Lecturer: Miljen Matijašević G10, room 6/I, Tue 15:30-16:30 e-mail: [email protected]@gmail.com Session 6, 21 Nov 2014.

English for Lawyers 1Lecturer: Miljen Matijašević

G10, room 6/I, Tue 15:30-16:30e-mail: [email protected]

Session 6, 21 Nov 2014

1. Revision of the last session

2. The Doctrine of Precedent

3. Vocabulary work

4. Case study

Today’s session

Revision of the last session

The British Judiciary

1. Outline the system of civil courts in the UK.

2. Outline the system of criminal courts in the UK.

3. Who are justices of the peace?4. What was the highest court in the UK

before 2009?5. Who is responsible for judicial

appointments?

Answer these questions

6. What role(s) did the Lord Chancellor use to have in:

a) the executiveb) the legislativec) the judiciary

7. What have the reforms changed with regard to the Lord Chancellor?

Answer these questions

The Old Bailey(central Crown court in London)

The High Court of Justice

Divisional Court of the QBD (HCJ)

The Doctrine of Precedent

Unit 5

The foundation of the common law system

Judge-made law – court rulings that have the strength of the law

It can have the same importance as the law enacted by Parliament (Parliament-made law)

It can react more quickly to insufficiently clear legislation or make up for the unexpected circumstances of a case, not provided for in statutes

The Doctrine of Precedent

The principle of precedent is also known as stare decisis (‘to stand by decisions’)

This means that a judge will consider previous similar cases with matching circumstances and abide by the ruling (judicial precedent) arrived at in the previous trial

The aim is to be consistent in the points of law, derived from the facts of the case

If fact or circumstance A was relevant in reaching decision X, then a new case featuring fact or circumstance A must be ruled in the same way, i.e. follow decision X

The Doctrine of Precedent

The key criterion in abiding by judicial precedents is the hierarchy of courts

As a rule – a decision made by a higher court will become a BINDING precedent for the lower courts and on the higher court itself

A BINDING precedent – that which must be followed

The Doctrine of Precedent

Rulings made by lower courts (Magistrates’ Courts, the County Court, the Crown Court) are not binding, but may be considered as PERSUASIVE (having good grounds and possibly helping to reach a decision in the case at hand)

Decisions (precedents) made by courts in other common law countries may also be considered in adjudication, but are only treated as PERSUASIVE

The Doctrine of Precedent

The decisions of the Supreme Court of the UK (or formerly the House of Lords) are BINDING on ALL lower courts, except on the SC itself

Justices of the Supreme Court can OVERRULE a precedent established by their predecessors

The Doctrine of Precedent

ORIGINAL PRECEDENT – that which creates a new rule of law

DECLARATORY PRECEDENT – that which merely applies an already existing rule of law

The Doctrine of Precedent

THE MAIN ELEMENTS OF A JUDGMENT:

1. Ratio/rationes decidendi (reason for the decision) – the part of the ruling which states the legal principle applied in the ruling – treated as BINDING, if applicable

2. Obiter dictum/dicta (things said by the way) – the remaining part of the judgment explaining cases cited and legal principles argued before the court – considered PERSUASIVE

Precedents recorded in Law Reports and other sources (other collections of court rulings, specialized journals, etc.)

The Doctrine of Precedent

Ways to treat a precedent:

1. CITE a precedent, a case – bring a precedent to the attention of the court

2. FOLLOW – establish that the principles applied in the precedent correspond to the case in hand and abide by the precedent

3. DISTINGUISH (the case) – find that the facts of the case are different and that the same principles, i.e. precedent cannot or should not be applied

The Doctrine of Precedent

An appellate court can:

1. APPROVE – accept a precedent/decision

2. OVERRULE (the principle of law)

3. REVERSE (the decision of a lower court)

The Doctrine of Precedent

In litigation...

Attorneys’ (solicitors and barristers’) task is to CITE precedents and either try to DISTINGUISH the case in hand from potential binding precedents, or establish that the points of law established in a precedent are APPLICABLE to the case at hand

This is done depending on the interest of the client

The art of PERSUASION is crucial to the work of attorneys

The Doctrine of Precedent

ADVANTAGES OF THE DOCTRINE

Consistency in application and predictability of the outcome of cases

Flexibility – easy adaptation to new circumstances (when statutes do not provide an answer, creating a new precedent provides for future rulings in similar cases; e.g. Do silent phone calls represent harrassment?)

