LW 2600 Lecture 2 Facts & Law, Law Report

September 8
th
, 2014

Outline
Facts Distinguished from Law
Common Law: The Anatomy of a Law Report

Matters of facts
A question of fact must be answered by reference to:
1. Facts
2. Evidence
3. Inferences arising from those facts.

***Answer to question of fact = Finding of fact, this will usually depend on particular
circumstances or factual situations.

***The rules of evidence (govern when, how, for what purpose a legal case may be
placed before a trier of fact for consideration) will serve as a guideline to prove the facts.
Some important rules involve relevance, privilege, witnesses, opinions, expert testimony,
hearsay, authenticity, identification and rules of physical evidence.

3 situations to agree on facts:
1. Agreement: Parties to a dispute agree some or all the facts between themselves;
these facts can be admitted or proved without challenge.
2. Judicial notice no requirement of proof because the facts are so well known it
would be weird to need to prove it
Case Example: Bridlington Relay Ltd. v. Yorkshire Electricity Board [1965] 1 All ER
264: reception of TV broadcast is a common feature of English domestic life (generally
speaking, something is used for)
3. Court will receive evidence on disputed matters before deciding on matters of
facts.

Matters of Facts Vs. Question of Law

Matter of Facts
Fact are established by the tribunal of fact or trier of fact
Jury Trial: split responsibility between jury and judge
o Role of a jury in a jury trial (as opposed to the trial judge who will be the
trier of law)
o Judge gives direction to jury (who are not legal professionals, use common
sense and previous life experience to determine which version of the facts
to believe and to apply these facts stipulated by the judge)
Non-jury trial: the judge sits both as a fact-finder and as the trier of law.
Magistrate: magistrate sit alone in trial = finder of law and fact in this case
Appellate courts: do not consider appeals based on error of facts
o Appeal courts only consider the laws (the laws that the judge direct the
jury to follow), not the facts (generally no appeals on the jurys
interpretation of the facts, the only way to challenge it is on the basis of
law)
Judicial review: a court can only review the legal correctness (the process) rather
than the merits (what was decided), if the government decision makes a decision
in certain way (tribunal), it will only be overturned if they involve the matter of
laws, not the matter of facts

Why do we only allow appeals on questions of the law not the facts?
The trier of facts at the trial courts is in the best position to assess the evidence. A witness
will not repeat their statement twice at the appeal court because that would not be good
evidence. The witness is best at the appellant court only makes decision based on the
paperwork.

***Questions of fact are capable of proof or disproof, by reference to a certain standard
of proof (factual level of certainty); this will depend on the nature of the matter. (Civil
law? Criminal Law?)
Balance of probability in civil matters (contracts, torts, family law etc.): the
standard of proof may require that a fact be proven to be "more probable than
not", that is there is barely more evidence for the fact than against, as established
by a preponderance of the evidence
Case Study: Miller v. Minister of Pensions [1947] 2 All ER 372: it need not need to
reach certainty, but it must carry high probability. Proof beyond a reasonable doubt does
not mean proof beyond the shadow of a doubt. The law would fail to protect the
community if it admitted fanciful possibilities to deflect the course of justice. I fthe
evidence is so strongas to leave only a remote possibilitywhich can be dismissed
with the sentence off course it is possible but not in the least probable the case is
proved beyond reasonable doubt, but nothing short of that will suffice. Lord Denning
Beyond reasonable doubt: In criminal matters: the standard of proof require truth
to be established beyond reasonable doubt (judge or jury has a reasonable doubt,
they MUST acquit the accused
Case Study: Woolmington v DPP [1935] UKHL 1

Question of Law: must be answered by applying relevant legal principles = Legal
reasoning. Requires legal skills acquired in law school and through many years of
practice so it is always resolve by the judge
In a jury trial, the decision is split between the jury and the judge
In a bench trial, judge will carry out both functions
***An answer to question of law = conclusion of law

To illustrate the difference:
Question of fact: Did Mr. and Mrs. Jones leave their 10 year-old child home alone with
their baby for 4 days?
Question of law: Does leaving a baby with a 10-year old child for 4 days fit the legal
definition of child neglect?

Reasons of the classification fact law

1. The doctrine of binding precedent (stare decisis: decisions of higher courts is binding
in lower courts) applies only to propositions of law; matters of fact (need to be proven)
have to be established in each case and cannot be derived from another case.
Proof of facts: Agreement, judicial notice, rules of evidence/argument
For questions of law: we can look at previous cases (we sometimes only need one
case to prove the law)
Case Study Qualcast (Wolverhampton) Ltd v Haynes [1959] 2 All ER 28.: the
purpose of classifying matters of facts and laws is to avoid multiplicity => judges may
be crushed under the weight of [their] own reports Lord Denning, Lord Somervell
Rules of precedent (follow higher courts previous decisions): allow us to act
uniformly and makes the law predictable for the public

2. Classification of matters as a matter of law may:
Serve practical desire to avoid multiplicity of authorities; establish uniformity
of decision-making across a large number of similar cases.


