Finding case law


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This presentation goes through how to find case law via hard copy and online sources

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Finding case law

  1. 1. Bodleian Law Library Finding Case Law
  2. 2. Session overview • What is Case law • Doctrine of precedent • Court structure • Reported case law • Law reporting pre and post 1865 • Law report hierarchy • Deciphering citations • Unreported judgments • Finding case law • Updating case law
  3. 3. What is case law? • Record of the judgment given in each case • Court recorder and reporters • „Handing down‟ of the judgment Why is case law important? • Becomes part of the body of law • Doctrine of precedent
  4. 4. Doctrine of precedent • A court is bound by the decisions of a court above it and usually, by a court of equivalent standing • Superior courts have the power to overrule decisions of lower courts
  5. 5. Court structure A case can go to appeal to the EU if it concerns a point of EU law The highest court in the UK is the Supreme Court
  6. 6. Reported case law • Only small proportion of cases decided by courts are reported • Cases are selected by law report editors – not the courts
  7. 7. Reporting criteria • To be reported a case must: – raise a point of legal significance – materially modify an existing principle of law or settle a doubtful question of law – may include questions of interpretation of statutes and important cases illustrating new applications of accepted principles
  8. 8. Law reporting before 1865 • Nominate reports 1571-1865 • Commonly referred to by the name of the reporter of the cases • Reprinted in the English Reports and in the All England Reports Reprint series
  9. 9. Law reporting after 1865 • 1865 watershed • Incorporated Council of Law Reporting – Not for profit organisation – Authoritative reports • All England Law Reports • Subject specialist reports • Newpapers and reports in journals
  10. 10. The Law Reports • Appeal Cases (AC) or (App Cas), Chancery Division (Ch), Queen‟s Bench (QB), Family Division (Fam) • Most authoritative report series • Law report decisions are checked by a judge prior to publication
  11. 11. Authority of law reports Most authoritative The Law Reports: Chancery (Ch), Appeal Cases (AC), Family (Fam), Queens Bench (QB) The Weekly Law Reports All England Law Reports Specialist series e.g. Lloyd’s law Reports, Fleet Street Reports Least authoritative Journals and newspapers e.g. The Times, The Independent, New Law Journal, Solicitors Journal
  12. 12. Deciphering citations: breakdown of the citation Horton v Sadler [2007]1 AC 307 Case CitationCase name Party names of both sides of the case separated by a „v‟ Year and volume number Legal abbreviation for law report series Page number
  13. 13. Case names • Usually 2 party names: – Claimant v Defendant – Appellent v Respondent • Have to be a „legal entity‟ – Individuals, firms/companies, organisations, The Crown. • Criminal cases The Crown is the claimant – R v Smith – Rex or Reg v Smith (older cases)
  14. 14. Case names (2) • Unusual case names – Attorney General‟s References A-G Ref (No. 90 of 2009) – Ex parte X ex parte Y – Ship names “The South Star” – Bankruptcy cases Re company no. x2005 – Family Proceedings Re D (a Minor) 2008
  15. 15. Square and round brackets • Round brackets ( ) when the year is additional information – Derry v Peek (1989) 14 App Cas 337 • Square brackets [ ] when the year is the primary means of identifying the case – Lloyd v McMahon [1987] 1 All ER 118
  16. 16. Deciphering citations: Law report abbreviations • Raistrick, D. Index to legal citations and abbreviations. • Cardiff Index to Legal Abbreviations
  17. 17. Anatomy of a law report (1) Names of parties, dates of hearing, judge(s)(2) Catchwords (3) Headnote (4) List of cases cited
  18. 18. Anatomy of a law report (2) (5) Statement of pleading and facts (facts may be contained in the judgment) (6) Names of counsel and in the Law Reports a summary of their argument
  19. 19. Anatomy of a law report (3) (7) The judgment – usually indicated by the name of the judge. Cur Adv Vult indicates that the judgment has been reversed
  20. 20. Anatomy of a law report (4) (8) The judgment decision or order (9) Solicitors for each party (10) The reporter
  21. 21. Unreported judgments • Transcripts are the unreported version of a judgment • Although judgments are “published” on web sites, they remain “unreported” unless published in a law report series • Can often be cited with a „neutral‟ citation
  22. 22. Neutral citations • 1999 onwards • Unique judgment number [YEAR] COURT CASE NUMBER [2001] EWCA Civ 101 [2006] EWHC 101 Admin [2003] UKSC 5
  23. 23. Finding case law: sources Online resources • Commercial databases – Westlaw (selected full text and citator) – Lexis Library (selected full text and citator) – Justis (selected full text) • Free resources – Bailii – Supreme Court judgments – House of Lords judgments
  24. 24. Finding case law: sources (2) Hard copy • Law reports series (full text) • Halsburys Laws (index) • The Digest (digest) • Current Law (digest)
  25. 25. Searching by party name: hard copy • If you already have a citation - find the case by citation • If you have a year – Current Law Case Citator • If you just have the party names – The Digest or Halsbury‟s Laws
  26. 26. Current Law Case Citator Cases listed alphabetically with law report citations – with most authoritative first
  27. 27. The Digest: table of cases Main table of cases volumes – gives the year and then a main volume number Table of cases in Vol 28(1) gives a paragraph number (not a page)
  28. 28. The Digest: summary and citation The paragraph number relates to a digest of a case and this then gives a full law report citation at the end.
  29. 29. Searching by party name: online • Most subscription databases as well as have an option to search for party name. • Remember that if it is a common name there may be too many results coming up – if you have a citation there may be an option to search using that.
  30. 30. (free site) Choose case law search for the advanced search screen for cases
  31. 31. Bailii cases search screen Use the box to put in case names If you scroll down the page you will find further options to choose specific courts
  32. 32. Westlaw cases search screen (subscription) Just place the name in the party names field Search in the cases database
  33. 33. Westlaw cases results screen Full text of the reports available on Westlaw are linked A full list of where the case has been reported in order of authority Case summary and citator
  34. 34. Lexis Library search screen (subscription) Case names can be entered from the front page If searching for full reports then choose „all subscribed cases‟
  35. 35. Lexis Library cases results screen Each separate report is classed as a result The law report or „source‟ is at the end. It is not in the most authoritative order
  36. 36. Justis search screen (subscription) In „Cases‟ there are options to search by party name
  37. 37. Justis results screen Law report citation Year of judgment Link through to full report
  38. 38. Finding case law: by subject Hard copy – Use The Digest or Halsburys Laws Online databases – Use the subject, keyword or heading box to enter search terms
  39. 39. Subject searching: The Digest Search the subject indexes and these will give you both a volume number and paragraph number
  40. 40. Subject searching: Westlaw
  41. 41. Updating case law: Is it still good law? • Has the case been cited in later case law? • Authority of a case may be strengthened by being approved in a higher court • Case may have been overruled • Lexis Library, Westlaw, Justcite, Lawcite (free site) • Current Law Case Citator, The Digest
  42. 42. Terms used for citing • Applied • Considered • Distinguished • Overruled • Followed Principle from an earlier case applied although facts materially different Discussed, but no definite use in decision There are substantial differences to earlier case Principle from a lower court overruled Court bound by precedents set in a previous case
  43. 43. Checking citators: hard copy This lists cases that have cited Pepper v Hart. All it gives is a Current Law digest reference – you need to use the relevant volume of Current Law Year Book to find the name of the case The citator covers a set time span and you should start with the volume that cover the year of the case – you need to look at later volumes to keep updated
  44. 44. Checking citators: hard copy (2) This is a later volume – if the case has not been cited within these years it will not appear in the list Pepper v Hart has been cited and so you can see there are the previous cases listed plus a few later cases
  45. 45. Checking citators online: Lawcite (free source) You can search by party name or citation and then limit the results to a jurisdiction if necessary
  46. 46. Lawcite: results screen If there is more than one case it will list them along with citations, dates and a flag to indicate which country the case was heard in. Click on the case you are looking for to see the citator information
  47. 47. Lawcite: citator screen This lists cases referring to the case searched for as well as a citation, where you can get the full text and jurisdiction. You can check which cases have cited these cases by clicking on this symbol
  48. 48. Checking citators online: Westlaw (subscription) This time we are going to look at the citator tool
  49. 49. Westlaw: case analysis Traffic light symbol Subsequent cases citing Pepper v Hart
  50. 50. Westlaw: Case analysis (2) Lists the cases under the different „treatments‟
  51. 51. Checking citators online:Lexis Library This time use the Case Overview button
  52. 52. Lexis Library Case Overview results Symbols to whether the case is still „good‟ Case history through the courts Links to cases citing and cited by this case: click on to see the list
  53. 53. Summary • What‟s reported, precedent and hierarchy of courts • Case citations, party names and abbreviations • Searching in print and searching online – searching by name and searching by subject • Checking citators: is it still good law?