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ENGLISH LEGAL SYSTEM: SOURCES OF LAW - CASE LAW (4)

We have already stressed the importance of case law in the English legal system. The common law depends on the concept of stare decisis and of judicial precedent. In this context, we have seen that the important part of any judgment or decision in a case is the ratio decidendi – the ‘reason for the decision’. The ratio is the binding element in a judgment and creates the precedent. In the last part [1], we defined it as:


“the material facts of the case together with the decision reached by the court based on those facts”.


All of this is very theoretical, particularly if you are faced with a judgment and do not know where to begin looking for the ratio. You need a strategy to help you discover what the ratio of the case might be. You cannot simply read the judgment and hope you find it, almost by inspiration. That will almost certainly not happen.


There are several strategies that you can use to try to identify what the ratio of a case might be. We are going to suggest the following strategy – at least to begin with. Remember think about ‘material facts’ and ‘the decision reached by the court on those facts’.


Stage 1

Read the judgment – all of it. If you do not, you may miss some important material fact.

Write down ALL the facts you think are ‘material’. In many cases, only a few facts really are material. Remember:


· legislation (Acts of Parliament/statutes etc) are NOT material facts.

· other cases and decisions mentioned in the judgment are NOT material facts. They are ‘authorities’ which may or may not be relevant to the decision, but they are not facts.


If in doubt about whether a fact is material (relevant) or not, write it down.

Sometimes, a judge will help you. He or she may actually say in the judgment that a fact (or facts) is material.


In a case where a statute (Act of Parliament) may apply to the case, look carefully at the statute and decide whether it needs certain facts to be established in order to apply. If so, do those facts exist in your case or not? If they do, they will be material.


Stage 2

Write down the issue or issues the court considered in relation to the material facts you have written down. In writing these down, try and use the conjunction ‘whether’. For example, in the driving examples we looked at in the last part, if you think looking at a mobile phone while driving was a material fact, you could write down:


‘Whether looking at a mobile phone when driving means that the driver was negligent (careless, in a legal sense).’


Stage 3

In relation to the issues the court considered, what did the court decide? Write these down. For example:


‘On the issue of whether looking at a mobile phone while driving was negligent, the court held (decided) that….’ [Remember: there may be more than one conclusion reached by the court on an issue. Write them all down, and why the court reached those conclusions].


Stage 4

Ask yourself whether you think the court may have reached a different conclusion if the facts had been slightly different. For example, do you think it would have made a difference if the driver had been looking at a newspaper, or drinking from a bottle of water, rather than looking at a mobile phone – and why do you think so? This kind of thinking will help you to think about how a court may decide a case with slightly different facts in the future, and why.


The best way to try to understand this in a real way is to look at a real case and take it in stages. So, let’s start with a bit of basic contract law in relation to the formation of a contract.

In order to form a legally binding contract, the first thing that must be proved is that an ‘offer’ has been made by one party to another. For example, if I have a pen, and I say to you, ‘This is my pen. Do you want to buy it for £10?’, under English law I have almost certainly made an offer to sell the pen.


However, sometimes it is not easy to say whether an offer has been made. For example, what about goods which you see on supermarket shelves? Is the supermarket offering to sell you those goods? Or is it doing something else? In English contract law, there is the concept of an ‘invitation to treat’, which is not an offer, but an expression of willingness to negotiate.


With that in mind, look at the facts of the following case. As you do, follow stage 1 of the process we have discussed above and write down all the facts you think might be material to the issue of whether the item in the shop window is ‘an offer’ or an ‘invitation to treat’. Remember: you are only concentrating at the moment on what you think are the material facts of the case.


Facts

Charles Bell occupied a shop at 15-16 The Arcade, Broadmead, Bristol. The shop traded under the name ‘Bell’s Music Shop’.

At about 3.15pm on October 26th, 1959, a police officer, Police Constable Kingston, was passing the shop and looked in the shop window. One of the items he saw displayed in the shop window was a knife. Behind the knife was a ticket which said ‘Ejector Knife – 4s [four shillings is now 20p].

Police Constable Kingston thought that the ticket referred to the knife. He believed that the knife was a ‘flick knife’ and entered the shop. He spoke to Mr Bell and asked if he could examine the knife. Mr Bell removed the knife from the shop window and then told the Police Constable Kingston that he had had other policemen in the shop ‘about the knives’.

Police Constable Kingston examined the knife and then took the knife away from the premises, in order to have it examined by a superintendent of police. Later that day, Police Constable Kingston returned to Mr Bell’s shop and told Mr Bell that the knife was, in his opinion, a ‘flick knife’. Mr Bell said to Police Constable Kingston, ‘Why do manufacturers still bring them [knives] round for us to sell?’ Police Constable Kingston said that Mr Bell would be reported for offering a flick knife for sale. Mr Bell replied, ‘Fair enough.’


At the time of the incident, the Restriction of Offensive Weapons Act 1959 was in force. Section 1(1) of that Act provided:

Any person who manufactures, sells or hires or offers for sale or hire, or lends or gives to any other person

(a) any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, sometimes known as a ‘flick knife’….

shall be guilty of an offence…”


What facts do you think are 'material' to whether the display of the knife in the shop window was an 'offer' or an 'invitation to treat (negotiate)'?


[1] https://www.cambridgelegalenglish.com/post/english-legal-system-sources-of-law-case-law-3




© Cambridge Legal English Academy 2021



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