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 SubstantiveProceduralAdministrative Case law creates rules (precedents) which other judges follow this helps 'ground' legal arguments Used where traditionally 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 law Interpret Legislation ………………… 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

CASE LAW - Why Use It? ………………………………… Uncertainty Ossification Unconstitutional 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: Overruling Reversing Per incuriam Distinguishing Disapproving

……………………… 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 …"

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

……………………………… 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

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