Case Law Research

Legislation creates the law, but judicial decisions provide a means for understanding how that legislation is applied and interpreted.

Similarly, legal research ought to identify the key authorities regulating the matters in controversy (with particular regard to decisions of the Supreme Court, Court of Appeal and, where appropriate, High Court).

Practitioners should take into consideration several factors when reviewing authorities.

• whether the case remains good law;
• whether it has been distinguished or overruled;
• the factual similarities between the authority and the present dispute;
• the legal principles established; and
• whether subsequent appellate decisions have refined the applicable legal test.

Care should be taken to rely upon authoritative decisions rather than isolated first-instance judgments where binding appellate authority exists.

References (OSCOLA)

1. Civil Procedure Rules 1998, r 1.1 (The Overriding Objective).
2. Civil Procedure Rules 1998.
3. Civil Procedure Rules 1998, Practice Direction – Pre-Action Conduct and Protocols.
4. Civil Procedure Rules 1998, Practice Direction 7A (How to Start Proceedings).
5. Civil Procedure Rules 1998, Practice Direction 32 (Evidence).
6. Civil Procedure Rules 1998, Practice Direction 35 (Experts and Assessors).
7. Civil Procedure Rules 1998, Practice Direction 57AD (Disclosure in the Business and Property Courts).
8. The White Book (Sweet & Maxwell, current edition).
9. Rupert Jackson, Review of Civil Litigation Costs: Final Report (TSO 2009).
10. Lord Woolf, Access to Justice: Final Report (HMSO 1996).