As litigators, we build our legal arguments on authoritative case law or legal maxims.
We cite authority to persuade a court to accept the legal position decided in those cases. This court should accept this because this Federal Court case decided that. This court should reject that because that legal maxim held this.
With authority, a legal proposition must be accepted without argument. If left undisturbed long enough, it is eventually absorbed into the category of ‘settled law’. Competent litigators are expected to know settled law. Incompetent litigators will not know settled law.
But what if there is no legal authority to rely on or none on point for our substantive arguments?
This situation arose when we acted for a party that was appealing against an arbitrator’s decision about his authority to hear certain disputes in a proceeding. Under the AIAC Arbitration Rules 2021 (which has been supplanted by the 2023 Rules), a party to an arbitration can challenge the arbitrator’s jurisdiction over any claims, counterclaims or defences (‘claims’). The challenging party submits a summary determination request to the arbitrator for him to determine whether any claims lie outside his jurisdiction. Any party unhappy about the decision can appeal that decision to the High Court under section 18(8) of the Arbitration Act 2005 within 30 days.
While we worked on the submission, my colleague came to see me with a concern.
‘Boss, there is no case law to support our arguments. The way I see it, it’s all down to how the court interprets the agreement, court order, the pleadings, and their specific wording.’
‘Yes. I agree with you. So what’s the problem?’
‘But then our submission will have no legal authorities; it’s just our arguments without authority.’
‘Aaaand what is wrong with that?’
‘Is that enough? I always thought we need case law to support our argument.’
‘At some point, we will run up against an exception to the rule. When there is case law to rely on, we rely on them. But when there is none, it is down to, as you say, logic and interpretation. That’s uncommon but perfectly acceptable. We don’t always need case law to make our argument. But, we always need the soundness of logic and adherence to the facts to support it. Sometimes, the situation doesn’t require it because it’s all about facts, or a matter of interpretation or because there is just none. We will not find any for the reasons you mentioned earlier – it is down to the interpretation of several unique documents.’
‘So, our submission will just be our arguments?’
‘Our cogent and sensible arguments.’
‘No case law.’
‘No case law. Don’t worry about it. Focus on the rationality of our arguments and soundness of approach.’
He did not convey a sense of being convinced when he departed.
It was fortunate that we succeeded in the appeal. Now, my point was proven! I wonder what my colleague’s impression of that view would have been if we lost the appeal! Would my view still have the soundness of reality and experience behind it?
Although case law is necessary for most cases, it is not compulsory for all cases. Although citing authority for our propositions is good practice, citing settled law is unnecessary. It’s pedantic, and those citations waste ink, space and attention. Citing cases for settled law is the work of amateurs.
There will be moments when we find ourselves bereft of decided cases. This may be because the area of law is new and developing, because it is a matter of interpretation that requires consideration of the wording of a unique document (contract interpretation cases, for example), or because it is a primarily fact-based dispute where the law is settled (road traffic cases, for example). Excluded from those situations are cases where case law remains undiscovered because of a lack of diligence.
The inability to discover authoritative case law does not necessarily signal a shortcoming on our part or efforts. It should alert us to the possibility of dealing with a case that does not require it or requires something else. It should put us on notice that we are potentially dealing with a case that demands that we direct and focus our attention on the facts, documents, or what the law should be instead of what it is.
However, that comes with the qualification that we have thoroughly understood our case and researched the legal area involved before coming to that conclusion.
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