1
John Bell, 1.10.2015
SOURCES AND METHODS OF THE ENGLISH COMMON LAW
A.Burrows (ed), English Private Law (3rd edn, 2013), ch. 1
PART 1: CASE-LAW AND PRECEDENT
R. Cross, Precedent in English Law (4th edn by JW Harris, Oxford UP 1991)
Glanville Williams, Learning the Law (15th edn by ATH Smith, Sweet & Maxwell 2014), ch 6
W. Twining & D.Miers, How to do things with Rules (5th edn Cambridge UP 2010), ch. 9
ENGLISH CONCEPTION OF PRECEDENT:
"every court is bound to follow any case decided by a court above it in the hierarchy, and
[some] appellate courts (other than the Supreme Court) are bound by their previous decisions ...
It is not everything said by a judge that constitutes a precedent. In the first place, this
status is reserved for his pronouncements on the law ...
The second reason ... is that, among the propositions of law enunciated by him only
those which he appears to consider necessary for his decision are said to form part of the ratio
decidendi and thus to amount to more than an obiter dictum." (Cross)
Stare decisis and Precedent: In stare decisis courts are bound to follow the previous decision
whether they believe it to be right or not. In precedent more generally, previous judicial decisions are
treated as authoritative statements of law, but which might be departed from when wrong.
REASONS FOR STARE DECISIS
Summers distinguishes between:
(1)
Formality reasons: a decision is right if it has followed the correct formality, e.g. to
make a valid will, the testator must sign in the presence of two witnesses who must also sign
it.
(2)
Authority reasons: a decision is right if it conforms to what some authority (legislator,
higher court) has stated is the correct solution.
(3)
Justice reasons: a decision is right if it is consistent with moral principle.
Lord Donaldson MR Rickards v Rickards [1989] 3 All ER at 199
"certainty in relation to substantive law is usually to be preferred to correctness, since this at least
enables the public to order their affairs with confidence."
HOW DO WE TELL WHAT IS THE RIGHT INTERPRETATION?
a) informed legal judgment
"[Cases] are not be decided by natural reason, but the artificial reason and judgment of the
law,which law is an art which requires long study and experience, before a man can attain to
the cognizance of it." (Sir Edward Coke, 1607)
b)
Who decides what is good legal judgment?
"the common law ... consists of a body of practices observed and ideas received by a caste of
lawyers, these ideas being used by them as providing guidance in what is conceived to be the
rational determination of disputes litigated before them, or by them on behalf of clients, and
in other contexts. These ideas and practices exist only in the sense that they are accepted and
acted upon within the legal profession ..." (Simpson)
ILLUSTRATION OF A TYPICAL JUDGMENT: Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1
2
DIFFERENT WAYS A PRECEDENT MAY BE TREATED BY A SUBSEQUENT COURT
In judgments you will see the following expressions used:
a) Followed or applied = the precedent is applied in a subsequent case, e.g. Devlin J at 19
the Court of Appeal in Filburn v People's Palace and Aquarium Co. Ltd (1890) 25 Q.B.D.
258…. held that as a matter of law an elephant is an animal ferae naturae. Mr. Van Oss has
sought to distinguish this case on the ground that the elephants belonging to the defendants
are Burmese elephants and he submits that it is open to me to hold that while elephants
generally are ferae naturae, Burmese elephants are not. In my judgment, it is not open to me
to consider this submission. It is not stated in Filburn v People's Palace what the nationality
of the elephant was with which the court was there dealing, and the case must be regarded as
an authority for the legal proposition that all elephants are dangerous. Evidence was called on
both sides about the behaviour of elephants. There was evidence to show how elephants
behave in Burma and how they behave in circuses in England…., but in this court it is
immaterial, since I am bound by the decision in Filburn v People's Palace and Aquarium Co.
Ltd.; "it is not competent to the courts to reconsider the classification of former times," per
Neville J. in Heath's Garage Ltd. v Hodges.[1916] 2 K.B. 370, 383. If, however, it was open
to me to answer the question as one of fact, I should answer it on the evidence before me by
saying that some elephants are dangerous and some are not and that this one is not.
b) Reversed = the decision of a lower court is overturned by the appeal court in the SAME case
c) Overruled = the ruling laid down in the precedent is held to be wrong in a SUBSEQUENT case,
e.g. Rondel v Worsley [1969] 1 AC 191 overruled by Arthur JS Hall v Simons [2002] 1 AC 615.
SO WHAT IS BINDING IN A PREVIOUS DECISION?
1.
