Some of these principles were present in the case of co-operative insurance society limited and Argyll stores(holding) Ltd. However in the Court of Appeal, there was a majority verdict which moved for the granting of specific performance. This decision was made with the knowledge of the above principles. Roch LJ in the Court of Appeal stated that specific performance should be granted because damages would not make up for the empty store nor for the loss of business by the smaller shops. His argument is based on a sub-rule related to the courts refusing performance when damages will suffice. The judges in the Court of Appeal came to their decision regardless of the former practice which can also be referred to as precedence. Their suggestion suggests that the courts have made wrong decisions for over a 100 years. As justification, they cited the case of Braddon Towers Ltd v International Stores Ltd where an order of specific performance was enforced. Legatt LJ stated that the principles in that case should be followed in the Argyll case.
Other things which influence decisions made by judges are known as Formalism or Realism and Market Individualism or Consumer-Welfarism. Market individualism seeks to make the market a place for competitive exchange. It upholds the idea that when A enters into a transaction with B they can be assured that they will get exactly what they want. This portrays security and therefore a person who enters such a contract should be protected. Along with this ideology also arises the issue of certainty. This outlines a clear definition in contracts and this is portrayed in the fact that damages is usually the remedy for a breach of contract. Market individualist also seek to accommodate commercial practices. Parties will not always be held liable for failure to disclose information and in the case of Cash and Carry v Gallaher, it was held that there was no duress because the pressure applied was made innocently. In addition to this, judges are traditionally supposed to have a non-interventionist role in relation to contracts. This is in accordance to the freedom of contract concept whereby partners are free to choose whom they want to contract with as well as the terms of the contract.
On the other hand, Consumer-Welfarism embodies a number of principles some of which i will discuss. Firstly, the consumer-welfarist seeks to monitor contracts more closely than the market-individualist would allow. They seek to ensure constancy. In the case of Co-operative Insurance Society ltd v Argyll Stores(Holdings) Ltd, the defendants generated expectations which they did not fulfil but this can also be linked with the idea that the stronger party should bear the loss. Also, consumer-welfarist also seek to ensure proportionality. This means that the remedies for breach of contract should be proportionate to the seriousness of the breach. The judges in the court of appeal felt that specific performance should be awarded while Lord Hoffman in the House of Lords said that this would be handing the defendant over to the other party bound hand and foot.
In addition, judges also take formalist ideologies when making judgement. Like the name implies, a formalist is conservative in their judgement and above all, they abide strictly by the rule book. They prefer to follow its logical sequence and also prefer well-established principles of law rather than making law reform. Although a formalist can sympathize with the litigant, they do not take this into consideration unless the rule book gives them leave to do so. The realist is the exact opposite of the formalist. The realist does not mind deviating from the rule book as long as the outcome is just e.g Beswick v Beswick. Realists take sympathy into consideration and actually prefer rules that require a standard of reasonableness and fairness.
All in all, they are exact opposites. However, the fact still remains that our judges cannot be regarded as belonging to one or the other. In their judgements, they tend to take bits out of each ideology to justify their decisions. The above ideologies can be observed in various forms in the judgement given by both houses. This suggests that since judges are indeed guided by their policy preferences, then there is nothing legal about their judgement because what they are in fact doing is basing their argument with which ever ideology suits them. TThis is seen perfectly in the Argyll case where some of the judges state that damages is usually awarded for breach but they advocated that in this case specific performance should be awarded. This decision is made regardless of the fact that both parties are independent parties. This suggests that judges make law according to their policy preferences when it suits them.
