C ommon law & precedent

1. Common law & precedent

2. Introduction

3. introduction: common law • A term: • describing law which is common throughout the land • describing judge-made law, or precedent(cf. statute law) • Allen C (1964) Law in the Making. Oxford University Press • distinguishing law applied in the common law courts from that applied in the Chancery Court (equity) • distinguishing systems without a codified base

4. introduction: common law • Precedent • law found in courts’ decisions • modern law is based heavily on legislation, but legislation once played a secondary role to ‘judge-made law’ • when writing essays and answering problem questions: • a key skill you must develop is the ability to identify precedents which support your argument

5. introduction: common law • Some branches of our law are almost entirely the product of the decisions of judges • their reasoned judgments have been reported in various law reports for nearly 700 years • Other branches of law are based on statutes • but, case law has played an important part in the interpretation of those statutes (e.g. environmental law) (Cross R, and Harris J (1991) Precedent in English Law. Clarendon Press, Oxford.)

6. introduction: common law • Llewellyn K (1996) The Bramble bush. Oceana Publications, New York. • Differences between statutes and the law of case decisions: • Case decisions • (Radical shifts are unusual) • A judge makes his rule in and around a specific case (and looking backward) • His rule is commonly good sense, and very narrow • Any innovation is confined regularly within rather narrow limits (partly by the practice of trying hard to square the new decision with old law • Case law rules are applied as if they had always been the law • Case law is flexible round the edges – the rules are commonly somewhat uncertain in their wording, and not too easy to make definite

7. introduction: common law • Llewellyn K (1996) The Bramble bush. Oceana Publications, New York. • Differences between statutes and the law of case decisions: • Statute law • Statutes are made relatively in the large, to cover wider sweeps, and looking forward • They apply only to event and transactions occurring after they come into force • They are recognised machinery for readjustment of the law • They represent not single disputes, but whole classes of disputes • They are political, not judicial in their nature

8. introduction: common law • In law, precedent • has a meaning similar to its everyday use • relates to how later cases are affected by previous cases • is based on a general principle – a rule of law – that like should be treated alike (uniformity / certainty) • may be binding or persuasive (depends on the court hierarchy and the circumstances of the case) • can be avoided in a case that demonstrates sufficient differences

9. precedent: wide view • A wide formulation • the idea that it is desirable that similar cases should be decided in a similar way • the principle that consistency is an important aspect of justice • improved efficiency – once a point of law has been decided it can be subsequently applied (no need for re-argument) • judicial comity –mutual respect that judges have for their colleagues

10. precedent: wide view ex Lord Chancellor, Lord MacKay: ‘Who Makes the Law’ (1987) The Times, 3 December “A scheme of precedent is clearly capable of providing important benefits. It assists litigants to assess the nature and scope of legal obligations and, to the extent that it enables them to predict the likely outcome of disputes, it restricts the scope of litigation. By allowing the vast bulk of disputes to be settled in the shadow of the law, a system of precedent prevents the legal apparatus from becoming clogged by a myriad of single instances. It reflects a basic principle of the administrations of justice that like cases should be treated alike and therefore generates a range of expectations from different participants in the legal process. Rules of law based on a system of precedent are therefore likely to exhibit characteristics of certainty, consistency and uniformity”

11. precedent: narrow view • A narrow formulation • courts may regard themselves as being bound by earlier decisions • peculiar to English Law (and some common law jurisdictions) • encapsulated by the doctrine of stare rationibus decidendis – or, stare decisis • all courts bind other lower courts, and some courts may bind themselves • vertical and horizontal dimensions of precedent

12. precedent: a cautionary note • The decision of a case can mean different things • ‘Bill’ won and ‘Ben’ lost • subject to an appeal, Bill and Ben are bound by the decision • res judicata: a matter adjudicated upon • In the context of legal analysis, a decision is something wider • the reasoning process that went into the decision • why did Bill win?

