Case Law

Question 1

What is Judge made law?

Answer 1

‘common law’ that refers to the body of case law decided by judges

Question 2

What are the rules of precedent?

Answer 2

This means that the decisions of judges higher up in the hierarchy of courts and tribunals are ‘binding’ on those lower down, i.e. the judges in lower level courts and tribunals have to decide cases in accordance with the principles laid down courts above in the hierarchy.

Question 3

What do judges do?

Answer 3

Judges decided cases that are brought by individuals (whether these are private individuals, or other ‘legal personalities’ such as companies) against another party. Judges do not, of their own accord, start cases or investigate legal issues.

Question 4

Do judges make law?

Answer 4

Yes & no - an area of academic debate. The traditional theory is that judges do not make law but merely declare what it has always been. Linked to this is the retrospective nature of precedent. The view is that decisions are based on statements of legal principle which have always been in existence, but which do not find the appropriate occasion for its expression until a relevant case is brought before a court.

Question 5

What is the difference between judgment and judgement?

Answer 5

The ‘e’

• the judgment of a court or tribunal is spelt without an ‘e’.
• someone’s personal judgement is spelt with an ‘e’.

Question 6

What does Stare decisis mean?

Answer 6

Doctrine of binding precedent

‘stand by what has been decided’

Question 7

What does the judgment consist of?

Answer 7

(a) A summary of the facts.
(b) Statements of law, which will include theratio decidendiandobiter dicta.
(c) The court’s decision on remedy, which is binding only on the parties to the case.

Question 8

What part of a judgment is binding?

Answer 8

Not every aspect of a judgment is binding.
- As soon as ‘point of law’ has been decided by any superior court, it establishes a precedent.
- A precedent may be:
○ Binding, in which caseit must be followed; or
- Ratio decidendi
○ Persuasive, in which case it will be considered by the later court and may be followed. Not every aspect of a judgment is binding.

Question 9

What is point of law?

Answer 9

A point of law is a question about the application of the law to the case, which the court has been asked by the parties to decide. Some judgments, such as those of the Supreme Court, deal with points of law of ‘general public importance’. The lower courts also deal with points of law, but they are usually of little significance beyond the case.

Question 10

What does Ratio decidendi mean?

Answer 10

“reason for the decision”

• the binding part on other courts
• legal principle or rule on which the courts decision is based applied to the material facts on the case

Question 11

Is the material facts of the case important to the Ratio decidendi?

Answer 11

• The material facts are those on which the decision of the court depends. If the material facts change, the court’s decision might also change.

Question 12

What would the headnote of the case include?

Answer 12

• gives essential information about the case
• a section in which the law reporter (a barrister or solicitor whose job is to analyse new judgments and write authoritative reports on their legal aspects) explains what in his or her view the court has held as a matter of law in reaching its judgment.

Question 13

What is an Obiter dictum?

Answer 13

Where a judge comments on an area of law which is not necessary for the court to reach the decision in a case

Question 14

Are Obiter comments binding?

Answer 14

No but can be highly persuasive

Question 15

What can Obiter dictums include?

Answer 15

• Statements of law not necessary to the decision, e.g. on hypothetical facts or on facts which are not material.
• Statements of the law as the judge would like it to be but for the doctrine of precedent.
• Dissenting judgments, i.e. the view of a judge who disagrees with the majority of the court.

Question 16

How would you describe a case that is following another?

Answer 16

Where a court considers the facts of a case to be so similar to those facts in an earlier case that the law in the earlier case should be followed, it can be said to be following the decision in that case.

Question 17

If the court doing the ‘following’ is a higher court, what is it said to be doing?

Answer 17

Approving the earlier one

Question 18

Where a court in a later case considers the facts of an earlier case to have similarities to those in the case before it and therefore applies the law in that earlier case, what is it said to be doing?

Answer 18

Applying the earlier decision.

Question 19

How can a judgment be reversed?

Answer 19

A judgment is reversed if a case goes to appeal and the higher appeal court disagrees with the lower court.

Question 20

How can a precedent be overruled?

Answer 20

A precedent is overruled if a superior court in a later case decides the original precedent set in a past case is wrong, and sets a new ‘correct’ precedent instead.
- the OG precedent is no longer good law.

Question 21

What is ‘distinguishing’?

Answer 21

• A court may avoid following an otherwise binding precedent if it can ‘distinguish’ the earlier case, e.g. by finding a difference in the material facts between the two cases.
• judge does this