Judicial consideration: a reporter’s guide to good law
Cases and their status as good law
In a Common Law jurisdiction, judges have the ability to change or clarify the law and to set precedents which bind the court in later cases. But as the law is continually developing, and as cases decided by one court can be affected by later decisions of a higher court, it is essential for anyone researching case law to know to what extent, if at all, any particular case may have been affected by such “subsequent consideration”.
That is why an essential feature of ICLR.4 is to index such relevant judicial considerations and display them in the case information page (Case info) or ‘index card’.
For instructions on how to display the ‘case info’ page, see Exploring case information.
Categories of judicial consideration
The different ways in which an earlier case may have been judicially considered in a later case have been recorded using the following descriptors, which for ease of use are categorised with a a colour coded symbol on ICLR.4, offering a readily visible “traffic light” system of assessing the status of a case in law.
The four categories are positive (green tick/check mark), neutral (blue circle), warning (amber exclamation mark) and negative (red cross).
The court is expressing itself as bound by a previous decision of a court of coordinate or superior jurisdiction in a case where the material facts were the same or substantially the same.
The court approves a previous decision of a court of inferior jurisdiction, or dicta of a judge in a court of coordinate or inferior jurisdiction, in unrelated proceedings.
The court is applying the principle of or dicta in a previous decision to the case before it the facts of which are materially different from those of the earlier case.
The court considers a previous decision but does not actually follow, apply, distinguish it etc.
The court interprets a previous decision and states what it means.
The court decides that it need not follow a previous case by which it would otherwise be bound because there is some salient difference, e.g. of a fact or the terms of a document, between the previous case and the one before it.
The court is doubtful as to the correctness of a previous decision, without going so far as disagreeing with it.
The court chooses not to apply a previous decision or dicta in a previous decision; this may be because the earlier decision is only of persuasive authority (e.g. Privy Council or another common law jurisdiction).
The court has declined to follow a decision of a court of coordinate jurisdiction in a case where the facts were the same or substantially the same.
The court disagrees with a previous decision but either it is not necessary for the purpose of the case before it to overrule the previous decision or, both courts being of coordinate jurisdiction, there is no power to overrule the previous decision.
The court decides that a previous decision of a court of inferior jurisdiction in unrelated proceedings is wrong.
The Supreme Court has decided not to follow its own previous decision.
Where the same case is subsequently considered by a higher court, this treatment is captured under the category of Appellate History.
There are three main categories of treatment used, which again are colour coded for quick checking. As with other forms of consideration, the actual words used may vary, but the colour coded symbols for the relevant type is retained.
The higher court agrees with the decision below and affirms its order.
The higher court may not have agreed with some aspect of the order made by the lower court and so has varied it.
The higher court disagrees with the lower court’s view of the law and has reversed its decision or some aspect of it.
Occasionally, where the Supreme Court (previously, the House of Lords) has reversed or varied the decision of the Court of Appeal, it may also restore the original decision of the first instance court.
A word of warning
Although ICLR’s indexing is comprehensive and thorough, there are certain things it cannot or does not routinely capture. It is possible for the effect of an important case, which creates or extends a rule at Common Law, to be overturned by Parliament in a subsequent statute. Moreover, the information which ICLR does capture is that which emerges from reported cases, so if a case is not the subject of a law report, or if it is not considered in a later case which is reported, its status will not have been assessed.
That said, where any case which has been reported is affected by a later case, the later case will itself be reported and indexed, not least by virtue of its effect on an earlier reported case, because it will thereby have changed or clarified the existing law.
To be absolutely sure, it is always wise to check whether any case has been the subject of commentary in a standard textbook on the relevant area of law, in the academic legal press (journals etc) and, at a rather basic level, simply by doing a search on that case name to see if it has been mentioned in a later case. (The fact that a case has merely been mentioned will not usually warrant indexing it as a consideration, but it may be of relevance to the research in hand.)