The English Legal System

1
The English Legal System

• Judicial Precedent or Stare Decisis
• Reading a Case

2
Aims

• The aims of this lecture are to
• 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
Outcomes

• By the end of this lecture you should be able to
• 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.

4
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
• The Yearbooks, 1282-1537
• The English Reports, 1537-1863
• The Incorporated Council Reports from 1865

5
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

6
The Private Reports 1537-1863

• 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

7
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 counsels arguments
• They are still, however, a private collection
• There has never been an authoritative set of law
  reports published by the state

8
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

9
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

10
The Law Reports

• The Law Reports
• Published in four series corresponding to
  divisions of the High Court and Appeal Court
  volumes
• Examples
• Queens Bench Division 2004 1 Q.B. 120
• Chancery Division 2004 2 Ch. 200
• Family Division 2004 Fam. 280

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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

12
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.

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Neutral citation

• High Court
• Queens 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)

14
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

15
Other Law Reports

• The Weekly Reports published as the name
  suggests weekly do not contain a summary of
  Counsels 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
  counsels arguments, but are revised by the
  judges cited as All ER available online
• Some other specialist reports are
• Criminal Appeal Reports (Cr App R)
• Industrial Relations Reports (IRLR)
• Report on Tax Cases (TC)

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Types of Precedent

• Binding a lower court is bound to follow the
  decision of a higher court in the hierarchy
• Persuasive another courts 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

17
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.

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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

19
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

20
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

21
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

22
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

23
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

24
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

25
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

26
Court of Appeal

• The three exceptions where the CA will not
  consider itself bound
• 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.

27
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

28
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

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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

30
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

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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?

32
Tackling the judgment

• 3 concepts to introduce you to
• Ratio Decidendi the reason for deciding the
  case, the rule of law upon which the decision
  was founded
• Obiter Dictum a saying by the way, a chance
  remark
• Distinguishing is the case on all fours with
  the previous decision

33
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

34
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

35
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

36
Summary of lecture

• You should now be able to
• 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.

37
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