ESSAY ONE

Student number: C1419097

Module Code: CL4303
Module Title: Legal Foundations
Module Tutor: Anna Grear
Coursework Title: Critically evaluate the claim that there is normally ONE ratio
decidendi, and ONE ONLY which explains the holding on the facts, and is as such
binding. J. Stone, The Ratio of the Ratio Decidendi (1959) 22 Modern Law Review
597-620 at 602-3.
Word Count: 2107

Critically evaluate the claim that there is normally ONE ratio decidendi, and ONE
ONLY which explains the holding on the facts, and is as such binding. J. Stone, The
Ratio of the Ratio Decidendi (1959) 22 Modern Law Review 597-620 at 602-3.
Difficulties often arise in finding and defining the ratio decidendi of a case. The
question in Goodharts claim that J. Stone is critiquing arises over the issue of
whether there is only one ratio decidendi to a precedent or case. This essay will argue
that often, there is not just one only indefinite ratio decidendi to a case. Instead, the
process of finding and concluding a single ratio decidendi is a complex one which as
we will explore in the essay, often leads to either unclear, multiple or no ratio
decidendi being formed. Moreover, this essay will also delve into whether or not ratio
decidendi is actually binding and to what extent it can become binding.
Contrary to Goodharts belief, it is common for multiple rival rationees to be found
from a case. Twining and Miers1 believed that Talk of finding the ratio decidendi of a
case obscures the fact that the process of interpreting cases is not like the hunt for
buried treasure, but typically involves an element of choice from a range of
possibilities. This possibility is demonstrated in the case of Esso v Commissioners of
Customs and Excise2 where the judges could not collectively agree on the reasoning
behind the case and as a result, the judges delivered varying ratios that could have
delivered dramatically different outcomes due to different interpretations for example,
according to one judge, the claimant would have won their case whereas according to
the other three judges varying interpretations, the claimant lost. It is evident from this
example that more than one ratio can indeed be found but it also emphasises that this
is usually because judges can often formulate contrasting ratio decidendi depending
on individual interpretation, which can lead to disagreement and unclarity. Jacob JL
adds support to this in Actavis UK Ltd v Merck & Co Inc3 by stating that it is not
always easy to find what the ratio of a decision is, and it can be harder the more there
are different judgments. It can be deduced that this makes the ratio decidendi a
subjective notion considering that it is susceptible to interpretation and therefore, it is
unlikely for there to be one certain factual ratio decidendi.
The subjectivity behind ratio decidendi is problematic as it begs the question of
whether ratio decidendi is merely a subjective notion rather than a factual outcome. It
is evident in cases such as Northern Sandblasting Pty Ltd v Harris4 where the judges
disagreement over reasoning clearly conveys that ratio decidendi is subjective. This
undermines the worth of ratio decidendi.
As Glanville Lewis stated, a case may have not one but several ratio decidendi, of
ascending degrees of generality5. The ratio decidendi is often concluded through a
process of abstraction that involves interpreting the material facts either on a narrower
1 Twining, W., and Miers, D., How to Do Things with Rules (5th, London, Cambridge University Press
2010) 306
2 [1976] 1 WLR 1; [1976] 1 All ER 117.
3 [2008] EWCA Civ 444; [2009] 1 A11 ER 196
4 (1997) 188 CLR 313
5 Glanville Williams, Glanville Williams: Learning the Law (15th, Sweet & Maxwell, London 2002)
101