Distinguishing Facts from Law Cases

1. Brutus v Cozens [1972] 2 All ER 1297:
Facts: anti-apartheid activists ran onto the Wimbledon tennis match court with a
political demonstration
Question: whether the protestors behavior was insulting behavior whereby a breach
of peace was likely to be occasioned
Decision: magistrate acquitted the demonstrators, House of lords held that whether
the behavior was insulting is based on the question of facts in specific cases, not a
question of laws so it shall not be appealed -> the meaning of ordinary English
Language is not a question of law Lord Reid

2. Energy Conversion Devices Incorporateds Applications [1982] FSR 544:
Facts: late filing of patents
Court will not amend the Patent Cooperation Treaty Rule because that is for the
Parliament to do, no court of law has any authority to amend the meaning of
primary or secondary legislation in any case
3. R v Spens [1991] 4 All ER 421:
London city code on takeovers and mergers: authority in the UK to regulate
mergers and acquisition; it is a contract between all the companies on the London
stock exchange
The interpretation of contracts (agreement between parties) are normally
questions of facts, however, the code in this case closely resemble legislation and
has a key regulatory role in the financial districts of London
Any inconsistent of the code of different judges would be disastrous for business
Interpretation of the code should be from judges (will be legally binding and
apply in the future to give consistency) which makes it a question of law

4. British Launderers research Association v Central Middlesex [1949] 1 All ER 21
(Lord Denning):
It is important to distinguish between primary facts and conclusions, all facts =
questions of facts
Inferences of facts (ex. If we find a knife in a person and a person running away,
we can draw the inference that the person running away killed him, we cant prove
that but we can use inference)
If the inference was made by the juror *reasoning on common sense, it is a matter
of fact, if it interpreted by a professional *reason on a question of law, the
conclusion is a conclusion of law

5. Edwards v Bairstow [1955] 3 All ER 48
Facts: The classic case on review of decisions applying the law. Bairstow seized
an opportunity to buy a spinning plant at the low price of 12,000; he sold it as
soon as he could at a profit of 18,000. His tax liability depended on whether the
venture was an adventure or concern in the nature of trade.
Question: whether the sale was an adventure of trade, what does trade mean?
Decision: Commissioner found that it is not an adventure of trade, the decision
was appealed but the question is whether it can be said that the meaning of trade
is a matter of fact or a matter of law
House of Lords held that the adventure in the nature of trade for the purposes of
the income text legislation was a question of law.

In Hong Kong, how do we decide what is matters of law and facts?
Jurisdiction
Procedural Law: Legal procedures to be used in the case (questions of law)
Interpretation of legislation/ordinances (question of law)
Questions about the nature of burden of proof
**If the judge misdirects the jury on the correct laws to apply, the decision can be
overturned.

Summary: There is an import distinction between matters of law and matters of fact.
However, there is very little in the way of principle offering reliable guidance as to how
the distinction should be drawn. When facts have to be proved, the degree of proof,
which is required, varies according to the circumstances of the case.


Sources of Law in Hong Kong
In Hong Kong
1. Legislation = literary sources of statute book
2. Decisional Law = law reports
3. Chinese customary law = observation and evidence of traditional human practice
Primary Sources: actual printed ordinances in statute books
Secondary Sources: analyzed or digested by authors, this is not the law, so it
should not be trusted

Law Reports
History of Law Reporting: important for an open and transparent system (Read
out his or her judgment in a publicly open court, the parties who are affected by
the decision will be present to hear the decision, better if can be written, we need
to be able to access previous decisions for references to precedents)
Law reports (arranged by court, subject matter)
o Yearbooks - titled by the monarch
o Nominate Reports (private law reports)
o Law Reports (ICLR: compiled all reports in English reports from 1220-1866)
Unreported Judgments: magistrate cases are unreported in Hong Kong since they
are not thought to have precedential values
Specific/general
Examples: All England reports (general) or Tax cases (specialized:
family/construction etc.)
In Hong Kong: Hong Kong Law Reports (1905), prior to that, the only way was
to look at English Newspapers; we also have some general law reports and
specific ones (HK public, family, etc.)
Decisional law: judges interpet statues, find and formulate common laws and
equity
Judicial decisions have precedential value for resolving future similar disputes to
make sure everyone is treated equally and to have predictable judgments

Structure of a Law Report
Most of these components are found in every law report (not all). These are:
1. Names of the parties
2. Description of the parties to the case (ex. Plaintiff, defendant, state, accused,
appellant, respondent)
3. Court in which the case was heard (ex. Court of Appeals, Privy council)
4. Court Registry Reference (matter type and the number, number of different
appeals may be held together and will be differentiated)
5. Name of the judge(s) and their titles
6. Date of the hearing
7. Catchwords/Index Headings (whether case is relevant to your research)
8. Headnotes: includes summary of the facts, how the court came to their decision,
and the outcome of the case. Sometimes the case history will be present here
(devised by law reporter who summarizes)
9. Citation: note the difference between the law report series citation and the
relatively new for of neutral citation. Multiple citations are also possible.
10. Representation (who were the lawyers representing the case barristers, senior
council (SC), solicitors (firms name resulted), government (solictors)
11. Cases/legislation/text cited in this judgment
12. Judgment by each judge (often more than one because the judges will disagree
with each other)
Analysis of the facts
Discussion of relevant law to the facts
Applying laws to fact
13. Paragraph letters or paragraph numbers []
14. The Reporter (down at bottom, last page, reporter who compiled the report)

Anatomy of a Law Report
What you will not find labeled in the law report is the ratio decidendi of the case.
The ratio decidendi (the reason-the rationale for of the decision) is highly
significant and will be discussed in great detail later in this course.
For now it is sufficient to say that the ratio decidendi is the essence of why the
case was decided as it was. It is the principle, which the case establishes.
Nonetheless, we will try to identify the ratio in Bolton v Stone (in addition to the
various reporting features).