2 Preview Common law: precedent Hierarchy of English courts Stare decisisRatio decidendiObiter dictaDistinguishing, overruling and reversingLaw reportsLegal termsExercises
3 Common lawConsists of substantive law and procedural rules that are created by the judicial decisions made in the courtsAlthough legislation may override such decisions, the legislation itself is subject to interpretation and refinement in the courts
4 PrecedentA judgement or decision of a court, normally recorded in a law report, used as an authority for reaching the same decision in subsequent cases
6 Civil cases European Court of Justice The Supreme Court Court of Appeal (Civil Division)High CourtCounty Court(Magistrates Court)
7 Criminal Cases European Court of Human Rights The Supreme Court Court of Appeal (Criminal Division)Crown CourtMagistrates’ Court
8 Court of Justice of the EU Decisions of the Court of Justice of the EU: binding on all other courts in Member States
9 The Supreme CourtPractice Statement (1966): The House of Lords (since 2005: the Supreme Court) no longer bound by its past decisions
10 Courts of Appeal (Criminal and Civil Divisons) Bound by decisions of the Supreme Courtbound to follow past decisions of their own, with limited exceptions
11 The High CourtDivisional courts: 1. Queen’s Bench Division (criminal appeals and judicial review), 2. Chancery Division and 3. Family DivisionBound by the Court of Appeal and the Supreme CourtCivil divisional courts – bound by their previous decisionsQueen’s Bench Division – more flexible
12 The Crown Court Bound by all the courts above it Its decisions do not form binding precedentsNot bound by its own decisions
13 Magistrates’ and county courts Inferior courtsBound by the High Court, Court of Appeal and the Supreme CourtTheir decisions - not reported and cannot produce binding precedents, or even persuasive onesNot bound by their own decisions
14 Stare decisisStare decisis (et non quieta movere) = stand by things decided (and do not unsettle the established)Supports the idea of fairness and provides certainty in the law
15 Stare decisisThe principle of binding precedent: decision of a higher court is binding on a lower court, i.e. the decision must be followed, and in the course of a trial the judges must refer to existing precedents
16 Stare decisisJudges will consider decisions made in a lower court, but they are not bound to follow themA rule set by a court must be applied if it is to the point – relevant or pertinent
17 Ratio decidendi A case involves many facts and issues of evidence The decision itself does not actually set the precedentThe precedent is the legal principle which the judge relied on in determining the outcome of a case
18 Ratio decidendi: “the reason for deciding”; The basis for a precedentThe principle or rule of law on which a court’s decision is founded
19 Ratio decidendiAt the end of a case – judgement: a speech by the judge giving the decision and explaining the reasons for the decision
20 Ratio decidendi In a judgement, the judge is likely to: Give a summary of the facts of the caseReview the arguments given by advocatesExplain the principles of law he is using to come to the decisionThese principles: ratio decidendi
21 Ratio decidendi‘Any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusions’ (Sir Rupert Cross)
22 Obiter dictum/dicta “something said in passing” A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be persuasive)
23 Obiter dictum/dicta“Strictly speaking an ‘obiter dictum’ is a remark made or opinion expressed by a judge, in his decision upon a case, ‘by the way’ – that is, incidentally or collaterally, and not directly upon the question before the court; or it is any statement of law enunciated by the judge or court merely by way of illustration, argument analogy, or suggestion...
