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Legal Services Research and Policy Division

Financial Services Commission

Hard Cases: Constructing Legal Arguments

First

Topic

by Camilla Parris-Campbell

How do we solve problematic cases?

Sales

Model

We will be looking at the following topics to aid with this:

A

The Role of the FSC

B

Creating Legal Arguments for Difficult Cases

C

Drafting Arguments that can Create Precedents

The Role of the FSC in the legal landscape

How it

Works

The FSC derives its powers from the FSC Act, 2001

s. 6 of the FSC Act

This section describes the duties of the FSC, namely:

6.(1) For the purpose of protecting customers of financial services, the Commission shall-

(a) supervise and regulate prescribed financial institutions;

(b) promote the adoption of procedures designed to control

and manage risk, for use by the management, boards of

directors and trustees of such institutions;

s. 6 (1) FSC Act cont'd:

s. 6 (1) FSC Act cont'd:

(c) promote stability and public confidence in the operations

of such institutions;

(d) promote public understanding of the operation of

prescribed financial institutions;

(e) promote the modernization of financial services with a

view to the adoption and maintenance of international

standards of competence, efficiency and competitiveness.

s. 6(3) of the FSC Act states:

s. 6(3) of the FSC Act states:

(3) In the performance of his duties under this section an authorized officer shall be entitled at all reasonable times-

(a) to have access to all books, records and documents in

the possession or control of any director, manager, officer or employee of any prescribed financial

institution.

The Role of this provision:

The Role of this provision:

This provision is the source of the Commission's power and should be the starting point of all legal arguments under the Commission.

The key question is always "Is it in the remit of the Commission to conduct this research or investigation?"

This is the source and also the justification of the actions of the FSC, as far as is reasonable.

Let's watch this video to get started!

YouTube video on Legal Argument

Customer

Overview

Videos

Creating Legal Arguments for Difficult Cases

Global

Issues

Utilisation of general legal resources is always the best place to start, namely legislation, case law and encylopaedias (or other secodndary law sources).

However, the legal landscape will often require attorneys to either:

* Manipulate Arguments using Unfavourable Precedents

*Manipulate Arguments where there are No Available Precedents

Manipulating Arguments using Unfavourable Precedents

Manipulating Arguments using Unfavourable Precedents

Methods one can employ are as follows:

1. Do not ignore precedents that are unfavourable to your case;

2. Argue that the ratio decidendi/reasoning of the precedent is not applicable to the present fact scenario;

3. Argue that the statements of the judge in the precedent is obiter dicta and therefore, not binding on subsequent cases

Manipulating Arguments cont'd

Manipulating Arguments cont'd

4. Argue that the position of the case has been overruled by a case in a higher court or through the passing of a new statute;

5. Argue that the factual scenario of the case at bar is different than the factual scenario in the case;

6. Argue that the judgment in the precedent was hinged on a major public policy point that is no longer applicable/not applicable in this case;

7. Using conflicting precedents and stating that the one to be relied on is a stronger/more applicable precedent.

Manipulating Arguments when there is No Binding Precedent

Manipulating Arguments when there is No Binding Precedent

This calls on more intricate and analytical skills of the attorney as it requires looking deeper at the spirit and intent of the law.

This does not eliminate or ignore the doctrine of precedents (stare decisis) but instead, looks for the spirit of stare decisis in existing law.

Manipulating Arguments when there is No Binding Precedent

Business

Reports

There are 3 methods that can be employed in achieving this objective:

1. Persuasive Precedents from other jurisdictions;

2. Arguments on First (1st) Principles;

3. Evolution of General Principles applicable to the present case.

Persuasive Precedents from other Jurisdictions

This is a generally common practice and tends to involve relying on jurisdictions with a similar legal framework to ours.

These jurisdictions tend to include the UK, Canada, Australia & New Zealand.

It is important to ensure that the legislation that the precedent is based on is not at variance with our local laws. Otherwise this law would be deemed unreliable.

Forming Arguments from First (1st) Principles

Forming Arguments from First (1st) Principles

1. This is the technique of utilising legal principles from previously decided cases which may have different factual scenarios than your present factual scenario.

2. This argument basically postulates that though the factual scenarios may differ, analytically the cases are the same on principle.

3. A common example of this is the case Hedley Byrne v Heller where the fact scenario almost never matches the context in which it is being applied but the spirit of the law is still applied.

The Evolution of General Principles

The Evolution of General Principles

This is one of the most intricate legal argumentation methods. This involves looking at the spirit of the law/the spirit of stare decisis.

1. An excellent example of this is what Lord Atkin did in the seminal case Donoghue v Stevenson (negligence).

2. This is not ignoring the existing precedents but instead finding the underlying principles in the law that could be applicable to the present case.

3. This general principle is then applied or super-imposed on the case being argued.

The Evolution of General Principles, cont'd

The Evolution of General Principles, cont'd

Applying the spirit of the law/spirit of stare decisis often involves looking backward to move forward.

This involves asking yourself "What has the law been and how must it be, moving forward?"

It is important to note that in such arguments you are not saying that your proposition is "the next logical step" but instead that the principle you are asserting has already existed in the law but has not yet been explicitly articulated in the case law or legislation (i.e.- it has been implied; also see Wilkinson v Downton).

Spot Questions

Contact

Info

An opportunity to win a cool prize! GO FOR IT!

QUESTION #1

"Name one of the techniques that can be utilised when having to utilise an unfavourable precedent in your argument."

QUESTION #1

QUESTION #2

"Name one of the techniques that can be used to manipulate arguments when there is no precedent."

QUESTION #2

QUESTION #3

"Name the judge who gave the landmark majority judgment in the case Donoghue v Stevenson."

QUESTION #3

THANK YOU!

Contact me at my e-mail campbellpc@fscjamaica.org

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