Consequently, the option to formulate a common law rule is exercised
in a
special way and entails the court making two choices. Put simply, a court
formulates a version of a common law rule by identifying the material facts of
the case and generalising each fact to some degree to compose the elements of
a rule. A later court can make additional versions of this common law rule by
varying either or both of these choices – by selecting different facts as material
or by generalising any material fact to a different degree (be it greater or
lesser).
Deciding the Material Facts
One part of the process is for the court to make a choice by distinguishing
between facts which are material and facts which are not. (Alternatively these
facts are labelled relevant and irrelevant facts, or essential or non essential
facts.) Material facts consist of Facts 1-n in the model for litigation, being the
facts that satisfy Elements 1-n.
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This choice is available to a court because there is no precise definition of
material facts. In a basic sense, however, the nature of material facts is clear.
Material facts are those delineating the target for legal regulation. For example,
in tort law the material facts together define conduct that should constitute an
actionable wrong which the court may try to redress by creating a new cause
of action. To
illustrate, if Philomena, wearing a pretty pink dress, walks onto
Jake’s meadow crushing his daisies, the obvious facts which need to be
regulated by law are entry onto the meadow and crushing the daisies. By
contrast the colour of Philomena’s dress is a matter of fashion, not an object
of legal attention.
But despite this general rule – that material facts are facts that require or justify
legal regulation -
there is still not complete certainty in this regard. There can
be a debate as to which facts should fairly constitute a wrong, or for some
other reason be subject to legal regulation.
To illustrate in abstract form the scope of this choice, assume that the court
has found the facts of the case, which we label Case Facts 1-n. For
convenience assume that in a case there are 32 facts, labelled Case Facts 1-32
(so n = 32). Having found the facts, Case Facts 1-32, the first choice is for the
court to decide which of these facts to treat as material. Now the court might
find that there are three material facts, Case Facts 3, 4, and 12 respectively. On
the model for litigation these would be labelled Fact 1, Fact 2 and Fact 3.
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This choice of material facts is designated in the following table:
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Material facts consist of Facts 1-n in the model for litigation, being the facts
that satisfy Elements 1-n – see Chapter 18 Model for Litigation.
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Chapter 18 Model for Litigation
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