From:                                                       Matthew Hoyle <MHoyle@oeclaw.co.uk>

Sent:                                                         Wednesday 2 October 2024 21:38

To:                                                            Norman Siebrasse; Jason W Neyers

Cc:                                                             obligations

Subject:                                                   RE: ODG:The Nadir of Common Law?

 

Older authorities are not only (a) often still binding according to our rules of precedent and (b) persuasive authority in their own right, but also very important to understanding how and why modern legal rules (both common law and statutory) are what they are.

 

For example, Lord Leggatt refers to at least pre-1890 cases in Lloyd v Google [2021] UKSC 50 to explain the law on collective proceedings. Similarly, in ADM v Grain House [2024] EWCA Civ 33 Popplewell LJ referred to well over a dozen such cases, including two from the seventeenth century, in ascertaining the liability of directors of companies subject to an injunction to committal for its breach.

 

Perhaps the main point of contrast is simply the statement of Lord Reed (now of course President of the SC) in ITC v HMRC [2017] UKSC 29 at [40] that “The wisdom of our predecessors is a valuable resource, and the doctrine of precedent continues to apply. The courts should not be reinventing the wheel.”

 

Matthew Hoyle

Barrister

One Essex Court

 

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Regulated by the Bar Standards Board.

 

From: Norman Siebrasse <norman.siebrasse@gmail.com>
Sent: Wednesday, October 2, 2024 9:17 PM
To: Jason W Neyers <jneyers@uwo.ca>
Cc: obligations <obligations@uwo.ca>
Subject: Re: ODG:The Nadir of Common Law?

 

In Monsanto Canada Inc. v. Schmeiser 2004 SCC 34 [102] the SCC cited its own 1886 decision in Collette v. Lasnier (1886), 13 S.C.R. 563, as the primary authority for the correct approach to an accounting of profits. 

 

On Wed, Oct 2, 2024 at 5:10 PM Jason W Neyers <jneyers@uwo.ca> wrote:

Dear Colleagues,

 

The Chief Justice of Canada has recently been reported as saying, in the context of refusing to translate pre-1970 judgments into both official languages, that the legal value of old Supreme Court decisions is “minute" and that “no one today [would] refer to a precedent from 1892 to support their case.”

 

I guess I better rethink how I teach and approach the common law!

 

 

As one commentator responded:

 

"These statements are astonishing. In a common law system such as ours, judicial decisions are legally authoritative unless explicitly overturned. In accordance with the rule of precedent (stare decisis), courts must apply the rules of law established in previous decisions when similar situations arise. The rule of precedent lends stability to the law, allowing individuals to plan their activities so that they stay within the applicable rules.

 

As such, unless they have been explicitly set aside, decisions of the highest court from before 1970 still have precedential value. They are part of Canada’s normative landscape. Lower courts are required to apply the rules of law established by the Supreme Court, including those handed down prior to 1970. Similarly, the Supreme Court must follow its own precedents, unless it determines there is a “compelling reason” to depart from them.

 

In fact, many Supreme Court decisions of that era are still taught in Canadian law schools. Moreover, lawyers still refer to pre-1970 precedents in their daily practice to support their legal pleadings. The Supreme Court itself regularly cites its old decisions."

 

Happy Reading, 

 

 

 

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--

Norman Siebrasse
Professor of Law
University of New Brunswick
Sufficient Description.com

 

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