Common Law Reasoning and Judicial Precedent - Notes

Common Law Reasoning & Judicial Precedent

Objectives

Introduce the Common Law and the Common Law Legal System.
Explain the historical development of the common law tradition and the key concepts.
Discuss the role of equity and the equitable maxims.
Explain common law reasoning in deciding hard cases.

Outline

Introduction to the Common Law.
Historical development of common law and the common law legal system.
The role of equity and common law.
Legal reasoning in common law based on case law.

What is Common Law?

Law not made by Parliament.
Case law: law developed by judges through case law.
System of law common to the whole country.
Law made by Parliament is Statute Law.

Common Law

The English legal system is the original common law system.
The common-law legal system forms a major part of the law of many countries, especially those with a history as British territories or colonies.
It includes extensive non-statutory law reflecting a consensus of centuries of judgments by working jurists.

Common Law System (Adversarial vs. Inquisitorial)

The common law originally developed under the adversarial system in historical England from judicial decisions that were based in tradition, custom, and precedent.
The procedure practiced in common law courts is known as the adversarial system.
”The judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large…” - Jones v National Coal Board [1957] 2 QB 55, 63-64 Lord Denning
The form of reasoning used in common law is known as casuistry or case-based reasoning. Common law may be unwritten or written in statutes or codes.

Common Law

Today, common law is generally thought of as applying only to civil disputes; originally it encompassed the criminal law before criminal codes were adopted in most common law jurisdictions in the late 19th century.

Common Law

The common law, as applied in civil cases (as distinct from criminal cases), was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence, and as developing the body of law recognizing and regulating contracts.

Common Law Legal Systems

The common law constitutes the basis of the legal systems of: England and Wales, the Republic of Ireland, Australia, New Zealand, Malaysia, Singapore, Hong Kong, and many other generally English-speaking countries or commonwealth countries.

Historical Development of Common Law

Brief History

Norman Conquest (1066): No system of law common to the whole country; local customs applied by local manorial courts.
Royal officials were sent on tour (circuit) to various parts of the country to deal with crimes & civil disputes; cases were heard with a local jury, applying the local customary law & tradition of the neighborhood.
Circuit officials returned to Westminster after their tour and sat in royal courts; rules of law were developed, selected from different local customs and traditions; rules (jus commune or common law) were applied uniformly in all trials throughout the country; common law developed on the doctrine of stare decisis/binding precedent.

Common Pleas, King's Bench, and Chancery

Common Pleas: Has extensive jurisdiction in all civil actions other than those concerning royal rights
King’s Bench: Superior court of common law, concurrent jurisdiction with Common Pleas, also wrongs committed against the peace of the King
Chancery: Originally a court of equity
Commencement of action by way of Writ: different types of writ depending on the action. The writ specified:
1. Grounds of complaint/Cause of action
2. Brief summary of facts
- If the writ was not properly worded, it was not possible to have a new action.

Common Law Courts

The common law courts were unsatisfactory.
A plaintiff might lose a case due to a minor technicality of wording.
Could lead to deliberate delay & corruption
A plaintiff could not enforce judgment due to no suitable common law remedy; only remedy available was damages, which was not an adequate solution to every problem.

Petitioned the King

The King was thought to be the “fountain of justice,” so the matter passed to the Lord Chancellor.
The Court of Chancery (i.e., Lord Chancellor – ‘Keeper of the King’s conscience’) was petitioned to question and deliver verdict/remedies based on his own moral views - this led to the development of equity.
Court of Chancery was more popular than common law courts.

Court of Chancery

It could enforce rights not recognized at common law
In contract, it could provide an alternative & more efficient remedy besides damages – i.e., specific performance.
It could compel the disclosure of documents.
It could protect 3rd party rights
It imposed a just solution without due regard for technicalities or procedural point
Fair dealing between two individuals as equal
Developed & administered by the Court of Chancery
A method of adding to & improving on the common law
Afforded an improved means of obtaining justice
New rights e.g., Trust only recognized in equity (i.e., different persons can own the same piece of property in different ways).
More effective than common law in bringing a dispute to a decision
Better remedy e.g., Injunction, Specific Performance, Rescission

Equitable Maxims

He who comes to equity must come with clean hands.
Equality is equity.
He who seeks equity must do equity.
Equity looks at the intent, not the form.

