The English Legal System Judicial Precedent or ‘Stare Decisis’ Reading a Case

Aims The aims of this lecture are to: 1.To look at the history of law reporting; 2.Examine the way in which cases are reported and cited in England and Wales; 3.To critically consider the arguments for having a system of binding precedent; 4.To explore how judicial precedent works in different courts in the hierarchy of courts; 5.Identify the parts of a reported case and the significance of each of them; 6.Find the ‘ratio decidendi’ (the reason for deciding a case) and identify the any ‘obiter dicta’ (comments made by the way) within the judgments that the court delivered.

Outcomes By the end of this lecture you should be able to: 1.Describe the history of law reporting in England and Wales; 2.Find a case and cite that case accurately using the most authoritative of law reports; 3.Critically consider the arguments for and against a doctrine of judicial precedent; 4.Consider the different ways in which courts within the hierarchy can deal with previous decisions; 5.Identify the parts of a reported case and what their function is; 6.Find the ‘ratio decidendi’ of a case and any obiter dicta which the judges made in their judgments.

Law Reporting Necessary in any system which relies as heavily as ours does on judicial decisions through the doctrine of precedent The Law Reports fall into 3 1.The Yearbooks, The English Reports, The Incorporated Council Reports from 1865

The Yearbooks Not law reports in the modern sense A mixture of procedure and practice for the profession at that time Written in Norman French originally, and then in law French, a combination of Norman, English and Latin Mainly of interest today to the legal historian

The Private Reports Compiled by private individuals, often barristers by sometimes also judges Most authoritative are those of Coke, published between 1600 and 1658 – still often cited in constitutional law Others varied in quality – see Glanville Williams for a description of those of particularly dubious quality

The Incorporated Council Law Reports Referred to by lawyers as ‘the Law Reports’ Considered to be the most authoritative because the transcript is approved by the judge and they include counsel’s arguments They are still, however, a private collection There has never been an authoritative set of law reports published by the state

Finding a case Paper sources – the Law Reports – many different types of Law Reports – those published by the Incorporated Council of Law Reporting, the All England Law Reports, the Weekly Law Reports, as well as many specialist law reports such as the Industrial Law Reports

Citations In order to find a case you will need to know its citation Citations will normally be listed next to the case in academic publication, and tables of case will appear at the front of the book If you do not have the citation you may need to use one of the electronic search engines to locate it – WestLaw or LexisNexis can be very useful for these purposes

“The Law Reports” The Law Reports Published in four series corresponding to divisions of the High Court and Appeal Court volumes Examples Queen’s Bench Division – [2004] 1 Q.B. 120 Chancery Division – [2004] 2 Ch. 200 Family Division [2004] Fam. 280

Appeal Courts The three series we have looked at will contain all cases reported from those divisions, and all cases appealed to the Court of Appeal House of Lords decisions will be reported in separate volumes of appeal cases. The citation for these are as follows: [2004] A.C. 360 Note square brackets indicate that the year is necessary to find the case, whereas with round brackets the year is not necessary because there is an internal reference procedure, perhaps by volume number, in the reference itself Of course, the year is useful for other reasons than just reference

Neutral Citation Introduced in 2001 by the Practice Direction (Judgments: Form and Citation) [2001] 1 WLR 194 Aim was to modernise and systematise the form of law reporting and make it easier to consult electronic databases Citations Court of Appeal (Civil Division) [2004] EWCA Civ case no. Court of Appeal (Criminal Division) [2004] EWCA Crim case no.

Neutral citation High Court Queen’s Bench Division EWHC case number (QB) Family Division EWHC case number (Fam) Chancery Division EWHC case number (Ch) Administrative Court EWHC case number (Admin) Commercial Court EWHC case number (Comm) Patents Court EWHC case number (Pat) Admiralty Court EWHC case number (Admlty) Technology and Construction EWHC case number (TCC)

The number The number will be unique to that judgment The judgments will have paragraphs for ease of reference Take the following fictional example: Rogers v Rogers, the third numbered case of 2002 in the Civil Division of the Court of Appeal would be cited as follows: Rogers v Rogers [2002] EWCA Civ 3 at [82] – the final number indicating the paragraph which you wish to quote from the judge

Other Law Reports The Weekly Reports – published as the name suggests weekly – do not contain a summary of Counsel’s arguments, nor are they corrected by the judge – cited as WLR – Practice Directions are often first reported in this collection The All England Reports – do not contain counsel’s arguments, but are revised by the judges – cited as All ER – available online Some other specialist reports are: 1.Criminal Appeal Reports (Cr App R) 2.Industrial Relations Reports (IRLR) 3.Report on Tax Cases (TC)

Types of Precedent Binding – a lower court is bound to follow the decision of a higher court in the hierarchy Persuasive – another court’s decision influences that of the present court, e.g. decisions in other common law jurisdictions and decisions of the Judicial Committee of the Privy Council – refer to lecture on the courts for further information

Why have a system of precedent? To achieve a degree of certainty in the law; To ensure that the law is uniformly applied throughout the country; To allow people to order their affairs in a certain manner compliant with the law.

