Oxford Standard for Citation of Legal Authorities - Assignment Example

OSCOLA stands for Oxford Standard for Citation of Legal ities and while it originated in Oxford in the year 2000, it is now being used by law schools in the United Kingdom and even outside of it, as well as in a number of legal journals. It is used in order to properly cite materials, references and cases used in the paper or essay not only to avoid being cited for plagiarism1, but more importantly, to acknowledge the intellectual source as well as to aid the reader who may wish to inquire more deeply into a particular topic. It also helps the author maintain his or her consistency, and thus it makes it easier for the reader to follow to argument being made. The main feature of the OSCOLA system of referencing is that it uses the footnote system, rather than in-text citations2. An example of in-text citation is this: (Harvey, 2009). A footnote provides evidence for one’s claims by citing legal sources (for example, statutes, cases) as well as secondary sources (for example, books, journals, etc.) Footnotes are indicated by putting a superscript number after the relevant punctuation in the text. If a case is being cited, the name of the case must be given, the neutral citation and the volume and first page of the relevant law report. If necessary, the name of the court must be given as well. For example, in citing the case Phipps v Boardman3 the citation would be like this: [1967] 2 AC 46 (HL). Another example is this: In the case of Foss v Harbottle4, the Court sought to look into the rights of an individual shareholder against a company. The footnote would read: (1843) 2 Ha. 461. The footnotes and the punctuations should conform the underlying rules in the OSCOLA System. 2. According to a comparison made by the Institute of Advanced Legal Studies5, Lexis Nexis has full text legislation and cases, and contains about 60 series of law reports. As for UK journals, it has Halbury’s Laws of England. It has the full text of around 60 journals, after 1995. Because the law of the European Union is becoming increasingly relevant to British lawyers, access to EU law, cases, international agreements and publications are also available at Lexis Nexis. International law scholars will also find a huge resource of international law materials, including tribunal decisions. It also has US material including a wide collection of US treaties, as well as material from the Commonwealth: Australia, New Zealand and Canada. On the other hand, WestLaw has the full text of legislation and cases including law reports but just 30 series. However, it gives links to journal references to these cases, unlike Lexis Nexis. It has around 50 full-text titles of journals, its legal journals index covers over 800 journals (in contrast to Lexis Nexis’s 60). It also has EU official publications, legislation, case law, international agreements, and the like. Like Lexis Nexis, it has access to international law materials, US treaties, and material for Australia and Canada (not New Zealand). Finally, Lawtel, which is another database that can be a useful resource for students, contains UK law and case reports similar to the above-mentioned databases, and provides summaries of case law, articles, parliamentary bills, statutes and statutory instruments, as well as command papers. Its interesting feature is the Lawtel Human Rights law, which provides Human Rights related judgments dating back to 1960, as well as human rights legal articles and legislation. It is also updated daily so that the law student or legal practitioner will find it to be of maximum convenience. 3. a. Round brackets are used when the year is not needed to identify the correct volume of the case. Square brackets are used when the year is needed to identify the correct volume of the case. b. The judge is Mr. Justice Griffith Williams c. William Hoskins (instructed by Greenwoods Solicitors) for the Defendant; Robert Glancy QC and Richard Cartwright (instructed by Irwin Mitchell Solicitors) for the Claimant. d. The material facts of the case are as follows: Robert Smith, the claimant was riding his bicycle along Samson’s Road, Brightlingsea, Essex and collided with a motorcycle driven by the Defendant, Michael Finch. It is established that Smith was not wearing a helmet when the incident happened. On the other hand, Finch was travelling with excessive speed and tried to overtake him on the offside whilst Smith was preparing to make a turn to the right. Smith’s head hit the ground at more than 12 mph, and at this speed, the wearing of a helmet no longer gives its wearer any protection. e. The judge ruled in favour of the Claimant and ruled against any contributory negligence claim that the Defendant had filed in counter-suit. The reason is that it has been established that it was the excessive speeding of the Defendant that was the cause of the incident in question. The failure of the Claimant to wear a helmet was not a ground to make him liable for contributory negligence because the expert testimony of two doctors, Doctor Mills and Doctor Chinn, stated that a helmet would not be able to protect the wearer, considering the speed with which the Claimant had hit the ground and damaged his occipital bone f. The case was decided on January 22, 2009. g. The doctrine of precedent, also known as the principle of Stare decisis, means that a court is bound by the previous decisions of a superior court. For example, any decision made by the House of Lords is binding to the Court of Appeal, Crown Court amd County Courts. To a certain degree, English courts are also bound by the decisions of the European Court of Justice. Any doctrine laid down that other courts have to follow is called a “binding precedent.”. A binding precedent must be distinguished from a “persuasive precedent”, which involves doctrines or rules laid down by a lower court. It does not bind the higher court, but it may be of such persuasive value, that the higher court voluntarily inheres to its logic. To further understand the concept of the doctrine of precedent, we may turn to the case at hand. The case now sets the doctrine that the non-wearing of a helmet renders the claimant liable for contributory negligence in the event of personal injuries claims, if the facts of the case demonstrate that the helmet would not have prevented the accident or reduce the scale of injuries. If we read the case carefully, we also notice that the case of Froom and others v. Butcher6 was cited as precedent, albeit the said case speaks of seatbelts and not helmets. Whilst the decision said that there should be a degree of care taken by individuals who participate in activities such as cycling or driving, the sort of which has led to an accident, there was also mention of the fact that a seatbelt is prescribed by law but a helmet is not. 8. Obita dicta means that a particular statement is not the main ground for the ruling, but might have some persuasive value in future cases. It has no part in the reasoning that gave rise to the verdict. Indeed, it means in Latin, a statement made in passing. For example, the statement of the Judge that “‘It did not matter that there was no legal compulsion for cyclists to wear safety helmets because there could be no doubt that the failure to wear a helmet might expose the cyclist to the risk of greater injury; such a failure, like the failure of a car-user to wear a seatbelt, would not be sensible and so, subject to causation, any injury sustained might be the cyclist's own fault7” may have some persuasive value, or be of good sense, but it cannot be made the basis of any argument later on invoking similar issues and points of contention because it is non-binding. 9. The articles quoting the case: J Clark, ‘Contributory Negligence in PI Claims: the basics and some real cases’ (2010) APIL http://www.oldsquare.co.uk/pdf_articles/3100183.pdf accessed 21 October 2011. J Costley-White, ‘Court judgment has major implications for cyclists’ (2009) Bikeradar.com http://www.bikeradar.com/news/article/court-judgment-has-major-implications-for-cyclists-20250/ accessed 21 October 2011. M Porter, ‘Personal injury: blame the victim’ (2009) New Law Journal. http://www.newlawjournal.co.uk/nlj/content/personal-injury-blame-victim accessed 21 October 2011. Read More