or wider level. However, there is no set formula for achieving this so determining and
distinguishing the material facts of a case is not a straightforward process for judges.
Judges can chose on what level they decide to generalise the ratio decidendi. As a
result, multiple ratio decidendi can be formed depending on how the material facts are
interpreted. The difficulty in distinguishing the material facts of a case leads to
difficulties in establishing a single unified ratio especially considering the additional
problem of not always being able to distinguish between what statement qualifies as
the actual ratio and what statements are just merely obiter dictums. Courts often also
struggle between distinguishing between material and immaterial facts. Could this
indicate that the process behind finding a ratio decidendi is flawed? Again, this
undermines the authority that ratio decidendi allegedly holds as its reliability is weak
and questionable.
Wilkinson v Downton6 is given as an example of how two or three different ratios can
be proposed due to different levels of abstraction. However, only one ratio was
eventually accepted in this case and that was the ratio that was stated by the judge,
was in accordance with common sense and other authorities. Despite multiple ratios
having been proposed, only one was concluded. In support of Goodharts statement,
this is commonly the case. Although many ratios can be found, usually the judges will
filter the ratios down to one and then only agree on one given ratio. Moreover,
situations may arise where multiple ratios are found but it could be that these ratios
are just multiple versions of the same ratio that hold the same shared principle except
they are simply worded differently according to the judges alternating forms of
language expression.
However, it can be argued that judges only settle for one ratio decidendi only because
it is more convenient and efficient for courts to conclude a single ratio regardless of
whether or not it is more appropriate for multiple ratios to exist within a case. Courts
tend to be adamant to stick to only presenting one ratio decidendi. In fact, courts tend
to be adamant to seek out a ratio decidendi point blank. In support of this argument,
Maccmorick7 accurately declared that;
It is disputed whether there is any such thing as a or the ratio in a given case;
it is disputed whether or not there is a ratio to be found authoritatively within
a given opinion, or whether the so-called ratio is simply some proposition of
law which a later court or courts find it expedient to ascribe to an earlier
decision as the ground of that decision which may then be used to help justify
some later decision- perhaps even under the guise of its being that which
necessitates the granting of a given later decision.
The Courts preference to establish a ratio decidendi can often lead them to forcibly
picking out a ratio decidendi in situations where it may be completely unnecessary for
them to do so as not all cases contain a ratio decidendi- a fact that both Goodhart and
the Courts seem inclined to overlook. In turn, we may find that if this fact is
disregarded then in the vigorous pursuit of trying to dig out a ratio decidendi, judges
can end up concluding an incorrect and unclear ratio decidendi. Lord Dunedin
6 [1897] 2 Q.B. 57
7 Maccormick N, Why Cases have Rationes and What these Are (Goldstein ed., Claredon Press,
Oxford 1987) 157

asserted in Great Western Railway Co v Mostyn Owners8 that if it is not clear, then
I do not think it is part of the tribunals duty to spell out with great difficulty a ratio
decidendi in order to be bound by it. This case is a prime example of a case for which
there was no ratio decidendi but it was with great difficulty that the judges accepted
this. Therefore, Goodharts claim that there is one and ONLY ONE ratio decidendi
is not applicable to every case or situation and neither should this rule be applied
forcibly to every case or situation.
Maccormick went on to also make the point that the ratio of a case is whatever it is
any time authoritatively said to be authority for, and this no one single proposition
over time. Maccormick recognises that the ratio of a case can change and develop
over time. Hence, it is unrealistic and impractical to claim that there is only ever one
ratio decidendi as the ratio tends to shift as the authority of a case shifts. For example,
in the case of Bell v Lever Bros9, despite many subsequent cases its true meaning is
still not clear after sixty years hence indicating that the ratio can shift depending on
the authority of the case it is being related to.
What would be more practical would be for the courts to intentionally look for a range
of alternative ratios and then let future decisions determine which ratio is the binding
ratio as the authority becomes clearer. This would be far more efficient as it provides
a solution for the problem of being unable to draw a single ratio from uncertain
material facts by letting further decisions illustrate which ratio is practically
appropriate.
As for ratio decidendi being binding, again- opinion is divided over whether the
ratio decidendi should be binding on future cases. However, the general rule is that
the ratio decidendi of a case is indeed binding for not just that particular case but also
for future cases of a similar nature. Professor Montrose10 suggested that the main
function behind ratio decidendi is to act as the, The rule of law for which a case is
binding authority hence affirming that the primary purpose of the ratio decidendi is
for it to create binding precedent that performs a binding function on the lower courts.
Similarly, Lord Simon of Glaisdale11 stated that what constitutes binding
precedent is the ratio decidendi of a case that is, generally, those facts which the
tribunal whose decision is in question itself holds, expressly or impliedly, to be
material.. Again, this adds support to the fact that ratio decidendi is intended to be
binding. However, its specified that what makes the ratio decidendi binding are the
material facts on which it is based. This becomes a problem considering the issues we
have explored in relation to finding and determining the material facts of a case.
Moreover, this is a prescriptive method of finding the ratio decidendi and ultimately
means that the ratio decidendi can actually only be binding on cases that are exactly
the same and have the exact same material facts. In practice, this reduces the range
of the binding ratio decidendi to vanishing point12 therefore this argument suggests
that the ratio decidendi cannot possibly be practically binding.
8 [1928] AC 57
9 [1932] AC 161
10 Cross and Harris, Precedent in English Law (4th, Oxford University Press Inc., New York, United
States 1991) 72
11 F.A. & A.B. Ltd v Lupton [1972] AC 634, at 658

