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![A lawyer may need to argue convincingly that the part of the previous judgment that is being relied on by an opponent is not part of the reasoning process leading to judgment; that it was an ‘aside’ comment, based on a hypothetical situation (technically referred to as an obiter dictum comment). On the other hand, perhaps the only argument a lawyer has to support the client’s position is an aside comment. If the comment was made by a senior judge in the Court of Appeal or the House of Lords, and it is a relevant comment on the exact circumstances of the present case, then it could be argued that this is an important indicator of what that court would do if such a case came before it. Cases in the higher appellate courts, the Court of Appeal and the House of Lords, contain more than one judgment. Usually, there are three in the Court of Appeal and five in the House of Lords, but there can be more in an important case. Here, the lawyer’s task in ascertaining the strength of a precedent in a previous case may be more difficult. Often, there will be a dissenting judgment. This judgment can eventually, through a range of other cases, come to represent the majority view of an area of law. If the judge who is dissenting has a particular reputation for excellence, then the judgment will be seriously considered by those coming to read the case for the precedential value of the majority judgments. In time, the argument presented by the dissenting judge, the minority view, may be accepted as the more appropriate way forward. English law, as created, developed and refined in the courts, does not resemble a straight line of development; rather, it is a winding road of distinctions, consideration of majority and minority views, determinations according to similarity, more judgments, then more distinctions. Change is slow but English law remains flexible. 4.5 THE DOCTRINE OF PRECEDENT IN PRACTICE: HANDLING LAW REPORTS When law cases in any area are considered, it is important that the reader knows several things about the case for future usage. These are set out in Figure 4.7, below. Most importantly, law reports have a standard layout. Carefully consider Figures 4.8 and 4.9, below. 4.5.1 What happens if a judge does not like a precedent? Some judges are better than others at ‘dodging’ precedent: If a judge of reasonable strength of mind thought a particular precedent was wrong he must be a great fool if he couldn’t get round it. [Lord Radcliffe (House of Lords) in an interview with Alan Patterson (1984).] Yet, contrast this with the following quotation: I am unable to adduce any reason to show that the decision which I am about to pronounce is right—but I am bound by authority which of course it is my duty to follow. [Per Buckley LJ, Olympia Oil and Cake Co Ltd v Produce Brokers Ltd (1915) 21 Com Cas 320.]](https://images.tandf.co.uk/common/jackets/crclarge/978185941/9781859417836.jpg "A lawyer may need to argue convincingly that the part of the previous judgment that is being relied on by an opponent is not part of the reasoning process leading to judgment; that it was an ‘aside’ comment, based on a hypothetical situation (technically referred to as an obiter dictum comment). On the other hand, perhaps the only argument a lawyer has to support the client’s position is an aside comment. If the comment was made by a senior judge in the Court of Appeal or the House of Lords, and it is a relevant comment on the exact circumstances of the present case, then it could be argued that this is an important indicator of what that court would do if such a case came before it. Cases in the higher appellate courts, the Court of Appeal and the House of Lords, contain more than one judgment. Usually, there are three in the Court of Appeal and five in the House of Lords, but there can be more in an important case. Here, the lawyer’s task in ascertaining the strength of a precedent in a previous case may be more difficult. Often, there will be a dissenting judgment. This judgment can eventually, through a range of other cases, come to represent the majority view of an area of law. If the judge who is dissenting has a particular reputation for excellence, then the judgment will be seriously considered by those coming to read the case for the precedential value of the majority judgments. In time, the argument presented by the dissenting judge, the minority view, may be accepted as the more appropriate way forward. English law, as created, developed and refined in the courts, does not resemble a straight line of development; rather, it is a winding road of distinctions, consideration of majority and minority views, determinations according to similarity, more judgments, then more distinctions. Change is slow but English law remains flexible. 4.5 THE DOCTRINE OF PRECEDENT IN PRACTICE: HANDLING LAW REPORTS When law cases in any area are considered, it is important that the reader knows several things about the case for future usage. These are set out in Figure 4.7, below. Most importantly, law reports have a standard layout. Carefully consider Figures 4.8 and 4.9, below. 4.5.1 What happens if a judge does not like a precedent? Some judges are better than others at ‘dodging’ precedent: If a judge of reasonable strength of mind thought a particular precedent was wrong he must be a great fool if he couldn’t get round it. [Lord Radcliffe (House of Lords) in an interview with Alan Patterson (1984).] Yet, contrast this with the following quotation: I am unable to adduce any reason to show that the decision which I am about to pronounce is right—but I am bound by authority which of course it is my duty to follow. [Per Buckley LJ, Olympia Oil and Cake Co Ltd v Produce Brokers Ltd (1915) 21 Com Cas 320.]")