24 Obiter dictum/dictaIn the common speech of lawyers, all such extrajudicial expressions of legal opinion are referred to as ‘dicta’ or ‘obiter dicta’, these two terms being used interchangeably” (William M. Lile et al, Brief Making and the Use of Law Books)
25 Ratio/obiterA major problem: to divide the ratio decidendi from the obiter dicta, as the judgment is usually in a continuous form, without any headings specifying what is meant to be part of the ratio decidendi and what is not
26 JudgementsThere may be more than one speech at the end of a case, depending on the number of judgesIn appeal courts and the Supreme Court cases are heard by at least 2 judges and up to a maximum of 7 judges
27 JudgementsIt is common that one judge gives the judgment and the other judges say ‘I agree’When there is a complicated point of law, more than one judge may want to explain his legal reasoning: more than one ratio decidendi
28 Original precedentIf the point of law in a case has never been decided before, whatever the judge decides will form a new precedent: original precedentAs there are no past cases to base a decision on, the judge is likely to look at cases which are the closest in principle and may decide to use similar rules: reasoning by analogy
29 Hunter and others v Canary Wharf Ltd and London Docklands Development Corporation (1995) The question whether the interference with television reception by a large building was capable of constituting an actionable private nuisance
30 Hunter v Canary Wharf Facts of the case In 1990 the Canary Wharf Tower , 250 m high and over 50 m square, was builtThe claimant and hundreds of others suing with her, claimed damages from the defendant for interference with reception of TV broadcasts in their homesThe interference was claimed to have been caused by the tower
31 Hunter v Canary Wharf Extract from the judgement Lord Irving (counsel for the defendants) submits that interference with television reception by reason of the presence of a building is properly to be regarded as analogous to loss of aspect (view). To obstruct the receipt of television signals by the erection of a building between the point of receipt and the source is not in law a nuisance.
32 Hunter v Canary Wharf Extract from the judgement In Aldred’s Case (1611) Wray CJ what he had said in Bland v Moseley: “for prospect, which is a matter only of delight and not of necessity, no action lies for stopping thereof, and yet it is a great recommendation of a house if it has a long and large prospect …But the law does not give an action for such things of delight”.
33 Hunter v Canary Wharf: Extract from the judgement ‘I accept the importance of television in the lives of very many people. However, in my judgement the erection or presence of a building in the line of sight between a television transmitter and other properties is not actionable as an interference with the use and enjoyment of land. The analogy with loss of prospect is compelling.
34 Hunter v Canary Wharf Extract from the judgement The loss of a view, which may be of the greatest importance to many householders, is not actionable and neither is the mere presence of a building in the sight line to the television transmitter’
35 Persuasive precedentA precedent that is not binding on the court, but the judge may decide that it is a correct principle so he is persuaded that he should follow itSources: courts lower in the hierarchy, obiter dicta, dissenting judgements, decisions of courts in other countries
37 DistinguishingThe judge finds that facts of the case he is deciding are sufficiently different to draw a distinction between the present case and the previous precedent; not bound by the previous case
38 OverrulingA court in a later case states that the legal rule decided in an earlier case is wrongA higher court may overrule a decision by a lower court (The Supreme Court overruling a decision of the Court of Appeal, or where the highest court (ECJ or the Supreme Court) overrules its past decision
39 ReversingA court higher up in the hierarchy overturns the decision of a lower court on appeal in the same caseThe Court of Appeal may disagree with the legal ruling of the High Court; in this situation they reverse the decision of the High Court
40 Law ReportsThe development and application of the common law system pivots upon the existence of a comprehensive system of reporting casesThe Law Reports – the most authoritative and frequently cited set of reports
41 History of Law ReportsLaw reports: since 13th c.; many early reports – very brief and not always accurateReports 1275 to 1535 called Year Books, short reports of cases, usually written in Frenchcases reported by individuals who made a business out of selling the reports to lawyers
42 History of Law Reports1865 the Incorporated Council of Law Reporting set up – controlled by the courtsReports became accurate, with the judgment noted down word for word
43 Law ReportsCases are not always reported in the year that they are decided so a case citation will refer to the volume and year in which the case was published, e.g. Meah v Roberts,  1 All ELR 97
44 The structure of a law report 1. catchwords – indicate what the case is about2. headnote – a summary written by the reporter3. majority judgements, dissenting judgements
