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Mechanics of precedent - reversing, distinguishing and overuling

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Reversing, overruling and distinguishing

Reversing

Reversing

A court higher overturns the decision of a lower court on appeal.

In Re Pinochet (1999), the House of Lords reversed a previous decision of its own for the first time.

 

Overruling

Overruling

A higher court in a different, later case overturns a principle laid down by a lower court.

 

Hedley Byrne & co. Ltd v Heller & Partners Ltd [1964],

The House of Lords held, that there could be liability in English law for negligent misstatements thereby overruled Candler v Crane Christmas & Co. [1951].

The dissenting judgment of Denning LJ in Candler was vindicated in Hedley Byrne.

 

The HoL

The House of Lords can overrule itself it, or depart from earlier decisions.

 

Retrospective declaration

Means that judges do not make or change the law but merely declare it.

 

Munster v Lamb (1883) Brett MR

"The judges cannot make new law by new decisions; they do not assume a power of that kind: they only endeavour to declare what the common law is and has been from the time when it first existed. But inasmuch as new circumstances. And new complications of fact and even new facts, are constantly arising, the judges are obliged to apply to then what they consider to have been the common law during the whole course of its existence and therefore they seem to be laying down a new law, whereas they are merely applying old principles to a new state of facts."

Injustice of retrospective declarations.

Injustice to the parties who have relied on what they understood the law to be, only to be told now that it is not and never has been the law.

People are thereby treated differently.

Disincentive to litigate, who wants to be the ‘guinea-pig’?

 

Distinguishing

Distinguishing

A case on its facts, or on the point of law involved, therefore does not have to be followed.

Used by judges to avoid a previous inconvenient decision.

 

“FCUK” Trade Mark is not invalid

The Trade Mark “FCUK” can be registered by French Connection Limited.
It was claimed in an appeal to the Appointed Person that the controversial trade mark was “contrary to … accepted principles of morality” under Section 3(3)(a) of the Trade Marks Act 1994.

It was argued that the acronym caused offence not because it is seen as the swear word “f**k” because of wordplay, mistake or misconstruing of the letters, but because it essentially was the swear word. It was so obviously intended to be the swear word that everyone would interpret it as such and therefore was contrary to “accepted principles of morality”. This line of reasoning was rejected by the Appointed Person, Richard Arnold QC on 27 May 2006.

The mark will continue to offend a section of society but nevertheless French Connection Limited can continue to benefit from it (if people buy their offending products).

This case was distinguished from the “FOOK” case Scranage’s Trade Mark Application 0/182/05, where it was held that the word “FOOK” could be phonetically identical to the word “f**k” and therefore the application was rejected.

 

Discovering the ratio decidendi of a case

The ratio decidendi of a case is the principle of law.

A court in a later case and not the judge in the original case determine the ratio decidendi of a case.

 

Discovering the ratio decidendi

Of a case is often difficult. Judges will hardly ever state explicitly the ratio in the judgment but will bury it among a mass of dicta.

Old cases are easier because the reporter did not always include mere obiter dicta.

The report may not accurately encapsulate the ratio in the head note to the law report.

The reporter may have misinterpreted the decision and attempted to state the ratio too widely or too narrowly.

 

Words not necessary for the decision must be obiter.

However, a judge may give two or more reasons for his decision in which event they are both or all rationes decidendi and not mere obiter dicta.

Lord Simonds

"[T]here is in my opinion no justification for regarding as obiter dictum a reason given by a judge for his decision, because he has given another reason also."

Examples

Donoghue v Stevenson [1932] HL

What was considered material was the claimant had been injured through consuming ginger beer manufactured by the defendant and bottled in glass through which the contents could not be seen and which contained a dead snail.

 

It was not material that the friend in the cafe had bought the ginger beer or that it the friend and the cafe owner poured it into the tumbler. Particularly immaterial was the fact that there was no contractual relationship between the complainant and the defendant, and in this way, the court laid down a wider ratio.

 

The court made it clear that the ratio was not to be limited to cases involving snails in ginger-beer bottles. Lord Atkin laid down the rule in these words:

[A] manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care.

In subsequent cases, courts have extended the ratio of Donoghue v Stevenson to motorcars, lifts, hair dye, industrial chemicals, and irritant chemicals in underpants. The courts have extended category of persons potentially liable to include repairers, erectors and assemblers.

 

Three or even five separate judgments may be given.

Judges in an appeal can find for the same party for different reasons. In this event, the ratio decidendi is that agreed by the majority. If there is no majority in favour of any one ratio the case loses much of its value as a precedent, and may not be considered binding, even if it is a decision of the House of Lords.

 

Bell v Lever Bros Ltd

Despite many subsequent cases its true meaning is still not clear after sixty years.

 

Only one Law Lord delivers a speech to which the other Law Lords simply concur.

In recent years only one Law Lord in the House of Lords delivers a speech [note they are not called judgments] to which the other Law Lords simply agree. This avoids confusion, which can result from different reasons contained in multiple judgments, as in Bell v Lever Bros. Ltd.

 

Denning, task is ‘formidable’.

Denning described the task of distinguishing between ratio decidendi and obiter dicta as 'formidable' and said that, occasionally, it is more difficult to distinguish them in a single speech than in multiple opinions.

 

What 'I agree' means

In an appeal case, if a judge says 'I agree' that means he agrees with the decision and proposed order but not necessarily that he agrees with the reasoning of his judicial colleagues.

 

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