13. The development of case law principles

14. development of case law MacCormick N (1987) ‘Why Cases have Rationes and What These Are’, in Goldstein L (ed) Precedent in Law. Clarendon Press, Oxford. “To understand case law….is to understand how it is that particular decisions by particular judges concerning particular parties to particular cases can be used in the construction of general rules applying to the actions and transactions of persons at large”

15. development of case law • Principles of law derive from observing a line of cases on a specific topic • Principles do not develop unless claimants bring cases • A judge in each case draws on the principles established in earlier cases • This can make the development of the law piecemeal (case by case) • Lord Wright (in 1938) described how judges: “proceed from case to case, like the ancient Mediterranean mariners, hugging the coast from point to point, and avoiding the dangers of the open sea”

16. development of case law • Holland J, and Webb J (2006) Learning Legal Rules, Oxford University Press. • Imagine: • a case in 1920 decided that any person selling parrots was under an implied contractual duty to ensure the parrot could talk • lawyers immediately think of wider ramifications: • does this principle apply if the seller informed the customer that the parrot couldn’t talk? • does this principle apply to related birds (budgerigars)? • wide still, is there a general principle to be found which might mean that a similar duty – standards of health – might apply to other animals?

17. development of case law • This simple case may eventually be seen as producing a more general principle on the duties of sellers towards buyers: a duty to deal in good faith! • Eventually, a textbook writer may sum up the case law in one general statement on the duties owned by vendors of goods • On reflection, we might find that one case concerning a mute parrot is now applied to all cases on defective merchandise • This process of moving from specific disputes to the development of general rules (i.e. precedents) which are then applicable to a wider range of cases, is central to common law reasoning • Dead snails and exploding underpants • Donoghue v Stevenson [1932] AC 562 • Grant v Australian Knitting Mills [1936] AC

18. The elements of precedentratio & obiter

19. precedent: the elements • Ratio decidendi: the reason(s) for the decision • vital element of the decision • discovering the ratio decidendi can be anything but easy! • Obiter dictum: things said ‘by the way’ • not a vital part of the decision • does not bind future courts • persuasive properties: significance of these statements often depends on who made them and where

20. precedent: the elements • The distinction between ratio decidendi and obiter dictum is an old one • As long ago as 1673 Vaughan CJ said: “An opinion given in court, if not necessary to the judgment given of record, but that it might have been as well given if no such, or a contrary had been broach’d, is no judicial opinion; but a mere gratis dictum”

21. Ratio decidendi

22. ratio • Cross R (1977) Precedent in English Law. Clarendon Press, Oxford. “Any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his decision, having regard to the line of reasoning adopted by him” The art of interpretation • Salmond J (1924) Jurisprudence. Seventh Edition. “A precedent, therefore, is any judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ration decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large”

23. ratio • Gray J (1921) The Nature and Sources of the Law. Second Edition “It must be observed that at the Common Law not every opinion expressed by a judge forms a Judicial Precedent. In order that an opinion may have the weight of a precedent, two things must concur: it must be, in the first place, an opinion given by a judge, and, in the second place, it must be an opinion the formation of which is necessary for the decision of a particular case; in other words, it must not be obiter dictum.” • Goodhart A (1930) ‘Determining the Ratio Decidendi of a Case’. Yale Law Journal 40, 161-183. • With the possible exception of the legal term “malice”, it is the most misleading expression in English law

24. ratio • It is, in part, the notion of ratio which gives the current English system of precedent it relatively strict character • Being required to look at previous cases for ideas on how to deal with a new case is in itself something that reduces the range of options which is open to a judge • But, as cases grow so the range of cases grow • If a judge can choose amongst different (previous) decisions, and amongst different parts of different decisions, then a skilful or knowledgeable judge (or lawyer) will find it easier to find previous judgments which justify any decision they wish to arrive at • But, the use of ratio calls for a much more precise use of previous cases • Its not about finding arguments that we find useful, but about looking at past cases for lines of reasoning that are binding

25. ratio • If the facts of cases were identical, our task would be easy: but they’re not • facts change from case to case • We must show that two - or more - cases are sufficiently similar to illustrate the same principle so that the doctrine of precedent can be applied • Comparing facts is important, but we must also try to see if the reasoning in the earlier case can be applied to the new set of facts in our case • lawyers cite cases to give authority to their argument • “is there a case that provides authority for the point I want to make?”

26. ratio • Holland and Webb’s Zebras on the North Circular • case 1: a man driving a Ford Mondeo runs over an old lady using a zebra crossing: the man is held liable in negligence • case 2: a woman driving a BMW runs over an old man who was crossing the road • Should the woman in case 2 be found liable?

