Legal Skills and Methodology

Case Law Workshop

Kate Ollerenshaw - kao31@cam.ac.uk

Introduction

There are two main sources of law: legislation and cases. This note and the ensuing
workshop will look at case law. Legislation will be covered in a separate class.

We will focus on English1 cases, although judgments from the Court of Justice of the
European Union (CJEU) and the European Court of Human Rights (ECtHR) may be
mentioned in judgments and this note will touch on how to refer to them. This note will
also focus on civil cases, although the criminal justice system is mentioned in some
sections by way of comparison.

This note contains some basic, and inevitably simplified, background information, as
well as explaining how to decipher case citations and how to find cases using electronic
means. It also has some tips on how to read them.

Once you have read this handout, please locate R (Evans) v. Attorney General
[2015] UKSC 21, [2015] AC 1787 and read it. In the workshop, we will be using
that case to discuss the questions at the end of this handout.

Background

England and Wales operate under a common law system as opposed to a civil law
system. The common law is established in cases heard by the courts. Statutes can
overturn the common law because of the system of Parliamentary sovereignty.
However, where legislation is unclear, judges must interpret the provisions and hence
decide what a statute means, and where there are no relevant statutory provisions,
judges must decide the matter based on the position in previous cases.

The common law is an adversarial system. The parties make their own cases based on
evidence that they produce to the court. The judge (or the jury/panel as the case may
be) then acts as umpire and decides the case on the basis of the evidence as presented.
The judge(s) may need to interpret the law, may have to decide between conflicting
facts and may be required to balance different factors, and the judge(s) may ask
questions during the trial, but they do not investigate as they would in civil law
jurisdictions.

Whilst Parliament can enact a new law or alter or reverse a law that it has passed, and
can even legislate to change the common law, judges are bound by decisions in previous
cases because of the doctrine of precedent, or stare decisis. The application of the
doctrine of precedent depends on where in the court hierarchy a decision is taken. As
we will see, judgments contain the reasons for deciding a case in a particular way –
known as the ratio decidendi (often abbreviated to ratio) – as well as more general
comments on the law – known as obiter dicta. The ratio in a case is binding on a lower
court,2 unless the facts of the case are sufficiently different for the case to be

1 Note that “English law” is applied in England and Wales but for historic reasons, the legal systems
in Scotland and Northern Ireland are different. In most areas, there are therefore three legal
jurisdictions in the United Kingdom.
2 A court at the same level is generally bound (so the Court of Appeal should typically follow the

ratio in other Court of Appeal cases) but there are some exceptions, e.g. where two decisions

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“distinguished”. The ratio in cases from lower courts may be persuasive but is not
binding on a higher court. Similarly obiter dicta may be persuasive but are not binding.

It is therefore key to understand how the Courts fit together. This is depicted in Figure
1.

Figure 1: The Structure of the Courts3

Supreme Court

The Supreme Court hears appeals on arguable points of law of the greatest public
importance from the whole of the UK for civil matters and from England and Wales and
Northern Ireland for criminal matters. Appeals from lower criminal courts in Scotland
proceed to the High Court of the Justiciary. The Supreme Court also decides devolution
issues. It was established in 2009. Previously, the Lords of Appeal in Ordinary sat in the
House of Lords.

The Court of Appeal

The Court of Appeal has two divisions: civil and criminal. The civil division hears
appeals relating to civil and family justice from the High Court, the County Court and

conflict or where a decision has been overturned by a superior court. See also the House of Lords
practice statement from July 1966 proposing departure from precedent by that House “when it appears
right to do so”: [1966] 3 All ER 77.
3 Source: Judicial Office, “The Judicial System of England and Wales: A Visitor’s Guide”, July 2018,

available at: https://www.judiciary.uk/wp-content/uploads/2016/05/international-visitors- guide-

2018.pdf.

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some Tribunals. The criminal division hears appeals from the Crown Court and from the
Attorney General in certain circumstances.

The High Court

The High Court hears the most significant civil and family law matters. It contains three
divisions: Queen’s Bench, Chancery and Family. The Queen’s Bench division is the
largest and contains within it several specialist courts, including the Administrative
Court which oversees the quality of decision making in the lower courts as well as
hearing applications for “judicial review” of decisions made by public bodies. The
Family division includes the Probate Registry and the Court of Protection. The Chancery
division includes the Patents Court, the Companies Court and the Bankruptcy Court.

The Crown Court

The Crown Court deals with serious criminal cases referred from magistrates’ courts, as
well as hearing appeals from magistrates’ courts.

The County Court

The County Court hears more routine civil cases.

The Family Court

The Family Court was established in 2014 and brought together all levels of the
judiciary involved in family law cases.

Magistrates’ courts

Magistrates’ courts hear all criminal matters, although more significant cases are
transferred to the Crown Court for a jury trial. They also hear some civil cases and some
family law matters as part of the Family Court.

