Common law and the doctrine of precedent Flashcards
What is common law?
The rules of law developed by the courts through legal decisions- as opposed to rules of law created by legislation/ statute.
Describe the doctrine of precedence
A rule of law established in one case, must be applied in a similar situation in a later case. Based on the fundamental principle of ‘stare decisis’ (‘let the decision stand.’) ‘Like cases must be treated alike.’
When would rule of law stop being applied?
When a court higher in the hierarchy decides that the case was incorrectly decided, or parliament decides to change the law by passing a new act of parliament
Name the three things the operation of a binding precedent depends upon
- Hierarchy of courts
- Reliable records of decisions
- The identification of rules of law
Name the courts that are trial only
Magistrates and county
Distinguish between the vertical and horizontal effect of precedent
Vertical effect of precedent is the principle that all courts are bound by their superiors. Whereas, horizontal effect of precedent is the idea that certain courts are generally bound by their own previous decisions.
What is a law report?
A record of a judicial decision on a point of law which sets a precedent. A decision is only reportable if it lays down a new principle of law, or changes or clarifies the existing law. It is a permanent record of precedent.
What is a headnote in a law report?
A headnote comes at the start of a report, and it summarises the case.
What are the “rules” of precedent?
A past decision must be followed (binding) if:
1.It was decided in a court binding on the present court
2. There is a sufficient degree of analogy between a previous case and the case being decided
3. It is still ‘good law’
What is ratio decidendi?
The rule of law upon which a decision is based.
What is persuasive precedent?
Precedent which a judge is not obliged to follow but is of importance in reaching a judgement. E.g., Obiter dictum, Dissenting and minority judgements, Ratio decidendi of courts lower in the hierarchy, Decisions by courts outside the English and Welsh legal system.
Outline obiter dictum
Statements of the law that are not essential to the decision – something which is said ‘by the way’. Can help with future cases.
Inferior and superior courts can follow and distinguish, but what else can superior courts do, that inferior can’t?
Affirm, Depart, Reverse, Overrule
What are material facts?
Link directly with the issue and the ratio of the case and if any material fact were omitted or changed then the outcome of the case, the ratio or the legal issue would be different.
Define legal issues
What questions of law does the court have to determine before it can decide the outcome of the case? ‘Whether…’
