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 case were the the material facts are the same Let the decision rest Let the decision stand 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

Develop existing areas of law Interpret Legislation Enables 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

ossification - the process of becoming 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 Not on handout

Q3. Which is the highest source of national law? High court Court of Appeal Court of the Lords The House of Commons 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] Uploader:raffaella_biscusoDrawn by:Raffaella Biscuso / raffaella_biscusoCreated:2008-01-16 15:23:10http://www.openclipart.org/detail/11125

Makes a decision as to the “winner” between the parties WHAT DOES A JUDGE DO? Makes a decision as to the “winner” between the parties Provides the Ratio Decidendi May provide Obiter Dicta Adversarial Stark contrast to the system in European states Judges: http://commons.wikimedia.org/wiki/File:Judges_cupola.png Finger: Uploader:johnny_automaticDrawn by:johnny_automaticCreated:2006-10-29 20:37:08 http://www.openclipart.org/detail/1006 boxing gloves Uploader:johnny_automaticDrawn by:johnny_automaticCreated:2007-12-14 03:00:43 http://www.openclipart.org/detail/9929 Carl Uploader:FENDrawn by:wpclipart / FENCreated:2006-11-01 22:31:02 http://www.openclipart.org/detail/1168 frank Uploader:FENDrawn by:wpclipart / FENCreated:2006-11-01 22:25:17 http://www.openclipart.org/detail/1165

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? Something said in passing The reason for the decision The dictation of the case

Q5. Which forms the best definition of the obiter dicta? Something said in passing The reason for the decision The dictation of the case

Q6. What colour tie was the lecturer wearing? Black Blue Red Black with white spots

Carlill v Carbolic Smoke Ball Co. (1893) Man on chair: Uploader:rejonDrawn by:rejonCreated:2010-04-06 07:38:25Description:This is clipart converted and broken apart that has been released into the public domain because the document says so, and its from NASA, a USA government agency. The publication is called "The Brain in Space:" http://www.nasa.gov/audience/foreducators/topnav/materials/listbytype/The.Brain.in.Space.htmlTags:, nasa , space , science , brain ,astronomy , nasa , government , usa ,convertedDownloaded by:7 People http://www.openclipart.org/detail/38503 Carbloci smoke ball used under CDPA 29-33. Not on handout

Carlill v Carbolic Smoke Ball Co 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 Music used under provisions of CDPA Sec 29-33.

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 Music and photo used under provisions of CDPA Sec 29-33. 14 February, 2002, 14:52 GMT Robbie escapes extra copy damages Robbie Williams "substantially" copied a folk song A High Court judge has ruled that Robbie Williams does not have to pay extra damages for copying lyrics from a 1961 Woody Guthrie song. Williams must pay 25% of the income from his album track Jesus in a Camper Van, which amounts to about £50,000. Mr Justice Pumphrey Jesus in a Camper Van contains lyrics that a judge previously decided were "substantially" copied from a song by Loudon Wainwright III, which in turn was based on I Am The Way by late folk singer Guthrie. The copyright holders had tried to claim up to 100% of the income of the Williams track, which is owned by more than 2.5 million people in the UK on the album I've Been Expecting You. But in Thursday's decision, Mr Justice Pumphrey said additional damages were not justified because the copyright infringement was not cynical or flagrant and the song had no particular "staying power". Loudon Wainwright III "inspired" Williams Williams had written the song in the expectation that a normal copyright agreement would be reached, the judge said, and the 25% was always held back to pay for it. The judge said he had "grave doubts as to who has actually won this case" and granted both sides leave to appeal. He also ruled that any future copies of I've Been Expecting You must not include Jesus in a Camper Van. In 2000, a judge decided that Williams had breached the original song's copyright, while EMI said Williams was "inspired by" the Loudon Wainwright track. Permission Williams' publishers, EMI and BMG, initially offered 25% to the holders of the copyright of the original song, New York-based Ludlow Music. That offer was rejected and Ludlow said they wanted 50% in order to give permission for the song to be included on the album. But the album, including the track, was released anyway with 25% of Jesus in a Camper Van's share held back for Ludlow. When Ludlow took legal action, they were seeking 100% of the income, EMI said. Ludlow's barrister, Pushpinder Saini, had urged the court to condemn the copying by making Williams, co-writer Guy Chambers and the singer's record and publishing companies pay punitive damages. Lyrics Guthrie's song includes the line: "Every good man gets a little hard luck sometimes", while the Loudon Wainwright version, described by the judge as a parody, ran: "Every Son of God gets a little hard luck sometimes, especially when he goes round saying he is the way". In the song by Williams and Chambers, the lines were: "I suppose even the Son of God gets it hard sometimes, especially when he goes round saying I am the way." A judge in October 2000 said: "In my view, the extent of the copying is substantial, although not by much." Jesus in a Camper Van also appeared on the US compilation The Ego Has Landed.

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 Music and photo used under provisions of CDPA Sec 29-33. 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

ELECTRONIC RESOURCE EXAMPLES 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