Relationship to prelim ref procedure

  • Relationship to prelim ref procedure
  • Over the years, main criticisms such as 1) lack of effectiveness; 2) absence of role for indiv Cs; 3) elite, unresponsive attitude of the Comm have gradually been addressed!
      • Van Gend en Loos, 1963: said that arts 258 and 267 are complementary. Indiv enforcement is in addition to enforcement by MS/Commission. Held that the 2 are not mutually exclusive! All have common aim of ensuring greater adherence to EU law. Comm does not have monopoly in enforcing EU law – rather, it is a complete system of judicial protection. – The case of Manchester Taxi
      • Cf Molkerei-Zentrale, 1968: ECJ emphasised the distinction between proceedings brought by indiv (intended to protect indiv rights in the specific case), and Commission enforcement proceedings (intended to ensure general and uniform observance of EC law) – different objects, aims and effects!
      • Hence, in Comm v UK, 2006: ECJ rejected UK’s argument that Comm infringement proceedings ought to be inadmissible on basis that national judicial proceedings were pending.
      • Also, in Comm v Germany, 1985: ECJ held that direct effect of Comm provision (indivs’ ability to enforce it before national courts) was NO defence to Comm action for failure to implement!

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A dismissed employee may have more than one potential claim against his employer.


Wrongful dismissal The wrongful dismissal action is a breach of contract action which may

be brought as a court action or pursued in an employment tribunal.

Unfair Dismissal The unfair dismissal claim is pursued only in an employment tribunal.


UD and WD a dismissal that is both unfair and without proper notice or within a

fixed term can give rise to both an unfair dismissal claim and a wrongful

dismissal action.

Red, UD If an employee is unfairly selected for redundancy, he will be entitled to a

redundancy payment and be able to present an unfair dismissal claim.

Red, UD and WD All three claims of wrongful dismissal, redundancy payment and unfair

dismissal would be available to the employee unfairly dismissed without

proper notice by reason of redundancy.

Short Notice Period In the case of a less well paid employee who is only entitled to a short

period of notice, the unfair dismissal claim is usually more advantageous

as compensation for future loss can extend beyond the employee’ s

notice period.

DEDUCTIONS- As provided by Notary public solicitors in London

WD and UD If both claims are brought, and both succeed, the basic principle is that

compensation will not be awarded for the same loss twice. The tribunal

will deduct the breach of contract damages awarded from the

compensatory award for unfair dismissal.

Red payment and UD

The redundancy payment will be set against the UD award. Usually it will simply offset the basic

award, but if it exceeds the basic award (eg because the basic award has been reduced by

contributory fault) the remainder will reduce the compensatory award. The excess redundancy

payment should be deducted after the other deductions (eg for contributory fault) have been


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  • This book is about theoretical disagreement in law” – pg 11 Trying to see what this is all about.

“I am concerned with issue of law, not reason judges may have for tempering their statements of what it is.” It centers on judges in black robes.

  • Critics may say project is misapplied and incomplete and obscure. But, “theories that ignore structure of legal argument for supposedly larger questions of history and society are therefore perverse.”
  • “This book take up the internal participants point o view, tries to grasp argumentative character of our legal practice. “ “We will study formal legal argument from judge’s point of view.” Citizens and politicians also important, but judicial argument more explicit and more influential on legal discourse.


  • Let’s see how PF thesis distorts legal practice by looking at actual cases.
  • Elmer’s Case
    • Elmer murdered grandfather in hope of getting will he knew he left for him. Caught, put in jail. Residuary legatees were grandfathers daughters, they sued administrator of will, demanding that property go to them not Elmer. New York statutes of wills was silent.  Judges felt compelled by law, must give to elmer, but disagreed about what law actually was, what statute required when properly read.
    • How possible? Like a poem, we agree on literal words, but not the second sense. So judges disagreed on impact of words of statue on legal rights of elmer, and daughters because disagreed about how to construct real statute.
    • Dissenting Judge Gray: Proposed literal reading, must look at statute context-independent, voted for Elmer. Much to say for this, because we don’t know if grandfather changes mind, can’t substitute own opinion. Also, would be double punishment if Elmer, after jail, also looses inheritance.
    • Majority Judge Earl:
      • *“It is familiar canon that a thing which is within intention of makers of statute is as much within statute as if it were within the letter; and a thing in letter but not in intention, is not in the statute.”. And here, with murderers, legislators had no intention either way. Earl meant that statue doesn’t have any consequences the legislators would have rejected if they had contemplated it.
      • Also, must construct statute to make larger legal order coherent. Here – no one should profit from their own wrong.
    • *Comment: Most important point from case: dispute was not about whether follow law or adjust law. It was dispute about what the law was, about what the real statute really said.

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  • Mr Learned Hand, “I fear lawsuits more than death or taxes.” In fact, civil suits can be more consequential than all but most momentous criminal trials.
  • Moral dimension: risk of public injustice, e.g., innocent person convicted of crime.
  • IN UK and US, judicial decisions affect more people because law becomes what judges say it is. (Constitutional position of Supreme Court in US, e.g. In 1954 decided cannot segregate schools by race, led to big social revolution).
    • UK Eg.
      • 1: 19th English judges said factory worker cannot sue employer for compensation if injured through carelessness of another employee because he “assumes risk fellow servants may be careless.”
      • 2: 1975, HL fixed time Cabinet minister must wait before publishing his memoirs.


  • Thus, matters what judges think law is. Lawsuits raise 3 issues:
    • Issue of fact: What happen?
    • Issue of Law: What is pertinent law? Does it allow damages?
    • Political morality/fidelity: Is denying compensation unjust, should judges ignore law?
  • Judges usually disagree most about issue 2.Mostly in two ways
    • Empirical Disagreement: May agree about grounds of law (what lays beneath every proposition of law, e.g., 55 miles in california is proposition, the ground of law is saying aye in state legislature) but disagree if those grounds are in fact satisfied in case
    • Theoretical Disagreement: May disagree about grounds of law, which underlie propositions.
  • Empirical disagreement simple. People disagree about what words are in statue books same way they disagree about any other factual matter.
  • Theoretical disagreement: We see how judges disagree about what law really is although they agree on what the statute books say.
  • Lay public unaware of this problem, they are more concerned with fidelity. But fidelity not live issue in uk/us courts.
  • In trivial sense, judges make law. Though they say that what they do is just correct perception of true grounds of law which may not have been recognized before. Thus, invent v discover debate is essentially theoretical disagreement in disguise. Why, because would be easy if no theoretical disagreement, could just check what law was. So while invent/discover debate part of theoretical disagreement, but doesn’t help us because real issue never rises to the surface.

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