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Applied or Affirmed? The Importance of Treatment Types for Legal Research

Applied or Affirmed? The Importance of Treatment Types for Legal Research

Posted by zenaira-khan | 19 December 2014

The traffic light system for determining good lawKnowing how to distinguish between “good” and “bad” law is an essential weapon in every law student and lawyer’s arsenal of skills.

Cases can be, and indeed often are, complicated. This is not helped by the tendency of some judges to use confusing and complicated vernacular that can appear nothing short of unintelligible. Trying to infer the importance and relevance of the cases cited in judgments is often easier said than done. Most treatment types cannot be identified from the use of specific words such as “applied”, for the simple reason that judges do not always explicitly state the treatment type in clear terms. In such circumstances it is the task of the reader to understand what is meant, through reading and analysing the dicta of the judges.

When there are many different treatment types, all with subtle differences, this task can however be daunting.

Why are treatments used and why do you need to be aware of them?

Treatment types apply both in academic and professional environments, to identify the state of law as it currently stands. In some law reports there will be a table identifying the cases cited and the treatment type. This has the advantage of clearly setting out, at the beginning of the case which, if any, of the cases will have received particularly strong consideration and treatment. Where this is not provided this is not a bar to establishing how the various authorities have been treated. However it is done, treatments provide a summary of a case’s value on that point of law. This is not a reason to discount cases used in a judgment simply because they are cited or referred to, without any positive treatment.

Even where the court overrules a cited case, a subsequent court with powers of precedent can argue that the case ought not to have been. This was what happened in Hedley Byrne & Co. Ltd v Heller & Partners Ltd [1964] AC 465 when Lord Wilson declared that the ratio in Le Lievre v Gould [1893] 1 Q.B. 491 was wrong and accordingly Cann v. Wilson (1888) 39 Ch D 39, which the latter overruled, should not have received such negative treatment. Cann was subsequently approved in the case of Hedley Byrne, as you can see in the screenshot from JustCite below. 


Conflicting treatment such as these could easily leave the reader confused, if they were not aware of the laws of precedent nor the categories of treatment types.

In-house editorial teams “marking-up” the effect of cases can help to avoid this confusion. An example of the outcome of their efforts is shown in the above image. As editors read through cases they will establish how the authorities being looked at by counsel and therefore the judges, have been treated. Knowing this, the information can then be provided to users in the form of a ranked system organised according to the strength of treatment each authority used in judgment received. This way the user can clearly see how a case has been treated before reading it. You have the edge in legal research.


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