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The value of obiter in the TCC

Melissa Moriarty’s recent blog post covered the complex subject of delay. It also touched on something seemingly simple: the difference between the ratio and obiter elements of a judgment. So how is it that lawyers manage to disagree about this elementary distinction and why does it matter? 

Defining obiter

Jowitt’s Dictionary of English Law defines obiter dictum as:

“An opinion not necessary to a judgment and therefore not binding as a precedent.”

This has the ring of simplicity and draws on Lawrence J’s statement in Flower v Ebbw Vale Steel, in which the court summarised its view of the case law to which it had been directed, stating that:

“…in none of these cases was the statement necessary to the decision of the case, and therefore the statement was only an obiter dictum.”

This all seems rather straightforward, but the mere fact that the court in Flower v Ebbw Vale Steel commented on the concept indicates that things aren’t that simple.

Some problems

The fact is that the courts rather inconveniently mix the necessary and unnecessary parts of their decisions, so it is easy to get confused. They also include additional information in their judgments, in case it is relevant on appeal. Ask yourself about the following situation:

  • If a claim depends on winning two issues and claimant loses the first, a court may set out its findings on the second issue anyway, in case the judgment is appealed. Is the court’s decision on that second issue obiter?
  • What happens if the judgment is appealed? If the Court of Appeal finds for the claimant on the first issue, but agrees with the first instance court on the second issue, does this mean that the second part of the judgment is no longer obiter (or was that never the case)?

You may find answering these questions easy. You may feel that it depends on the circumstances. You may be among the many lawyers that simply avoid the issue. Does it really matter?

On top of this, let’s remember those judgments in which a court comments on an issue that isn’t in the pleadings at all. For example, the state of the trial bundle or the conduct of an expert witness. That type of thing is common in the TCC, which takes an active role in case management and spends much of its time considering expert evidence. Such comments are valuable, despite not forming part of a judgment’s ratio.

Evaluating obiter comments

Melissa’s blog post related to North Midland Building Ltd v Cyden Homes Ltd, in which Fraser J referred to two earlier pronouncements on concurrent delay that are often referred to as obiter. (In passing, I note that both those judgments mirror the scenario outlined in my first bullet point above.) Fraser J stated that they were not obiter. He pointed to various factors in support of this, including that the Building Law Reports covered the supposedly obiter aspect in its headnote. Whether or not you consider that a relevant factor, it’s instructive (and reassuring) to see that Fraser J hedged his bets: whether or not those pronouncements were obiter, he said, they were important because:

“Two identical conclusions on the same point from specialist judges in different fields, on precisely the same point, in almost identical terms, merit serious attention, even without taking into account the fact that both the judges who came to those conclusions became appellate judges.”

Ironically, Fraser J’s view is itself obiter, but that illustrates the ultimate point. Whether a passage is obiter is important if you are deciding whether an inferior court is bound to follow it, but beyond that we need to weigh things up in context. This won’t convert an obiter passage into a ratio, but it will help you decide how much attention it deserves. My list of factors to consider includes:

  • How senior is the court?
  • What is the particular judge’s reputation in the relevant field?
  • Was the issue argued in full before the court?
  • Is the judgment reasoned?
  • Does the decision take account of all the key authorities?
  • Does the judgment reflect modern life (in construction terms, does the industry still work in the same way)?
  • Do you agree with the court? If you (or legal commentators) can see an error in the court’s reasoning or an unintended consequence, then that should colour your assessment.

I’m sure other factors are relevant too. Feel free to point them out in comments on this post. My main point is that applying these questions to TCC judgments often leads one to conclude that any obiter comments are valuable. For the past fifteen years or so we have been blessed with an extremely able TCC, perhaps the best we’ve ever had. The TCC’s judgments over this period usually justify and reward close attention.

Obiter is everywhere!

Of course, the truth is that we need to evaluate every aspect of a judgment using our own experience and knowledge. Just because a comment is obiter, it cannot be ignored or deprecated. That is especially true when the court is highly regarded, as the TCC is right now. However, it also leaves us with a lot of work to do: this year alone the TCC has made useful obiter comments in Lea Valley Developments Ltd v Derbyshire, North Midland Building Ltd v Cyden Homes Ltd, Dawnus Construction Holdings Ltd v Marsh Life Ltd, Leeds Beckett University v Travelers Insurance Company Ltd, Goodlife Foods Ltd v Hall Fire Protection Ltd, Celtic Bioenergy Ltd v Knowles Ltd and Kersfield Developments (Bridge Road) Ltd v Bray and Slaughter Ltd.

Oh, and let’s not forget judgments from other courts that affect our sector, such as Gard Marine and Energy Ltd v China National Chartering Company Ltd. Phew!

Practical Law Yassir Mahmood

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