Case Law

Question 1

Case Law

Answer 1

Case law is the collection of past legal decisions written by courts and similar tribunals in the course of deciding cases, in which the law was analyzed using these cases to resolve ambiguities for deciding current cases. These past decisions are called “case law”, or precedent

Question 2

Common Law

Answer 2

Common law is the basis of our law today: it is unwritten law that developed from customs and judicial decisions. Some countries like French or Germany use civil law system. But the common law has been used since the ancient times in England.Common law is based on principle of “stare decicis”.

Question 3

stare decisis

Answer 3

to stand by that which was decided. Rule by which common law courts are reluctant to
interfere with principles announced in former decisions and therefore rely upon judicial precedent as a compelling
guide to decision of cases raising issues similar to those in previous cases.

Question 4

The Supreme Court

Answer 4

Rather unexpectedly, the Labour Government announced in June 2003 that it was going to
abolish the House of Lords (which had existed since 1876) and replace it with a Supreme
Court. It subsequently issued a consultation paper, Constitutional Reform: A Supreme Court
for the United Kingdom, which considered the shape that this reform should take. The
Constitutional Reform Act 2005 was passed, which contained provisions for the creation
of the new court. The Supreme Court (Photo 1.1) was established in 2009 and replaced
the House of Lords.

Question 5

PRECEDENT

Answer 5

Judicial precedent refers to the source of law where past decisions of the judges create law for future judges to follow – also known as case law. This is a major source of law, both historically and today. The doctrine of judicial precedent, by definition, means to follow previously decided cases whereby judges expand the existing principle to the current problem and in effect interpret the one and evolve the other.

Question 6

ratio decidendi

Answer 6

Latin for the ‘reason for
deciding’.

Question 7

obiter dicta

Answer 7

Latin for ‘things said by the way’.

Question 8

Follow

Answer 8

If the facts are sufficiently similar, the precedent set by the earlier case is followed,
and the law applied in the same way to produce a decision.

Question 9

Distinguish

Answer 9

Where the facts of the case before the judge are significantly different from
those of the earlier one, then the judge distinguishes the two cases and need not follow
the earlier one.

Question 10

Overrule

Answer 10

Where the earlier decision was made in a lower court, the judges can overrule that earlier decision if they disagree with the lower court’s statement of the law. The outcome of the earlier decision remains the same, but will not be followed. The power to overrule cases is only used sparingly because it weakens the authority and respect of the lower courts.

Question 11

Reverse

Answer 11

If the decision of a lower court is appealed to a higher one, the higher court
may change it if they feel the lower court has wrongly interpreted the law. Clearly when

a decision is reversed, the higher court is usually also overruling the lower court’s state-
ment of the law.

Question 12

Supreme Court dealing with precedents

Answer 12

Decisions of the Supreme Court (formerly known as the House of Lords) are binding on all lower courts. The then House of Lords regarded it self bound by their own previous decisions – London Tramways v London County Council.
Reasons for this:

As highest appeals court their decisions should be final,
Its in the public interest to ensure certainty and an end to litigation.
It was realised that the final court of appeal should have more flexibility, and in 1966, the Lord Chancellor issued a Practice Statement announcing a change to the rule in London Street Tramnays v London County Council.
Practice Statement by L. Gardiner LC

Question 13

Supreme Court cases that avoided precedent

Answer 13

There is, however, a range of cases where the House of Lords had been prepared to
apply the 1966 Practice Direction. In Hall v Simons (2000), the House of Lords refused

to follow the earlier case of Rondel v Worsley (1969), which had given barristers immu-
nity against claims for negligence in their presentation of cases.

Question 14

Privy Council

Answer 14

The Privy Council is not, strictly speaking, a court at all. Since its function is to advise the
Crown it cannot really be said to be ‘deciding’ cases. It may seem strange that what looks
like an advisory body has any place in the English legal system at all. However, in practice,
the ‘advice’ given to the Queen in the ‘opinion’ of the Judicial Committee of the Privy Councilis almost always followed. As you will see from the table below, this may well be because of
the seniority of its members.Privy Council do not bind
English courts, but have strong persuasive authority because of the seniority of the judges
who sit in the Privy Council

Question 15

Privy Council cases that made a change

Answer 15

(de Lasala v de Lasala

Question 16

Court of Appeal

Answer 16

This is split into Civil and Criminal Divisions; they do not bind each other. Both are bound
by decisions of the old House of Lords, and the new Supreme Court.

Question 17

Court of appeal important case

Answer 17

The general rule is that the Court of Appeal is bound by its own previous decisions. The decisions of one division of the Court of Appeal does not bind the other division.
In Young v Bristol Aeroplane Co Ltd (1946) the Court of Appeal stated that the Civil
Division is usually bound by its own previous decisions. There are four exceptions to
this general rule:
1 The previous decision was made in ignorance of a relevant law (it is said to have been made per incuriam
2 There are two previous conflicting decisions.
3 There is a House of Lords (or Supreme Court) decision which conflicts with the earlier
Court of Appeal decision.
4 A proposition of law was assumed to exist by an earlier court and was not subject to
argument or consideration by that court.
The last of these exceptions was added by R (on the application of Kadhim) v Brent
London Borough Housing Benefit Review Board (2001).

