Transcript Slide 1

The English Legal System
Judicial Precedent or ‘Stare
Decisis’
Reading a Case
Aims
•
The aims of this lecture are to:
1.
2.
To look at the history of law reporting;
Examine the way in which cases are reported and cited
in England and Wales;
To critically consider the arguments for having a system
of binding precedent;
To explore how judicial precedent works in different
courts in the hierarchy of courts;
Identify the parts of a reported case and the significance
of each of them;
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.
3.
4.
5.
6.
Outcomes
•
By the end of this lecture you should be able to:
1.
2.
Describe the history of law reporting in England and Wales;
Find a case and cite that case accurately using the most
authoritative of law reports;
Critically consider the arguments for and against a doctrine of
judicial precedent;
Consider the different ways in which courts within the
hierarchy can deal with previous decisions;
Identify the parts of a reported case and what their function is;
Find the ‘ratio decidendi’ of a case and any obiter dicta which
the judges made in their judgments.
3.
4.
5.
6.
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, 1282-1537
2. The English Reports, 1537-1863
3. 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 15371863
• 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 1966-1980 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 718
3 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;
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;
The court is not bound to follow a decision of its own
if it is satisfied that the decision was given ‘per
incuriam’.
2.
3.
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.
2.
Describe the history of law reporting in England and Wales;
Identify the most authoritative law reports and how to cite
them;
Recognise the value of other reports and how they are
cited;
Recognise a neutral citation and how to use this in
practice;
Cite the rules relating to judicial precedent and which
courts are bound by previous decisions;
Identify the component parts of a reported case and their
function in the law report as whole;
Find the ratio of a case and any obiter which may have
been stated in the case.
3.
4.
5.
6.
7.
Further reading
• Zander, M., The Law Making Process (London:
Butterworths, 1999, 5th edition), chapter 4 ‘Binding
precedent – the doctrine of stare decisis’, pp.194-239 and
chapter 5 on ‘Law reporting’, pp.240-258
• Smith, A.T.H, Glanville Williams Learning the Law (London:
Sweet and Maxwell, 2002), pp.35-45 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