The elements of a judgment: ratio decidendi and obiter dictum

Introduction

The idea of bindingness must now be explored in a little more detail. As a preliminary, however, it is worth emphasising that the doctrine of binding precedent

is not concerned with the position between the parties to the case which creates the precedent (although, of course, the decision in that case does bind the parties, subject only to whatever right of challenge, by way of either review or appeal, which is available); but

is concerned with the provision of rules of law which are capable of being applied by all later courts; and, more particularly,

will be binding on some of them.

Not every part of a judgment will be binding. To identify the binding part, a judgment must be analysed into two constituent elements: ratio decidendi and obiter dicta.

Broadly speaking, the binding part of a judgment is the ratio decidendi (which may be translated as the reason for the decision), while the remainder consists of obiter dicta (which may be translated as sayings by the way). The plural of ratio decidendi is either ratios decidendi or (sticking more faithfully to the original Latin) rationes decidendi, according to personal preference. The sentence in the previous paragraph which used the phrase obiter dicta required it to be given in its plural form: the singular is obiter dictum. It is conventional to speak of ratio and dictum – and their respective plurals – without using the other part of each phrase. The word obiter may be used on its own as either an adjective or an adverb, but should never be used as a noun. In other words, a statement by a judge may be said to be obiter (using the word as an adjective) or to be made obiter (using the word as an adverb) but never to be an obiter (because this would be using the word as a noun).

Identifying the ratio decidendi

It follows from what has been said that one of the main tasks facing you whenever you read a case is to identify its ratio. The first point to be made is – at the risk of stating the obvious – that where there is only one judgment, the ratio of that judgment will be the ratio of the case, while if a multi-judge court divides into a majority and a minority, the ratio of the majority will be the ratio of the case. However, these propositions take us nowhere in relation to the key task of identifying the ratio of a judgment in the first place. The difficulty of identifying the ratio of a judgment arises from the fact that judges who are deciding cases are usually concerned principally with resolving the issues between the parties. Therefore, any statements of the law which judges make in the course of their judgments will be conditioned by the facts of the cases they are deciding: the fact that their decisions will be subjected to detailed analysis in later cases will usually be of secondary importance to them.

Essentially, this emphasis on the relevance of the facts is, of course, the point which we have already encountered (at p. 103) in the words of Lord Halsbury LC, in Quinn v Leathem [1901] AC 495, 506. However, not all the facts will be relevant when interpreting a judgment: only the material facts will be. Or, putting this another way, when looking for the ratio of a case, it is necessary to identify the facts on which the decision was based. A useful way of testing the materiality of a fact is to ask: if this fact had either not been present or had been present but different, would the decision still have been the same? If the answer to this question is ‘No’, it follows that that fact must have been material to the decision.

Ultimately, the materiality (or non-materiality) of a fact can be determined only in the light of all the circumstances of a case. However, in general terms, the facts relating to some matters are all presumed to be not material, unless there is good reason for deciding that they are.

facts as to the time when and place where things happened;

the identity, age and gender of people; and

the nature and value of property.

It is easier to rebut the presumption in some cases than in others. For example, subject to reasonably well-recognised exceptions, minors (by which the law means people under the age of 18) generally lack the capacity to enter into contracts. So, unless the facts bring the case within one of the exceptions, the age of one of the parties may be crucial when deciding whether an agreement which plainly exists as a matter of fact is also a contract as a matter of law.

A judge in a later case who decides that the facts of an earlier case were materially different from the facts of the case which is before the court can, perfectly properly, distinguish the earlier case. This is not a question of interfering with the authority of the earlier case in any subsequent cases in which the material facts may be genuinely similar. It is simply a question of deciding that the earlier case is not relevant to the case that is currently being decided, and is not, therefore, a binding authority in relation to that case.

The importance of the technique of distinguishing cases must be emphasised because it is an important way in which judges seek to achieve results which they feel to be appropriate to the cases which they decide. No totally reliable formula for identifying material facts exists, but an example may help to show how distinguishing can work in practice.

The case of Burgess v McCracken (1986) 150 JP 529 arose from the commercial activities of a professional photographer in a public park. His method of business was to get people to agree to have their photographs taken.