RATIO AS THE RULE OF THE DECISION
"The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a
necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a
necessary part of his direction to the jury" (Cross)
"A ratio decidendi is a ruling expressly or impliedly given by a judge which is sufficient to settle a
point of law put in issue by the parties' arguments in a case, being a point on which a ruling was
necessary to his justification (or one of his alternative justifications) of the decisions in the case."
(MacCormick)
2.
WHAT KINDS OF RULING ARE GIVEN IN CASES?
i) Positive rule-findings:
elephants are animals ferae naturae (Filburn v People’s Palace)
ii) Negative rule-findings:
Intervening wrongful act of a third party does not provide a defence against liability of the
owner of an animal ferae naturae: Baker v Snell [1908] 2 KB 825
iii) Classifications:
animals which have a natural tendency to do harm and those which are by nature harmless
(but may in a specific case be dangerous)
OBITER DICTUM
“the practice of making judicial observations obiter is also well established. A judge may often give
additional reasons for his decision without wishing to make them part of the ratio decidendi; he may
3
not be sufficiently convinced of their cogency as to want them to have the full authority of precedent,
and yet may wish to state them so that those who later may have the duty of investigating the same
point will start with some guidance. This is a matter which the judge himself is alone capable of
deciding, and any judge who comes after him must ascertain which course has been adopted from the
language used and not by consulting his own preference.” (Devlin J at 24)
3.
ARE WE LOOKING AT WHAT THE JUDGE THOUGHT HE WAS DOING?
Consider Mutual Life v Evatt [1971] AC 793 interpreting Hedley Byrne v Heller [1964} AC 465:
LORD DIPLOCK: 'The reference to "such care as the circumstances require" [in the speeches
of Lords Reid and Morris in Hedley Byrne] presupposes an ascertainable standard of skill,
competence and diligence with which the adviser is acquainted or has represented that he is.
Unless he carries on the business or profession of giving advice of that kind, he cannot
reasonably be expected to know whether any and if so what degree of skill, competence or
diligence is required ... This passage should, in their Lordships' view, be understood as
restricted to advisers who carry on the business or profession of giving advice of the kind
sought.'
Lords REID and MORRIS (dissenting): 'We are unable to construe the passages from our
speeches cited in the judgment of the majority in the way they are there construed.'
4.
GOODHART AND "MATERIAL FACTS"
"our task in analysing a case is not to state the facts and the conclusion, but to state the
material facts as seen by the judge and his conclusion based on them. It is by his choice of
the material facts that the judge creates law." (Goodhart)
"every case must contain a binding principle, but this binding principle is not necessarily to be
found in the statement of law made by the judge." (Goodhart)
5.
RATIO AS A "RATIONAL RECONSTRUCTION"
N. MacCormick, 'Why cases have rationes and what these are', in L. Goldstein, Precedent in Law,
ch.6, esp. 169-182
6.
DISTINGUISHING
(from J. Raz, The Authority of Law, pp185-6)
"There is what I shall call 'the tame view' of distinguishing according to which to distinguish
a binding precedent is simply to determine that its ratio does not apply to the instant case ...
As against this, there is another view of distinguishing according to which one distinguishes a
rule by changing it so that a rule which did apply to the present case no longer applies to it in
its modified form ... Distinguishing ... is a very restricted from of law-making. It is subject to
two crucial conditions:
1) The modified rule must be the rule laid down in the precedent restricted by the
addition of a further condition for its application.
2) The modified rule must be such as to justify the order made in the precedent."
[STRONG DISTINGUISHING = the rule in the previous case has to be modified so it does not apply
in this case] Behrens at 19 (rejected by Devlin J):
the Court of Appeal in Filburn v People's Palace and Aquarium Co. Ltd…. held that as a
matter of law an elephant is an animal ferae naturae. Mr. Van Oss has sought to distinguish
this case on the ground that the elephants belonging to the defendants are Burmese elephants
and he submits that it is open to me to hold that while elephants generally are ferae naturae,
Burmese elephants are not.
[Mr Van Oss’s rule is “an elephant is an animal ferae naturae, unless it is a Burmese
elephant”]
4
[WEAK DISTINGUISHING = the facts of this case are different, so the rule in the previous case does
not apply] Behrens [1957] 2 QB at 29:
If the male plaintiff's loss consisted simply of the fact that the loss of his wife's musical talent
made the joint act less valuable to him, I should hold that he could not recover. I decided that
way in Burgess v. Florence Nightingale Hospital for Gentlewomen where a similar point
arose under the Fatal Accidents Acts. But that is not the point here: I have found as a fact that
the male plaintiff has proved no loss under that head. His loss lies in the fact that Mrs.