Tribunals

Tribunals are established by Parliament as independent judicial bodies and typically

rule on specific disputes with state agencies. They are split into a First-tier Tribunal,
which has separate chambers but, broadly speaking, a common administration, and an
Upper Tribunal, which is made up of the Administrative Appeals Chamber, the Tax and
Chancery Chamber, the Immigration and Asylum Chamber and the Lands Chamber. The
Tribunal system is depicted in Figure 2. The Upper Tribunal hears appeals from the
First-tier Tribunal, although cases may proceed directly to the Upper Tribunal in certain
circumstances. Appeal then lies to the Court of Appeal. Tribunal cases are heard by
panels, which include a judge and members drawn from appropriate professions, e.g.
accountants, doctors, etc.

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Figure 2: The Structure of Tribunals4

Case citations

It is important to know how to refer to, or “cite”, cases. Case citations follow a formula
that enables a judgment to be located easily so understanding the system will be
invaluable in your preparation for lectures and supervisions, as well as for research. It
is important to cite cases in your work with precision so that you can attribute quotes
correctly and so that you, and those reading your work, are able to find where your
ideas or statements of the law have come from. Incorrect citations also detract from the
quality of written work, be that your first Cambridge essay or a submission to the
Supreme Court, and may have cost implications in practice.5

There are two systems of citations in use in England and Wales: traditional citations
referring to law reports and neutral citations referring to judgments. Neutral citations
were introduced in the Court of Appeal and Administrative Court with effect from
January 2001, and were extended to all Courts in 2002. However, note that some case
reporting sites (e.g. BAILII) ascribe unofficial neutral citations to earlier cases.

Academic articles and blogs written after 2001 frequently use either form of citation or
both, depending on the rules relating to the publication in question (or sometimes the
preference of the author). In Court, the most authoritative report of a case is used and
the relative authority of law reports is set out in a 2012 practice direction: cite from

4 Source:Department of Justice website, April 2021, available at: https://www.judiciary.uk/wp-

content/uploads/2021/04/tribunals-chart-updated-April-2021.pdf.
5 See Keystone Healthcare Ltd v. Parr [2019] EWCA Civ 1246, [2019] WLR (D) 406.

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Official Law Reports first, then Weekly Law Reports or All England Law Reports,
followed by any authoritative specialist report (as described).6

Note that a law report is different from a judgment, and only cases that set down a new
principle of law or change or clarify the existing law are reported. Law reports contain
more (or at least different) information than the judgment alone. They may be full
reports (containing the judgment as well as a summary of the case) or they may be a
summary report (also known as a “digest” or case note), which are more informal.

Neutral citations

Neutral citations refer to the judgment itself and are particularly useful if the case is
unreported. They use the following format:

Party A v. Party B [year] COURT case number.

Below is a list of the abbreviations for the various courts:

Supreme Court [2017] UKSC #

House of Lords [2008] UKHL #
Privy Council [2017] UKPC #
Privy Council (devolution cases) [2008] UKPC D#
Court of Appeal (Civil Division) [2017] EWCA Civ #
Court of Appeal (Criminal Division) [2017] EWCA Crim #
Chancery Division [2017] EWHC # (Ch)
Patents Court [2017] EWHC # (Pat)
Queen’s Bench Division [2017] EWHC # (QB)
Administrative Court [2017] EWHC # (Admin)
Admiralty Court [2017] EWHC # (Admlty)
Commercial Court [2017] EWHC # (Comm)
Technology and Construction Court [2017] EWHC # (TCC)
Family Division [2017] EWHC # (Fam)
Court of Protection [2017] EWCOP #
Family Court [2017] EWFC #
Upper Tribunal (Administrative Appeals Chamber) [2017] UKUT #
(AAC) Upper Tribunal (Immigration and Asylum Chamber) [2017] UKUT # (IAC)
Upper Tribunal (Tax and Chancery Chamber) [2017] UKUT #
(TCC)
Upper Tribunal (Lands Chamber) [2017] UKUT # (LC)

Note the difference between those whose jurisdiction is UK-wide (e.g. UKSC) and those
who are limited to England and Wales (e.g. EWCA). Note also that the number is the
number of the case as ascribed to it by the relevant court and it changes as the case
proceeds through the court system. So, e.g., whilst the neutral citation for the Evans case
in the Supreme Court is:

Regina (Evans) v. Attorney General [2015] UKSC 21

6 Practice
Direction: Citation of Authorities, 2012, available at https://www.judiciary.uk/wp-
content/uploads/JCO/Documents/Practice+Directions/lcj-pract-dir-citation-authorities- 2012.pdf.

5
it had a different number in the Court of Appeal:

Regina (Evans) v. Attorney General [2014] EWCA Civ 254

and in the Administrative Court:

Regina (Evans) v. Attorney General [2013] EWHC 1960 Admin.

Taking the Evans case as an example, the date is in square brackets because it is
necessary to find the relevant case. There will be a different case number 21 in each
year in the Supreme Court so you need to know that it was heard in 2015 to locate the
judgment.