Goodhart himself later declared that The phrase ratio decidendi is misleading
because the reason which the judge gives for his decision is not binding and may not
correctly represent the principleMoreover, there were numerous cases in which no
reasons were given, but this did not affect their authority as a precedent13 thus
undermining the ratio decidendis ability to add authority and to become binding as
Goodhart is of the belief that a case can hold strong enough authority without the ratio
decidendi acting as binding. Taking this into account, would this make the ratio
decidendi simply an unnecessary notion that seems to exist only for judges
convenience?
Nonetheless, the ratio decidendi is still considered to be binding by the Courts and
this is the purpose it serves when found by the judges- future courts becomes bound
by the ratio decidendi of the case. The principle of ratio decidendi follows the doctrine
of stare decisis that means to stand by things decided therefore the ratio decidendi
must accordingly act as binding.
If a ratio decidendi exists, the ratio will indeed be considered to be binding. Going
back to Lord Dunedins perception, he expressed that if from the opinions
delivered it is clear - as is the case in most instances - what the ratio decidendi was
which led to the judgment, then that ratio decidendi is also binding. On the other
hand, in those cases where a clear ratio decidendi cannot be ascertained, there will be
nothing for the case to be bound by for example, in the case of Esso14, because there
was no discernable ratio found, the decision of the case was not deemed as binding on
future courts.
Conclusively, upon reflection, I believe that contrastingly to Goodharts claim in the
title of this essay, there is not usually ONE ratio decidendi, and ONE ONLY but
rather that there is a higher tendency for there to be multiple ratios that can be
extracted from a case. Declaring that there can only be one ratio decidendi can over
simplify the reasoning behind a case and in turn, can provide an unclear ratio
decidendi that is not widely applicable to other cases. Moreover, it is unlikely for
there to only be one ratio decidendi due to the subjectivity, the complexity of material
facts and the process of abstraction involved in determining a ratio decidendi.
However, it seems that Courts have recognised over time that there can be cases that
contain no ratio decidendi and henceforth, the courts will not be bound by the
decisions of these cases. Nonetheless, for the rest of the more common cases for
which a ratio decidendi is established, the ratio decidendi does indeed become binding
according to the doctrine of stare decisis as the tradition of deciding cases on the
faith of previous judicial pronouncement exists as an integral part of judicial
process15,

12 J Stone, Legal System and Lawyers' Reasonings (1st, Stanford University Press, United States
1964) 271
13 Goodhart, A. (1959) The Ratio Decidendi of a Case, 22 Modern Law Review, 118
14 [1976] 1 WLR 1; [1976] 1 All ER 117
15 K Rote, 'Assignment of Legal Theory' Tests for determining Ratio decidendi of a Decision , 16