Age-long recording of cases provides for a huge amount of details, circumstances, points of law, that enhance precision in the creating of law

The Doctrine of Precedent

DISADVANTAGES OF THE DOCTRINE

May restrict judicial decisions and lead to illogical conclusions by judges

Can be difficult to understand what exactly the ratio decidendi was

Increasing complexity and volume of precedents, makes it difficult and impractical do deal with cases

The Doctrine of Precedent

binding precedentpersuasive precedent

original precedentdeclaratory precedent

ratio decidendiobiter dicta

stare decisis

follow a precedentoverrule a precedent

cite a precedentdistinguish the case

approve a decisionoverrule a decisionreverse a decision

Key terms

Vocabulary workThe Doctrine of Precedent

Complete the table with the words from the same family

Vocabulary work

VERB NOUN ADJECTIVE

Cite Citation -

Apply

Precede

Persuasion

Bind -

Complete the table with the words from the same family

Vocabulary work

VERB NOUN ADJECTIVE

Cite Citation -

Apply Application Applicable

Precede Precedent Preceding

Persuade Persuasion Persuasive

Bind - Binding, bound

BIND - PERSUADE – APPLY – CITE

1. That decision of the Court of Appeal is going to be .............. on the case we’ve got at trial just now.

2. We need to be able to convince the judge that the rule in Meah v Roberts is .............. to this case.

3. Can you check the case ..............? I think the year is wrong.

4. Should we add to our argument that Edwards v Peck is a .............. precedent given the legal issues, although the judge isn’t .............. to follow it?

Vocabulary work

1. That decision of the Court of Appeal is going to be BINDING on the case we’ve got at trial just now.

2. We need to be able to convince the judge that the rule in Meah v Roberts is APPLICABLE to this case.

3. Can you check the case CITATION? I think the year is wrong.

4. Should we add to our argument that Edwards v Peck is a PERSUASIVE precedent given the legal issues, although the judge isn’t BOUND to follow it?

Vocabulary work

Case study

FACTS OF THE CASE

Miss Chester was referred to Dr Afshar, a neurological expert, about some lower back pain. He told her that surgery was a solution. She suffered a complication, called cauda equina syndrome.

TORT LAW – CLINICAL NEGLIGENCE Required elements – negligent act and causation

(causal link between the act and the damage)

Chester v Afshar [HL 2004]

FIRST-INSTANCE TRIAL

The judge found that dr Afshar did not inform Miss Chester of the 1-2% risk of these operations going wrong.

ISSUE: even though the operation might have gone wrong anyhow, was there a causal link between the complications and the fact that Dr Afshar failed to inform her of the risks

Chester v Afshar [HL 2004]

FIRST-INSTANCE TRIAL

The judge found that there was a causal connection between the failure to inform and Miss Chester's injuries - if she had been informed, she would have sought further advice or alternatives.

APPEAL TO THE COURT OF APPEAL Decision of the HCJ upheld

Chester v Afshar [HL 2004]

THE HOUSE OF LORDS

3 Lords upheld the decision of the CA 2 Lords dissented

Chester v Afshar [HL 2004]

THE HOUSE OF LORDS Lord Steyn, Lord Hope and Lord Walker held that

the "but for" test was satisfied (causation proved) it was the duty of the doctor to warn her a basic principle of good medical practice is that

adults should consent on a fully informed basis to surgery, aware of all risks

Dr Afshar had violated her right to choose They held that if damages were not awarded, that

duty to inform the patient of the risks would be a hollow one

Chester v Afshar [HL 2004]

THE HOUSE OF LORDS – DISSENTS (Bingham and Hoffman)

Lord Bingham felt that even though Dr Afshar had been found not to have informed Miss Chester about the 1-2% risk of surgery failure, this did not mean that causation had been shown.

It was necessary to say that if Miss Chester had been informed of the risk, that she would not have undertaken the operation at all.

The risk was inherent in surgery, no matter who performed it.

Chester v Afshar [HL 2004]

Thank you for your attention!