Chapter
A lawyer may need to argue convincingly that the part of the previous judgment that is being relied on by an opponent is not part of the reasoning process leading to judgment; that it was an ‘aside’ comment, based on a hypothetical situation (technically referred to as an obiter dictum comment). On the other hand, perhaps the only argument a lawyer has to support the client’s position is an aside comment. If the comment was made by a senior judge in the Court of Appeal or the House of Lords, and it is a relevant comment on the exact circumstances of the present case, then it could be argued that this is an important indicator of what that court would do if such a case came before it. Cases in the higher appellate courts, the Court of Appeal and the House of Lords, contain more than one judgment. Usually, there are three in the Court of Appeal and five in the House of Lords, but there can be more in an important case. Here, the lawyer’s task in ascertaining the strength of a precedent in a previous case may be more difficult. Often, there will be a dissenting judgment. This judgment can eventually, through a range of other cases, come to represent the majority view of an area of law. If the judge who is dissenting has a particular reputation for excellence, then the judgment will be seriously considered by those coming to read the case for the precedential value of the majority judgments. In time, the argument presented by the dissenting judge, the minority view, may be accepted as the more appropriate way forward. English law, as created, developed and refined in the courts, does not resemble a straight line of development; rather, it is a winding road of distinctions, consideration of majority and minority views, determinations according to similarity, more judgments, then more distinctions. Change is slow but English law remains flexible. 4.5 THE DOCTRINE OF PRECEDENT IN PRACTICE: HANDLING LAW REPORTS When law cases in any area are considered, it is important that the reader knows several things about the case for future usage. These are set out in Figure 4.7, below. Most importantly, law reports have a standard layout. Carefully consider Figures 4.8 and 4.9, below. 4.5.1 What happens if a judge does not like a precedent? Some judges are better than others at ‘dodging’ precedent: If a judge of reasonable strength of mind thought a particular precedent was wrong he must be a great fool if he couldn’t get round it. [Lord Radcliffe (House of Lords) in an interview with Alan Patterson (1984).] Yet, contrast this with the following quotation: I am unable to adduce any reason to show that the decision which I am about to pronounce is right—but I am bound by authority which of course it is my duty to follow. [Per Buckley LJ, Olympia Oil and Cake Co Ltd v Produce Brokers Ltd (1915) 21 Com Cas 320.]
