Introduction

Question 1

Common law 4 meanings

Answer 1

1. Law developed by judges in the 11th and 12th century to form a ‘common’ law for the whole country (as opposed to the situation prior to the Norman conquest). The Norman conquest was in 1066.
2. The rules (substantive and procedural) developed by judges; ‘judge-made law’. Most of the rules are judge-made law.
3. Legal systems based on the English legal system; ‘common law systems’ (as opposed to civil law systems).
4. Law used in common law courts prior to the reorganization of the court structure in 1873-75 (as opposed to Equity in the Chancery courts). Law used in courts is one of the most complicated. Equity is very important.

Question 2

EU countries with a common law system are:

Answer 2

2. Republic of Ireland
3. Malta (mixed system with common law)
4. Cyprus

Question 3

Legal systems of the United Kingdom

Answer 3

The United King of Great Britain and Northern Ireland consists of four nations, with distinct legal systems for:
* England and Wales
* Northern Ireland
* Scotland

Question 4

Great Britain consist of?

Answer 4

• England
• Wales
• Scotland

Question 5

Are there formal sources in common law?

Answer 5

No formal list of sources * Unlike continental legal systems, there is no formal list of sources.

• The source is caselaw and custom as developed in the common law.
• The most important source of new rules today is legislation.
• Recent addition: European law as a source of legal rules.

Question 6

The original source is reason:

Answer 6

• The source of legal rules is equity, reason and good sense (Lord Mansfield 1773)
• For common law it is said to be logical reason, for equity moral reason
• Legal rules should therefore be understood from the point of view of justice
• Ideal legal rules grounded in justice are not created or invented but discovered

Question 7

Parliament as a rule-maker

Answer 7

Parliament as a rule-maker * Parliament is the most important law-maker in terms of the volume of rules created but also in terms of hierarchy.

• Parliament is sovereign and supreme and as such has the ultimate decision-making power = Parliamentary sovereignty (in the UK): no court can question the legislation made by Parliament. Government is not sovereign ()
• The position of Parliament was settled in the Bill of Rights (1688/9)
• R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) [2019] UKSC 41

Legislation is written in very precise language by specialised legal draftsmen. Legislation is not subject to judicial review by judges.

Question 8

A statute whats that?

Answer 8

typical piece of legislation

Question 9

STATUTORY INTERPRETATION

Answer 9

The highly-skilled work of the parliamentary legal draftsmen is aimed to make the law clear and to avoid the need for statutory interpretation. Statutory interpretation is the interpretation of primary legislation. However, often interpretation is needed for a variety of reasons.

Question 10

Why might there be a need for statutory interpretation?

Answer 10

• Judges can be hostile to legislation, preferring not to assist the legislator in achieving the aims of the statute.
• The Interpretation Act (1978) defines many words and phrases. These definitions should be used in interpreting statutes. The rest are left to the court to deal with. Therefore the courts have developed their own rules of statutory interpretation.
• It is needed for unclear wording.

Question 11

to interpret

Answer 11

to construe

Question 12

interpretation

Answer 12

construction

Question 13

Reasons that statutory interpretation is needed:

Answer 13

London and North Eastern Railway Company v Berriman [1946] 1 All ER 255

*unclear wording
* broad wording
* new developments
* drafting mistakes
* change in meaning of words
* mistake in the legislation

Question 14

What is the literal rule?

Answer 14

= Using the ordinary and natural meaning of the words used. There is no ambiguity.

Question 15

What are the good sides of the literal rule?

Answer 15

▪ literal rule respects supremacy of parliament
▪ encourages careful drafting
▪ promotes clear laws that anyone can understand.

Question 16

What are the bad sides of the literal rule?

Answer 16

can lead to absurd results
▪ ignores the limitations and ambiguities inherent in the English language
▪ can be a ploy of judges to ignore Parliament’s wishes (elected representatives of the people)

Question 17

Whats the golden rule?

Answer 17

= The rule essentially requires a court to look at the words in their context if the literal rule leads to an absurd result

The rule was clearly stated by Lord Wensleydale in Grey v Pearson (1857 HL Cas 61):
“The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no farther.

Even though the formulation of the rule by Lord Wensleydale makes clear that the golden rule should only be applied to avoid an absurdity in the interpretation, there is no test to determine what is an absurdity. It allows judges some flexibility in interpreting the statute by defining broadly what is and what is not an absurd outcome

Question 18

Whats the mischief rule?

Answer 18

Deals with statutes that deal with a problem or lack of a rule in the common law. And then the office of the Judges is to make such construction as shall suppress the mischief and advance the remedy.

Heydon’s Case (1584) sets out 4 elements:
1) What was the common law before the making of the Act?
2) What was the mischief and defect for which the common law did not provide?
3) What remedy Parliament hath resolved and appointed to cure the disease of the Commonwealth.
4) The true reason of the remedy.

Question 19

Whats the purposive approach?

Answer 19

We need to interpret this law - what did the ministers said etc?

= can be used in the absence of ambiguity or uncertainty
= uses extrinsic materials to aid the interpretation (e.g. Hansard)
= It is a controversial approach as it goes against the tradition in English Law – a kind of heresy.

Question 20

THREE LANGUAGE RULES

Answer 20

1. Ejusdem generis (Eiusdem generis)
2. Expressio unius est exclusio alterius
3. Noscitur a sociis

Question 21

1. Ejusdem generis (Eiusdem generis)

Answer 21

where a list of words is followed by general words, these general words are limited to the same kind of items as the specific words.

Question 22

2. Expressio unius est exclusio alterius

Answer 22

The express mention of one thing excludes others. Where there is a list of words which is not followed by general words, then the Act applies only to the items in the list

Question 23

Noscitur a sociis

Answer 23

Words take their meaning from their context. They must be read and interpreted in the context. This involves considering other words in the same section or other sections of the Act. The rule requires to understand the word ‘by the company they keep’, that is, the other words in the provision or the Act.

Question 24

Whats case law?

Answer 24

The desicions of the court becomes the law

Question 25

JUDICIAL LAW-MAKING: DOCTRINE OF PRECEDENT

Answer 25

A court must follow the decision of a superior or higher court when dealing with similar cases. Judges are bound by precedent of court before them. If Case A is decided in a particular way, any courts bound by the precedent must follow the decision in Case A if the case before them (B) is sufficiently similar to Case A ie where Cases A & B both have the same material facts. Binding element not the decision, but the reasoning behind it - the ‘ratio decidendi’, distinguished from ‘obiter dicta’.

Question 26

Precedent has vertical and horizontal effect:

Answer 26

vertical - higher binds lower horizontal - courts bound by ratios at the same leve

Question 27

Whats the exception for the horizontal effect of the doctrine of precedent?

Answer 27

Exception re horizontal effect – H of L Practice Direction (Practice Statement) 1966. Departure from a previous decision ‘where it appears right to do so’

Question 28

doctrine of precedent:Central to case law

Answer 28

Traditionally: the law is “a permanent set of unchanging rules which are discovered, declared and applied to new cases” . It is meant to follow the precedent.

Historically, prior decisions not originally binding in themselves, and no coherent system. Doctrine of precedent gives a bit of certainty.
Doctrine is found in a set of decisions. Authoritative system of law reports dating from 1800s. 1861 House of Lords first clearly established the doctrine of binding precedent (Beamish v Beamish

Question 29

Ratio decidendi/rationes decidendi

Answer 29

Binding, its the reasoning

Question 30

Obiter dicta

Answer 30

May be persuasive