Before we move on, here are some points to consider:
1. What is ‘a case’?
2. What is ‘the doctrine of precedent’?
3. What is ‘stare decisis’?
If you do not know the answers to these questions, we suggest that you look again at the previous posts in this series, in particular:
‘Stare decisis’ is a central concept in the English legal system. However, it is only a ground rule. We know that, under the English common law system, courts which are lower in the court hierarchy must ‘follow’ and apply the decisions handed down by courts which are higher. But what does this actually mean? What, exactly, must be followed and applied?
It will be obvious that no two cases are exactly the same. They may have similar – or very similar – facts, but there will always be some factual differences between them. Do these factual differences matter? And, if so, how?
The answer to the first questions is - maybe. Some facts in a case are more important, or ‘material’, than others. In a road traffic accident, for example, the colour of the car or cars involved is (usually) not important from a legal perspective. Facts such as, for example, whether the driver of a car was drunk at the time of the accident are almost certainly going to be more important than the colour of the car he or she was driving. This is the same with every case.
When a judge (or judges) gives a judgment in a case, they will say many things. They may recite the facts of the case, make observations on the credibility of any witnesses that have given evidence, refer to legal authorities (such as relevant previous cases or statutes), as well as reaching a decision about which party ‘wins’, and which party ‘loses’.
What is important to remember is that every judgment will contain two parts:
· the ratio decidendi and
· the obiter dictum
The important thing to remember is that it is the ratio decidendi which is the binding element and creates ‘the precedent’ to be followed in future cases. In this part, we will look more closely at the ratio decidendi.
Ratio decidendi (or ratio) is a Latin phrase and means ‘the reason for the decision’. Knowing this is important, but it does not help us to identify what it is when we read a judgment in a real case.
Before we go any further, it is right to say that it is often difficult even for English lawyers to correctly identify the ratio in a case. This is partly because English judges (and judgments) will never expressly say what the exact ratio of the case is. This means that lawyers must try and work it out, using their skill and experience of doing so. For that reason, it is even difficult to define ratio decidendi. However, for our purposes, we will define it as:
“the material facts of the case together with the decision reached by the court based on those facts”.
In order to try to illustrate how we might begin to assess the material facts, think about the following two scenarios. They are similar, but have different facts:
1. A young man, driving an Audi motor car collides with, and injures, an old man who is using a pedestrian crossing to cross the road. At the time of the accident, the young man is looking at his mobile phone. Here, the young man is liable in negligence.
2. An old woman, driving a Volkswagen motor car, collides with a young man who was crossing the road while looking at his mobile phone. Should the old woman also be found liable in negligence?
This is the kind of issue that most law students in England are likely to have to consider, and discuss, during tutorials on this topic. It may help you if you look at scenario 1 first and ask yourself: “what are the material facts that caused the judge in that case to find the driver liable in negligence?” You may think, for example, that the following facts are material:
· that the driver was young
· that the driver was looking at his mobile phone while driving
· that the injured person was old
· that the injured person was using a pedestrian crossing at the time of the accident
Although the facts of scenario 2 are similar, they are not exactly the same. And, of course, you may think you need more information. For example:
· was the injured person using a pedestrian crossing or had he just stepped out into the road without looking?
· was the driver looking at a mobile phone or otherwise distracted?
We can see here that there are differences in ‘material facts’ in scenario 2 that may mean that the court reaches a different decision to scenario 1.
So, what was the reason for the decision – the ratio – in scenario 1? We might say that the judge decided that if a driver is looking at a mobile phone whilst driving and collides with a person using a pedestrian crossing, they are liable in negligence if injuries are caused because of it. This, essentially, is the reason for the decision – the ratio.
In the next part, we will continue our look at this very important topic.
Match the following words and phrases 1- with their meanings (a)-
1. to follow
2. ratio decidendi
3. to hand down (a judgment)
5. stare decisis
(a) legally responsible
(b) to deliver, or give
(c) let the decision stand
(d) the reason for the decision
(e) to apply a previous decision
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