The Court Structure and Precedent The court structure in the United Kingdom will be looked at in greater detail in another lecture Without distinguishing between civil and criminal jurisdiction the basic hierarchy can be summarised as follows: House of Lords Court of Appeal High Court Crown Court County Courts Magistrates’ Courts

House of Lords Previous decisions of the House of Lords are binding on all lower courts in the hierarchy Until the second half of the twentieth century decisions of the House of Lords were also binding upon itself This precedent was established in the 19th century in London Tramways v London County Council [1898] A.C. 375

House of Lords The justification given by Lord Halsbury, who delivered the speech, was that otherwise a case may be continually re-argued before the court The decision was followed until 1966 when the House issued a practice statement departing from the rule: Practice Statement (Judicial Precedent) [1966] 1 WLR 1234

House of Lords In the statement their lordships made it clear that departure from a previous precedent would only be made in circumstances where it was felt that rigid adherence to a principle may create injustice The Lord Chancellor, who delivered the statement stressed, as well, that their lordships would have regard to the difficulties caused by disturbing previous law, especially in regard to the criminal law

House of Lords Since 1966 the House of Lords has only departed from its previous decisions infrequently It was two decades later in the case of Shivpuri [1986] 2 All ER 334, that the HL departed from a previous decision in relation to criminal law Professor Alan Paterson has calculated that between only 8 precedents out of 29 litigated were overruled by the House of Lords

Court of Appeal In his book, ‘The Law Making Process’, Professor Zander poses the question as to whether the Court of Appeal is bound by decisions of the House of Lords On a strict view of its place in the hierarchy, of course it is, although it was originally intended that it, rather than the HL, would be the final appeal court in the land

Court of Appeal The authority that Zander looks at in detail is the case of Broome v Cassell [1971] 2 QB 354 In this case the CA of appeal decided that a HL precedent had been wrongly decided because of earlier binding decisions from the House which were overlooked in deciding the later case Unsurprisingly the HL delivered a rebuke to the CA

Court of Appeal The CA normally regards itself as bound by its previous decisions in a case Young v Bristol Aeroplane Company Ltd [1944] KB exceptions were laid out by Lord Greene MR of circumstances where the court may depart from the previous decisions

Court of Appeal The three exceptions where the CA will not consider itself bound: 1.The court is entitled and bound to decide which of the two conflicting decisions of its own it will follow; 2.The court is bound to refuse to follow a decision of its own which, though not expressly overruled by the HL cannot, in its opinion stand with a decision of the HL; 3.The court is not bound to follow a decision of its own if it is satisfied that the decision was given ‘per incuriam’.

Trial Courts These courts are not bound by earlier decisions of the court, e.g. a High Court Judge is not bound by a decision of a fellow High Court Judge Magistrates’ Courts and county courts are bound by decisions of the High Court and of the appellate courts

Anatomy of a case The case of Re Abdul Manan [1971] 2 All ER 1016 Parties – Re Abdul Manan Name of the Court – Court of Appeal, Civil Division Judges – Denning, Penton Atkinson, Gordon Willmer Date of hearing – 2nd April 1971

Anatomy of a case Catchwords Headnote – summarises the facts and legal issues Held – the decision of the court in this instance Caselaw discussed in the judgment Whether the judgment was reserved

Anatomy of a case Who represented the parties in the case The Judgment – note that this only is the law, everything else is merely an aid to understanding the case - in this case there is only 1 judgment Decision in the case Solicitors Reporter

Task Find another case in a set of Law Reports and identify the component parts mentioned above See if you can find the case in a different set of Law Reports, what differences do you notice in the way that the case has been reported, if any?

Tackling the judgment 3 concepts to introduce you to: 1)Ratio Decidendi – the reason for deciding the case, ‘the rule of law upon which the decision was founded’ 2)Obiter Dictum – ‘a saying by the way’, ‘a chance remark’ 3)Distinguishing – is the case on ‘all fours with the previous decision’

Re Abdul Manan The ratio in the case of Re Abdul Manan can be found in the judgment of Lord Denning MR at 1017 at sections d-e: ‘In these statutes ‘ordinarily resident’ means lawfully ordinarily resident here’ In section e Lord Denning had made an obiter comment as to what the meaning may be in an income tax case

Divided Courts Higher courts can have a number of judges giving judgment in the case – there can therefore be multiple ratios The majority of judges reaching the decision prevail

Obiter Dicta These are remarks made by the judges in reasoning their decision through, “something said by the way” Hypothetical situations which the judge is considering what the position would be if one of the material facts in the present case were different

Summary of lecture You should now be able to: 1.Describe the history of law reporting in England and Wales; 2.Identify the most authoritative law reports and how to cite them; 3.Recognise the value of other reports and how they are cited; 4.Recognise a neutral citation and how to use this in practice; 5.Cite the rules relating to judicial precedent and which courts are bound by previous decisions; 6.Identify the component parts of a reported case and their function in the law report as whole; 7.Find the ratio of a case and any obiter which may have been stated in the case.

Further reading Zander, M., The Law Making Process (London: Butterworths, 1999, 5th edition), chapter 4 ‘Binding precedent – the doctrine of stare decisis’, pp and chapter 5 on ‘Law reporting’, pp Smith, A.T.H, Glanville Williams Learning the Law (London: Sweet and Maxwell, 2002), pp and chapter 6 on ‘Case Law Technique’ Hanson, S., Legal Method and Reasoning (London: Cavendish, 2003, 2nd edition), chapter 4.1 for a summary of how cases are selected for reporting and other parts of the chapter for techniques in identifying ratio