DOI link for A lawyer may need to argue convincingly that the part of the previous judgment that is being relied on by an opponent is not part of the reasoning process leading to judgment; that it was an ‘aside’ comment, based on a hypothetical situation (technically referred to as an obiter dictum comment). On the other hand, perhaps the only argument a lawyer has to support the client’s position is an aside comment. If the comment was made by a senior judge in the Court of Appeal or the House of Lords, and it is a relevant comment on the exact circumstances of the present case, then it could be argued that this is an important indicator of what that court would do if such a case came before it. Cases in the higher appellate courts, the Court of Appeal and the House of Lords, contain more than one judgment. Usually, there are three in the Court of Appeal and five in the House of Lords, but there can be more in an important case. Here, the lawyer’s task in ascertaining the strength of a precedent in a previous case may be more difficult. Often, there will be a dissenting judgment. This judgment can eventually, through a range of other cases, come to represent the majority view of an area of law. If the judge who is dissenting has a particular reputation for excellence, then the judgment will be seriously considered by those coming to read the case for the precedential value of the majority judgments. In time, the argument presented by the dissenting judge, the minority view, may be accepted as the more appropriate way forward. English law, as created, developed and refined in the courts, does not resemble a straight line of development; rather, it is a winding road of distinctions, consideration of majority and minority views, determinations according to similarity, more judgments, then more distinctions. Change is slow but English law remains flexible. 4.5 THE DOCTRINE OF PRECEDENT IN PRACTICE: HANDLING LAW REPORTS When law cases in any area are considered, it is important that the reader knows several things about the case for future usage. These are set out in Figure 4.7, below. Most importantly, law reports have a standard layout. Carefully consider Figures 4.8 and 4.9, below. 4.5.1 What happens if a judge does not like a precedent? Some judges are better than others at ‘dodging’ precedent: If a judge of reasonable strength of mind thought a particular precedent was wrong he must be a great fool if he couldn’t get round it. [Lord Radcliffe (House of Lords) in an interview with Alan Patterson (1984).] Yet, contrast this with the following quotation: I am unable to adduce any reason to show that the decision which I am about to pronounce is right—but I am bound by authority which of course it is my duty to follow. [Per Buckley LJ, Olympia Oil and Cake Co Ltd v Produce Brokers Ltd (1915) 21 Com Cas 320.]
A lawyer may need to argue convincingly that the part of the previous judgment that is being relied on by an opponent is not part of the reasoning process leading to judgment; that it was an ‘aside’ comment, based on a hypothetical situation (technically referred to as an obiter dictum comment). On the other hand, perhaps the only argument a lawyer has to support the client’s position is an aside comment. If the comment was made by a senior judge in the Court of Appeal or the House of Lords, and it is a relevant comment on the exact circumstances of the present case, then it could be argued that this is an important indicator of what that court would do if such a case came before it. Cases in the higher appellate courts, the Court of Appeal and the House of Lords, contain more than one judgment. Usually, there are three in the Court of Appeal and five in the House of Lords, but there can be more in an important case. Here, the lawyer’s task in ascertaining the strength of a precedent in a previous case may be more difficult. Often, there will be a dissenting judgment. This judgment can eventually, through a range of other cases, come to represent the majority view of an area of law. If the judge who is dissenting has a particular reputation for excellence, then the judgment will be seriously considered by those coming to read the case for the precedential value of the majority judgments. In time, the argument presented by the dissenting judge, the minority view, may be accepted as the more appropriate way forward. English law, as created, developed and refined in the courts, does not resemble a straight line of development; rather, it is a winding road of distinctions, consideration of majority and minority views, determinations according to similarity, more judgments, then more distinctions. Change is slow but English law remains flexible. 4.5 THE DOCTRINE OF PRECEDENT IN PRACTICE: HANDLING LAW REPORTS When law cases in any area are considered, it is important that the reader knows several things about the case for future usage. These are set out in Figure 4.7, below. Most importantly, law reports have a standard layout. Carefully consider Figures 4.8 and 4.9, below. 4.5.1 What happens if a judge does not like a precedent? Some judges are better than others at ‘dodging’ precedent: If a judge of reasonable strength of mind thought a particular precedent was wrong he must be a great fool if he couldn’t get round it. [Lord Radcliffe (House of Lords) in an interview with Alan Patterson (1984).] Yet, contrast this with the following quotation: I am unable to adduce any reason to show that the decision which I am about to pronounce is right—but I am bound by authority which of course it is my duty to follow. [Per Buckley LJ, Olympia Oil and Cake Co Ltd v Produce Brokers Ltd (1915) 21 Com Cas 320.]
ABSTRACT
A lawyer may need to argue convincingly that the part of the previous judgment that is being relied on by an opponent is not part of the reasoning process leading to judgment; that it was an ‘aside’ comment, based on a hypothetical situation (technically referred to as an obiter dictum comment).