The advantage of a neutral citation is that it allows reference to a particular paragraph

number in a judgment, conventionally written in square brackets. Note that where more
than one paragraph of a judgment is referred to, each number should be in square
brackets. So, e.g., “[22]”, or “[22] and [23]”, or “[22]-[24]”.

Law Reports

There are different series of law reports. The citations for each follow a broadly similar
format:

1. Parties’ names
2. Year of law report
3. Volume (if any)
4. Series abbreviation
5. Starting page number.

For example, the citations for the reports of the Evans case in the Supreme Court are as
follows:

[2015] AC 1787
[2015] 2 WLR 813
[2015] 4 All ER 395
[2015] 3 WLUK 802
[2015] 2 CMLR 43
[2015] EnvLR 34
[2015] FSR 26
[2015] CLY 43
[2015] IP&T 818

It was an important case, and so it has been reported many times.

The Official Law Reports, those published by the Incorporated Council of Law Reporting
(ICLR) since 1865, are:

AC – Appeal cases

QB - Queen's Bench

Fam – Family

Ch – Chancery

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Note that the AC series includes House of Lords / Supreme Court judgments, judgments
from the Privy Council and occasionally judgments from the Court of Justice of the
European Union. The other volumes usually contain judgments in appeals from the
Queen’s Bench, Family and Chancery divisions of the High Court, as well as selected
judgments from the High Court, District Court and Tribunals.

The Weekly Law Reports (WLR) are also published by ICLR, though typically more
quickly than the Official Law Reports. The WLR case report may be republished in the
Official Law Reports at a later date once additional material has been added and further
checks have been made. The All England Law Reports (All ER) are published by
LexisNexis Butterworths, and electronic versions now link to other publications by them
(e.g., Halsbury’s laws and statutes).

As with neutral citations, the year of the law report will be in square brackets if it is
necessary to find the case. It will be in round brackets if the volume number is unique
and the year is not essential. However, there are no paragraph numbers in the law
reports, so reference to a particular passage is by page number. For example, “[2006] 1
AC 262, 264” or “[2006] 1 AC 262, at 264”.

The Cardiff List of Legal Abbreviations is a useful tool if you have an abbreviation and
want the full name of the law report (or vice versa):
http://www.legalabbrevs.cardiff.ac.uk/. So, you can discover, e.g., that “CLY” is
“Current Law Yearbook”.

The European dimension

CJEU

Following a decision of the European Council, each case now has a European Case Law
Identifier or ECLI that reflects the country from which it emanates and the court which
heard the case to “facilitate the correct and unequivocal citation of judgments from
European and national courts”.7 Use of the system is voluntary for national courts 8 but
the EU makes use of the system for judgments of the Court of Justice of the European
Union (CJEU), so you may see cases from the General Court or the European Court of
Justice,9 including references from national courts, referred to by ECLI.

ECLI are made up of:

 ‘ECLI’: to identify the code as being a European Case Law Identifier;

 the country code;
 the code of the court that rendered the judgment;
 the year the judgment was rendered;
 an ordinal number, up to 25 alphanumeric characters, in a format that is decided upon
by each Member State. Dots are allowed, but not other punctuation marks.

7 See Europa.eu webpage at: https://e-

justice.europa.eu/content_european_case_law_identifier_ecli-175-en.do.
8 See Council conclusions inviting the introduction of the European Case Law Identifier (ECLI) and a

minimum set of uniform metadata for case law (2011/C 127/01).

9 The General Court and the European Court of Justice are the two courts that make up the CJEU. For

more info, see: https://europa.eu/european-union/about-eu/institutions-bodies/court- justice_en.

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Each element is separated from the others by a colon. So, to take the Altmark case10 as
an example, the ECLI is ECLI:EU:C:2003:415.

The ECLI is incorporated into the preferred citation of CJEU cases by the EU (see Figure
3). So in EU documents, the citation will be in the format:

Type of decision, full date of decision, usual name of the case, case number in the
register, ECLI, paragraph cited.

Figure 3: Citation of EU Cases11

This system of citation was gradually bought in from 2014 and harmonised across the
EU courts in 2016. However, not all academic referencing systems follow that format
even after 2016 and EU cases are often cited in journal articles using the format:

case number, case name, [year], report abbreviation, first page

So, e.g., for the Altmark case, the citation would be:

Case C-280/00 Altmark Trans GmbH and Regierungspräsidium Magdeburg

v. Nahverkehrsgesellschaft Altmark GmbH [2003] ECR I-7747.

Note that the case number will be determined at the beginning of the proceedings, 2000
in the Altmark case, whereas the date of the report, in square brackets, will follow
judgment and so could be much later. The letter refers to the court. The most commons
ones are a “C” number denoting the European Court of Justice, and a “T” number
denoting the General Court.

10 This is an important EU case about whether payment for public service obligations has the
characteristics of state aid. You do not need to read it now – it is merely being used as an example of
how to cite a CJEU case - but you may come across it during your studies.
11 Source: CJEU, “Method of Citing the Case-law”, available at:

https://curia.europa.eu/jcms/jcms/P_126035/en/.

