PRECEDENTS (KEVIN)
- first recorded decisions – 13th cent.
- 95% of contract law is in decisions
- DECLARATORY THEORY – judges only find the law, they don’t create it --> huge
contradiction: who made common law if not judges?
- DPP v Smith [1961] – policeman threw off the hood of the car. The river ONLY wanted
to shake him of (policeman was acquainted to the driver). Policeman died – car coming
from opposite direction has ran him over. Lord Kilmuir gave judgment – turned subjective
murder into OBJECTIVE – revolutionary case (first major change in 500 years!). Now
only matters what reasonable man would think (before, the prosecutor had to prove
intention in offender’s head).
- DISCOVERY = bringing a document to the court
- to show how judges are binding with precedents: Re Schweppes’s Agreement [1965] &
Re Automatic Telephone co.’s Agreement [1965] – very vigorous speech in first case, no
speech in second (decided the same day afternoon)
- STARE DECISIS – extreme doctrine, allows no freedom
- precedents are BINDING (of courts at higher level or same – allows no freedom, must be
followed) and PERSUASIVE (judges should listen to each other; everyone should sing
from the same hymnbook)
- in London Tramways [1898] – HoL decided it will follow it’s precedents no matter how
unjust or absurd they are [certainty]
- 1966 – HoL made a “Practice statement” – not to be bound by own precedents
- PERSUASIVE PRECEDENTS (those of lower courts) – for example Central London
Property Trust Ltd. v High Trees House Ltd. [1947] (later judges in HoL referred to it)
- doctrine of PROMISSORY ESTOPPEL – first contract estopped for certain period of time
- PRIVY COUNCIL – used to be a court of appeal for British empire. (judges from HoL)
Has no authority over England – almost binding precedents. Example Thabo Meli [1954]
– later Divisional Court decided Fagan [1968] referring to Thabo Meli
- Hedley Byrne & Co. v Heller & Partners Ltd. [1964] – a good case to quote – the whole
thing was obiter – didn’t really matter – binding as hell – Donaghue applied
- obiter can also be found in dissenting judgment
- obiter is also what is either too wide a what does not directly relate to the facts (like Lord
Atkin’s Neighbor Rule)
- also what only one judge says is obiter – ratio has to be decided by the court
- cases can be overruled but if too much time passes, they cannot be reversed (res iudicata)
- to be privy to a contract = to be part of a contract
- later judges decide what is ratio – Farr v Butters [1932] decided that Donaghue’s ratio is
narrow.
- Lord Denning used the neighbor rule to open up the law of negligence again (in Cassidy v
Ministry of Health [1951]) Didn’t succeed in Candle v Crane Christmas [1951] but HoL
agreed with his obiter in Hedley Byrne [1964]
STATUTARY INTERPRETATION (KEVIN)
APPROACHES:
(academic, philosophical thing – theory)
Legislator Referral
- violates the doctrine of separation of powers
- Hylder v Dexter [1902] – Halsbury, LC – decided not to sit in the case ‘cause he drafted
the statute that was to be construed
Strict (Literal) Approach
no matter how unjust, absurd or whatever the words are, judge doesn’t look anywhere
else, he follows the letter
Purposive Approach
- open up parliament’s head and look what did it mean when it passed the act
-
RULES that courts have developed:
Literal Rule
- favorite approach of Eng judges
- judge reads the whole statute
- if still not sure, he can look for the meaning of words in other statutes
- big assumption: technical words have technical meaning, ordinary words have
ordinary meaning
- once meaning is found, the word keeps it
- Vacher v London Society of Compositors [1913] / Trade Disputes Act [1906] – “gave
unions immunity in respect of any alleged tortuous act” – meant for strikes – in this
case used for libel (also tortious act)
- Magor and St. Mellons R. D. C. v. Newport Corporation 1950 (local council takes
territory of another local council) / Local Government Act [1933]
- casus omisus doctrine
- Re Rowlands [1963] – couple made will; got lost in a middle of a sea
- Fisher v Bell [1961] – Mr. Bell selling flick knives / Restriction of Offensive
Weapons Act [1959] – display of good is not an offer (it’s an invitation to treat) –
technical words have technical meaning
Golden Rule
- follow the words unless they lead to an obvious injustice or absurdity
- Re Sidgeworth [1935] – S. killed his mother – heir to an estate by the statute –
doctrine of: ex turpi causa non oritur actio – S. didn’t get the estate
- Sweet v Parsley [1970] / Dangerous Drugs Act [1965] – convicted of growing
cannabis, not knowing about it – Lord Reid said ‘no serious crime without mens rea’
- Adler v George [1964] – not to mess with soldiers “in vicinity of any prohibited place”
– Mr George convicted – a fortiori doctrine – filled gap in the law
Mischief Rule
- Heydon’s Case [1584] – Coke, CJ laid down this rule
- when a statute is unclear, judge should look for what the parliament wanted
- Gorris v Scott [1872] / Animal Disease Act [1870] – sheep in the ship – act was not
meant to protect owner of the animals but to prevent spreading of diseases
- Smith v Hughes [1960] / Street Offences Act [1959] – Ms Hughes was inside the
house, not in the street – didn’t help – Parker, CJ followed mischief rule
Generally, the approach of English judges is literal. After European Human Charter and
European Community Legislation having effect on UK law, judges tend to have more
purposive approach.