However, in Burgess the prosecution appealed to the High Court, where it was held that there was a legally relevant distinction between streets and parks. The court said that the offence in relation to streets was intended to prevent obstructions of the kind that can arise when traders set up stalls to display their goods. Street photographers do not do this; therefore they do not commit an offence. On the other hand, people go into parks for relaxation and recreation. It follows that the offence in relation to parks has a wider purpose, which includes protecting people from annoyance. In the context of a park, therefore, the mere absence of obstruction did not justify an acquittal.

As a means of avoiding a consequence which they feel to be wrong, judges may be tempted to distinguish earlier cases on artificial grounds. Indeed, some people may feel that Burgess itself is an example of artificial distinguishing. However, leaving aside the merits of individual examples, the fact that artificial distinguishing does take place must be recognised. Similarly, it must also be recognised that this undermines the predictability of the legal system, because judges vary in their willingness to resort to artificiality. The responsibility of the judges when considering whether to distinguish an earlier case is well explained by Robert Goff LJ, in Elliott v C [1983] 1 WLR 939, 947:

I feel … that I would be lacking in candour if I were to conceal my unhappiness about the conclusion which I feel compelled to reach.

At first sight this attitude may seem to amount to a total denial of the doctrine of binding precedent. However, you will have noticed that Robert Goff LJ did indicate that there are ‘limits imposed by the doctrine’, and that in the result, he actually felt unable to achieve the outcome which he perceived to be just or appropriate, saying he was ‘constrained … by authority’ to reach a conclusion which caused him ‘unhappiness’.

A litigant who is disappointed, either by artificial distinguishing or by a failure to undertake real distinguishing, will be in the same position as any other disappointed litigant, and will have no remedy other than pursuing any avenues of challenge, whether by way of appeal or judicial review, that the legal system may offer.

Distinguishing cases must be differentiated from the per incuriam doctrine. (Per incuriam means through lack of care.) This doctrine provides that a court which is free to depart from an earlier decision may exercise that freedom if it is satisfied that the earlier decision was made in ignorance of a relevant legislative provision or binding decision of another court. Unfortunately there is no single, authoritative formulation of the doctrine, with different versions varying as to whether it is to be applied cautiously or liberally.

It should be apparent by this stage that legal method can be a great deal more flexible – and even dynamic – than many people assume it to be. One of the classic textbooks on jurisprudence expresses this point in literally graphic terms:

If we think of the rule of law as a line on a graph, then the case itself is like a point through which that line is drawn. (P.J. Fitzgerald, Salmond on Jurisprudence, 12th edn, 1966, p. 170.)

This flexibility of binding precedent leads to a very important conclusion, namely that it can be seriously misleading to talk simply of the ratio of a case. In reality, there are two ratios. The first in time is the descriptive ratio, which describes the reasoning leading to the decision in the earlier case. This ratio can, of course, be identified immediately after that judgment is given. The second ratio is the prescriptive ratio, which is formulated by a court in the process of making a later decision. The prescriptive ratio results from the later judge’s interpretation of the earlier judgment (and may then continue to be developed by a series of still later judges in subsequent cases). This ratio is called prescriptive because it prescribes the principle of law which is binding on the later court. In the nature of things, of course, law teachers, authors of textbooks and journal articles, and law students can only identify descriptive ratios.

You may want to make two responses to this explanation of the importance of the distinction between descriptive and prescriptive ratios.

Your first response may simply be one of puzzlement, because the proposition that it is the later court which decides what is going to be binding on it seems to go against the essential idea of being bound. However, as you progress through your study of law you will see that – puzzling or not – this is, in fact, how the doctrine of binding precedent operates.

Your second response may be to wonder whether this process of (potentially) endless interpretation does not result in the law on a particular topic becoming fragmented – and even, ultimately, incoherent. This risk is indeed real, but there are two reasons why it is smaller than it might appear to be at first sight.

The first reason is that judicial comity (see p. 105) tends to restrain judges from making decisions which would have undesirable side-effects (and thus bring the judiciary as a whole into disrepute) unless the point at issue seems to be so important that those side-effects are a price worth paying.

The second reason is that where the law shows signs of being adversely affected by unruly judicial developments, the legal system has ways of coping. First, when a suitable opportunity arises, the Supreme Court may deliver a comprehensive statement of the relevant principle, thus providing a new and coherent platform from which the process of legal development can be renewed. Of course, this possibility cannot arise unless a suitable case goes to the Supreme Court and the court decides to clarify the law as a whole. If no case goes to the Supreme Court, or one does but the court declines to go beyond merely deciding the case which is before it, the second solution to the problem is for Parliament to intervene by enacting a statute which deals with the matter comprehensively. Sometimes the Supreme Court declines to provide an over-arching statement of principle because it thinks the matter is more suited to a statutory solution, either because the issue is too complex for judicial solution or because the matters of principle which it raises are more appropriately dealt with through the parliamentary process.