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Note also that, where possible, reference is made to the official European Court Reports,
which are cited as ECR. If an ECR reference is not available, the second best report is
usually the Common Market Law Reports (CMLR).

Unlike in the UK, in CJEU cases the judges produce one agreed judgment, but that is
sometimes preceded by an opinion given by an Advocate General. When citing such an
opinion, the words ‘Opinion of AG [name]’ are written after the case citation and a
comma. If it is necessary to pinpoint a reference, the paragraph numbers are given, but
square brackets are not generally used. So, again for the Altmark case, a reference might
be:

Case C-280/00 Altmark Trans GmbH and Regierungspräsidium Magdeburg

v. Nahverkehrsgesellschaft Altmark GmbH [2003] ECR I-7747, Opinion of AG Léger, para
40.

Decisions of the European Commission in relation to competition law and mergers are
treated as cases but are cited slightly differently. That is beyond the scope of this
handout.

ECtHR

You may also come across cases that proceed to the European Court of Human Rights
(ECtHR). Note that this court is separate from the EU.

The citation will depend on the date of the judgment. For cases from 1998 to 2007, the
format will be:

name of case, application number, paragraph number (for judgments), ECHR,

year and number of volume

For cases from the beginning of 2008 to the end of 2015, there is no volume number. In
the absence of an indication to the contrary, the citation refers to a judgment on the
merits. Variations are added in brackets after the name of the case. So, by way of
example,

Judgment on the merits delivered by a Chamber Campbell

v. Ireland, no. 45678/98, § 24, ECHR 1999-II Judgment on

the merits delivered by the Grand Chamber

Campbell v. Ireland [GC], no. 45678/98, § 24, ECHR 1999-II

Decision on admissibility delivered by a Chamber Campbell

v. Ireland (dec.), no. 45678/98, ECHR 1999-II

Judgment on preliminary objections delivered by a Chamber

Campbell v. Ireland (preliminary objections), no. 45678/98, § 15, ECHR 1999-II

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Unreported cases and key cases of the new court are cited differently, with a full date
rather than a volume number. For example,

Dupont v. France, no. 43568/98, § 24, 3 May 1999

Durand v. France (striking out), no. 45678/98, § 24, 5 September 1999.12

Other jurisdictions

Other jurisdictions follow similar principles. The US is a little more complicated. There
is a good explanation here for those that are interested:
https://guides.ll.georgetown.edu/bluebook/citing-cases.

How to find cases

Nowadays, finding a case online is usually the quickest and most convenient method.
This handout focuses on three electronic legal databases:

 Westlaw;
 LexisNexis; and
 Bailii.

Note that not all reports are available on all sites so you will need to become familiar
with all three. However, don’t ignore the Courts themselves:

 The Supreme Court has links to its judgments here:

https://www.supremecourt.uk/decided-cases/.

 House of Lords Judgments from 1996 onwards are available here:

https://publications.parliament.uk/pa/ld/ldjudgmt.htm.

 Other judgments (including Court of Appeal judgments) can be found here:

https://www.judiciary.uk/judgments/.

Westlaw

From the Squire Law Library page, click the Westlaw quick link button (unless you are
off-campus, in which case follow the relevant link on the homepage for the legal
databases page and scroll down to Westlaw UK) and then click “Cases” and then “Case
Search”. Enter suitable terms to search and click on the blue “Search” button. See
figure 4.

12 These examples are taken from the Council of Europe’s guide to the ECtHR. For more information,
that document is a useful starting point: see
https://www.echr.coe.int/Documents/Note_citation_ENG.pdf .

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Figure 4: Westlaw Case Search Page

If necessary, further fields can be brought up by clicking “more options” at the bottom of
the page. See Figure 5.

Figure 5: Advanced Search Fields on Westlaw

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Once the results have been retrieved, the list of cases can be further refined by
completing the boxes on the left hand side. There are filters for topic, jurisdiction, court,
document type, case type, status, authority and date. The “authority” filter refers to
whether the case has been determined to be “significant” or “guidance”. Westlaw
regards a case as significant if it “sets out new legal principles, extends the law, applies
established principles to a new situation, overturns established legal authority,
interprets or defines statutory and non-statutory words and phrases, or is stated by the
judge to be of general public importance” and a case as guidance if it “gives legal or
procedural guidance or reinforces or explains existing guidance”. 13 The status filter will
tell you whether the case is still good law. The icons are shown in Figure 6 below.

Figure 6: Case Status Icons on Westlaw14

There is much more functionality within Westlaw. You can click through to judgments
where a case has been cited, journal articles where a case has been referred to etc.
Note, however, that these are not comprehensive lists. They only relate to content
within the Westlaw database. You can also set up alerts to let you know when the case
is considered in future and more. For those that are interested, the Academic User
Guide15 will walk you through its many features.

