ELS Sources of Law Flashcards
What are the different meanings of the term common law? When may it be used?
Historical sense: distinguish law as applied by King’s judges versus that applied by local customary courts
To distinguish King’s Court’s as opposed to the rules of Equity (Court of Chancery)
Case law vs statute law
Identify the law as applied by common law countries
What does stare decisis mean?
Stand by what has been decided - rules of binding precedent
Once a principle of law has been laid down, future cases with the same material facts must be decided in the same way
What must a court be persuaded of to be bound by an earlier case?
Earlier case was decided in a court which binds it
Relevant part of earlier case is binding as opposed to just persuasive
What is a ratio decidendi?
Reason for the decision - this is the part of the judgment that is binding on other courts
What are obiter dictum comments?
Judge comments on an area of law on which it is not necessary to reach a decision in the case
When can courts depart from their own precedent?
Post-1966 - Supreme Court can
When can the Court of Appeal depart from its own precedent?
If CA came to previously conflicting decisions, today’s CA can select one to follow
If CA’s own previous decision has been overruled expressly or impliedly by Supreme Court of House of Lords
If CA’s previous decision was made per incuriam [not aware of a relevant authority]
What principle characterises the relationship between equity and common law?
Equity should prevail over common law
What are equitable remedies and how do they operate?
Discretionary in nature - only awarded if damages would not be an adequate remedy
Specific performance
Injunction
Declaration
Rescission
Rectification
When is specific performance available?
Valid and enforceable contract, damages not adequate
Not available for a breach of contract for personal services
When is an injunction available?
When just and convenient to do so - can be unconditional, or subject to certain conditions
Can be mandatory or prohibitory
When is a declaration available?
Legally binding statement about any of the following:
- legal rights of the parties
- existence of facts
- principle of law
When is rescission available?
Setting aside of a contract
available as a result of misrepresentation, mistake, duress or undue influence
Only available if parties can be put back to their pre-contractual position
What is rectification and when does it apply?
Corrects a document to reflect the parties’ contractual intention - only applies in the case of written contracts
Not available if errors are too fundamental or extensive
What is the difference between primary and secondary legislation?
Primary - Acts of Parliament, passed by both Houses of Parliament
Secondary - law created by ministers / other bodies under powers given to them by a parent Act of Parliament
What is the difference between a public and private act of parliament?
Public - general public concern
Private - an act relating to a particular place or people - less common
What two categories can public bills be divided into?
Government Bills and Private Members’ Bills
What is a government bill?
One representing the police of the government of the day
What is a private members’ bill?
A bill promoted by a particular MP - via ballot system
Where can bills start their life?
Either House, except for bills dealing with public finances which must start in the Commons and cannot be defeated in the Lords
What are the six stages of the passage of a bill?
First reading
Second reading
Committee stage
Report stage
Third reading
Royal assent
When does an Act of Parliament take effect from?
Day it receives Royal Assent unless there is a contrary provision in the statute
What is a common way for bills to come into effect, as opposed to immediately via Royal Assent?
Standard that such a power would be delegated to the Secretary of State with responsibility for the area of statute to issue a SI
How do court powers differ in primary versus secondary legislation?
Courts have no power to invalidate an act of Parliament but can examine whether delegated legislation is made within the powers of an Act of Parliament and quash it if it is not