Equity vs Common Law

By the 17th century, equity was locked in fierce battle with common law
The Earl of Oxford’s Case 1615: In the event of a conflict between common law and equity, equity should prevail.
Common law felt threatened by equity
Court structure was established (no separate courts for equity and common law).
Both common law & equity could be applied by the court.

Common Law Reasoning: Judicial Precedent

Role of the Courts in Law-Making

Doctrine of Precedent

Doctrine of Precedent

A precedent is the reasoning behind a court decision that establishes a principle or rule of law that must be followed by other courts lower in the same court hierarchy when deciding future cases that are similar.
The judges look at past decisions to guide them; they look at the reasons behind the decision in past cases for guidance when deciding new cases.
When a new situation arises and is decided on, a precedent is created.

Juries and Precedent

A jury decision cannot create a precedent as juries do not give reasons for their decisions. For this reason precedent is usually made by courts which hear appeals (as there is no jury): i.e., the High court, the Court of Appeal, and the Supreme Court.
Precedents can only be made when a judge alone is hearing a case.
The Judge makes the decision and gives the reasons for that decision; the reason for the decision is then binding on lower courts in the same hierarchy
Precedent is the reason for the decision (the ratio decidendi).

Hierarchy of Courts

Supreme Court (previously House of Lords)
Court of Appeal (Criminal Division and Civil Division)
High Court (Divisional Court, Queen’s Bench Division, Chancery Division, Family Division of the Queen’s Bench Division)
Crown Court
Magistrates Court
County Court
Court of Justice of the European Union (Article 234 EC)

Superior Courts

The High Court, The Court of Appeal and The Supreme Court are known as Superior Courts of record because the reasons for the decisions in the court cases that come before them are recorded for future reference.
It is these courts which create common law
Common law is law developed through the courts. It is also known as case law or judge-made law.

Supreme Court

Supreme Court decisions are binding on all courts below it.
Up until 1966, the Supreme Court regarded itself as bound by its previous decisions.
In the Practice Statement (Judicial Precedent), Supreme Court is free to depart from its previous decisions where it appeared right to do so.
As regards European Union law, the European Court of Justice is superior to the Supreme Court.

Court of Appeal

Generally, bound by previous decisions of the Supreme Court.
Civil division -Generally bound by its own previous decisions but there are exceptions (see: Young v Bristol Aeroplane Co Ltd (1944)).
Exceptions – conflicting decisions, previous decision overruled, decision per incuriam (ignorance of authorities).
Criminal division – Bound by Supreme Court
Own previous decisions – bound unless there is a misunderstanding or misapplication of law.

High Court

Follow decisions of Supreme Court and of the Court of Appeal
Individual High Court judgements are binding on courts inferior in the hierarchy.
Such decisions are not binding on other High Court judges but are persuasive and tend to be followed.

Crown Courts, County Courts & Magistrate Courts

All subject to binding precedent from superior courts.
Crown Courts cannot create precedent and their decisions can never amount to more than persuasive authority.
County Courts – decisions never binding
Magistrates’ Courts – decisions never binding

European Courts

Formally the ‘Court of Justice of the European Union’.
An institution of the European Union based in Luxembourg.
Used to be the highest authority on matters pertaining to EU/EC law in the UK.
ECJ Judgments before 2021 are relevant as to how rights/principles originating from EU Law (now incorporated into domestic UK law should be interpreted).
However, these judgments can no longer bind English courts after 2020 or prevail over contrary legislation.
European Court of Human Rights:
An institution of the Council of Europe, based in Strasbourg, France.
Its role is to interpret the obligations of Member States under the European Convention on Human Rights (ECHR), and it may order monetary compensation to be paid for breaches of the Convention.
Under the Human Rights Act 1998, s 2, UK courts must “take account of” the jurisprudence of the ECtHR but are not bound to follow it.