Behrens would, if her husband had gone on tour, have been unable to give him the society and
domestic help which only she as a wife could give. In Burgess v. Florence Nightingale
Hospital for Gentlewomen it was not suggested that the arrangement between the parties in
that case depended in any way on the relationship of husband and wife.
JUDICIAL HIERARCHY: WHO IS BOUND BY THEIR OWN DECISIONS?
SUPREME COURT
Practice Statement (Judicial Precedent) (1966)
"Their Lordships recognise ... that too rigid adherence to precedent may lead to injustice in a
particular case and also unduly restrict the proper development of the law. They propose to
modify their present practice and, while treating former decisions ... as normally binding, to
depart from a previous decision when it appears right to do so.
In this connection, they will bear in mind the danger of disturbing retrospectively the
basis on which contracts, settlements of property and fiscal arrangements have been entered
into and also the especial need for certainty as to the criminal law."
[ADOPTED Austin v Southwark LBC [2011] 1 AC 355 at [24] per Lord Hope JSC]
COURT OF APPEAL (CIVIL DIVISION)
Rickards v Rickards [1989] 3 All ER at 198-9, per Lord Donaldson MR.
"The importance of the rule of stare decisis in relation to the Court of Appeal's own decisions
can hardly be overstated. We now sometimes sit in eight divisions and, in the absence of such
a rule, the law would quickly become wholly uncertain. However, the rule is not without
exceptions, albeit very limited ... [T]his court is justified in refusing to follow one of its own
previous decisions not only where that decision is given in ignorance or forgetfulness of some
inconsistent statutory provision or some authority binding on it, but also, in rare and
exceptional cases, if it is satisfied that the decision involved a manifest slip or error."
COURT OF APPEAL (CRIMINAL DIVISION)
a) On questions of law: R v Taylor [1950] 2 KB 368, per Lord Goddard CJ:
"This court has to deal with questions involving the liberty of the subject, and if it finds, on
reconsideration that, in the opinion of a full court assembled for the purpose, the law has been
either misapplied or misunderstood in a decision which it has previously given, and that, on
the strength of that decision, an accused person has been sentenced or imprisoned it is the
bounden duty of the court to reconsider the earlier decision with a view to seeing whether that
person has been properly convicted."
b) On sentencing : no bindingness of sentencing guidance
5
PART 2: READING STATUTES
FULLER ANALYSIS:* Cross on Statutory Interpretation (3rd edn, 1995), esp. pp 21-38, 48-75,
81-99, 15-112, 142-64, 165-90
Glanville Williams, Learning the Law, ch. 7
Twining & Miers, How to do things with rules (5th edn) chs 7 & 8
SO WHAT IS SPECIAL ABOUT THE ENGLISH COMMON LAW AND STATUTES?
1. The Making of Legislation: Process of Deliberation and Consultation
1. Government Policy
a. Green Paper: proposals for debate
b. White Paper: proposals for legislation or administrative implementation
2. Law Reform (Law Commissions for England & Wales or Scotland)
a. Working Paper
b. Report
2. The Making of Legislation: Process of Enactment
- Legal scrutiny in Cabinet
- Drafting by specialist lawyers (Parliamentary Counsel)
- No rewriting in Parliamentary committees
3. Intention of the Legislature
Given the legislative process, whose intention could possibly count? (i) draftsman's, (b)
promoting minister's, (c) committee's (d) those voting for the Bill?
ENGLISH JUDICIAL APPROACHES TO INTERPRETATION:
i)
"interpretation cannot be concerned wholly with what the promulgator of a written
instrument meant by it: interpretation must also be frequently concerned with the reasonable
expectations of those who may be affected thereby" (Lord Simon, Black-Clawson [1975] AC at 645).
ii)
Lord Reid, Black Clawson [1975]:
"We often say that we are looking for the intention of Parliament, but that is not quite accurate. We
are seeking the meaning of the words which Parliament used. We are seeking not what Parliament
meant but the true meaning of what they said".
STRUCTURE AND LANGUAGE OF STATUTES
 No recitals or preamble or legal basis: explanatory memorandum and declaration of
compatibility
 Long Title: “An Act to make provision about the inclusion at local authority meetings of
observances that are, and about powers of local authorities in relation to events that to any
extent are, religious or related to a religious or philosophical belief”
 Short Title: Local Government (Religious etc Observances) Act 2015 (2015 Chapter 27)
 Detailed provisions, e.g.
s. 1 In Part 7 of the Local Government Act 1972 (miscellaneous powers of local authorities) after
section 138 insert—
“138APrayers and other observances
(1)The business at a meeting of a local authority in England may include time for—
(a) prayers or other religious observance, or
6
(b) observance connected with a religious or philosophical belief……
138B Involvement with religious events and events connected with a belief
(1)A local authority in England may support or facilitate, or make arrangements to be represented at,
any of the following—
(a) a religious event,
(b) an event with a religious element,
(c) an event connected with a religious or philosophical belief, or
(d) an event with an element connected with such a belief.