13 Westlaw UK, Cases, available at

https://uk.practicallaw.thomsonreuters.com/Link/Document/Blob/I40729fc9b3b011e9adfea82
903531a62.pdf?comp=wluk&transitionType=Default&contextData=%28sc.Default%29.
14 Source: Westlaw UK, Academic User Guide, available at

https://uk.practicallaw.thomsonreuters.com/Link/Document/Blob/Ibc4ed760c45811e9adfea8
2903531a62.pdf?comp=wluk&transitionType=Default&contextData=%28sc.Default%29
15 Ibid.

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Lexis

From the Squire Law Library page, click the Lexis Library quick link and then click
“Cases”. This brings up the search screen shown in Figure 7.

Figure 7: LexisNexis Case Search Page

If you know the case name, simply enter the names in the relevant boxes and press
“search”. Results will be listed with an indication of the court/tribunal, judgment date
and source. Pick the one you are interested in and click though. If the number of
results is overwhelming, it is possible to refine the search using the options on the left
hand side (e.g., source name, topic). Alternatively you can search by citation. In this
case, you need to omit the square brackets from around the date in the citation or the
search will fail.

If you do not know the case name, you can use the “search terms” box. Here the use of
connectors will help. Otherwise, the search engine will only look for the exact terms
you have typed in. Examples are “AND” to find the search terms anywhere in the same
document, “w/p” to find terms within the same paragraph, and “w/s” to find terms
within the same sentence. Another useful one is “!” at the end of part of a word as a

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truncator. So, “educat!” will find “education”, “educating”, “educates”, “educated” etc.
There are more sophisticated options. Clicking on “search tips” will bring up a complete
list.

An alternative is to use the “summary” search box to conduct a more advanced search.
In this case, the terms you enter must appear in the headnote or catchwords to be
picked up.

Once you have located the correct case, you can click through to the case report or
judgment. At the top of the page, there are links to “case overview and related cases”
and to “digest”. If you click on “case overview and related cases”, it will give you more
information. As well as links to all the case reports and the judgment, it will tell you the
appeal history, plus any pending appeals. It will also list cases referred to within the
judgment and subsequent cases that refer to the case in question. If you click on
“digest”, it will bring up a summary, typically prepared by a barrister. On the right-
hand side of the page, there is a “find out more” box with the option to click through to
journal articles and commentary. As with Westlaw, be aware that the search engine
only has access to what is in the LexisNexis database.

Note that you can switch off the highlights using the button at the top right of the screen.
Note also the symbol by the case name. This will tell you whether there is “positive
treatment indicated” (i.e. the case has been affirmed on appeal or relied upon as
precedent in a subsequent decision) (a green plus sign), “neutral treatment indicated”
(i.e. the case has been considered in another case) (a blue “tennis ball”), “cautionary
treatment indicated” (i.e., the case has been distinguished by a subsequent court) (an
exclamation mark in a yellow triangle), or “negative treatment indicated” (i.e. the case
has been overturned on appeal or questioned in another judgment) (a red cross).

Again, there is much more functionality within LexisNexis. Tutorials on how to get
started can be found here: https://www.lexisnexis.co.uk/pdf/help-and-support/lexis-
library/lexislibrary-getting-started-guide.pdf and
https://www.lexisnexis.co.uk/pdf/help-and-support/lexis-library/lexislibrary-handy-
hints.pdf. These will show you how to customize your homescreen, save searches etc.,
as well as providing a list of search connectors and other helpful tips.

BAILII

The British and Irish Legal Information Institute (BAILII) is found here:
https://www.bailii.org/. It is particularly useful if you don’t have access to one of the
subscription services.

There are several different ways of searching for a case on BAILII. From the home page,
I think it’s easiest to click on “case law search” (see Figure 8), but try other options and
find your personal preference.

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Figure 8: Extract from BAILII Homepage

This then brings up the case law search screen depicted in Figure 9.

Figure 9: Extract from BAILII Case Law Search Screen

From here, it is relatively straightforward to find a case. Note that you will be taken to
the judgment rather than a case report. Case reports are listed at the top of the page,
with links if available. Typically a summary is available but the full report requires
purchase.

Note also the “view without highlighting” option. If you do not choose this, every
instance of the terms you searched on will be highlighted in the judgment and there can
be many instances of the parties’ names.

How to read cases

There are a number of important elements to note before delving into the substance of a
judgment. These may include:

 The parties;
 The judge(s);
 The date of the judgment;
 The representatives;
 The headnote / catchwords / summary; and
 The orders.

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Parties

In civil cases, the parties are written in the format:

Claimant (Plaintiff) v. Defendant

Note that in most jurisdictions the person bringing the action is called the “plaintiff”. In
England and Wales, since 1999, the plaintiff is referred to as the “claimant”, but you will
still hear both terms used. It is customary to put the parties in italics. The “v.” (which
stands for “versus” but is usually read as “and” when talking about a case) can be in
Roman or italics depending on the referencing style being followed. Typically, party or
parties listed to the left of the “v.” are bringing the action, and the party or parties to the
right of the “v.” are the “defendants”, although this can be different on appeal when the
original plaintiff / claimant may be the “respondent”, having won at first instance, and
the original defendant may be the “appellant”.

