ELS – sources of law

Question 1

What are the different meanings of common law?

Answer 1

In the historical sense, to distinguish law as applied by the Kings judges as opposed to the law as applied by local customary courts.

To distinguish the law that was applied by the Kings Courts as opposed to the rules of Equity, a system developed by the separate Court of Chancery.

To distinguish case law.

To identify the law as applied by common law countries as opposed to the law applied by civil law countries where the law is based on Roman law.

Question 2

What is the responsibility of a judge in a case?

Answer 2

Consider the evidence and decide which evidence they find credible.

Consider the applicable law.

Apply the law to the facts of the case.

Decide what remedy.

Question 3

Do judges make law?

Answer 3

The traditional theory is that they do not do so but merely declare what the law has always been.

Question 4

What is stare decisis?

Answer 4

Stand by what has been decided

Question 5

For a court to be compelled to follow what has been stated in an earlier case what must be satisfied?

Answer 5

The earlier case was decided in a court that binds it; and

The relevant part of the earlier case is binding, rather than merely persuasive.

Question 6

What part of a judgment is binding?

Answer 6

Ratio decidendi.

Question 7

What is ratio decidendi?

Answer 7

The legal principle or rule on which the court’s decision is based.

Question 8

What is obiter dictum?

Answer 8

Where a judge comments on an area of law, on which it is not necessary to each a decision in the case.

e.g. hypothetical facts, how the judge would like it be, dissenting judgments.

Question 9

What does following the decision mean?

Answer 9

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.

Question 10

What does approving mean?

Answer 10

If the court doing the `following’ is a higher court, then the later decision is also said to be approving the earlier one.

Question 11

What does reversed mean?

Answer 11

A judgment is reversed if it goes to appeal and the high court disagrees with the lower court.

Question 12

What does overruled mean?

Answer 12

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.

Question 13

What are the rules in relation to the CoA departing from precedent?

Answer 13

1. If the CA came to previously conflicting decisions, today’s CA can select the one to follow.
2. If the CA’s own decision has been overruled expressly or impliedly by the Supreme Coutt or HoL, it need not be followed.
3. If the CA’s previous decision was made per incuriam (court was not aware of relevant authority which would have been binding on the court and that ignorance led to faulty reasoning by the court).

Question 14

What courts do not bind other courts?

Answer 14

Magistrates Court

Crown Court

County Court

Family Court

The First Tier Tribunal

Question 15

What court’s does the Upper Tribunal bind?

Answer 15

Binds the First Tier, The inferior courts and itself.

Question 16

What court’s does The High Court bind?

Answer 16

Binds all inferior courts.

Does not bind itself but will only depart from its own decision where convinced it was wrong.

Question 17

What court’s does the CoA bind?

Answer 17

Binds all inferior courts and itself subject to exceptions previously listed.

Question 18

What court’s does the SC bind?

Answer 18

Binds all inferior courts but may depart from its own decisions.

Question 19

In cases of conflict between equity and common law which prevails?

Answer 19

In cases of conflict, equity should prevail over common law. This rule is enshrined in section 49(1) of the Senior Courts Act 1981.

However, equity follows the law.

Question 20

What is the nature of equitable remedies?

Answer 20

o Equitable remedies remain discretionary in modern law.

o Common law damages (financial compensation) is available as of right.

o Equitable remedies are awarded only if damages would not be an adequate remedy

Question 21

What are equitable remedies?

Answer 21

1. Specific performance
2. Injunction
3. Declaration
4. Recission
5. Rectification

Question 22

What is specific performance?

Answer 22

Order compelling a party to perform something they have promised to do under a contractual agreement. As a general rule, it is available only where:

There is a valid and enforceable contract.

Damages would not be an adequate remedy for the claimant.

Not available for breach of a contract for personal services.

Question 23

What is an injunction?

Answer 23

To do something (mandatory injunction); or

To refrain from doing something (prohibitory injunction)

Injunctive relief could be interim or final

Question 24

What is a declaration?

Answer 24

Legally binding statement by a court about any of the following:

• The legal rights of the parties.
• The existence of facts
• A principle of law

Courts can make a binding declaration whether or not another remedy is claimed.

