What is case law?

We need to look at what the Common Law is first.   Having looked previously at how are our laws are made, in terms of institutions and what they are known as, let us explore further how they came about.

Common Law

Why that name?  Simply because it is common to all of us within the English Legal System. If we go back to around 1066 and William The Conqueror there was no uniform system of law. Imagine the villages and settlements around England, Wales and N. Ireland. NO internet!  NO mobile phones! No Face-time!  No postal system as we know it and the only method of communication was the rarity of travel.  This made the settlements self-sufficient – no nipping to Spar for a loaf of bread or having anything to reference in relation to wrongs being committed other than their own laws or customs.

The method of keeping the peace varied from village to village. This meant anyone travelling from one to the other would most likely not have any idea what the “laws” were in that vicinity. The Norman Kings did not like this and feared local Sheriffs were taking advantage.   A system was introduced by the King where his representatives, Itinerant Justices, travelled the country and checking local customs by sitting in disputes using local laws. They then reported their findings back to the King in London.

A system developed identifying “good” customs.  These customs were reissued country wide and were used by everyone. This process took about 200 years and the law became know as the Common Law, common to all of us.  What we had were decisions being made in Courts (Assizes) and were held as law that applied to all of us. The principle of stare decisis began to develop.

Stare Decisis.  To stand by what has been decided. The principle found in Judicial Precedent.

This new system of law was all very well at first. If you wanted to go to Court you had to get the King to issue a Writ. The Writ would then allow a person to petition the King (ask) for a remedy to the problem if the local courts had refused.  A problem developed with the Writ system as too many had been issued and the practice was stopped.  The effect of this was that unless your problem “fitted an already existing writ” you had no way of getting redress – no justice. Stare Decisis was not working.   The other problem was that IF a litigant did get his claim into the court and won – the only remedy was damages, monetary compensation, but what good was money if you needed a way of keeping people off your land in order to stop them trampling all your crops????   The King, known as the “Fountain of Justice” was petitioned by unhappy subjects because of the problems. He passed the problem to the “Keeper of the Kings Conscience” who was a holy man and the Chancellor.

Who, by the late 1400’s started to make his own decisions and not follow the principle of stare decisis with Writs. He used his own conscience to make decisions and became very popular.  There were no “rules” in the Chancellors Court and it was said that decisions relied entirely on his views of right and wrong known as “the length of the Chancellor’s foot.”

He also found appropriate remedies to the problems of the subjects and did not use damages if not appropriate.   In short the Court of Chancery applied good sense and fairness. This became know as Equity.

So, what has this got to do with Case law?   From the time of Equity developing we, the subjects had two avenues of justice: The Common Law Courts and damages and the Court of Chancery and Equity. The Common Law always recorded, albeit haphazardly until 1875 the important cases, for future reference – so that learned men could “stand by the decision” of an earlier case if the case in question was sufficiently similar. These writings became known as Case Law and are essential to our legal system today. These are found in Law Reports.  The principle of Equity also started to lay down Case Law and eventually both systems merged into one Court system and the Court system we have today. We find Equitable remedies in Injunctions, Estoppel, Specific Performance, Rectification, Recission, Deserted Wives Equity and others.

Finally, here are a few examples of Case Law:

   Airdale NHS Trust v Bland [1993]                                  Bushells Case (1670)

(Doctors removing life support if in the                             ( Jurys cannot be influenced

best interests of the patient, is not a breach.)                        or bullied)

 

Christie v Leachinsky (1947)                                              Re X (a Child) [2017]

(Pre PACE where there was no requirement                    (The lack of proper mental health

to inform the suspect that they were under                         provision for young people)

arrest)

Donoghue v Stevenson [1932]                                           Douglas v Hello! Ltd [2001]

(A duty not to injure our neighbour was                           (Wedding photographs taken by

 developed in the Tort of Negligence.)                              rival magazine – a balance needed

                                                                                          between a right to privacy and freedom

                                                                                         of expression – Human Rights Law)

Beale v Taylor [1967]

(Section 13 Sale of Goods Act

goods must fit description)