In criminal cases, the Crown brings the action. The Latin term for the Crown is Rex (for
kings) and Regina (for queens), both of which are commonly abbreviated to “R”. Thus, a
criminal case would be:

R v. Defendant

In judicial review cases, such as the Evans case, the case is brought in the name of the
Crown on behalf of (Latin: ex parte, sometimes abbreviated to ex p) the aggrieved
person. So the parties are typically given in the format:

R (person complaining) v. Defendant16

Or
R v. Defendant ex parte person complaining

Judges

Note the number of judges. As a case proceeds up the hierarchy, the number of judges
who hear the case increases. Cases in the lower courts generally have one judge, but
are sometimes heard by more. For example, the first stage of the judicial review in
Evans was heard by three judges. In this case, the Administrative Court was sitting as a
“Divisional Court”, so called because it had more than one judge. Court of Appeal cases
are generally heard by three judges and Supreme Court cases may be heard by five,
seven, nine or even eleven of the twelve Supreme Court judges.17

Each judge writes their own section of the judgment in their own words, following their
own style. For example, Lord Denning liked to present the facts in the form of a story at
the beginning of his judgments. In one case he began:

It happened on April 19, 1964. It was bluebell time in Kent. Mr. and Mrs. Hinz had been
married some 10 years, and they had four children, all aged nine and under. The youngest
was one. Mrs. Hinz was a remarkable woman. In addition to her own four, she was foster-
mother to four other children. To add to it, she was two months pregnant with her fifth
child.18

16 You sometimes also see R (ota person complaining) v. Defendant where “ota” stands for “on the
application of”.
17 See, e.g., the Miller case ([2017] UKSC 5, [2018] AC 61).
18 Hinz v. Berry [1970] 2 QB 40

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And in another case:

In summer time village cricket is the delight of everyone. Nearly every village has its own
cricket field where the young men play and the old men watch. In the village of Lintz in
County Durham they have their own ground, where they have played these last 70 years. They
tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good
club-house for the players and seats for the onlookers. The village team play there on
Saturdays and Sundays. They belong to a league, competing with the neighbouring villages.
On other evenings after work they practice while the light lasts.
Yet now after these 70 years a judge of the High Court has ordered that they must not play
there any more. He has issued an injunction to stop them. He has done it at the instance of
a newcomer who is no lover of cricket.19

Others are more prosaic. Some may trace the history of a given legal principle, others
may simply state the present status of the law. Some may write a very full analysis,
others aim for brevity and some may simply state that they agree with another judge.
Even in a unanimous decision, some cases may have one agreed judgment produced by
all the judges, whilst others may have individual judgments.

Typically, even if they disagree with the reasoning in other judgments, judges are
measured and respectful of the opinions of others, although it is sometimes possible to
see frustration spilling over. See, e.g., Lord Atkin in Liversidge v. Anderson [1942] AC
206, at 245:

I know of only one authority which might justify the suggested method of construction:
"'When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I
choose it to mean, neither more nor less.' 'The question is,' said Alice, 'whether you can make
words mean so many different things.' 'The question is,' said Humpty Dumpty, 'which is to be
master - that's all.'" ("Through the Looking Glass," c. vi.) After all this long discussion the
question is whether the words "If a man has" can mean "If a man thinks he has." I am of
opinion that they cannot, and that the case should be decided accordingly.

Where there is more than one judge, the verdict (or result) is achieved by unanimity or
by simple majority and the judgment contains a record of the decision taken by each
judge and the reasons for it. It is possible for judges in the same case to reach different
decisions (or the same decision for different reasons). Since each written opinion is also
referred to as a judgment, this can be confusing, but there is some standard terminology
that characterises each opinion (or judgment) within the overall judgment:

a. a leading judgment which gives the outcome and the reasons for it in detail (possibly
agreed to by more than one judge, when it is also a plurality judgment);20
b. a concurring judgment, when a judge agrees with the unanimous or majority outcome
but writes their own judgment and may reach their decision for different reasons; and
c. a dissenting judgment, when a judge does not agree with the outcome and states the
reasons why they could not agree. These may become critical in subsequent decisions.

19Miller and another v. Jackson and another [1977] 3 All ER 338

20 Lady Hale explains plurality judgments thus: “The idea of plurality judgments as the norm is very
radical. It would mean that the majority who agreed on the result would have one judgment which
reflected their common views (with possible post-scripts from adherents) rather than numerous
judgments reasoning in almost identical ways towards the same result.” The Guardian, 16 September
2010, available at https://www.theguardian.com/law/2010/sep/16/uk-supreme- court-judiciary. Note
though that in the US the term has a somewhat different meaning.