45 Underlying principles Law should be stable, secure and predictableSimilar cases should be decided in the same way and the decision should rely on the established tradition
46 Advantages of precedent CertaintyConsistency and fairness in the lawPrecisionFlexibilityTime-saving
47 CertaintyBecause the courts follow past decisions, people know what the law is and how it is likely to be applied in their case
48 Consistency and fairness It is seen as just and fair that similar cases should be decided in a similar wayThe law must be consistent if it is to be credible
49 PrecisionAs the principles of law are set out in actual cases the law becomes very preciseIt is well illustrated and gradually builds up through the different variations of facts in the cases that come before the courts
50 Flexibility Law can change since the highest courts can overrule cases Distinguisting cases also give all courts some freedom to avoid past decisions and develop the law
51 Time-savingWhere a principle has been established, cases with similar facts are unlikely to go through the lengthy process of litigation
52 Disadvantages Rigidity Complexity Illogical distinctions Slowness of growth
53 RigidityLower courts must follow decisions of higher courts: bad decisions made in the past may be perpetuatedChanges in the law will only take place if parties have the courage, persistence and money to appeal their case
54 ComplexityHalf a million reported cases – not easy to find all the relevant case law even with computerised databasesJudgements: often very long with no clear distinction between obiter dicta and ratio decidendi
55 Illogical distinctions The use of distinguishing to avoid past decisions can lead to ‘hair-splitting’ so that some areas of the law have become very complexDifferences between some cases may be very small and appear illogical
56 Slowness of growthJudges may be aware that some areas of law are unclear or in need of reform, but they cannot make a decision unless there is a case before the courts to be decidedOnly 50 cases reach the Supreme Court each year; there may be a long wait for a suitable case to be appealed
57 ActivitySearch at least one website address and find a recent law report:gives summaries of important cases in its Daily Law Notes sectionhas cases from the Court of Appeal and below
58 Legal terms Binding Obvezujući Jurisdiction: 1) the power of the court to hear and decide a case or make a certain order; 2) the territorial limits within which the jurisdiction of a court may be exercised; 3) the territorial scope of the legislative competence of Parliamentnadležnost
59 Legal termsRuling: a decision made by someone with official authority such as a judge, magistrate, arbitrator or chairmanPresuda, sudska odluka, službeno mišljenje državnog tijela
60 Legal termsoverrule v. 1) to reject an attorney's objection to a question of a witness or admission of evidence. By overruling the objection, the trial judge allows the question or evidence in court. If the judge agrees with the objection he/she "sustains" the objection and does not allow the question or evidence.
61 overrule2) to decide (by a court of appeals) that a prior decision on a legal issue was not correct, and is therefore no longer a valid precedent on that legal question
62 overruleTo annul, to make void. This word is frequently used to signify that a case has been decided directly opposite to a former case; when this takes place, the first decided case is said to be overruled as a precedent, and cannot any longer be considered as of binding authority
63 Exercise Replace the underlined words and phrases with the following: Binding precedent, bound, cite, consider, distinguish, override, rely on/apply, revised
64 Binding precedent, bound, cite, consider, distinguish, override, rely on/apply, revised 1. The courts are compelled to apply the precedent set by a higher court.2. During the court case the judge will evaluate all the evidence and the legal issues.3. Judges are required to follow the ratio, or reasoning, in relevant previous decided cases
65 Binding precedent, bound, cite, consider, distinguish, override, rely on/apply, revised 4. However, the judge may note a case cited as precedent by counsel as materially different from the one at trial5. It is, however, the role of counsel to refer to relevant previous case decisions6. The principle of following the decisions of higher courts is fundamental to case law.
66 Binding precedent, bound, cite, consider, distinguish, override, rely on/apply, revised 7. The Law Reports series are the most frequently cited reports because the text is edited by the trial judge.8. New legislation may pay no attention to the decision of an earlier court judgment.
68 Exercise 3Complete the sentences with appropriate words from the table above:1. Well, that decision of the Appeal Court is going to be on the case we’ve got at trial just now.2. We need to convince the judge that the rule in Meah v Roberts is to this case.
69 Exercise 3 3. Can you check the case.....? I think the year’s wrong. 4. Should we add to our argument that Edwards v Peck is a precedent given the legal issues, although the judge isn’t bound to follow it?