Topic 4 Case Law
Mark Van Hoorebeek
Based on
reasoning by
analogy
What is case law?
Adversarial
Made by
Judges
Responsive
as it evolves to resolve “real” problems
Certainty with flexibility
through the use of ‘avoiding devices’
A major source of law
supported by a thorough system
of decision recording
Case law creates
rules (precedents) which other judges
follow this helps 'ground' legal arguments
Used where
traditionally Statutes not used –
e.g. contract (Carlill 1893).
Substantive
Procedural
Administrative
Subject to EU direction and Human Rights Legislation
Case Law and Judicial Precedent
‘Previously decided cases. One practical aspect of
justice is that like cases be treated alike; lawyers
consult the reports of previously decided cases.’
‘In the Anglo-American system the rules are strict…
With courts being bound to follow previous
decisions. These rules are often considered under
Stare Decisis.’
Collins Dictionary of Law
•
•
•
•
•
Types of Law
Common Law (Case Law)
Statute Law
Treaties ECHR HRA 1998
Custom: Consuetudo est altera lex: A
custom has the force of law.
• Conventions
• Each has a specific role to play in society
• Woolf access to justice
• The Woolf reforms help to remind us that
as lawyers we should be speaking and
writing in plain English.
• The Plain English Campaign’s “longest
sentence ever” is in a mortgage contract
drafted by a lawyer. The sentence
contains 513 words.
STARE DECISIS
Definition - “Let the decision stand.”
Basic proposition but in reality depends upon
a number of factors:
Whether ……………………… are the same.
………………………...that made the decision.
The use, if any, of …………………………..
CASE LAW - Relevance to Business?
…………………. of decisions pending through
– Early awareness of decisions pending
– Early identification of opportunities and
threats
CASE LAW - Relevance to Business?
…………………….. arising from impact of
decisions by
– Awareness of decisions made
– Recognition of required steps or alternative
courses of action available to avoid
litigation risk
– Developing an ability to understand and
interpret
CASE LAW - Why Use It?
………………………………
Create new areas of law
Develop existing areas of law
Interpret Legislation
…………………
Flexibility and growth by addressing ‘real’
problems
Degree of certainty arising from consistency
of decision making by doctrine of precedent
Adaptation by judicial interpretation to
changed circumstances
CASE LAW - Why Use It?
…………………………………
Uncertainty
Ossification
Unconstitutional
ossification - the process of becoming
rigidly fixed in a conventional pattern of
thought or behavior
THE ……………….PERSPECTIVE:
What do judges think
“Precedent must be adhered to for the
sake of developing the law as a science”
Per Park, CJ in Mirehouse v Rennell (1833)
“… by precedent out of principle. It is well that
this should be so; otherwise no lawyer could
safely advise ... and every quarrel would lead
to a law suit."
Per Bagnall J Cowcher v Cowcher [1972]
WHAT DOES A JUDGE DO?
Makes a decision as to the ………….. between
the parties
Adversarial
Provides the Ratio Decidendi
May provide Obiter Dicta
THE RATIO DECIDENDI ?
……………………………………
Comprises the material facts deemed
relevant and the legal principles applied in
arriving at the decision
Difficult to establish with a single decision,
many courts will have multiple judges.
The Binding part of the judgment
OBITER DICTA
…………………………………………..
This is a statement made by a judge which is
not specifically relevant to the case he has
before him.
This will not form part of the Ratio Decidendi
and is not therefore binding.
However, the Higher the court the more
persuasive the obita may be.
'An obiter dictum, in the language of the
law, is a gratuitous opinion, an individual
impertinence, which, whether it be wise or
foolish, right or wrong, bindeth none--not
even the lips that utter it.'
Obiter Dicta by Augustine Birrell
………v Carbolic Smoke Ball Co. (1893)
The defendants, the proprietors of a medical
preparation called "The Carbolic Smoke Ball,"
issued an advertisement in which they offered
to pay £100 to any person who contracted the
influenza after having used one of their smoke
balls in a specified manner and for a specified
period.
The plaintiff on the faith of the
advertisement bought one of the balls, and
used it in the manner and for the period
specified, but nevertheless contracted the
influenza:
Held, affirming the decision of Hawkins, J.,
that the above facts established a contract
by the defendants to pay the plaintiff 100 in
the event which had happened
Carlill v Carbolic Smoke Ball Co.
(1893)
There is a huge diversity of
case law spanning many areas
Robbie Williams lost a copyright battle in
2000, a British judge ruled that he had
illegally copied some of the lyrics of his
song "Jesus in a Camper Van" from
Woody Guthrie (music)'s 1961 song "I Am
the Way" and a 1973 parody of that song
by Loudon Wainwright III (music).
