ELS - sources of law Flashcards
what is stare decisis
the principle of precedent
what is the common law
body of case law decided by judges
Ratio & Obiter (binding?)
Ratio = binding
Obiter = not binding but highly persuasive
What is the common law
Law which has developed naturally over time. Made by judges and governed by precedent
what are the 6 ways courts can respond to earlier case law
- Following
- Applying
- Distinguishing
- Reversing
- Overruling
- Overturning
when should a judge ‘follow’ an earlier judgement
where the two cases are so similar the earlier case should be followed
when should a judge ‘apply’ an earlier judgement
if there are similarities with the facts of the earlier case
when should a judge ‘distinguish’ an earlier judgement
To avoid an otherwise binding precedent if there is a material difference on the facts
when should a judge ‘reverse’ an earlier judgement
when a case goes to appeal and the higher court disagrees with the lower
when should a judge ‘overrule’ an earlier judgement
when the higher court decides an earlier precedent is wrong and sets a new one
when should a judge ‘overturn’ an earlier judgement
same as overruling (higher court decides earlier precedent is wrong)
What courts are binding and on which other courts
- Supreme court = binds all inferior but can depart from its own decisions
- CoFA = binds all inferior courts and itself (subject to some exceptions)
- High Court = binds all inferior courts but not itself
- Upper tribunal = binds first tier, inferior and itself
- First tier tribunal = does not bind but persuasive
- Family, county, crown, mags = doesn’t bind other courts or itself
What are examples of equitable remedies
specific performance, injunction, declaration, rescission, rectification
What is not an equitable remedy
Damages (CL remedy)
What prevails between equity and common law
equity