27. ratio • Don’t jump to conclusions….. • it’s not enough to say “it’s obvious”: it might not be! • you may see a knight move and conclude that all chess pieces move in an ‘L’ shape! • it’s not enough to say that case 2 is the same as case 1 (with no explanation) • you must ask: “why was the man liable in case 1?” • there may be a law against driving Ford Mondeos (I would argue there should be!) • there may be a law against running people over on zebra crossings (but not on any other part of the road) • what was the whether like? how fast was the man driving in case 1?

28. Finding the ratio

29. finding the ratio • Referring to the work of Sir John Salmond and Professor John Chipman Gray, Arthur Goodhart says: “Both the learned authors, on reaching this point of safety, stop. Having explained to the student that it is necessary to find the ratio decidendi of the case they make no further attempt to state any rules by which it can be determined.” Goodhart A (1930) ‘Determining the Ratio Decidendi of a Case’. Yale Law Journal 40, 161-183.

30. finding the ratio • It can be difficult – judgements can be long • A judge in a later case may perceive the principle (ratio) that is to be derived from the earlier case as something different from that which the original judge intended • why do you shop at the local mall rather than use the town centre? • You won’t find the sentence: “here’s my ratio….” • It’s a matter of skill and interpretation built on experience

31. finding the ratio • Goodhart A (1931) Essays in Jurisprudence and the Common Law. Cambridge University Press • [t]o determine the principle of a case the first and must essential step is….what were the material facts on which the judge based his conclusion” • Common law legal reasoning is always reasoning about something: it is never reasoning about an abstract concept • Rations are statements of reasons about the law in relation to a particular set of facts • Goodhart’s phrase ‘material facts’ is an important part of his theory of how to identify his ratio • Facts are material when they are vital to the legal decision • Once the material immaterial facts are established, the ratio of the case is the conclusion based on the material facts

32. finding the ratio • Goodhart A (1931) Essays in Jurisprudence and the Common Law. Cambridge University Press “[T]he final step is to determine whether or not it is a binding precedent for some succeeding case in which the facts are prima facie similar. This involves a double analysis. We must first state the material facts in the precedent case and then attempt to find the materials ones in the second one. If these are identical, then the first case is a binding precedent for the second, and the court must reach the same conclusion as it did in the first one”

33. finding the ratio • Some of Goodhart’s suggestions are problematic • Stone J (1959) ‘The Ratio of the Ratio Decidendi’. Modern Law Review 22(6), 597. • “there will often be the gravest doubt as to what facts the precedent court ‘explicitly or implicitly’ ‘determined’ to be material” • If we cannot know, with certainty, what a material fact is how, when this lies at the centre of Goodhart’s thesis, are we to use the method? • See also: • Montrose J (1957) ‘Ratio Decedendi and the House of Lords’. Modern law Review 20, 124 • Simpson A (1957) ‘The Ratio Decedendi of a Case’. Modern Law Review 20, 413 • Andrews N (1985) ‘Reporting case law: unreported cases, the definition of a ratio and the criteria for reporting decision’. Legal Studies 5, 205.

34. finding the ratio • Cross R (1977) Precedent in English Law. Clarendon Press, Oxford. “It is impossible to devise formulae for determining the ratio decidendi of a case” • Twining W, and Miers D (1999) How to do things with rules. Weidenfeld Nicolson, London. • “Talk of finding the ratio decidendi of a case obscures the fact that the process of interpreting cases is not like a hunt for buried treasure, but typically involves an element of choice from a range of possibilities”

35. finding the ratio • You have to ask “why did the outcome happened?” • It involves some sort of explanation of the case • You’re looking for the legal reasoning, coupled with your view of the facts that are material • The ratio should be expressed as a principle possessing generality: capable of being applied later • Remember, legal reasoning which does not decide the case cannot be ratio (it will be obiter) • You may have multiple or inconclusive rationes • Chaplin v Boys [1971] AC 256: where the HL agreed on the result, but were faced with three possible grounds for reaching their decision • Read the case Headnote – but don’t rely on it, as it can be misleading!

