Case law

Introduction

Many cases are brought before the courts. These cases are not simply examples of the way in which the law is applied; they also illustrate the way in which the law is made. Cases therefore need to be learned because the outcomes of cases in the past can shape the outcomes of cases in the future.

Case law can be subdivided into:

• common law
• equity.

Common Law

• developed from local customs
• introduced the system of precedent (see below)
• the only remedy is damages
• may be rigid and inflexible.

Equity

• developed as a petition by a party who felt the common law had led to injustice
• it is more flexible than the common law
• it introduced new discretionary remedies, e.g. injunctions and specific performance
• it is concerned with fairness and therefore will not be granted if there is undue delay in bringing the case or if the petitioner has himself acted unfairly, or where there is no mutuality (both parties should be able to bring a case).

Doctrine of judicial precedent

The system, adopted by the judges, of following the decisions in previous cases is called the doctrine of judicial precedent.

• Some precedents are binding (meaning they must be followed in later cases).
• Others are merely persuasive (meaning that a judge in a later case may choose to follow it but he is not bound to do so).

There are three factors to be considered in deciding whether a precedent is binding or persuasive:

• the hierarchy of the courts
• ratio decidendi and obiter dicta
• the material facts of the case.

The hierarchy of the courts

As a general rule, the precedents of higher courts bind lower courts, but not vice versa.

Ratio decidendi and obiter dicta

The ratio decidendi is the legal reason for the decision. It is capable of forming the binding precedent. It is a statement of law which is carried down to later decisions.

Obiter dicta are statements which are not part of the ratio, they are other statements made by the judges such as hypothetical situations or wide legal principles. They are persuasive rather than binding. This means that the judge can take the statement into account (and usually will) when reaching his decision, but he does not have to follow it.

Facts of the case

In order for a precedent to be binding on a judge in a later case, the material facts of the two cases must be the same. If they are significantly different, the precedent will be persuasive rather than binding.

When is a precedent not binding?

A precedent is not binding where it:

• has been overruled by a higher court.
• has been overruled by statute.
• was made without proper care (per incuriam).
• can be distinguished from the earlier case, i.e. the material facts differ.

Advantages and disadvantages of judicial precedent

Advantages

• Reaching decisions as a result of the doctrine of precedent makes the system consistent. It becomes easier to predict the result of litigation.
• It allows the English legal system to be flexible. Decisions can be adapted and extended to reflect changes in society.
• The law is clear. As it is only the ratio decidendi that is followed it is easy to see what law is being applied.
• Decisions arise from actual events, therefore the system is practical.

Disadvantages

• The law is very complex because there is a vast number of cases, and inconsistencies can arise. The same judgement may contain differing, and even conflicting, arguments making the precedent hard to understand and even harder to apply.
• The law can become rigid, leading to inflexibility and loss of development.
• Case law is reactive rather than proactive. Rather than dealing with issues in advance and stating the law, a case is considered and a decision made once a particular situation has arisen.

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Tags:	Common law;equity;doctrine of judicial precedent;ratio decidendi;obiter dicta