Can new Common Law causes of action be created in any jurisdiction today?

General Questions
#1

The Common Law, as I understand it, was established by the precedent set by judges in England in days of old. Both civil and criminal law was established. From the criminal standpoint, Wikipedia says, of common law offenses, “These are offences of the common law which are developed entirely by the courts over the years, and for which there is no actual legislation.”

Can new civil (i.e. grounds to sue) or criminal (i.e. substantive criminal offenses) causes of action still be created by judges today in England? For example, can a judge in Cornwall create a new common law offense of “Possession of a Foreign Car with Intent to Drive to the Supermarket”, and start convicting people of it? Could a judge in York create a new substantive civil tort of “Frowning at a Person” and let people sue others for it? If not, when was last date on which a judge could legally create a new common law crime or tort?

How about Northern Ireland, New Brunswick, Virginia, New South Wales, or the British Virgin Islands?

#2

I cannot answer for all jurisdictions. I know about Canada and the UK by way of Canada.

Criminal: No or in very few jurisdictions. You would be sending someone to prison for something which was not criminal at the time they did it.

What may happen is that a judge will come up with an awfully creative way of interpreting statutory criminal law.

Civil: Sure. It usually takes the form of a gradual broadening of existing remedies by way of analogy.

If all else fails, the judge may sometimes rule in equity.

#3

Interesting. It seems to me that when common law crimes were first created, there had to have been a “first convict” who was the first person to ever be convicted of that offense under the common law system. This seems to say that judges in the US used to be allowed to create new common law offenses, but that they can no longer do so. I’d think that in order to pass constitutional muster, the judge would, at a minimum, have to create the offense (perhaps by issuing a court order defining the offense?) and then wait for people to violate it.

#4

The most significant example of a court creating a new civil liability at common law in the past half century that I can think of is the tort of negligent misrepresentation, first recognized by the English House of Lords in its judicial capacity in Hedley Byrne v. Heller.

#5

Or just read about the career of Lord Denning.

#6

Anton Pillar Order. Manerva Injunction. Both later than that. The married womans equity, which eventually was given statutory force.

#7

Anton Pilar and Mareva are both simply remedial powers, not causes of action.

What’s the married woman’s equity?

#8

The common law crime of “conspiracy to corrupt public morals” was created in 1962 in Shaw v Director of Public Prosecutions [1962] AC 220. The crime was created by the House of Lords acting as an English court of criminal appeal.

#9

If I recall correctly, it was a Denning decision that protected a deserted wife from being turfed by her runaway husband’s creditors from the matrimonial home owned by the him.

#10

True. But they are new remedies which did not exist before and came into being vide case law, not statute.

Married womans equity. Basically, where a woman had lived in and spent some money on the martimonial home, she had an equitable interests in it and could not be simply evicted. Denning pretty much pulled this one out of thin air and was consistantly reversed by the Lords and he persisted. Until statute vindicated him.

#11

For instance, in the US, SEC Rule 10b-5 was originally promulgated by the SEC as an enforcement tool for the SEC to use, and there was no suggestion that private individuals could sue a company for violation of the rule. The implied private right of action, which is now one of the most actively litigated areas of securities law, was created by the courts.

#12

Not exactly. Lord Reids speech makes clear that the crime existed at common law, What was problematic was the fact that their Lordshios went further and stated that they were the guardians of public morality,

#13

The trouble is that their lordships would have to say that the crime had always existed in common law – they couldn’t say that they were inventing a new crime. However, no legal commentators had ever noticed that this crime existed.

#14

There was an old saying (at least over here) : “May God preserves us from the equity of courts”

Not the best idea, IMHO. I wonder : in what situations is such a thing possible?