ 1041, the taxpayer may sue HMRC for damages in certain circumstances.
Neil Martin, a builder, suffered severe business disruption and consequential losses as a result of a stream of errors made by HMRC when it processed his company CIS application in 1999. Not withstanding the errors, there were also delays in processing his application following introduction of the new rules of the time, and finally his company application was muddled with an individual’s application for a registration certificate and sent out to the wrong address.
Unsuccessful in his claims for compensation under Code Of Practice (COP) 1, Mr Martin’s further appeal was rejected by the Revenue Adjudicator. In 2000, he appealed to the Parliamentary Ombudsman whose investigation led to what was described in court as "a striking and important letter" from the Deputy Chairman of the Inland Revenue. This confirmed that the errors and delays fell into the classification “persistent errors” under COP 1.
Mr Martin claimed damages from HMRC either of a statutory duty under the CIS legislation or under a common law duty of care owed to the taxpayer. The Court did not agree with the former, but found unanimously in favour of the common law argument.
What makes the complaint so unique is that one HMRC employee took it upon himself to complete the declaration for a sub-contractors registration card, instead of a company exemption. Lord Justice Chadwick, presiding at the Court of Appeal put it that he was ”not processing an application which had been made: he was assuming an authority to make an application which had not been made.”
As a result, the judge could see no reason why, in assuming that authority, the employee should not be taken to have assumed a responsibility to the applicant. In those circumstances it seemed to be fair, just and reasonable that the common law should recognise that a duty of care exists. The decision was unanimous.
The case has huge ramifications, as HMRC staff regularly assist taxpayers in making various returns, applications and claims. This victory might be short lived and HMRC may yet seek leave to make an appeal to the House of Lords.
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Natural Justice / Common Law
