Glossary

The rule of law on which the decision was founded, treated as necessary to the result on the material facts. The only part of a judgment that binds.

Ordinary sense: "the reasoning". The ratio is not the reasons the judge gave; a judge can give bad reasons for a right decision.

Offensively: when the other side quotes a passage, ask whether the decision needed it. If not, it is obiter and it binds nobody. Defensively: state your ratio in Goodhart's form — material fact plus decision — and name the rung you are stating it at, so nobody can move it on you.

You said "public sentiment" was a third ratio in August. On Goodhart's method it fails at the first move: no material fact grounds it.

A thing said by the way: not necessary to the decision. Persuasive, never binding.

Ordinary sense: "a side remark", "less important". Obiter can be the most important sentence in the judgment — the neighbour principle is obiter — and still bind nobody.

Offensively: the classification strips authority; use it when the other side leans on a passage the decision did not need. Defensively: never say "abused" of an obiter later courts adopted — it assumes the answer. Say "adopted" and argue whether they were free to.

"The neighbour principle was only an obiter … used and abused." 13 Sep.

A fact the judge treated as making a difference to the result. Test by removal: absent that fact, would the decision have had to differ?

Ordinary sense: physical, tangible, important. A material fact is often trivial in itself — an opaque bottle — and a dramatic fact is often immaterial.

Offensively: run the removal test on the other side's stated ratio; a fact they cannot remove without changing the result is one they must defend. Defensively: name your material facts before the hypotheticals arrive, so the clear-glass bottle finds you ready.

You reached "an earlier decision of this House on the same point" only on the fourth putting, 17 Sep. Goodhart's presumption — person, time, place, kind, amount immaterial unless treated otherwise — is the shortcut.

To hold that an earlier case does not govern this one because a material fact of the earlier case is absent here. The case stays binding; it is stepped off.

Ordinary sense: to tell two things apart. In law you distinguish a case, not two things, and the earlier case remains good law.

Offensively: when the other side distinguishes, ask which material fact is absent and whether the earlier court treated it as material. A distinction on an immaterial fact is a disguised departure — Lord Reed's "judicial gymnastics". Defensively: it is the cheapest escape from a precedent you cannot overrule; use it before you reach for "wrongly decided".

Your peg analogy, 13 Sep: distinguishing leaves the peg and steps off. Right. Reid's test for the limit: development stops where you would have to say the earlier case was wrongly decided.

A court with the power to do so declares an earlier decision no longer law. Only a higher court, or the same top court since 1966.

Ordinary sense: to override, to overrule an objection. Lower courts cannot overrule; they distinguish. And overruling a decision is not the same as rejecting its further reasoning — Burrows's point.

Offensively: "Is that overruling, or distinguishing?" forces the other side to say which power they claim. Defensively: Wilberforce and Morris reached Herrington without overruling; Reid said that was impossible. Know which Lord you are standing with.

Five Lords, one result, three accounts of whether Addie was overruled.

The Practice Statement's verb: to leave an earlier decision standing and not follow it. Softer than overrule; the Statement never says overrule.

Ordinary sense: to leave. The softness is deliberate; do not read it as timidity.

Offensively: the Statement's own word is "depart when it appears right" — an open discretion; make the other side supply the criteria, which are not in the text. Defensively: cite Reid's guidelines as the content the judges gave it.

Paper 2; Paterson.

A court is bound when it must follow an earlier decision whether or not it agrees. Binding is the ordinary force of precedent within the hierarchy.

Ordinary sense: tied up, unable to move. A bound court can still distinguish, restate narrowly, or say it disagrees. Bound is not paralysed.

Offensively: ask "bound to what?" — the narrow rule or the wide one — and watch the other side pick a rung. Defensively: answer that question once, in one sentence, and stay there. Five answers is zero answers.

Five answers to one word, 13 Sep.

Halsbury's word: the matter is closed and may not even be raised. Stronger than binding.

Ordinary sense: decisive, convincing. In Tramways it is a term for finality, not for persuasiveness.

Offensively: a court that calls its own decisions "conclusive" and then modifies its "practice" has used two vocabularies; make the other side choose which the decision rests on. Defensively: keep the label apart from the fact — the earlier decision was called conclusive; that is Halsbury's characterisation, not a fact about it.

Your Tramways brief; the two-objects distinction of 17 Sep.