Question 18

High Court

Answer 18

This court is divided between the Divisional Courts and the ordinary High Court. All are
bound by the Court of Appeal, the old House of Lords and the new Supreme Court.
The Divisional Courts are the Queen’s Bench Division, which deals with criminal appeals
and judicial review, the Chancery Division and the Family Division, which both deal with
civil appeals. The two civil Divisional Courts are bound by their previous decisions, butthe Divisional Court of the Queen’s Bench is more flexible about this, for the same reason
as the Criminal Division of the Court of Appeal. The Divisional Courts bind the ordinary
High Court.

Question 19

Crown Court

Answer 19

The Crown Court is bound by all the courts above it. Its decisions do not form binding
precedents, though when High Court judges sit in the Crown Court, their judgments form
persuasive precedents, which must be given serious consideration in successive cases,
though it is not obligatory to follow them. When a circuit or district judge is sitting no
precedents are formed. Since the Crown Court cannot form binding precedents, it is obviously not bound by its own decisions.

Question 20

Magistrates’ courts

Answer 20

The magistrates’ courts hear mainly summary criminal cases. They are bound by the High
Court, the Court of Appeal and the Supreme Court. Their own decisions are not reported,
and cannot produce binding precedents, or even persuasive ones. Like the Crown Court,
they are therefore not bound by their own decisions.

Question 21

County Court

Answer 21

The County Court hears low-value civil cases. It is a court of record so it can set precedents
for itself, but not for higher courts. It is bound by the High Court, the Court of Appeal and
the Supreme Court.

Question 22

European Court of Human Rights

Answer 22

Section 2 of the Human Rights Act 1998 requires future courts to take into account any previous decision of the European Court of Human Rights. Although these decisions are not formally binding, they are highly persuasive, which has major implications for the operation of the doctrine of precedent. The provision effectively allows the overruling of any previous English case authority that was in conflict with a previous decision of the European Court of Human Rights (for example, see R (on the application of H) v Mental Health Review Tribunal for North and East London [2002] QB 1, CA, where the courts considered that part of the Mental Health Act 1983 was incompatible with Convention rights).

Question 23

Per incuriam

Answer 23

the court was ignorant of a relevant authority

2. that ignorance led to faulty reasoning
3. had the court reviewed this authority, it would have reached a different decision

Question 24

Advantages of judicial precedents

Answer 24

1. Certainty
2. Consistency and fairness in law
3. Precision
4. Flexibility
5. Time-saving

Question 25

1. Certainty

Answer 25

Because the courts follow past decisions, people know what the law is and how it is likely to be applied in their case. It allows lawyers to advise clients on the likely outcome of cases. It also allows people to operate their businesses knowing that financial and other arrangements they make are recognised by law. The House of Lords Practice Statement pointed out how important certainty is.

Question 26

2. Consistency and fairness in law

Answer 26

It is seen as just and fair that similar cases should be decided in a similar way, just as in any sport it is seen as fair that the rules of the game apply equally to each side. The law must be consistent if it is to be credible.

Question 27

3. Precision

Answer 27

As the principles of law are set out in actual cases, the law becomes very precise. It is well illustrated and gradually builds up through the different variations of facts in the cases that come before the courts.

Question 28

4. Flexibility

Answer 28

There is room for the law to change as the Supreme Court can use the Practice Statement to overrule cases. The ability to distinguish cases also gives all courts some freedom to avoid past decisions and develop the law.

Question 29

5. Time-saving

Answer 29

Precedent can be considered a useful time-saving device. Where a principle has been established, cases with similar facts are unlikely to go through the lengthy process of litigation.

Question 30

DISADVANTAGES OF PRECEDENT

Answer 30

1. Rigidity
2. Complexity
3. Illogical distinctions
4. Slowness of growth

Question 31

1. Rigidity

Answer 31

The fact that lower courts have to follow decisions of higher courts, with its past decisions (Court of Appeal), can make the law too inflexible so that bad decisions made in the past can be perpetuated. There is an added problem that so few cases go to the Supreme Court. Change in the law will only take place if parties have the courage, the persistence and the money to appeal their case.

Question 32

2. Complexity

Answer 32

Since there is nearly half a million reported cases it is not easy to find all the relevant case law even with computerised databases. Judgements are often very long with no clear distinction between comments and the reasons for the decision.

Question 33

3. Illogical distinctions

Answer 33

The use of distinguishing to avoid past decision can be very complex. The differences between some cases may be very small and appear illogical.

Question 34

4. Slowness of growth

Answer 34

Reforms of law are slow since so fewer cases go to the Supreme Court.