The maxim hard cases make bad law is well-known within the legal world. However, perhaps it’s time for a new maxim being “bad cases make bad law”. There are several factors which can result in bad case law. One of these factors is the case which is presented by the legal practitioner to the court. The case consists of the alleged facts, the applicable case law, arguments made by the legal representatives, and the legal provisions/principles and the application and interpretation thereof.

The arguments made by the legal representatives to the court, will have a significant bearing on the ultimate decision arrived at by the court. This is especially true in more specialised areas, such as Customs and Excise (“C&E”), where many Judges are not familiar with this area and the principles and practicalities governing it.  In such matters the Judges rely heavily on the arguments and information presented to them by the legal practitioners. There is a duty on the legal practitioners to ensure that the arguments they present to the court, do not distort the applicable legal principles/provisions, and the way these principles/provisions are applied or ought to be applied. As much as legal practitioners act on behalf of their clients, they remain officers of the courts and must act in a fit and proper manner.

Where principles/provisions have not been correctly applied inconsistencies in the law are created.  These inconsistencies must be resolved, if they are not, this will cause confusion and uncertainty on the correct interpretation of these principles/provisions. Where misleading explanations are provided to the courts about the application of these principles/provisions, it may likely result in the court unwittingly upholding this incorrect application, and making a judgement with bad law, which will be relied on by other parties in the future and cause confusion and uncertainty in that area.

There are many judgements which reflect instances where legal practitioners have failed to act in a fit and proper manner by misleading the court in terms of the applicable principles/provisions, resulting in the courts arriving at the incorrect decisions. One of the examples within the C&E environment is tariff classification.

Tariff classification is highly interpretive and can be very technical in nature. It requires one to have a good understanding of the principles underlying tariff classification, including the general rules of interpretation (“GRI”), the relevant section, chapter and subheading notes and the internationally applicable Harmonized System Explanatory Notes[1] (“ENs”) to the tariff.

One needs to be clear on the manner these principles are to be applied, if not correctly applied, it will likely result in an incorrect tariff determination (“Determination”) being made in relation to the relevant product(s), which will not only have a negative impact on the party to whom the Determination applies, but to other parties dealing in similar or identical goods. Furthermore, it may result in the distortion of these longstanding principles, which provide some form of certainty in an area which is highly interpretive.

If one considers some of the Determinations which have been made by the courts, it is clear that the principles underlying tariff classification have not been adhered to or alternatively have been applied incorrectly. This is likely due to the court being given misleading information in relation to the application of these principles or the court being presented with cases which themselves constitute bad law, thus perpetuating the cycle.

While one sympathises with a court having to decide very technical cases, the result of misapplication of or failure to apply the rules of tariff classification correctly is far reaching – it leads to uncertainty and undermines the well-established principles of tariff classification.