Common law, case law & precedent

1. Common law, case law & precedent Gary Lynch-Wood Jackson Magoato

2. Common law This term is used: • to describe law that is common throughout the land • to describe judge-made law, or precedent ** • to distinguish law applied in the common law courts from that applied in the Chancery Court (equity) • to distinguish systems without a codified base

3. Precedent • Precedent is a term is used to describe law found in courts’ decisions • Modern law is based heavily on legislation, but legislation once played a secondary role to ‘judge-made law’ • A judge does not have the same freedom to make law as the legislature, and must not be seen to be usurping its powers • When writing essays and answering problem questions: • a key skill you must develop is the ability to identify precedents that support your argument

4. The importance of common law • Some branches of our law are almost entirely the product of judges’ decisions (e.g. contract law) • Their reasoned judgments have been reported in various law reports for nearly 700 years • Other branches of law are based on statutes (e.g. environmental law) • Case law has played an important part in the interpretationof those statutes • Much of English law derives from statute ‘and’ common law • The function of the judge is to interpret the one and evolve the other

5. Understanding casesand statutes

6. K. Llewellyn, The Bramble Bush (1996) 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. K. Llewellyn, The Bramble Bush (1996) 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. The meaning of precedent

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

10. Precedent (a wide view) • The idea that it is desirable for similar cases to be decided in similar ways • 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

11. Precedent (a wide view) Lord MacKay (ex Lord Chancellor) ‘Who Makes the Law?’, The Times, 3 December (1987) “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”

12. Precedent (a narrow view) • 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)

13. “Listen up! A cautionary note about the word ‘decision’”

14. The “decision” • The decision of a case can mean different things • Consider a case where ‘Lynch-Wood’ won and ‘Magoato’ Lost • Here (subject to an appeal) Lynch-Wood and Magoato are bound by the decision • This is res judicata, or a matter adjudicated upon • In the context of legal analysis, a decision is something wider • The reasoning process that went into the particular decision • ‘Why’ did Lynch-Wood win (or Magoato lose)?

15. The development of case law principles

16. Development of case law principles “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” N MacCormick “Why Cases have Rationes and What These Are”. In L Goldstein (ed.) Precedent in Law (Clarendon Press, Oxford 1987).

17. Development of case law principles • 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”

18. Development of case law principles 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 the 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)? • Wider still, is there a general principle to be found which might mean that a similar duty – standards of health – may apply to other animals? (J. Holland and Webb, J. Learning Legal Rules, OUP, 2010).

19. Development of case law principles • 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 • The 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

20. The elements of precedent “You’re bound by this decision. But, come to think about it, so am I”

21. The elements of precedent • Ratio decidendi: the reason(s) for the decision • vital element • discovering it is not easy • art of interpretation • Obiter dictum: things said ‘by the way’ • not a vital part of the decision • does not bind future courts • persuasive properties (persuasiveness often depends on who made them and where) • Old distinction: “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” (Vaughan CJ, 1673 )

22. Ratio decidendi • R. Cross, Precedent in English Law (Clarendon Press, Oxford, 1977) “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” • J. Salmond, Jurisprudence (Seventh Edition, 1924). “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 decidendi • J. Gray, The Nature and Sources of the Law (Second Edition, 1921) “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.” • A Goodhart ‘Determining the Ratio Decidendi of a Case’, Yale Law Journal (1930) 40, 161 • With the possible exception of the legal term “malice”, it is the most misleading expression in English law

24. Ratio decidendi • 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 decidendi • If the facts of cases were identical, our task would be easy • But they are 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 decidendi • 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 decidendi • Don’t jump to conclusions….it’s not enough to say “it’s obvious”, because 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 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 • 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.” A. Goodhart ‘Determining the Ratio Decidendi of a Case’, Yale Law Journal (1930) 40, 161 .