36. Obiter dictum

37. obiter • Cross R (1977) Precedent in English Law. Clarendon Press, Oxford. It “is a truism….that dicta are of varying degrees of persuasiveness …Dicta of the highest degree of persuasiveness may often, for all practical purposes, be indistinguishable from pronouncements which must be treated as ratio.” • MacCormick, Legal Reasoning and Legal Theory: “statements of opinion upon the law and its values and principles in their bearing on the instant decision, statements which in some way go beyond the point or points necessary to be settled in deciding the case.”

38. obiter • The main difference between obiter and ratio • Courts must follow a ratio (whether they like it or not) • Obiter statements are reflection on the law • (Like the work of academic lawyers), they may convince others by their logic or their rhetoric • They are capable of being persuasive in the sense that anyone’s argument is capable of being persuasive

39. obiter • W B Anderson & Sons v Rhodes ([1967] 2 All ER 850), Cairns J: “[w]hen all five members of the House of Lords have all said, after close examination of the authorities, that a certain type of tort exists, I think that judge of first instance should proceed on the basis that it does exist’

40. obiter • Ask yourself: “did this line of reasoning affect the outcome?” • Look for classic signs: “if the situation had been this, then……” “in other cases it might be necessary to look at things differently……” “I do not have to make a finding on this……” “if I had not been bound by the ruling in……” the judge may say what he would have decided had he not been bound by stare decisis

41. obiter • Obiter statements will not necessarily relate to the material facts Donoghue v Stevenson [1932]: Lord Atkin made a number of observations about liability for negligent acts. one observation was that one owed a duty of case not to injure one’s neighbour – a person so closely affected by my acts that one must take care not to injure them This is an obiter statement – it is not directly related to the facts • Don’t think that obiter is unimportant One man’s obiter may be the next man’s ratio to a case Lord Atkin’s neighbour principle has been extended to all manufacturers, repairers, consumer items, industrial accidents, road accidents, misstatements etc…

42. obiter • R. v Gotts (Benjamin) [1992] 2 A.C. 412 • Duress is not available as a defence to a charge of attempted murder. • ‘A’ pleaded not guilty to a charge of attempted murder and sought to raise a defence of duress. • The trial judge ruled that this defence was not available on such a charge. • Conviction was upheld by the Court of Appeal • HL: on a matter of policy the defence of duress is not available to a charge of attempted murder • Dicta of Lord Griffiths in R. v. Howe [1987] C.L.Y. 800 applied

43. Law reporting

44. law reporting • Approximately, 200,000 cases are dealt with each year, but only about 25,000 are reported • Law reporting dates back to medieval times with the publication of the Year Books in Anglo-Norman • A landmark in the history of law reporting occurred in 1865 when the Inns of Court set up the Council of Law Reporting • Popular reports are the Weekly Law Reports, the All England Law Reports and the Times Law Reports

45. The courts

46. the courts • House of Lords • Court of Appeal (Civil) • Court of Appeal (Criminal) • High Court • Crown Court • Inferior courts

47. the courts (HL) • The old position • Beamish v. Beamish (1861) 9 HLC 274 – R v Millis • London Tramways Co v LCC [1898] AC 375, per Lord Halsbury: “I do not deny that cases of individual hardship may arise, and there may be a current of opinion in the profession that such and such a judgment was erroneous; but what is the occasional interference with what is perhaps abstract justice as compared with the inconvenience – the disastrous inconvenience – of having each question subject to being re-argued and the dealings of mankind rendered doubtful by reason of different decisions, so that in truth and in fact there would be no final court of appeal.”

48. the courts (HL) • The Practice Statement [1966] 1 WLR 1234 “… 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 therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so…” “…This announcement is not intended to affect the use of precedent elsewhere than in this House.”

49. the courts (HL) • The HL is normally bound by its own previous rulings, but may depart “when it appears right to do so” • The HL has discretion to depart from precedent • There are no strict rules as to when the HL will do this but can we draw on what we know about the senior judiciary to deduce how they will exercise this discretion? can we draw any conclusions about the judges from their use of the Practice Statement?

50. the courts (HL) • Practice Statement used the expression ‘depart from’ • Lord Simon (Miliangos v George Frank Textiles [1975] 3 All ER 801) “I say ‘overrule’ expressly. It is better to avoid euphemisms like ‘depart from’. A wise decision is more likely to be achieved if the reality is faced.”