Case law: a challenge for lawyers.
22 February 2026(2026 Feb: LinkedIn) At rent review, we surveyors are told that, according to case law, arbitration awards are not admissible evidence because it depends upon the evidence presented to the arbitrator. However, something that (sort of*) makes sense to surveyors doesn’t apply to lawyers. Whenever one obtains a lawyer’s advice or opinion, invariably it will contain an element of sureness. Lawyers ignore the evidence presented to the court and instead extract from the ruling rules that lawyers apply regardless of the facts of the cases concerned. To reinforce that way of thinking, lawyers write about topics and, to capitalise on the financial potential, publishers of law books arrange for ‘Handbooks’ to be written by and for surveyors and others. Over time, not only has lawyer way of thinking become the norm, but also institutionalised.
* Some third parties as independent experts don’t take any notice of this, I guess on the principle that despite an arbitration award being confidential, the so-called confidential protection that independent experts include in determinations is enough to overcome the breach.
If for example a surveyor were to stand in the witness box in court to decide a lease renewal and in evidence relied on the letting of a office building for the valuation of a shop, the only similarity a letting, the surveyor would become a laughing stock. It wouldn’t happen, so why is it allowed for lawyers? The short answer is that case law is relied upon as establishing rules for later actions. But, the long answer is, I hesitate to say, a product of laziness. It is easier and quicker and therefore more profitable to shorten the time-span for remembering. If it were not for an inventive C16 physician inventing the = symbol, mathematicians would’ve had the tedious repetition of writing the words “is equal to”. The difference, however, between symbols and rules for later actions is that the facts of the case(s) from which the rules are derived are often more relevant to the case in question.
“Judge each case on its individual merits” – in the Estates Gazette 1 November 2003, the title of an article written by Hazel Williamson QC, a barrister in Maitland Chambers, and an arbitrator and deputy high court judge. In this article, Ms Williamson says ” Care should be taken not to rely too much upon the case law as laying down concrete rules on the application of law.” “Where are cases depend upon the meaning of a document. it may be that apparently similar documents having, in an all important respect, used different wording.” “Cases all depend upon their own particular facts and the evidence that is advanced.”
Return to Article