RESEARCH TRAIL
Academic

1) Twining, W., and Miers, D., How to Do Things with Rules (5th, London,
Cambridge University Press 2010) 306.
Talk of finding the ratio decidendi of a case obscures the fact that the process of
interpreting cases is not like the hunt for buried treasure, but typically involves an
element of choice from a range of possibilities.
- Relevance to topic = emphasises the point that there is not always one indefinite
ratio decidendi but rather takes a more flexible approach and considers that there may
be multiple ratios.
- Reliability & Authority = Twinings and Miers are both academic experts in the field
of law and are therefore knowledgeable on the subject so their work can be trusted to
be based on sound knowledge. Moreover, this source was found in the textbook
written by them so any information included in a textbook aimed to educate others is
highly likely to be accurate and unbiased
2) Cross and Harris, Precedent in English Law (4th, Oxford Univeristy Press,
United States 1991) 73
Professor Montrose suggested that the expression ratio decidendi is used in two
senses; (i) The rule of law for which a case is binding authority, and (ii) The rule of
law to be found in the actual opinion of the judge, forming the basis of the decision.
- Relevance = outlines Montroses belief on what the ratio decidendi is used for which
according to his belief is to become binding and to add authority to the judges
opinion. It therefore coincides with the statement made by J. Stone that the ratio
decidendi is binding.
- Reliability & Authority = Montroses work is one of the most prominent pieces of
work in relation to ratio decidendi and carries heavy authority on this basis. However,
although Montrose believes that this is the reason ratio decidendi is used, this quote
does not indicate whether or not the ratio decidendi actually fulfils its intended
purpose.

3) Maccormick, N. (1987) Why Cases have Rationes and What these Are in
Goldstein (ed.), Precedent in Law (Oxford: Claredon Press) 157
It is disputed whether there is any such thing as a or the ratio in a given case;
it is disputed whether or not there is a ratio to be found authoritatively within
a given opinion, or whether the so-called ratio is simply some proposition of
law which a later court or courts find it expedient to ascribe to an earlier
decision as the ground of that decision which may then be used to help justify
some later decision- perhaps even under the guise of its being that which
necessitates the granting of a given later decision. An extreme version of this
view would presumably be that the ratio of a case is whatever it is any time
authoritatively said to be authority for, and this no one single proposition over
time.

-Relevance = This source supports the argument that the ratio decidendi can be
difficult to be found and that there may not be a single ratio decidendi but rather adds
the view that the ratio decidendi can change and develop over time depending on the
case and whether the authority on the case shifts. It also considers that in informing
later decisions, the ratio decidendi is binding.
- Reliability & Authority = Macormicks work is reliably trustworthy considering that
again, it is written by an expert academic in a textbook that is aimed to objectively
educate others on the ratio decidendi which is the main focus of the work therefore it
is likely that any information given about it is well researched information
4) A. L. Goodhart, The Ratio Decidendi of a case, The Modern Law Review
`(Volume 22, March 1959) 119.
I suggested that the principle of the case could be found by determining (a) the facts
treated by the judge as material, and (b) his decision as based on them. I stated this
as follows : The judge, therefore, reaches a conclusion upon the facts as he sees
them. It is on these facts that he bases his judgment, and not on any others. It follows
that our task in analysing a case is not to state the facts and the conclusion, but to
state the material facts as seen by the judge and his conclusion based on them. It is by
his choice of the material facts that the judge creates law.
- Relevance= Relates to the argument that the ratio decidendi is formed based on the
material facts of a case. This can help when trying to build an argument showing that
the ratio can alter or take different angles depending on the way judges decipher the
material facts of a case.
- Reliability & Authority = A.L. Goodharts theory on ratio decidendi is one of the
most plausible and widely recognised theories available on this topic and therefore
carries very strong authority that is recognised by the majority of those interested in
law.

5) Goodhart, A. (1959) The Ratio Decidendi of a Case, 22 Modern Law

Review, 118.
The phrase ratio decidendi is misleading because the reason which the judge gives
for his decision is not binding and may not correctly represent the principle.
Moreover, there were numerous cases in which no reasons were given, but this did
not affect their authority as a precedent.
- Relevance= Here, Goodharts view becomes more apparent as he asserts that
contrary to the claim in J.Stones work, the ratio decidendi is not binding and carries
little authority or real relevance to the decision of future cases.
- Reliability & Authority= (see source 4)
6) Glanville Williams, Glanville Williams: Learning the Law (15th, Sweet &
Maxwell, London 2002) 101
a case may have not one but several ratio decidendi, of ascending degrees of
generality.

- Relevance= provides support for the argument that there are multiple ratio decidendi
and makes way for the argument that this is due to different degrees of generality.