Having established that the flexibility of precedent is, in practice, largely due to

the technique of distinguishing previous cases so that they can be disregarded; and

the possibility of interpreting and applying descriptive ratios in ways which produce prescriptive ratios which enable the courts to reach conclusions that the courts consider to be just

we can now turn to the concept of obiter dictum.

Identifying obiter dicta and assessing their weight

By definition, obiter dicta are not part of the ratio decidendi of a judgment and therefore are not binding on later courts. However, it does not follow that they are entirely irrelevant. They can be said to have persuasive authority, meaning that a later court may be persuaded to follow them, even though it is not bound to do so.

An important point in relation to persuasive authority is that the degree of persuasiveness varies greatly. In fact, the stage may be reached where there is little practical distinction between ratio and dicta. The explanation of this will be found in a consideration of the reasons why dicta are said not to be binding in the first place. Two factors are relevant.

First, where a point is not central to the case, the advocates who appear will usually not argue the law, or if they do argue it, they will do so with less thoroughness than they would give to the main issues.

Secondly, a judge who says something obiter will usually not have given the matter the same consideration as he would have given to a matter which was essential to the decision. It follows from these two factors that, if a point was fully argued and the court gave it very careful attention, there is no real reason why the court’s views should not be treated as being authoritative. An example may be useful.

In Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, the facts were that the defendants had made an incorrect statement to the plaintiffs about the creditworthiness of a third party. The plaintiff relied on this statement and lost money as a result. The question was whether the defendants were liable to pay damages to the plaintiff. One complicating factor was that the defendants had expressly stated that they were giving the advice ‘without responsibility’. In other words, they were making it clear that they were not accepting liability for any loss which resulted from their advice. The House of Lords said that, as a matter of legal principle, there was liability in this kind of case. However, on the facts of the present case, the defendants had excluded their liability and, therefore, were not liable to compensate the plaintiffs. If this is analysed into ratio and dictum, the ratio of the case was based on the proposition that the defendants’ lack of liability stemmed from their express disclaimer of responsibility. Clearly, if there had been no liability in the first place, the decision would also have been in favour of the defendants. Therefore, anything which the court said about the existence of liability in principle must have been obiter, because it did not affect the decision. Nevertheless, the decision on the point of principle has been both generally accepted, and subsequently developed, so the distinction between ratio and dictum is, in relation to this case, simply irrelevant in practical terms.

The next question is what should a later court do when seeking to apply a decision of this sort? Cairns J gave the following, a totally pragmatic, answer.

Where five members of the House of Lords have all said, after close examination of the authorities, that a certain type of tort exists, I think that a judge of first instance should proceed on the basis that it does exist, without pausing to embark on an investigation whether what was said was necessary to the ultimate decision. (WB Anderson & Sons Ltd v Rhodes [1967] 2 All ER 850, 857.)

Two glosses on this comment may be useful. First, it must, of course, now be read as including statements made by the Supreme Court. Secondly, although it is expressed in terms of a judge of first instance, there is no reason in principle why it should not apply equally to the Court of Appeal.

The fact that dicta are of varying degrees of authority, from the almost worthless to the very strongly persuasive, leads some people to adopt a sub-classification into gratis dicta and judicial dicta, with the former being much less weighty than the latter. There is no harm in this terminology, provided you do not allow it to lead you into the trap of thinking that all dicta fall fairly and squarely into one category or the other. The truth of the matter is that there is a spectrum of possibilities. At one end of the spectrum there are mere throwaway comments which are worth practically nothing in terms of precedent. (This explains the phrase gratis dicta, because gratis is the Latin for free, and it is not surprising that something which is practically worthless is being given away free.) At the other end, there are fully argued and carefully considered opinions, the weight of which is indistinguishable from the weight of a ratio decidendi. In reality, most dicta fall somewhere in the middle ground between these extremes, being sufficiently persuasive to be used by judges to support decisions which they may well have reached anyway, without being so strongly persuasive as to compel judges to reach decisions that they really do not want to reach.