Common Law and The Doctrine of Precedent 2 PDF

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Common Law and The Doctrine of Precedent (II) The ‘rules’ of precedent: A past ‘decision’ is binding if: 1. It was decided in a court binding on the present court; 2. There is a sufficient degree of analogy between the precedent case and the case being decided. 3. It is still ‘good law’ If all conditions are met, the past ‘decision’ must be applied by late courts – principle of ‘stare decisis’.

1. The Court Hierarchy Vertical effect of precedent:  all courts are bound by their superiors i.e. the court that sits above them in the hierarchy Horizontal effect of precedent:  certain courts are generally bound by their own previous decisions 2. Degrees of Analogy Q. What degree of similarity between cases is required? A. Up to judges to decide on level on generality or specificity. 3. Is the decisions still ‘good law’?  Has the decision been overruled? Overruling – the procedure whereby a court with authority to do so sets aside a legal rule established in previous case.  Is the decision compatible with the European Convention on Human Rights? Decisions of the European Convention of Human Rights (ECHR) must to ‘taken into account’ by courts in England and Wales  Is the decision compatible with EU law? Decisions of the Courts of Justice of the European Union (CJEU or ECJ) bind all courts in England and Wales

Ratio Decidendi: The rule of law upon which the decision is based The proposition/s of law applied in deciding the legal issue/s raised by the material facts of the case. The ratio of a case is rarely obvious and often hard to discern!  Precise scope will be determined in later cases  Open to interpretation by subsequent courts  NOT a set form of words  Courts may ‘evolve’ a precedent to meet the particular circumstances of a case  Precedent therefore creates a dynamic body of law

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Lengthy judgments More than one reason More than one ratio More than one judge

How to identify a ratio decidendi?... The ratio must address all facts identified as material and provide answers to all legal issues. How to identify a ratio decidendi… material facts Finding the material facts:  only those facts that the courts appears to have regarded as essential to its decision are material  if in doubt, make a list of facts and ask, ‘if I delete this fact, would the outcome have been different?’ If YES, then the fact is material If NO, then the fact cannot be material

Case Examples: Entores v Miles For East Corporation Facts:  The plaintiffs are an English company. The defendants are an American corporation with agents including a Dutch company in Amsterdam. The plaintiffs say that the contract was made by Telex between the Dutch Company in Amsterdam and the English company in London… Each company has a teleprinter machine in its office and each has a Telex number.  When one company wishes to send a message to the other, it gets the Post Office to connect up the machines. Then a clerk at one end taps a message on his machine just as if it were a typewriter and it is instantaneously passed to the machine at the other end which automatically types the message onto the paper at the end. There was a completed contract by which the defendants agreed to supply 100 tons of cathodes at a price of £239 a ton. The offer was sent by Telex from England offering to pay £239 a ton for 100 tons and accepted by Telex from Holland. The question is where the contract is made. If I delete this fact, would the outcome have been different? If YES, then the fact is material If NO, then the fact cannot be material. Q. Would the outcome be different if the defendant was a Chinese company based in France rather than an American company based in Holland? Q. would the outcome be different if the goods were washing machines rather than cathodes? Q. Would the outcome be different if the price was £250 per ton rather than £239 per ton? Material Facts: There was a completed contract by which the defendants agreed to supply goods to the plaintiff. The offer was sent by Telex from England and accepted by Telex from a company operating outside the jurisdiction of England and Wales. How to identify a ratio decidendi… legal issues: Legal issues are questions of law: A question of law is a generalised question about the state of law relevant to material facts and can only be answered by the court. Don’t confuse questions of law with questions of fact: A question of fact relates to specific aspects of a particular case and may be answered by adducing evidence. Entores v Miles For East Corporation Q. Whether the Telex was actually received on the claimant’s telex machine. Q. whether, in the case where an offer is accepted using an instantaneous method of communication, acceptance is valid where and when it is received by the offeror. Which is a question of fact? Which is a question of law? (i.e a legal issue)?

Question of fact: Whether the telex was actually received on the claimant’s telex machine. Question/s of law (LEGAL ISSUES):  Whether, in the case where an offer is accepted using an instantaneous method of communication, acceptance is valid where and when it is received by the offeror. Entores v Miles For East Corporation The ratio must address all facts identified as material and provide answers to all legal issues. Ratio: That in the case where an offer is accepted using an instantaneous method of communication, acceptance is valid where and when it is received.

