Topic 4 Case Law Mark Van Hoorebeek

Made by Judges

Based on reasoning by

analogy

Adversarial

What is case law?

Responsive

Certainty with flexibility

as it evolves to resolve “real” problems

through the use of ‘avoiding devices’

A major source of law supported by a thorough system of decision recording

Substantive Procedural Administrative

Case law createsrules (precedents) which other judges

follow this helps 'ground' legal arguments

Used wheretraditionally Statutes not used –

e.g. contract (Carlill 1893).

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 lawInterpret Legislation………………… Flexibility and growth by addressing ‘real’ problemsDegree of certainty arising from consistency of decision making by doctrine of precedent Adaptation by judicial interpretation to changed circumstances

CASE LAW - Why Use It?

…………………………………UncertaintyOssificationUnconstitutional

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

Provides the Ratio Decidendi

May provide Obiter Dicta

Adversarial

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)

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).

There is a huge diversity of case law spanning many areas

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

I suppose even the son of God Gets it hard sometimes Especially when he goes round Saying I am the way

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

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:

OverrulingReversingPer incuriamDistinguishingDisapproving

………………………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 …"

DISTINGUISHINGAt 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 summariesUnreported cases may be cited – requires a trial transcript confirmed by counsel

………………………………

Accurate citation in approved form is required:

Short Form - Smith v Jones, 1959Long 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 LawReports 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 PageWestlawBailliThe Court ServiceSmith BernalJustis eLR and WLRLexisLawtelCurrent Legal InformationThe TimesLaw Firm Sites