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Date of judgment

The date of the judgment, and the date of the hearing, will be shown. This is key to
understanding if the case is still good law. Electronic legal databases help in this regard,
particularly if the judgment has been considered judicially, but it is also possible that the
legislation on which the decision was based has been amended subsequently. Hence
you should note the date and be aware that a different outcome may be reached in
future considerations of the issue because of an intervening change in the underlying
law.

Headnote / Summary

These can be a useful guide to the essence of a judgment and are particularly useful if
you are trying to ascertain if a judgment will be relevant to a particular research
question. Note that the headnote / catchwords and, in some case reports, the summary
are not part of the judgment itself but are added by lawyers after the event as an aid to
understanding. In those reports, the name of the reporter will also be added.

Orders

A judgment is largely made up of legal reasons for deciding the issue before the court in
a particular way. However, the court may want to make a direction as to future conduct,
be that how the case should be managed going forward, what should happen pending
resolution of the issue (e.g., an interim injunction), or as a result of the case having been
heard (e.g., Party A should pay Party B a sum of money as compensation (or
“damages”)). Orders are also made as to who should pay (or contribute) to the “costs”
of bringing the action.

Substance

We now turn to the substance of the judgment. We have noted that judgments may
include sections written by different judges and that their style differs. This makes
reading judgments an interesting, even entertaining, exercise. It also means that for a
full understanding of the nuances of a case, one must read all the judgments, even the
judgments of those judges who do not agree with the outcome (i.e. dissent). But what
you are looking for in a case will depend on context. If you are looking for the number of
times someone is convicted by a particular court, how you approach the case will differ
from if you are looking for how a particular legislative provision is interpreted.
Similarly, if you are interested in one aspect of the judgment only, it may be possible to
skim over the parts relevant to other questions.

Generally as an undergraduate, you will be looking at cases for authority as to a

particular legal proposition. This may be incontrovertible or may require critical
examination of the legal reasoning. In either case, you will need to situate the case
within the context of the legal system and check whether the principles it establishes are
still good law. For example, be wary of citing a first instance decision as authority for a
proposition without checking whether the issue has been considered by a higher court,
and remember that it will be important to note whether the judgment that you are
quoting supported the outcome or disagreed with it.

When reading judgments, it is important to identify which statements contain the legal
principle on which the case is decided (the “ratio decidendi”, plural “rationes
decidendi”) and which are comments or illustrations made in passing (“obiter dicta”).

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As mentioned above, the ratio of the case will be binding on lower Courts when
considering materially similar cases whereas obiter comments are persuasive only.

Finding the ratio can be tricky. An essential first step is to identify the material facts of
the case (i.e. those relevant to the point of law at issue) and the questions(s) the case
must answer. The leading judgment is often the most useful for this and frequently
other judges refer back to the leading judgment to avoid repetition. The ratio will be a
principle necessary to answer those question(s). The ratio may come at the end of the
judgment (or the end of the leading judgment) but if you have not read the judgment in
its entirety, you may not understand how the principles being discussed relate to the
question being posed. If the case is not unanimous, focus on the judgments that support
the majority decision, and note that judgments that concur with the majority view may
not contain the same argument – the outcome may be reached via a different route. A
dissenting judgment will not typically contain the ratio, or at least the ratio on all points
that the case was considering.

Other legal principles referred to in the case are obiter. Sometimes there is a helpful
flag by the judges but not always. See, e.g., R (Lumsden and others) v. Legal Services
Board [2015] UKSC 41, [2016] AC 697 where Lord Reed and Lord Toulson (with whom
Lord Neuberger, Lady Hale and Lord Clarke agreed) stated (at [22]-[23]):

Before turning to that matter, however, it is desirable to consider more widely the EU
principle of proportionality, to which article 9(1)(c) gives effect.

It appears from the present case, and some other cases, that it might be helpful to lower courts
if this court were to attempt to clarify the principle of proportionality as it applies in EU law.
That is the aim of the following summary. It should however be said at the outset that the only
authoritative interpreter of that principle is the Court of Justice. A detailed analysis of its case
law on the subject can be found in texts such as Craig, EU Administrative Law (2006) and
Tridimas, The General Principles of EU Law, 2nd ed (2006). It has also to be said that any
attempt to identify general principles risks conveying the impression that the court's approach
is less nuanced and fact-sensitive than is actually the case. As in the case of other principles of
public law, the way in which the principle of proportionality is applied in EU law depends to
a significant extent upon the context. This summary will range beyond the type of case with
which this appeal is concerned, in order to demonstrate the different ways in which the
principle of proportionality is applied in different contexts. It will provide a number of
examples from the case law of the court, in order to illustrate how the principle is applied in
practice.

And then they were off! Consideration of the specific questions relevant to the case
resume at [75]. It’s a good read at some point if you are interested in the principle of
proportionality but it is referred to here simply to illustrate how the excursus was
introduced in the judgment. Obiter dicta are sometimes harder to identify. As a general
rule, it helps to ask “is this a legal principle?”, “does it relate to the material facts and the
questions being asked by the case?”, and “is it in the lead or majority judgment?”. We
will discuss this some more in the workshop.

