Case law

Case law (or judicial precedent) is law which is made by the courts and decided by judges. Judicial precedent operates under the principle of stare decisis which literally means “to stand by decisions”. This principle means that a court must follow and apply the law as set out in the decisions of higher courts in previous cases.

In order for the principle of stare decisis to operate, a judge must know what the previous decisions of courts are. Case reports, or “law reports”, make this possible. Although earlier collections of cases exist, it was in the 19^th century that a formalised system of law reporting was established in Scotland and England. There are currently many different series of law reports published, which reproduce judgments and add supplementary information by an editor. It may take some time between a judgment being handed down and its being published as a report. Similar systems of law reporting operate in other common law jurisdictions.

The main sources of cases are law reports, digests and official transcripts.

Case law, like legislation, can change over time. Just because a decision was good law once does not mean it remains so today. A lawyer needs to be able not only to find and read case law, but also to be able to check whether it has been subject to subsequent judicial consideration and whether it remains good law.

Law reports

Not all cases are reported. Indeed, given the volume of cases passing through the courts, only a small minority of cases are reported.

Whether a case is reported is decided by the editor of a series of reports. Generally speaking, to merit reporting a case must introduce a new legal principle or rule, modify an existing principle or settle a doubtful question of law. A case may be reported if it addresses an issue of statutory interpretation or provides a new application of an accepted principle.

Digests

A digest is a publication which contains summaries of cases. Digests can be a useful way of finding and checking the status of a case. They may also be the only source of a case available to you – especially if the case remains unreported. Examples include The Faculty Digest and Shaw’s Digest, which contain information about older Scottish cases. The Current Law Year Book and Monthly Digest also contain summaries of cases.

Transcripts

Transcripts of judgments are documents produced by a court (or reproduced by a publisher) which contain the opinion of the judge(s) with no additional information added. If a case remains unreported, a transcript may be the only source of the judgment. For some cases an application to the court which heard the case is the only method of obtaining a transcript. However, many transcripts are now made available electronically through public access and subscription services. Given the delay in reporting, such services have become an increasingly important source of recent judgments.

Judicial precedent operates under the principle of stare decisis which literally means “to stand by decisions”. This principle means that a court must follow and apply the law as set out in the decisions of higher courts in previous cases.

A court in handing down a judgment may consider a previous decision in several ways. A previous decision may be:

• Approved - A higher court may state that another case heard by a lower court was correctly decided.
• A decision may be Applied - A court may apply the reasoning of a previous case in a current case, where the facts are different from those of the previous case.
• A decision may be Followed - A court may be bound by a previous decision where the material facts were substantially the same as in the instant case.
• Or a decision may be Distinguished - A court may not follow a previous and otherwise binding decision because there is a difference in, for example, the material facts. The previous case remains good law.
• In some instances a decision may be Disapproved - A higher court may state that another case heard by a lower court was wrongly decided. The court indicates that the previous case may not be good law - but does not expressly overrule it.
• Alternatively a previous decision may be Doubted - A court while not expressly overruling a previous case may give reasons to show that it may have been wrongly decided.
• Or a decision may be Not followed - A court may choose not to follow the decision of a court of coordinate jurisdiction where the material facts were substantially the same as the instant case.

Finally, a decision in a different case may be Overruled - A court may expressly overrule the ratio decidendi of an inferior court’s decision in another case.

In addition, if a case is appealed to a higher court, the decision of the lower court may be:

• Affirmed – The same case is held to have been correctly decided by the lower court. It is good law.
• Or a decision may be Reversed – The same case is held to have been wrongly decided by the lower court. It is not good law.

Furthermore, under the doctrine of parliamentary supremacy, a decision in a case may be superseded by legislation.

Importantly, if a case has been reversed, overruled (or superseded by legislative provisions) it is no longer good law and should not be relied on as authority.

A law report is divided into distinct sections. The most important of these is the judgment, or opinion, which is the text of the judge’s reasoning. However, other sections added by the editor assist in understanding the case and assessing its likely impact.

Sections usually found in a report are:

• Parties’ names – that is the parties involved in the case. 
• Court - before which the case was heard.
• Date of the hearing – often some time before it is reported.
• Judges' names - who heard the case.
• Keywords or subject terms.
• Headnote (or rubric) – this a summary of the case outlining the material facts, legal issues and decision.
• Judicial history – that is details of the case’s history (in inferior courts).
• Authorities referred to – a list of cases, legislation and textbooks referred to in the case.
• Opinion or judgment of the court – the judge’s decision and reasoning. Judgments of superior courts are now divided into numbered paragraphs for ease of reference (numbers are in square brackets).
• The outcome of the case.
• Representation – the solicitors and advocates (or barristers) who represented the parties.