Judicial Hierarchy

Decisions of courts outside the particular hierarchy are not binding but may be persuasive depending upon the status of the court.
A previous decision of a court on the same level is generally not binding but will not be departed from unless the earlier decision was wrongly decided.

Types of Precedent

Original Precedent
Binding Precedent
Persuasive Precedent

Original Precedent

If the point of law in a case has never been decided before, whatever the judge decides on a point of law will form a new precedent: original precedent.
As 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.

Example of an Original Precedent

R v R (1991): The defendant was charged with the attempted rape of his wife. At the time of the offense, the couple had separated, although no formal legal separation existed and neither party had petitioned for divorce. He was found guilty. This is an example of an ‘Original Precedent’. It is now illegal for a man to rape his wife.
Donoghue v Stevenson (1932): A duty of care was established between manufacturer and consumer for the first time. Where the plaintiff sued the defendant after a friend of the plaintiff bought her a drink from the defendant; the drink contained a decomposed snail, and the plaintiff became ill after drinking it. The House of Lords stated that the manufacturer is responsible (had a duty of care) towards their customers, although the customers did not have any contract with the manufacturers.

Binding Precedent

A binding precedent is one that must be applied in a later case.
It exists when the facts of a case are similar to those of an earlier decision in a higher or equivalent court in which the applicable statement of law was part of the ratio of the earlier decision.
Only the ratio decidendi from a higher court can create binding precedent.

Persuasive Precedent

A persuasive precedent is one which is not binding but which contains other factors that mean that the decision is influential.
A persuasive precedent can be followed (provided no binding decision exists), but there is no compulsion on the courts to do so.
Sources of PP: courts lower in the hierarchy, obiter dicta, dissenting judgments, decisions of courts in other countries.

Advantages of Precedent

There is certainty in the law. By looking at existing precedents, it is possible to forecast what a decision will be and plan accordingly. Lawyers can advise their clients on the likely outcome of a case.
There is uniformity in the law. Similar cases will be treated in the same way. This is important to give the system a sense of justice and to make the system acceptable to the public.
Judicial precedent is flexible. There are a number of ways to avoid precedent, and this enables the system to change and to adapt to new situations. The Supreme Court can use the Practice Statement to overrule cases.
Precision in Judicial precedent: The principles of law are based on real facts, and the law becomes very precise and gradually builds up through the different variations of facts in the cases that come before the court.
Judicial precedent is time-saving: Where a principle has been established, cases with similar facts are unlikely to go through the lengthy process of litigation.
The main reasons for applying precedent is to create consistency and predictability within the legal system, as like cases are decided in a like manner. This, in turn, gives us confidence in our legal system, and we feel justice is being done.

Disadvantages of Precedent

Rigidity: Can make the law too inflexible. Lower courts have to follow decisions of higher courts, and the Court of Appeal has to follow its own past decisions, which may make the law inflexible, and bad decisions made in the past may be perpetuated.
Complexity: There is far too much case law, and it is too complex, and difficulties can arise in deciding what the ratio decidendi is, particularly if there are a number of reasons.
Slowness of growth: There may be a considerable wait for a case to come to court for a point to be decided. Only 50% of Court of Appeal cases go to the Supreme Court. Some areas of the law are unclear or in need of reform; however, a Court cannot make a decision unless there is a case before the court to decide.

Judge’s Ability to Make Law

Judges can only make law when deciding on a new issue (novel case) brought before them or when a previous principle of law requires expansion to apply to a new situation. For example, the first time a case of negligence was brought to court, it was a novel case and it created the common law of negligence. Further cases over time have developed that common law.

What Does a Judge Do?