The extract from Lumsden above also highlights how, increasingly, judges are making
use of academic scholarship in reaching their decisions. In that instance, it was to refer
to case law analysis but sometimes the reference is to more detailed legal argument.
See, e.g., Lord Steyn’s judgment in R (Jackson) v. Attorney General [2005] UKHL 56,
[2006] 1 AC 262, at [95]:

Not surprisingly, A V Dicey, our greatest constitutional lawyer, writing a few years after the
events which led to enactment Parliament Act 1911 stated that the House of Lords

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 “cannot prevent the House of Commons from, in effect, passing under the Parliament Act
[1911] any change of the constitution, provided always that the requirements of the
Parliament Act [1911] are complied with”: The Law of the Constitution,8th ed (1915), p xliii.
I would respectfully follow Dicey on this point.

Or Lord Hope, also in the Jackson case, at [107]:

Nor should we overlook the fact that one of the guiding principles that were identified by
Dicey at p 35 was the universal rule or supremacy throughout the constitution of ordinary law.
Owen Dixon, “The Law and Constitution” (1935) 51 LQR 590, 596 was making the same
point when he said that it is of the essence of supremacy of the law that the courts shall
disregard as unauthorised and void the acts of any organ of government, whether legislative or
administrative, which exceed the limits of the power that organ derives from the law.

Again, there is no need to read the whole of the Jackson case now, although you will
undoubtedly read it during your Constitutional law course. What is important is that
you are also able to appreciate where academic material is being referred to in support
(or not) of a legal principle and to distinguish between it and the legal principle derived
from it.

The Evans case

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The Attorney General appealed against a decision ([2014] EWCA Civ 254, [2014] Q.B.
855) quashing a certificate he had issued under the Freedom of Information Act 2000
s.53 to override an Upper Tribunal decision that communications between the Prince of
Wales and government departments should be disclosed.

The government had refused a journalist's request to disclose the information; the
Information Commissioner had upheld that refusal. The Upper Tribunal ruled that some
communications should be disclosed. As an "accountable person" within s.53(8), the
Attorney General issued a certificate under s.53(2) on the basis of constitutional
conventions concerning the Prince's role as future King. The Court of Appeal upheld the
journalist's application for judicial review of the certificate on the basis that (i) the
Attorney's reasons were not capable of constituting "reasonable grounds" within
s.53(2); (ii) because the correspondence concerned environmental issues, the
certificate was incompatible with Directive 2003/4 on access to environmental
information.

Two narrow grounds

1. Fresh information had come to light
2. The initial judgment was flawed

Lord Manson was all about getting the clearest possible justification, and without it, he doesn’t
have reasonable justified grounds to issue that letter.

Lord Hughes argues that reasonable grounds are capable of inflecting a disagreement as to
where the oublic interest lies. When looking at the facts, the AG had reasonable grounds when
taking into account the public interest. He looked at it from the point of parliamentary
sovereignty. (this perspective)

Questions

1. Locate R (Evans) v. Attorney General [2015] UKSC 21, [2015] AC 1787 using
Westlaw, LexisNexis and BAILII. Explore the sites. What are the strengths
and weaknesses of each? Which functionality do you think you might you
find especially useful?

2. Categorise the judgments in R (Evans) v. Attorney General [2015] UKSC 21,

[2015] AC 1787 (i.e. identify whether it was unanimous or a majority
decision, and which judgments were a plurality, concurring or
dissenting).

3. “… the opportunity to dissent may not be the ultimate jewel in the Crown
of British justice but it is certainly a gem to be treasured.”21 Do you agree?
Why do judges dissent.

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 Yes.

- Important for transparency. Being able to read why a judge did dissent
- Preserve choices for the future
- Improves the quality of majority judgements because those judgments has
more than just the opinion of the judge, they have to spend time talking about
the dissenting view and why the disagree with it.
- Potential for adoption in future laws
- Vindication. The dissenting judge may be right when the case goes up to the
supreme court

4. “The idea of plurality judgments as the norm is very radical.” 22 Do you

think that plurality judgments are beneficial?

It is beneficial:

- A quality issue, we would have a more general judgment if they all had to
agree on the wording of the one judgment
- Potentially construed as Act of Parliament
- Purpose is to law down principles
- Not as user friendly but better quality

5. Identify the material facts in R (Evans) v. Attorney General [2015] UKSC 21,
[2015] AC 1787 and the question(s) for the Court to answer. Was all this
information contained in the lead judgment?

6. Find the ratio and some examples of obiter dicta. How easy was it to
differentiate between the two? How useful are obiter dicta?

7. Do you think the use of academic or other expert material is useful?

21 Lord Kerr, “Dissenting judgments - self indulgence or self sacrifice?” The Birkenhead Lecture, 8
October 2012, available at: https://www.supremecourt.uk/docs/speech-121008.pdf.
22 Lady Hale, Interview in The Guardian, 16 September 2010, available at:

https://www.theguardian.com/law/2010/sep/16/uk-supreme-court-judiciary.

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