The binding element in precedents

WRIT

Task 4. Review the text.

In civil cases, however, procedure was more technical. The proceedings in the common-law courts started with the issue of an “original” writ (so named because it originated the proceedings), which was purchased from the main royal office, the Chancery.

The writ was a formal document addressed to the sheriff of the county where the defendant resided, commanding him to secure the presence of the defendant at the trial and setting out the cause of action or ground of claim of the plaintiff. For every civil wrong or cause of action there was a separate writ. Important examples were the writ of trespass, the writ of debt, and the writ of detinue (detinue alleged that the defendant detained an article or chattel from the plaintiff and would not return it). The plaintiff had to select the particular writ which he considered fitted the facts of his case.

The plaintiff attended the Writ Office of the Chancery, where a register of the various writs was kept, and applied for the writ most suitable to his claim. If there was no writ suitable to the civil claim made or the relief required of the law, the plaintiff was at a severe disadvantage. We may say, therefore, that the writ system dominated the civil law: for only where there was a remedy was there a right (which is expressed in the Latin phrase am remedium ibi jus). Moreover, if the wrong kind of writ were selected by the plaintiff, the common law judges would throw out the case and refrain from inquiring into its merits. Under the rigid procedure of the writ system the remedy available to litigants became more important than the justice of the claim.

Some attempt to alleviate this system was made by the clerks in the Chancery. Where a writ was thrown out by the court, or where none existed to found the claim, the clerks endeavored to accommodate litigants by issuing new writs, thus effectively expanding the rights available. At first the common law judges tolerated this procedure and accepted some new writs; but later their attitude stiffened and they refused to accept the new writs, since these amounted to new law.

The Provisions of Oxford, 1258, forbade the practice of creating new writs. As a result certain wrongs went unremedied merely because they did not fall within the limits of an existing writ. However, some alleviation was attempted by the Statute of Westminster II, 1285, which empowered the clerks in the Chancery to issue writs in consimili casu (“in like case to”), i.e. existing writs could be adapted to fit new circumstances. However, full use was not made of this provision, and litigants’ claims still went unsatisfied by the ineffectual writ system: the common law did not expand to meet the urgent and growing needs of the community. Complaints to the King and his Council regarding the inelasticity of the common law led to the emergence of the Court of Chancery and its special field known as equity.

Task 5. Read & translate the text into Ukrainian.

The decision or judgement of a judge may fall into two parts: the ratio decidendi (reason for the decision) and obiter dictum (something said by the way).

RATIO DECIDENDI - The ratio decidendi of a case is the principle of law on which a decision is based. When a judge delivers judgement in a case he outlines the facts which he finds have been proved on the evidence. Then he applies the law to those facts and arrives at a decision, for which he gives the reason (ratio decidendi).

OBITER DICTUM - The judge may go on to speculate about what his decision would or might have been if the facts of the case had been different. This is an obiter dictum.

The binding part of a judicial decision is the ratio decidendi. An obiter dictum is not binding in later cases because it was not strictly relevant to the matter in issue in the original case. However, an obiter dictum may be of persuasive (as opposed to binding) authority in later cases.

A difficulty arises in that, although the judge will give reasons for his decision, he will not always say what the ratio decidendi is, and it is then up to a later judge to "elicit" the ratio of the case. There may, however, be disagreement over what the ratio is and there may be more than one ratio.

Task 6. Read & comprehend the text.

Common Law rules

Where a statute is not clarified by reference to the above statutory guides, a judge may look to the following common law rules:

(i) “The Literal Rule” lays down that words must be given their literal, grammatical meaning. Words in old statutes are given the meaning they had when the statute was passed, e.g. The Statute of Treason, 1351. Words appearing more than once must usually be given the same meaning throughout the Act. The duty of the court is to interpret the words that the legislature has used. If a statute so interpreted is clear and produces hardship, the remedy is to create a new statute; it is not the duty of a judge to fill in the gaps.

(ii) “ The Mischief Rule” isalso known as the Rule in Heydon’s case (1584), lays down that the court must look at the Act to see what mischief or defect in the common law the Act was passed to prevent. Four questions should be considered:

1. What was the common law before the Act was passed?

2. What was the mischief and defect for which the common law did not provide?

3. What remedy had Parliament resolved to provide?

4. What was the true reason for the remedy?

Judges were enjoined to make such construction “as shall suppress the mischief and advance the remedy”.

(iii) “ The Golden Rule” lays down that a judge should construe the statute in its grammatical and ordinary sense:

“It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience, but no further” (Parke, В., in Becke v. Smith, 1836).

For example, section 57 of the Offences Against the Person Act, 1861, defines the offence of bigamy and provides: “Whosoever being married shall marry any other person during the life of the former husband or wife... shall be guilty of bigamy.” Under English law a married person cannot “marry”, and to avoid absurdity or repugnance the word “marry” in this section means “to go through the form of marriage” (R. v. Allen, 1872).

(iv) The “Ejusdem Generis” Rule. Where general words follow specific words, the general words must be construed as applying to the persons or things of the same class (ejusdem generis) as those already mentioned. Thus “other person”, “other cattle”, “other animals” are vague and a reference in an Act to “dogs, cats, and other animals” was held not to include lions and tigers, for “other animals” meant those ejusdem generis with dogs and cats, i.e. domestic animals (Evans v. Cross, 1938).

(v) Expressio unius est exdusio alterius (the express mention of one thing implies the exclusion of another). This means that where specific words are used in a statute and are not followed by general words, the statute applies only to those things mentioned.

(vi) Noscitur a sociis (the meaning of a word can be comprehended from its context). Ambiguous or doubtful words may be determined by reference to those words appearing in association with them.

(vii) The Exclusionary Rule excludes reference to parliamentary materials in interpreting an Act. However, if the Act is ambiguous or obscure, or its literal meaning leads to an absurdity, the court may have regard to the Official Report of Debates (usually referred to as Hansard)for assistance in interpreting the Act (Pepper v. Hart, 1993).

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