Makes a decision as to the “winner” between the parties
Provides the Ratio Decidendi
May provide Obiter Dicta
Adversarial

Law & Facts

A court is concerned with Law & Facts
A judge who sits alone in court decides both Law & Facts
A judge who sits with a jury decides the Law; the jury decides the Facts

The Ratio Decidendi

The reason for the decision
Comprises the material facts deemed relevant, and the legal principles applied in arriving at the decision
The Binding part of the judgment

Ratio Decidendi

“The reason for the decision”
Core legal meaning of a case
1. Determine which facts the judge treated as material
2. Determine the decision that was based on those facts

Material Facts

What facts are material?
Depends on the particular case
For example: In a motor accident case (“running down action”) – an action for injuries sustained through D’s negligent driving of a vehicle.
Material:
- That D was the driver of the particular vehicle
- That D drove the vehicle negligently
- That as a consequence, D injured P
- The time, date, and place that the particular accident occurred.
Not Material:
- The fact that D has red hair, freckles.
- P's name is Anne
- The day that the accident occurred was a Friday.

Material Facts Equations

$Facts <br />\newline A + B + C + D = X$
$Facts <br />\newline A + B + C = X$
$Facts \newline A + B + C + E = X$
- Red = Material facts

Case 1 Example

Suppose in a certain case (Case 1):
Facts A, B & C exist.
The court finds facts B & C are material, A is immaterial and reaches conclusion X (i.e., judgment for P or for D)
Thus, according to the doctrine of precedent:
- In a future case (Case 2) in which facts B & C exist, or
- In which facts A, B and C exist, then the conclusion must be X.

Case 3 Example

In another future case (Case 3):
Where facts A, B, C & E exist
Fact E is held to be material
Then Case 1 will not be of an authority for Case 3 (doctrine of precedent need not be followed; i.e., the facts are distinguished)

R v Caldwell [1982] A.C. 341 (HL)

Facts:
- D set fire to a hotel while drunk.
- D claimed he had set fire to a hotel but was so drunk that the thought that he might be endangering life had never crossed his mind.
Issue:
- Was the Defendant “reckless" when endangering the life of others?
A person was guilty of recklessly endangering life under s.1(2) Criminal Damage Act 1971 where:
- he did what amounted to an offense under s.1(1) and;
- s.1(2) - he gave no thought to the possibility of there being any risk to life or, having recognized such risk, he nevertheless went on to cause the damage.

R v Caldwell [1981] 2 W.L.R. 509

S.1 Criminal Damage Act 1971
- (1) A person who … destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence
- (2) A person who … destroys or damages any property …
  - (a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and
  - (b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty of an offence. …"

R v Caldwell [1981] 2 W.L.R. 509 (Lord Diplock)

“In my opinion, a person charged with an offence under section 1(1) of the Criminal Damage Act 1971 is ‘reckless as to whether any such property would be destroyed or damaged’ if (1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it.”

R v Caldwell [1981] 2 W.L.R. 509

Held: It was irrelevant that, by reason of his self-induced intoxication, R had failed to give any thought to whether life would be endangered.

Obiter Dictum

'An obiter dictum, in the language of the law, is a gratuitous opinion, an individual impertinence, which, whether it be wise or foolish, right or wrong, bindeth none--not even the lips that utter it.' - Obiter Dicta by Augustine Birrell

Obiter Dicta Cont.

“comments made in passing”
Not necessary to decide the issue before the court. In many instances, such statements arise as the judge speaks of hypothetical situations which do not arise in the case in question.
In Carlill v Carbolic Smoke Ball Company [1893] 2 QB 256 (a case whether a woman who had used a smoke ball as prescribed could claim the advertised reward after catching influenza), Bowen LJ said: If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal? Why, of course [not]!