What a court habitually does about itself — its procedure, its past decisions. Made by the court, alterable by the court.

Ordinary sense: rehearsal, or "practical" meaning useful. You have said "practical rule" three times. It is a rule of practice.

Offensively: if the 1898 rule was practice, the 1966 Statement was an act of the same kind by the same body — the first horn in one move. Defensively: if it was law, say what made it law, since no statute and no higher court imposed it.

"Modify their present practice." 17 Sep, first answer of the evening — right.

An earlier decision treated as authority for a later one. In England: a single decision of a higher court binds; on the Continent: a settled line persuades.

Ordinary sense: an example, a first occurrence. "Setting a precedent" in ordinary speech is not the doctrine.

Offensively: ask whether the other side means the doctrine (binding single decisions) or the habit (following past cases), because the question "is precedent a myth" has a different answer for each. Defensively: define which you mean in your first sentence.

Goodhart's "series or group of cases creating a practice" is the contrast you need.

A source a court must or may rely on: a binding case, a persuasive case, a statute. "Authority for the proposition that…"

Ordinary sense: power, an official. In an essay, "authority" means the case you cite, and a claim without one is an assertion.

Offensively: "What is your authority for that?" is the shortest question in the room. Defensively: every bold claim is your best-authorised claim, not your only unauthorised one — the 59 mark was for exactly this.

August essay: the boldest claim was the only one without authority.

What a court decides as a rule of law. "The House held that…" introduces the ratio.

Ordinary sense: to keep, to grasp. A court does not hold a fact; it treats a fact as material and holds a rule.

Offensively: when the other side says "the court held", ask them to finish the sentence with a rule, not a fact. Defensively: the sentence has a shape — "Where [material fact], the court held [decision]" — use it and it cannot be misread.

"The House held the already decided point of law as a material fact." 17 Sep — the verbs crossed.

Scots: whether the claim would succeed if every fact in it were true. A point of law decided on assumed facts.

Ordinary sense: relevance, pertinence. Nothing to do with it.

Offensively: a case decided on relevancy has no found facts — so any material-facts ratio rests on assumed facts, which the other side must admit. Defensively: it is why Donoghue's ratio is a choice between two passages, not a finding.

Your best insight in August: no trial, averments pro veritate.

A fact alleged in the pleadings. Not proved; alleged.

Ordinary sense: none — it looks like "avert" and is unrelated.

Pair it with pro veritate: "the averments were taken pro veritate" says in five words that the whole case ran on assumed facts.

Donoghue.

Decided in ignorance of a binding authority or statute. One of three grounds on which the Court of Appeal may refuse to follow itself.

Ordinary sense: none; but do not use it to mean "wrongly decided". A wrong decision is not per incuriam unless the court missed something binding.

Offensively: it is an exception with a narrow gate; if the other side calls a case per incuriam, ask what binding thing was missed. Defensively: Halsbury's mistake-of-fact exception is its ancestor — and he shut every other door.

Cross & Harris; Young v Bristol Aeroplane.

An untouched question — never decided, open to be argued from scratch.

Ordinary sense: none. Do not confuse with "integrity".

Halsbury: a decided point is never again res integra. Use it to say, in two words, that a question is closed.

Tramways, second movement.

Hart: every rule has a core where it plainly applies and a fringe where its application is a choice. Rules bind in the core; judges choose at the edge.

Ordinary sense: fabric; shadow. And the trap of the sceptic: treating the fringe as if it were the whole.

Offensively: against "bound in theory, free in reality" — the choice at the edge does not dissolve the rule at the core; fourteen departures in forty-three years is a core holding. Defensively: it is the instrument that lets you hold "bound" and "leeway" in one hand. Reach for it.

Named at your second answer on 13 Sep; never used when it was the exact answer twenty minutes later.

Stone: the range the materials leave open, within which the judge must choose.

Ordinary sense: slack, tolerance. Stone's leeway is not laxity; it is the structural gap between premises and conclusion.

Offensively: every ratio is stated at a rung; the judgment does not fix the rung; the later court chose it. Defensively: Reid found a bottom to the ladder in Herrington — "wrongly decided" — so the leeway is bounded. Say where the bottom is.

Your clear-glass answer: "This is Julius Stone."

The claim that judges find and declare law that already exists; they do not make it. Reid: a fairy tale.

