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Determining Treatment Types: Stages for Establishing the Value of Law

Determining Treatment Types: Stages for Establishing the Value of Law

Posted by justis1 | 16 December 2014

Knowledge of treatment types is essential for law students, academics and practitioners. Even if that knowledge is only drawn upon occasionally, it is useful to be aware of the routine every editor goes through in determining the treatment an authority has received. A user friendly method is to approach the judgment, and the task of deciphering treatment types, as a three stage process.

Stage One: Is the case report marked up with treatment types?

Some case reports, such as the Law Reports recording of In Re Lyon [1952] Ch 129 expressly state toward the beginning of the transcript those cases which have received a particularly strong positive, as in In Re Lyon, or negative treatment. In that case, for example, In Re Pettit [1922] 2 Ch. 765 was applied, In re Kingcome  [1936] Ch. 566 was considered (a neutral treatment type) and approved, while the first instance decision was affirmed.

This editorial exercise is a useful foundation upon which to build an understanding of treatment types in practice. Knowing that a case has been applied, for example, means that when it comes to finding the case in context in the judgment, you can understand how the judge has applied it by analysing their words. Over time this understanding will grow and treatment types can be inferred simply from the language of the judges.

Stage Two: Noting down cases and judges whose dicta is cited

If you are looking to establish the treatment type of a particular case, it is worthwhile noting down the case name prior to reading the judgment. When you come across it in the written judgment, you should make a note of where it is and also consider the context in which it has been placed. Doing this means you will not only have an idea of where the case is mentioned in the judgment, but can also build up an idea of how it is treated as authority. This is useful preparation for the next stage.

Stage Three: Breaking down the text

The first thing to consider when you come across a case is: has the judge talked about the case in a positive or negative fashion? The judgment can either implicitly or explicitly state a negative or positive treatment, particularly where comparisons are made between the case in question and the one being cited. Treatments implied but not made explicit can be harder to identify, whereas explicit treatments are readily identified. For example, a negative treatment may be stated in a manner such as the dicta of Lord Justice Chadwick in Oxley v Hiscock [2005] Fam 211, in which Carlton v Goodman [2002] EWCA Civ 545 was distinguished.

“[o]n its facts Carlton v Goodman was the inverse of the present case; and it provides little, if any, direct assistance on the principles to be applied in cases of the nature with which we are now concerned.”

In the alternative, law reports may be “marked up” by the editorial teams of certain case report series or legal publishers such as our company. This process highlights the treatment cases receive in a specific judgment, the editors having read the judgment and decided which treatment applies to the cited cases.

Below is an example of the outcome of our editors’ work, using the case of Oxley v Hiscock before the Court of Appeal to demonstrate. A list of cases and their corresponding treatment in the case has been compiled, providing a clear and comprehensive list of treatments. For some cases, extracts of the main case’s judgment is provided to place the cases cited in context.

Citations_in_context

For those with time pressures, this is a particularly helpful time saving measure. It also aids those learning the concepts for the first time.

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