138C Application of sections 138A and 138B to other authorities
(1)Each of the following is (subject to the limitations set out) to be treated as a local authority for the
purposes of sections 138A and 138B— [25 classes of body including]
w)an internal drainage board for a district neither wholly nor partly in Wales…..
(7) An internal drainage board for a district partly but not wholly in Wales is to be treated as a local
authority in England—
(a)for the purposes of section 138A, but only in relation to meetings held otherwise than in Wales, and
(b)for the purposes of section 138B, but only in relation to events that are to take place otherwise than
in Wales.”
METHODS OF INTERPRETATION
Status and how developed: Law Commission, The Interpretation of Statutes (Law Com 21; 1969),
clause 2 (a):
"a construction which could promote the general legislative purpose underlying the provision in
question is to be preferred to a construction which would not ..."
As Lord Griffiths put it in Pepper v Hart [1993]
'The days have long passed when the courts adopted a strict constructionist view of interpretation
which required them to adopt the literal meaning of the language. The courts now adopt a purposive
approach which seeks to give effect to the true purpose of legislation and are prepared to look at
much extraneous material that bears upon the background against which the legislation was enacted.'
Lord Nicholls has remarked that ‘
linguistic arguments…should be handled warily. They are a legitimate and useful aid in
statutory interpretation, but they are no more than this…[B]efore reaching a final
decision,…one should stand back and view a suggested interpretation in the wider context
of the scheme and purpose of the Act.1
Bennion, Statutory Interpretation, s.313:
"A purposive construction of an enactment is one which gives effect to the legislative purpose by (a)
following the literal meaning of the enactment where that meaning is in accordance with the
legislative purpose (in this Code called a purposive-and-literal construction), or
(b)
applying a strained meaning where the literal meaning is not in accordance with the
legislative purpose (in the Code called a purposive-and-strained construction)".
1
Associated Dairies Ltd v Baines [1997] AC 524 at 532.
7
The Constitutional Function of Judges
a)
The judge as subordinate of Parliament
Denning LJ, Magor & St Mellons RDC v Newport Corp [1950] 2 All ER at 1236:
"We do not sit here to pull the language of Parliament to pieces and make nonsense of it. That is an
easy thing to do and it is a thing to which lawyers are too often prone. We sit here to find out the
intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps
and making sense of the enactment than by opening it up to destructive analysis".
b)
The judge as defender of the citizen
Lord Simon of Glaisdale, Stock v Frank Jones [1978] ICR at 354:
"in a society living under the rule of law citizens are entitled to regulate their conduct according to
what a statute has said, rather than by what it was meant to say or by what it would otherwise have
said if a newly considered situation had been envisaged".
‘[I]t is common place for courts to have to consider whether circumstances, beyond those at the
forefront of Parliament’s consideration, may properly be held to be within the scope of a provision,
having regard to its purpose.’ (Yemshaw v London Borough of Hownslow [2011] UKSC 3 at [45]) As
a result, a statute may be considered as covering a range of situations which were not in the
contemplation
PERMITTED MATERIALS:
"The constitutional function performed by the courts of justice as interpreters of the written law laid
down in Acts of Parliament is often described as ascertaining "the intention of Parliament"; but what
this metaphor, though convenient, omits to take into account is that the court ... is doing so as
mediator between the state in the exercise of its legislative power and the private citizen for whom
the law made by Parliament constitutes a rule binding upon him and enforceable by the executive
power of the state. Elementary justice or, to use the concept often cited by the European Court, the
need for legal certainty demands that the rules by which the citizen is to be bound should be
ascertainable by him (or, more realistically, by a competent lawyer advising him) by reference to
identifiable sources that are publicly accessible". (Lord Diplock Fothergill v Monarch [1981] AC at
279).
1) Hansard
Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 40.
The normal rule remains that Hansard should not be used in the interpretation of statutes. But this
exclusionary rule is relaxed so as to permit reference to parliamentary materials where, in the words
of Lord Browne-Wilkinson:
"a. Legislation is ambiguous or obscure or leads to an absurdity;
b. The material relied upon consists of one or more statements by a Minister or other promoter of the
Bill together with such other Parliamentary material as is necessary to understand such statements
and their effect;
c. The statements relied upon are clear."
2) Treaties
3) Law Commission Reports