Chapter 7 Guidance to answering the practical exercises

Q1. What was your experience of reading (online) the judgments in the Donoghue v Stevenson case? If you lost focus, consider why you did and what you might be able to do differently next time to read them more effectively.

You are likely to have found this relatively heavy going. As Figure 7.5 makes clear, one of the most common pitfalls is to misunderstand which judgment was the lead judgment. As Lord Buckmaster’s is first, if you read that, then gave up reading, you may have completely misunderstood what this case decided, because his judgment is dissenting (and to add to the confusion was read by Lord Tomlin, also dissenting). You had to persevere to Lord Atkin’s judgment to read the leading judgment and ratio decidendi, which he delivered (and with which Lord Thankerton and Lord Macmillan agreed).

Q2. Compare and contrast your experience of reading (online) the judgment in Donoghue v Stevenson with the R (Miller) v The Prime Minister. What, specifically, did you note about the new (post 2002) reporting structure? Which do you prefer, and why? How did the accompanying recordings of the hearing, and summary of the judgment, inform your reading of Miller?

You may well have found the introduction of paragraph numbers and headings helpful in Miller. They can help to break up what would otherwise be dense text, and signpost the key issues for you.

Being able to watch the hearings and the summary of the judgment can bring to life aspects of a case that would otherwise be lost in a written judgment. You may find that you can remember parts of the judgment more easily, or that you understood it differently. If the former, consider specifically why this is. It may be that you learn more effectively when you hear or see. If so, then you can let this inform your learning (and revision) strategy going forward. Chapter 10 explores further the concept of different learning styles. If the latter, consider how tone or body language changed your understanding of the meaning of the written words. Again, Chapter 10 will discuss this in more detail.

Consider whether watching and listening has had a positive effect. You may be pleased to see the contemporary look of the court. You may even be able to place yourself in the picture more easily when you watch Miller. Perhaps it has peaked your interest in how to become a judge? It may also have made Donoghue v Stevenson more accessible to you.

The opposite may also be true, of course. Chapter 10 explores further the issue of social mobility and (among others) the judiciary’s commitment to inclusion and diversity.

Q3. How would you describe what (i) a statute and (ii) a case look like in terms of structure and layout?

Most statutes and cases follow the same format and figures 7.1, 7.3 and 7.4 set out examples of both in terms of structure and layout. By familiarising yourself with the annotations of those figures in this book you too will be able to guide a newcomer through the constituent parts and explain to them their meaning and purpose.

Q4. Can you summarise the guidance in this chapter into three tips you would give to someone about to read (i) a statute and (ii) a case for the first time?

The chapter gives you detailed guidance and you will pick the three which have resonated most with you. My tips common to reading both a statute and a case would be:

• move away from sources of distraction such as your phone and e-mail (see 7.1.1)
• read a secondary source of law first before you read the statute or case itself (see 7.1.3.2)
• do not set out to start at the beginning and read the entire piece of legislation to the end, but instead follow the guidance in 7.1.3.2 to ensure you follow a structured approach which allows you to understand it most efficiently and effectively.

Q5. Use Figure 7.5 to prepare a case note for R (Miller) v The Prime Minister, the case you were recommended to read at 7.1.5.3. Reflect on which parts of the case were most difficult to summarise. Which secondary source did you choose to read, to clarify your understanding of the ratio decidendi?

There are numerous secondary sources you could have chosen to read to inform your understanding of this significant case.

One of the more practice-focussed respected secondary sources is Practical Law and, if your institution holds a subscription, you can read its commentary on Miller here https://uk.westlaw.com/Document/IE39D2630DEB311E985ECB537152A9FD9/View/FullText.html.

Compare and contrast this to a more traditional, academic respected secondary source such as this case commentary available from the Lexis®Library electronic database

R (on the application of Miller) v The Prime Minister; Cherry and ors v Advocate General for Scotland [2019] UKSC 41, [2019] 5 LRC 490 SC 24/09/2019 Case Overview

Use your preferred secondary source to mark your case note. The case was not without controversy. This short piece by Professor Mark Elliot of the University of Cambridge summarises his view as to why, and may well help you with the issues you found most difficult to summarise https://publiclawforeveryone.com/2019/09/25/1000-words-the-supreme-courts-judgment-in-cherry-miller-no-2/.Once you have understood this, you may enjoy reading his more detailed and technical analysis of the judgment here: https://publiclawforeveryone.com/2019/09/24/the-supreme-courts-judgment-in-cherry-miller-no-2-a-new-approach-to-constitutional-adjudication/.

Q6. Read Coleman’s article for BBC News, and listen to his broadcast for Radio 4 if available to you (both about Donoghue v Stevenson) and read the Ashurst article (about the UCTA), all of which referred to in the Further Reading section. Reflect on the audiences for whom these written and oral communications were made. How would the authors’ reading and understanding of the primary sources of law have differed from (a) a law student’s and (b) a lawyer in practice needing to advise a client on these primary sources of law?

The point of this question is to clarify that the starting point for all of these authors would be the same. They would all have to read and understand the primary source of law, be it the statute (UCTA) or case (Donoghue v Stevenson). The guidance set out at 7.1.3.2 (how to read a statute) and/ or 7.1.5.3 (how to read a case) would inform all authors. The difference would come with the fact that they then need to write for different audiences with different needs. The BBC audience want to be entertained, they are likely to be less interested than a law student in needing to understand what would constitute the ratio decidendi, or specifically which judges gave the dissenting judgments. Ashurst’s audience will be interested in the practical points which arise, for example how they might influence the specific words to use when drafting a document. A specific client would want tailored advice from their lawyer, focussing on the relevant law and how this applies to the relevant facts of their case or matter (Chapters and 11 provides further guidance on this).