2 November 2016

Why English law is good

Two recent but very different events have led me to write this article on how lucky we all are to have the English legal system. The first was, prosaically, a seminar on European succession law (in Norwich) and the other was reading an article on current problems with the Indian legal system (in India).

Let me start closest to home. The European Succession Regulations, which came in this August, and to which the UK has not signed up, allow a national of an EU state to choose the law which should govern the administration of their estate upon death. In addition to the forced-heirship rules, other foreign anomalies worth noting are: that marriage does not revoke a Will (including in Scotland, where the birth of a first child can do so); that in Italy lifetime gifts to children must be brought into account in distributing the estate upon death; and, that one can sign to forgo one’s inheritance (never straight-forward in fact and law, especially where some time has elapsed).  Whereas one can request that English law applies to ones assets in other EU countries, because many civil law countries do not recognise trusts, seeking to apply an English Will containing a trust to EU assets may be complex and incur a double tax charge.

So, what about India? Well, when the British left India in 1947, amongst the systems and structures that ‘we’ left behind was that of the English legal system. However, in the 69 years since then there has been much divergence. The legal principles remain but the Indian Courts and the implementation of the decisions, apparently, leave much to be desired. On the principle of ‘justice delayed is justice denied’ the Indian system would appear to be failing. It takes years for a case to be heard and the system has become unwieldy and inefficient. Nine judges sit on cases heard in their Supreme Court and all nine of them give a judgement. Such judgements, when published, are sometimes as long as 900 pages for a single case. As cases take so long to be heard and even longer for the decisions to be enforced, there is a tendency for litigants to take matters into their own hands rather than wait any longer for justice to be delivered.

The English legal system is a high earner for the English economy. Litigants and companies from overseas come here to use our legal systems and our Courts. Rather than the codified rigid laws of Civil Law countries, we have the concept of ‘equity’, which combined with our law of trusts and flexibility in relation to Wills and property management, make our system highly desirable.

Yes, there is much to improve here in England. Our legal system is creaking with antiquated IT in the Courts and the threat of closure of our some Courts (King’s Lynn, being our local cause célèbre).  However, we should appreciate what we have: it could be infinitely worse.

Article by Miranda Marshall.

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