Hill v Baxter [1958] 1 Q.B. 277

Facts:
- D defendant, having failed to stop at a halt sign, drove his van across a road junction and collided with a car.
- D, on a charge of dangerous driving and failing to conform to a traffic sign, said that he could not remember what happened and contended that he had become unconscious as a result of being overcome by a sudden illness.
Held:
- D’s intention was immaterial, and if the onus rested on him to prove a state of automatism, he had failed to do so; therefore, since the facts showed that he was driving and driving dangerously, he was guilty of the offense

Hill v Baxter [1958] 1 Q.B. 277 (Kay v Butterworth)

Considered dicta in Kay v Butterworth (1945) “he did not mean to say that a person should be made liable at criminal law who through no fault of his own became unconscious while driving; for example, if he were struck by a stone or overcome by a sudden illness; or the car was temporarily out of control by his being attacked by a swarm of bees."

Law Reports

The doctrine of precedent depends on detailed and accurate records of previous decisions being kept: Reports prepared by Incorporated Council of Law Reporting and private reporters and vary from full reports to summaries
Unreported cases may be cited – requires a trial transcript confirmed by counsel

Law Reports (Citation)

Accurate citation in approved form is required:
Short Form - Smith v Jones, 1959
Long form - Smith v Jones [1959] 1QB 67 at p 76

Law Reports (Continued)

Law Reports - [1976] AC, [1976] 2 Ch, [1976] 2 QB, [1976] Fam
Weekly Law Reports - [1976] 3 WLR
All England Law Reports - [1976] 3 All ER
Times Law Reports - The Times, 7 February 1976
NB May be reported in more than one. The Law Reports should be cited if available as regarded as the most authoritative source

Case Law: Where to Find It?

Law Reports
Legal Journals
Press
Trade Journals
Legal Information Sites

Case Law: Electronic Resources

House of Lords Judgments Page
Westlaw
Bailli
The Court Service
Smith Bernal
Justis eLR and WLR
Lexis
Lawtel
Current Legal Information
The Times
Law Firm Sites

Avoiding Devices

Ways judges can develop precedent or avoid following an earlier decision (precedent).
These provide considerable latitude to judges to ignore or curtail the effect of previous decisions:
- Follow
- Overruling
- Reversing
- Distinguishing

What Can a Judge Do in a Case?

Follow
Overrule
Reverse
Distinguish

Following

If the facts of a case are significantly similar to an existing precedent, then the Judge should always follow that decision.

Distinguishing a Previous Precedent

Where there is a binding precedent, a lower court may avoid using the precedent established by a higher court if it finds a significant difference in the material facts of the original case and the case currently being considered.
The precedent is not followed because the judge can distinguish the new case from the previous one. In this way, the lower court can avoid using the set precedent.

Reversing

Involves one case. When a case is heard on appeal, a higher court may disagree with the legal principle applied by the lower which first heard the case. The original decision is reversed, and a new precedent is created by the superior court to apply to these material facts in future cases.

Reversing

If the decision of a lower court is appealed to a higher one, the higher court may change it if they feel the lower court has wrongly interpreted the law.

Overruling a Precedent

When a superior court decides not to follow an earlier precedent established by a lower court in a different case but with similar material facts.
The superior court will overrule the previous precedent.
It can do this because it is not bound by precedents created in lower courts. When a precedent is overruled, the new ratio decidendi from the latest case becomes the precedent to follow in the future. New precedent is set.

Overruling (the previous decision)

The House of Lords can overrule (depart from) its own previous decisions if it is right to do so, according to the Practice Statement (Judicial Precedent) [1966] 1 WLR

R v R [1992] 1 A.C. 599

Facts:
- D and wife were separated
- During separation, D forced his way into the wife’s parents' house and attempted to force intercourse
- Common law rule that marital rape was not a crime
Held:
- HL was prepared to apply 1966 Practice Statement
- A husband could be convicted of rape of his wife where she had withdrawn consent

Summary

Precedent means that a question that was dealt with in a certain way continues to be dealt with in that way in similar later situations.
Every court is bound by the decisions of courts which are superior to it in the same hierarchy.
Precedent can be avoided by overruling, reversing, or distinguishing.
The doctrine of binding precedent operates in theory to control and limit the ambit of judicial discretion.