Presumption against Interference with Pending Litigation

If an enactment operates retroactively, as it does in this case then, by definition, it applies to pending litigation.It would be illustrated with the following Citation . [Blogger]

In The Interpretation of Legislation in Canada, 2nd ed. (Cowansville: Les Éditions Yvon Blais, Inc., 1991), at 160, Côté explains the presumption against interference with pending litigation as follows:

In general, new statutes affecting substantive matters do not apply to pending cases, even those under appeal. Since the judicial process is generally declaratory of rights, the judge declares the rights of the parties as they existed when the cause of action arose: the day of the tort, the conclusion of the contract, the commission of the crime, etc. A new statute that is substantive will not apply to pending cases, unless it is retroactive in the true sense of the word, that is, unless it operates in the past and modifies the law in effect on the day of the tort, the crime, the contract, etc. A pending case, even one under appeal, can be affected by a retroactive statute, even one enacted pending appeal.

                                                                                                                                [Emphasis added.]

Chapter-1 Distinction between Substance and Procedures

Statutes altering matters of pure procedure

Distinction between Substance and procedures is slippery

The distinction between substance and procedure is a slippery one, in Fayed v United Kingdom [1], the court remarked:

"It is not always an easy matter to trace the dividing line between procedural and substantive limitations of a given entitlement under domestic law. It may sometimes be no more than a question of legislative technique whether the limitation is expressed in terms of the right or its remedy." In similar vein to the Strasbourg court in Fayed, the editors of Dicey and Morris on the Conflict of Laws[2],: "The distinction is by no means clear-cut. In drawing it, regard should be had in each case to the purpose for which the distinction is being used and to the consequences of the decision in the instant context."

As the European Court itself has recognised, it is not always an easy matter to trace the dividing line between procedural and substantive limitations of a given entitlement under domestic law.[3]. It is of course in the nature of exercises of this kind that cases which lie at either extreme are easy to place into the appropriate category. In Powell and Rayner v United Kingdom [4]section 76(1) of the Civil Aviation Act 1982 was held to exclude liability for trespass or nuisance as a matter of substantive law, with the result that the applicants had no substantive civil right to relief for which they could claim protection under article 6(1). In Z v United Kingdom [5] it was held that the decision of the House of Lords in X v Bedfordshire County Council [6] did not remove the arguability of the claims retrospectively but that it was concerned instead with a novel category or area of negligence into which the law was not to be extended. On the other side of the line are Tinnelly & Sons Ltd v United Kingdom[7], in which the Secretary of State's certificate was held not to define the scope of the substantive right to protection against unlawful discrimination but to provide him with a defence to the complaint. and Fogarty v United Kingdom [8] where the grant of state immunity in answer to the applicant's victimisation claim was held to be a procedural bar to a claim for damages for a cause of action well known to English law.

”The distinction between limits to the substantive content of the law and procedural bars to a judicial remedy is not an easy one to draw. It cannot be made to depend upon the drafting technique employed in the domestic legislation of the state concerned without opening the door to evasion of the Convention rights. Nor can the problem be resolved by invoking the word "immunity", for the question is whether the national law creates immunity from liability or merely immunity from suit. It is best to avoid a formalistic approach and inquire whether the rule which bars the claim is of general application and is independent of the facts which found the claim. Often the answer can be found by tracing the history of the domestic rule and examining the underlying policy to which it gives effect. It is, perhaps illogically, easier to treat restrictions on a newly created legal right as limitations of substantive law than to accord the same treatment to the withdrawal of existing legal rights. On the other hand the European Commission has had no problem with the substitution of a no-fault pension entitlement for a fault-based right to compensation for tort.[9]”

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[1] Fayed v United Kingdom (1994) 18 EHRR 393, 430, para 67

[2] Dicey and Morris on the Conflict of Laws, 13th ed (2000), say, at pp 157-158, para 7-004

[3] Fayed v United Kingdom (1994) 18 EHRR 393, 430, para 67

[4] Powell and Rayner v United Kingdom (1990) 12 EHRR 355

[5] Z v United Kingdom (2001) 34 EHRR 97

[6] X v Bedfordshire County Council [1995] 2 AC 633

[7] Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249

[8] Fogarty v United Kingdom (2001) 34 EHRR 302

[9] see Pinder v United Kingdom (1984) 7 EHRR 464

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