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 19th 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, digests and transcripts
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.
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 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.
A court in handing down a judgment may consider a previous decision in several ways. A previous decision may be:
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:
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: