Obiter dicta - Notes from ILS which help understand legal terms for understanding and interpreting PDF

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Notes from ILS which help understand legal terms for understanding and interpreting cases and legislation in scots law...

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Obiter dicta ‘things said by the wayside’, statements made on legal principles that are not essential to the judge’s decision or to the application of facts that are not before the judge, therefore can only be of persuasive force.

COMMON FORMS OF OBITER 1) Broader statements than the case requires - Donoghue v Stevenson! 2) Comments on alternative grounds not relied upon in decision: - Hedley Byrne v Heller [1964] AC 465 3) Comments on legal principles not prompted by issues 4) Scottish law in English cases… 5) Hypotheticals… 6) ”I would have decided…” 7) Dissents!

OBITER TIPS    

Use the headnote, but do not rely exclusively on this. Look for language of conditionality or the hypothetical. How have other cases treated the passage? The inversion test…

Definitions E Wambaugh, Study of Cases (2nd edn, 1894), 17-18: “the general rule without which the case must have been decided otherwise”. Inversion… Obiter = “a general rule without which the case still would have been decided in the same manner”

OBITER IN ACTION - Brownlie [2018] 1 WLR 192; [2020] EWCA Civ 996 [2020] EWCA Civ 996

McCombe LJ, [22]-[23] “It is noted, of course, that the passages on this point in all the judgments in the Supreme Court are indeed obiter dicta and… Lady Hale.. and Lord Wilson… expressly sounded notes of caution about the views on the point expressed by the court. Nonetheless, it seems to me that the court had before them essentially all the same legal materials as have been before us and, having seen the printed cases, it seems they also had deployed before them much the same arguments as have been skilfully put by both counsel before us. “I have concluded, however, that we should follow the majority. As, strictly, we are not bound to take that course, I address Ms Kinsler's submissions and will endeavour to explain shortly why…"

Underhill LJ, [158] (obiter!)

”..I do not think that it would be right to treat the judgments of the majority as if they were no more than a contribution to the debate that deserves our respect and careful consideration. In my view the approach that accords proper weight to a fully considered but obiter view of a majority in the Supreme Court should be the same as that which a first-instance court takes to the decision of a court of co-ordinate jurisdiction, namely that we should follow it unless we are satisfied that it is clearly wrong.”

Arnold LJ, [69]

”... Given that (i) the views expressed in the Supreme Court were all obiter, (ii) there was only a bare majority in favour of the broader interpretation, and (iii) two of majority acknowledged the need for caution in relying upon the view they expressed, I consider that we should make up our own minds as to the correct answer.”...