Robbie Williams - Jesus in a Camper
Van '
Oo we've got a live one, featherweight icon
Heroes let'im down so he sleeps with the light on
And there's nothin' left to do but kneel down and pray
Sail away with Caesar if you're a non believer
Everybody get high if you're a diamond geezer
It's the devil that needs ya so go out and play
Copy lyrics, it's easier
There's a need to copy them, you steal them
Loudon in a camper van he said sorry to sue you but
I've done all I can
I suppose even the son of God
Gets it hard sometimes
Especially when he goes round
Saying I am the way
Loudon Wainwright III - 'I am the Way'
Every son of god gets a little
hard luck sometime (x3)
Especially when he goes around
saying he's the way
I am the way (x4)
ADVANTAGES OF PRECEDENT
There is certainty in the law. By looking at
existing precedents it is possible to forecast
what a decision will be and plan accordingly.
…………………………………………….
Similar cases will be treated in the same
way. This is important to give the system a
sense of justice and to make the system
acceptable to the public.
ADVANTAGES OF PRECEDENT
…………………………………………….
There are a number of ways to avoid
precedents and this enables the system to
change and to adapt to new situations.
ADVANTAGES OF PRECEDENT
…………………………………………………
It is based on real facts, unlike legislation.
……………………………………………
There is a wealth of cases to which to refer.
DISADVANTAGES OF PRECEDENT
Difficulties can arise in deciding what the
ratio decidendi is, particularly if there are a
number of reasons.
There may be a considerable wait for a case
to come to court for a point to be decided.
Cases can easily be distinguished on their
facts to avoid following an inconvenient
precedent.
There is far too much case law and it is too
complex.
AVOIDING DEVICES
These provide considerable latitude to
judges to ignore or curtail the effect of
previous decisions:
Overruling
Reversing
Per incuriam
Distinguishing
Disapproving
………………………
A higher court can overrule a decision made
in an earlier case by a lower court eg, the
Court of Appeal can overrule an earlier High
Court decision.
Overruling can occur if the previous court
did not correctly apply the law, or because
the later court considers that the rule of law
contained in the previous ratio decidendi is
no longer desirable.
………………………
Reversing is the overturning on appeal by a
higher court, of the decision of the court
below that hearing the appeal. The appeal
court will then substitute its own decision.
Per incuriam
Literally translated as "through want of care".
It refers to a judgment of a court which has
been decided without reference to a
statutory provision or earlier judgment which
would have been relevant.
Per incuriam
The significance of a judgment having been
decided per incuriam is that it does not then
have to followed as a precedent. Ordinarily,
the rationale of a judgment must be followed
thereafter by lower courts when hearing
similar cases. A lower court is free, however,
to depart from an earlier judgment of a
superior court where that earlier judgment
was decided per incuriam.
……………………………
A binding precedent is a decided case which
a court must follow. But a previous case is
only binding in a later case if the legal
principle involved is the same and the facts
are similar. Distinguishing a case on its
facts, or on the point of law involved, is a
device used by judges usually in order to
avoid the consequences of an earlier
inconvenient decision which is, in strict
practice, binding on them.
…………………………
What is reasonably distinguishable depends on the
particular cases and the particular court - some
judges being more inclined to 'distinguish' disliked
authorities than others. In Jones v Secretary of
State for Social Services [1972] AC 944, Lord Reid
stated:
"It is notorious that where an existing decision is
disapproved but cannot be overruled courts tend to
distinguish it on inadequate grounds. I do not think
that they act wrongly in so doing, they are adopting
the less bad of the only alternatives open to them.
But this is bound to lead to uncertainty …"
DISTINGUISHING
At the other extreme, Buckley LJ in Olympia
Oil v Produce Brokers [1914] 3 KB 1262
stated:
"I am unable to adduce any reason to show
why that decision which I am about to
pronounce is right … but I am bound by
authority which, of course, it is my duty to
follow …"
LAW REPORTS
Doctrine of precedent depends on detailed
and accurate records of previous decisions
being kept:
Reports prepared by Incorporated Council
of Law Reporting and private reporters and
vary from full reports to summaries
Unreported cases may be cited – requires a
trial transcript confirmed by counsel
………………………………
Accurate citation in approved form is required:
Short Form - Smith v Jones, 1959
Long form - Smith v Jones [1959] 1QB 67
at p 76
LAW Reports (Continued)
Law Reports - [1976] AC,
[1976] 2 Ch,
[1976] 2 QB,
[1976] Fam
Weekly Law Reports - [1976] 3 WLR
All England Law Reports - [1976] 3 All ER
Times Law Reports - The Times, 7 February
1976
NB May be reported in more than one. The Law
Reports should be cited if available as regarded
as the most authoritative source
CASE LAW WHERE DO I FIND IT?
Law Reports
Legal Journals
Press
Trade Journals
Legal Information Sites
CASE LAW
ELECTRONIC RESOURCE
EXAMPLES
House of Lords Judgments Page
Westlaw
Bailli
The Court Service
Smith Bernal
Justis eLR and WLR
Lexis
Lawtel
Current Legal Information
The Times
Law Firm Sites