Question 25

What is recission?

Answer 25

Recission is setting aside a contract. It is available at common law and in equity.

May be granted as a result of:
* Misrepresentation
* Mistake
* Duress or undue influence

Recission is only available where the parties can be put back to their pre-contractual position.

Question 26

What is rectification?

Answer 26

Corrects a document to reflect the parties contractual intention. If the errors are too fundamental or extensive, rectification is not available.

Question 27

What is primary legislation?

Answer 27

`Acts of Parliament’ which are put before Parliament as Bills, debated, and passed by both Houses of Parliament.

Acts of Parliament receive royal assent – formal approval by the Monarch before becoming law.

Question 28

What is secondary legislation?

Answer 28

Also known as subordinate’ legislation. Secondary legislation is law created by ministers under powers given to them by a parent’ Act of Parliament.

It is used to fill in the details of primary legislation.

Question 29

What is a public (or general) Acts?

Answer 29

Acts which relate to matters of general public concern.

They are debated in both Houses of Parliament, and any outside body wishing its views to be considered can only do so by persuading an MP or peer to put forward such views in debate. This practice is known as lobbying.

Public Acts make up by far the largest part of Parliamentary legislative output.

Question 30

What is a private (or personal) Act?

Answer 30

One which relates to particular places or to particular people.

These Acts usually stem from a proposal by a large organisation such as a local authority or a large private company which wishes to acquire certain powers.

For example, a local authority might be seeking a power to build a bridge. The promoter of a private Act is responsible for convincing Parliament of the desirability of the proposal.

Question 31

What can Public Bills be divided into?

Answer 31

Government Bills and Private Members’ Bills.

Question 32

What is a Government Bill?

Answer 32

Represents the policy of the government of the day and is drafted by the official parliamentary draftsman, based on what the government department promoting the Bill wants to bring into law.

It will be based on ministerial proposals issued in the form of a Green Paper (for discussion) and White Paper (official government policy).

Question 33

What is a Private Members’ Bill?

Answer 33

A bill promoted by a particular Member of Parliament, normally through the Ballot system. These Bills do not start life as official government policy but can sometimes be supported by the government. They are given far less parliamentary time and so are often not successfully passed.

Question 34

Can bills start in either the Commons or the Lords?

Answer 34

Bills may start in either the Commons or the Lords (apart from Bills dealing with public finances, which must start in the Commons and cannot be defeated in the Lords).

Question 35

What is the legislative process?

Answer 35

1. First Reading
2. Second Reading - main principles of the Bill are debated by MPs
3. Committee stage - details of the bill are scrutinised by a legislative committee. It may be amended.
4. Report Stage - Proposed amendments are debated and there is a vote on the committee’s report.
5. Third reading - final debate and vote on the Bill. If passed, it goes on to the other House.

Question 36

What is Royal Assent and when is the commencement of an Act?

Answer 36

o Final stage in a Bill becoming an Act is Royal Assent. No legal requirement requiring the Monarch to assent, however, there is a convention to that effect.

o Act of Parliament takes effect from the day it receives Royal Assent.

o However, doesn’t always come into force on the same day it was enacted. More usual for an Act to include a commencement section.

Question 37

What is secondary legislation?

Answer 37

Law made by some person or body other than Parliament – usually a government department.

It is made under powers granted to it by Parliament in primary legislation.

It includes regulations made by statutory instruments, Orders in Council, and by-laws.

A piece of delegated legislation made within the powers granted by Parliament in the parent Act has equal statutory force to that of the primary legislation.

However, while the courts have no power to invalidate an Act of Parliament, they are empowered to examine whether delegated legislation is made within the powers of the parent Act and ‘quash’ it, if it is not.

Question 38

How is secondary legislation scrutinised?

Answer 38

Secondary legislation is not subject to parliamentary scrutiny in the same way as primary legislation.

Parliament can either approve or reject a statutory instrument (SI) but cannot amend it.

Parliament’s role in considering an SI varies depending on what is stated in its parent Act. The Joint Committee on Statutory Instruments checks SIs to make sure the law they contain is clear and follows the powers given by the parent Act.