5: Case law as a source of law

Question 1

What is the term for the case that is currently before the judge? (‘…’ case)

Answer 1

instant

Question 2

What is the latin term for when the law laid down in the earlier decision, followed in a later case (the instant case)

Answer 2

ratio decidendi

Question 3

In order for the doctrine of precedent to operate effectively, there needs to be: (4)

HRDA
(HARDA)

Answer 3

• An established hierarchy of courts
• An efficient way of reporting cases so that the judgements are easily and efficiently located
• A way of discovering the law laid down in an earlier decision
• A clear description as to the application of the doctrine

Hierarchy
Reporting cases
Discovering the law
Application of the doctrine

Question 4

What is the court hierarchy, starting from the pinnacle downwards

Answer 4

The Supreme Court of Justice
The Court of Appeal
The Upper Tribunal
The First Tier Tribunal

Question 5

In england and wales, the court of appeal is divided into two divisions. What are these?

Answer 5

Civil division and criminal division

Question 6

What is the name of the most senior judge in the civil division of the court of appeal called?

Answer 6

Master of the Rolls (MR)

Question 7

Is there a right of appeal to the supreme court? If not, how do you appeal to the supreme court of justice?

Answer 7

There is no right to appeal. You must have permission to appeal

Question 8

How many judges hear appeals to the supreme court?

Answer 8

Usually five

Question 9

How many judges hear appeals to the court of appeal?

Answer 9

Usually three

Question 10

Can you appeal to the court of appeal?

Answer 10

No right to appeal - you must obtain permission in order to pursue

Question 11

What types of cases does upper tribunal hear?

Answer 11

It mainly hears appeals on a point of law but in an exceptional case, it may be a court of first instance (if it is considered a complex case)

Question 12

What are the two ways flexibility is maintained within the development of law?

Answer 12

1. Parliament can overrule precedent by enacting an act that amends the point of law that the precedent was based on, so the precendent becomes obsolete
2. Senior courts in the hierarchy may also overrule the rationas decidendi of lower courts, in which case the decision of the lower courts is deemed to have never existed

Question 13

The UT is divided into three chambers. What is the chamber dedicated to cases dealing with tax issues?

Answer 13

Tax and Chancery Chambers

Question 14

The FTT is divided into eleven chambers, what is the chamber dealing with tax matters?

Answer 14

Tax Chamber

Question 15

Can a decision of the ECJ on European law overrule a decision of the Supreme Court of the UK

Answer 15

Yes

Question 16

The Court of Appeal is bound by its own previous decisions. There are three circumstances however, when it will depart from its own previous decision:

Answer 16

• Where there are two conflicting decisions
• Where the decision at the CoA does not agree with the House of Lords
• Where the previous case was per incuriam

Question 17

When deciding whether to treat a precedent as persuasive, they will take into account: (3)

Answer 17

• The seniority of the court that made the decision
• The standing of the judge who made it
• Whether the court took time to consider its decision

Question 18

what does latin term ‘obiter dicta’ mean

Answer 18

statements of a judge that are not central to the case before them and that are made in passing

‘that is said in passing’