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 • A Goodhart Essays in Jurisprudence and the Common Law (Cambridge University Press, 1931) To determine the principle of a case, the first and most essential step is to establish 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 particular facts Goodhart’s phrase ‘material facts’ is an important part of his theory of how to identify his ratio Facts are ‘material’ when vital to the legal decision The ratio of the case is the conclusion based on the material facts

32. Finding the ratio • A Goodhart Essays in Jurisprudence and the Common Law. (Cambridge University Press, 1931) “[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 explanation of the case • You’re looking for the legal reasoning, coupled with your view of the material facts • Ratio should be expressed as a principle possessing generality: capable of being applied later • 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 Headnote – but don’t rely on it

36. Obiter dictum • 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.”

37. Obiter dictum • 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 rhetoric • They are capable of being persuasive in the sense that anyone’s argument is capable of being persuasive • 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’

38. Obiter dictum • 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…” • A judge may say what he would have decided had he not been bound by stare decisis

39. Obiter dictum • DPP v Smith [2006] (QBD) 1 WLR 1571 • Def, who cut off the victim’s ponytail and some other hair on top of her head, was charged with assault occasioning ABH contrary to s.47 of the Offences Against the Person Act 1861 • At the close of the prosecution case, the def submitted that there was no case for him to answer as no ABH had been caused • Justices concluded that it had not been established that the victim had been caused ABH • Appeal by way of case stated • Judges concluded that cutting off a person’s hair amounted to ABH • Obiter: if paint or some other unpleasant substance were put on the victim's hair – which marked or damaged it – that could amount to ABH

40. Obiter dictum • Obiter statements do 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 obiter is unimportant One person’s obiter may be the next person’s ratio Lord Atkin’s neighbour principle has been extended to all manufacturers, repairers, consumer items, industrial accidents, road accidents, misstatements etc…

41. Obiter dictum • R. v Gotts [1992] 2 AC 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

42. Law Reporting

43. 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

44. The Courts

45. The courts • Supreme Court / House of Lords • Court of Appeal (Civil) • Court of Appeal (Criminal) • High Court • Crown Court • Inferior courts

46. The Supreme Court • Much of what is said about precedent in the HLwill apply to the Supreme Court • It is assumed the new Court will follow the same approach • It is assumed it will normally treat itself as bound by previous decisions of the House • Decisions of the HL are binding on all courts in the country accept the House itself • Historically, until 1966 the HL was bound by its own decisions • But in 1966.......

47. The Supreme Court • The Practice Statement [1966] 1 WLR 1234 “… Too rigid adherence to precedent may lead to injusticein 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. In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property, and fiscal arrangements have been entered into and also the special need to certainty as to the criminal law This announcement is not intended to affect the use of precedent elsewhere than in this House.”

48. Use of the Practice Statement • Used sparingly • R v. National Insurance Commissioners (ex parte Hudson) [1972] AC 944 (at p. 966) (Lord Reid) • The Practice Statement was intended to apply only in a small number of cases in which previous decisions of the House were “thought to be impeding the proper development of the law or to have led to results which were unjust or contrary to public policy” • Two years passed before the Court first exercised the power • Conway v. Rimmer [1968] AC 910, where the HL unanimously overruled Duncanv. Cammell, Laird & Co. [1942] AC 624 on a question of the discovery of documents

49. Use of the Practice Statement • Addie & Sons v. Dubreck [1929] AC 358: • The HL had held that an occupier of premises was only liable to a trespassing child who was injured by the occupier intentionally or recklessly • British Railways Board v. Herrington [1972] 1 All ER 749 • While an occupier does not owe the same duty of care to a trespasser which he owes to a visitor, he owes a trespasser a duty to take such steps as common sense or common humanity would dictate, to exclude or warn or otherwise, within reasonable and practicable limits, reduce or avert a danger • An electrified railway line owned by the BRB – fences in poor condition – children seen on line – plaintiff aged 6 injured and claimed damages for negligence • Held that rule in Addie had been rendered obsolete by changes in physical and social conditions, and no longer provided a comprehensive statement of the occupier's duty towards a trespasser

50. Use of the Practice Statement • Miliangos v. George Frank (Textliles) Ltd [1976] AC 433: • The HL overruled Re United Railways of the Havana & Regla Warehouses Ltd [1961] AC 1007 • In the Re United Railways case, it had been held that damages in an English civil case could only be awarded in sterling • In Miliangos the HL held that damages can be awarded in the currency of the foreign country specified in the contract • Lord Wilberforce: “…once a clear conclusion is reached as to what the law now ought to be, declaration of it by this House is appropriate. The law on this topic is judge-made; it has been built up over the years from case to case. It is entirely within this House’s duty … to give the law a new direction in a particular case where, on principle and in reason, it appears right to do so. I cannot accept the suggestion that because a rule is long-established only legislation can change it…”