Ordinary sense: stating, announcing. The theory is a claim about the source of law, not about tone.

Offensively: against "Atkin discovered a principle" — a thing discovered was there before; was it, in the cases? Defensively: if you take the declaratory line, own its consequence: the 1898 rule was also "discovered", and then 1966 declared it away.

"Cherry-picking masked as discovery." 13 Sep.

Take a position, argue it, and meet the strongest objection. Not describe both sides.

Ordinary sense: talk about. A "discussion" that surveys is a fail.

The essay instruction is a command to choose. Choose, and pay.

Every question set.

"I submit" introduces the advocate's contention, not a fact. "With respect" precedes disagreement with a judge.

Ordinary sense: give in; politeness. In court, "with respect" means "you are wrong".

Offensively: "I submit" marks the sentence you will defend; use it once, on the claim that matters. Defensively: "with respect" lets you contradict Halsbury in an essay without sounding like a student who has not read him.

Not yet used. Use it on the 26th.

Fault, blame

Latin: fault, blameworthiness.

KUL-pa. Atkin: negligence 'or treat it as in other systems as a species of culpa'.

Atkin: liability for negligence "or treat it as in other systems as a species of culpa". — 12 Sep 2026

It is in the public interest that there be an end to lawsuits

Latin maxim: it is in the public interest that there be an end to lawsuits.

Usually shortened to 'finis litium'. 'Halsbury's ground was finis litium.'

Halsbury's reason for the rule in Tramways. — 13 Sep 2026

French: settled case law

French: settled case law. A consistent line of decisions treated as strong evidence of the law; no single case binds. The Continental alternative to the English rule.

zhoo-ris-proo-DAHNCE kon-STAHNT. 'On the Continent a single case persuades; jurisprudence constante has weight.'

Goodhart 1934; Cross & Harris. — 13 Sep 2026

A thing said by the way

Anything a judge says that was not necessary to the decision. Not binding — only persuasive. Plural: obiter dicta. Often just "obiter".

OH-bit-er DIK-tum; plural obiter dicta. 'The neighbour principle was obiter.' Often just 'obiter'.

The natural opposite of ratio; you cannot define one without the other. — 16 Aug 2026

Through carelessness

Latin, "through carelessness": a decision reached in ignorance of a binding authority or statute that would have changed the result. One of the three Young v Bristol Aeroplane exceptions.

per in-KYOOR-ee-am. 'The decision was given per incuriam — the court had not been shown the 1957 Act.'

Cross & Harris, ch 1. — 13 Sep 2026

As if true

Latin, "as if true": facts assumed to be true for the purpose of deciding a point of law.

pro veh-rih-TAH-tay. 'The averments were taken pro veritate.'

Donoghue — the snail was never proved; the averments were taken pro veritate. — 6 Sep 2026

The reason for deciding

The part of a judgment that is actually binding on later courts — the legal reason the case was decided as it was. Latin: "the reason for deciding". Often shortened to the ratio.

ratio dess-ih-DEN-dye. 'The ratio of Donoghue is the manufacturer's rule.' Often just 'the ratio'.

The whole question set 16 August 2026: "The ratio decidendi of a case is not what the deciding court laid down." — 16 Aug 2026

An untouched thing

Latin, "an untouched thing": a question no court has yet decided, so it may be argued from scratch. A decided point is never again res integra.

rays in-TEG-ra. 'The point is not res integra — this House decided it in 1894.'

Halsbury in Tramways: impossible to raise the question again "as if it was res integra and could be reargued." — 13 Sep 2026

To stand by things decided

The formal name for the doctrine of precedent. Latin: "to stand by things decided".

STAH-ray deh-SY-sis. 'The English doctrine of stare decisis.' The formal name of the doctrine of precedent.

The underlying principle the 16 August question attacks. — 16 Aug 2026

In silence

Latin, "in silence": a court passes a point without discussing it — or leaves a precedent behind without saying so.

sub sil-EN-tee-oh. 'The House departed from Addie sub silentio.'

Your own answer: the Lords "departed silently" before 1966. — 13 Sep 2026

Beyond the powers

Latin, "beyond the powers": an act the actor had no legal authority to do.

UL-tra VY-reez. 'The Statement was ultra vires the House.' Also of companies and public bodies.

The second horn of the Precedent question — was the 1966 Statement ultra vires? — 13 Sep 2026