CASE LAW: STARE DECISIS
Definition - “Let the decision stand.”
Basic proposition but in reality depends upon
a number of factors:
Whether the material facts are the same.
The status of the court that made the
decision.
The use, if any, of the avoiding devices.
Q1. Stare Decisis can be defined as
A) A case were the the material facts are the
same
B) Let the decision rest
C) Let the decision stand
D) Let the decision sit
CASE LAW - Relevance to Business?
Prepare for impact of decisions pending
through
– Early awareness of decisions pending
– Early identification of opportunities and
threats
CASE LAW - Relevance to Business?
Avoid or Manage Risk 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?
Provides ability to
Create new areas of law
Develop existing areas of law
Interpret Legislation
Enables
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?
Disadvantages of
Uncertainty
Ossification
Unconstitutional
ossification - the process of becoming
rigidly fixed in a conventional pattern of
thought or behavior
Q2. Yes or No
Do you understand the disadvantages and
advantages of case law?
How is it made and of what authority?
Hierarchy of Courts - Civil
Q3. Which is the highest source of national
law?
A) High court
B) Court of Appeal
C) Court of the Lords
D) The House of Commons
E) The House of Lords
THE JUDICIAL 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 “winner” between
the parties
Adversarial
Provides the Ratio Decidendi
May provide Obiter Dicta
THE RATIO DECIDENDI ?
The reason for the decision
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
Something said in passing
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
Q4. Which forms the best definition of the ratio
decidendi?
A) Something said in passing
B) The reason for the decision
C) The dictation of the case
Q5. Which forms the best definition of the
obiter dicta?
A) Something said in passing
B) The reason for the decision
C) The dictation of the case
Q6. What colour tie was the lecturer
wearing?
A) Black
B) Blue
C) Red
D) Black with white spots
Carlill v Carbolic Smoke Ball Co.
(1893)
Carlill 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
Q7. Yes or No
Do you understand why Carlill is important
and could you talk in front of a group about
the issues?
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).
Iggy Pop and Jet
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.
There is uniformity in the law. 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
Judicial precedent is flexible. 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
Judicial precedent is practical in nature.
It is based on real facts, unlike legislation.
Judicial precedent is detailed. 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.
Q8. Yes or No
If I was to ask you now could you tell me an
advantage of precedent?
Q9. Yes or No
If I was to ask you now could you tell me an
disadvantage of precedent?
AVOIDING DEVICES
These provide considerable latitude to
judges to ignore or curtail the effect of
previous decisions:
Overruling
Reversing
Per incuriam
Distinguishing
Disapproving
OVERRULING
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.
Q10.True or False
Robbie William won his copyright case?
REVERSING
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.
DISTINGUISHING
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.
DISTINGUISHING
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
LAW REPORTS
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