7) J Stone, Legal System and Lawyers' Reasonings (1st, Stanford University

Press, United States 1964) 271
reduces the range of the binding ratio decidendi to vanishing point
- Relevance = Suggests that although the ratio decidendi is intended to become
binding, the truth is that it can only become binding on cases that are exactly the
same.
Cases & Judges Comments
Note: The following sources are all derived from cases in which judges have given
their opinion and they therefore share the same high level of reliability and authority
considering that they all derive from a person with an authoritative, knowledgeable
standing;

8) Actavis UK Ltd v Merck & Co Inc [2008] EWCA Civ 444; [2009] 1 A11 ER
196 per Lord Jacob
it is not always easy to find what the ratio of a decision is, and it can be harder the
more there are different judgments.
there are cases where there is simply no ratio. It is wrong to assume that every
decision must have a ratio if only it can be found.
- Relevance= Again, another view that affirms that the ratio decidendi is difficult to
find but Jacob JL also provides authority for the fact that often, there is no ratio to be
found at all therefore providing a different argument against J. Stones claim.

9) Great Western Railway Co v Mostyn (Owners), [1928] AC 57 per Lord

Dunedin
if from the opinions delivered it is clear - as is the case in most instances - what
the ratio decidendi was which led to the judgment, then that ratio decidendi is also
binding. But, if it is not clear, then I do not think it is part of the tribunals duty to
spell out with great difficulty a ratio decidendi in order to be bound by it.
- Relevance= Agrees that the ratio decidendi is binding but only when it can be found,
Lord Dunedin recognised that there may not always be a ratio and believed that this
should be accepted by the tribunal instead of the tribunal searching for one.

10) Scruttons Ltd v Midland Silicones Ltd [1962] AC 446 per Lord Reid

I would certainly not lightly disregard or depart from any ratio decidendi of this
House. But there are at least three classes of case where I think we are entitled to
question or limit it: first, where it is obscure, secondly, where the decision itself is out
of line with other authorities or established principles, and thirdly, where it is much
wider than was necessary for the decision so that it becomes a question of how far it
is proper to distinguish the earlier decision. The first two of these grounds appear to
me to apply to the present case.
- Relevance= While not disregarding the importance and relevance of the ratio
decidendi in case law, this source supports the argument that often the ratio can be too
wide and general to apply specifically to the case in question therefore it is suggesting
that although there may be a wide scope for what the ratio could be, usually a process
of limitation is used to achieve the appropriate single ratio. Hence, this source can be
used to argue that admittedly, there may be a range of possibilities to chose from
when concluding the ratio decidendi but ultimately- the ratio that is most likely to
become binding and authoritative for future cases is chosen as the one.

11) F.A. & A.B. Ltd v Lupton [1972] AC 634 per Lord Simon of Glaisdale at
658:
what constitutes binding precedent is the ratio decidendi of a case that is,
generally, those facts which the tribunal whose decision is in question itself holds,
expressly or impliedly, to be material.
- Relevance= A judges decision that affirms the theory that the ratio decidendi is
binding when the tribunal have decided so.

12) Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2002] per
Lord Phillips
as a development on Bell v Lever Bros [1932] AC 161 per Lord Atkin
- Relevance= In this case, two rationes were found, the first was considered to have
weak authority so the second was favoured. This shows that more than one ratio can
be found. Nonetheless, it was filtered down to only one ratio decidendi in order to
effective conveying the courts preference to stick by one ratio decidendi. However,
Lord Atkin did not actually intend to find two ratios so it could have just been a
miscommunication. Regardless it shows the difficulties in finding a single ratio
decidendi. This case was related to Bell V Lever which also shows that there is no
clear ratio in many cases.

13) Esso v Commissioners of Customs and Excise [1976] 1 WLR 1; [1976] 1 All
ER 117.
- Relevance= Emphasises disagreement and different interpretations of the
holdings between the Lords showing different levels of generalisation

leading to different ideas of the ratio decidendi to a case.

14) Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313.
- Relevance= Judges disagreeing over reasoning showing that ratio decidendi
is subjective and therefore may be more of an idea rather than a factual
outcome of a case.
15) Wilkinson v Dowton [1897] 2 Q.B. 57
-

Relevance = Example of how two or three different ratios can be proposed

due to different levels of abstraction. However, only one ratio was
eventually accepted in this case. Shows that despite multiple ratios having
been proposed, only one was concluded