Distinguish between binding and persuasive precedent: A persuasive precedent is one that the court will consider, and may be persuaded by, but is not obliged to follow. Persuasive Precedent Obiter Dicta Entores v Miles For East Corporation Lord Denning discusses the following hypothetical situation: ‘Let me first consider a case where two people make a contract by word of mouth in the presence of one another. Suppose, for instance, that I shout an offer to a man across a river or a courtyard, but I do not hear his reply because it is drowned by an aircraft flying overhead. There is no contract at that moment. If he wishes to make a contract, he must wait till the aircraft is gone and then shout back his acceptance so that I can hear what he says. Not until I have his answer am I bound’.

To follow or not to follow … that is the question Persuasive Precedent:  Dissenting judgment Where there is more than one judge – where one disagrees with the majority decision.  Minority judgment Where there is more than one judge – where one agrees with the majority decision but does so far for different reasons.  Ratio decidendi of courts lower in hierarchy  Ratio decidendi of courts outside the English and Welsh legal system

Superior Courts:  Follow  Depart  Overrule  Reverse  Distinguish Inferior Courts:  Follow  Distinguish Techniques of Precedent: The ‘Happy’ Judge  Follow (applies) the legal principles found in a previous analogous case. OR  Affirms a legal principle which is not binding on them. The ‘Unhappy’ Judge Tries to manoeuvre his way round an unwanted precedent by:  Overruling  Departing

 Reversing If he/she has the authority to do so! The ‘Unhappy but Crafty’ Judge Uses the technique of ‘distinguishing’  He highlights a lack of analogy between the cases to diminish the prior precedent’s weight of authority (or vice versa)  ‘Distinguishing’ cases is a widely used and important technique of precedent Entores v Miles For East Corporation Court of Appeal Brinkibon v Stahag Stahl Und Stahlwarenhandelsgeselschaf House of Lords Affirmed the decision in Entores – refined and explained its limitations. Advantages and disadvantages of precedent 1. Similar cases treated in a similar way – serves interests of justice, fairness and equality. But may be too rigid, and therefore lead to unfairness. 2. Promotes legal certainty But at the expense of flexibility. 3. Law can change with society as precedents are reinterpreted. But it may be a long time before a suitable case arises to achieve change. 4. Cases involve real fat situations – can see the law in operation. But the amount of information to digest to understand the law is cumbersome. Why is this important? Coursework 1 Case note 1500 WRITING CASE NOTES: A BRIEF GUIDE!!!!! a case note provides a brief analysis of a case, identifying and examining the key elements of the decision, as well as placing the case in its wider legal and social context. CFPIRROI C: CONTEXT What is the legal background to the case: what problem has arisen, or what clarification of the law is needed? F: FACTS Set out the material (that is, important) facts. Keep it concise. Focus on the facts that you need to know in order to understand the case. P: PROCEDURAL HISTORY Summarise the procedural history. In which court is the case being heard? Is the case an appeal against a decision of a lower court? What was the outcome of the earlier decision?

I: ISSUES Set out the legal issues (or questions of law) that were discussed in the case. Remember that there is a difference questions of law and question of fact. Questions of law address how the law can be applied to the facts of the case (e.g. whether hitting someone amount to battery), while questions of fact address what actually happened (e.g. whether there is evidence to show that the defendant did actually hit the victim). R: REASONING Grounds of decision. You’ll need to explain how the judge(s) reached their decision, analysing their use of precedent, statute and/or policy considerations. Dissent: if more than one judgment has been given, be sure to highlight any dissenting judgments or differences of opinion among the judges. Obiter: is there any important obiter discussion? Comments made obiter are points of law that are not necessary to decide the outcome of the case, but they could be influential in future cases. R: RATIO DECIDENDI You need to identify the ratio decidendi. The ratio(nes) is the reason(s) for the decision, i.e. the legal principle which, when applied to the facts of the case, led the judge(s) to reach the decision. O: OUTCOME What is the result of the case? Who wins? If the case is an appeal from an earlier decision, is the appeal allowed or dismissed? I: IMPACT/COMMENT This is your chance to evaluate the judgment. Consider the legal and social impact it could have. Does it leave questions unanswered or create vagueness? Are there problems in the judges’ reasoning? Would adopting a different perspective (e.g. feminist) have led to a better decision? Is it widely accepted? What areas need further clarification? Are there any interesting comparative points to be made? Is there any relevant legislation (is legislation needed)? Research relevant cases, articles or books to support your arguments. Seminars 3,4 &5 Questions feed into headings in the case note guide....