Lecture 1 - Introduction Flashcards
Plaintiff/Claimant
The parties of an ordinary civil proceedings are called the plaintiff (or claimant) and the defendant in the court where proceedings comments and appelants and respondents on appeal. . If the party is applying for a particular order is called the applicant and the other part the respondent
Statement of claim/claim form
Proceedings usually start with a statement of claim to which the defendant makes a Statement of Defence.
Pleadings/statement of case
Pleadings is the name given to formal statements of the parties that precede the court hearings in civil litigation. Their object is to define as many as possible of the issues before the trial
Ex parte/without notice
Ex parte order is an order obtained from the court without notice to the other party or parties.
Leave to appeal/permission to appeal
Granted to appeal.
Interlocutory relief/interim relief-
The disputes in pre-trial procedures.
Request for further and better particulars/Request for further information
Refers to additional information required to provide sufficient accuracy with respect to a set of pleaded facts in an earlier document.
Discovery/disclosure
Before trial there is an opportunity called discovery of questioning the other party to the action and for compelling the production of relevant documents.
The use of decided cases- Stare decisis. Stand by what has been decided
What is said to be binding is the “decision”. The reason of deciding is the “ratio decidendi” that is said to constitute the binding rule for purposes of precedent. Everything else that is said by the judge is called “obiter dicta”
Doctrine of binding precedent
Authority of individual decisions upon future cases.
Logic - Treating like cases alike.
Functional reason:
- To constrain judicial discretion.
- To confer authority on judicial decisions.
Requirements for precedent value
- Rendered by a Court of a particular hierarchical standing: Supreme Court, Court of appeal, High Court.
- Facts substantially identical to those of the case at hand.
Factors affecting authority of a judgement
- Eminence of judge
- Number of judges who decided
- Whether or not the judgment was reserved
- Long-standing judgment
- Dissenting judgments
- Difference in reasoning within the majority
- Failure of counsel to cite relevant authority
- Criticism of the judgment in the legal writing
General exceptions to the rule of precedent
1- By distinguishing the case now before it from the previous case on the facts
2- By refusing to follow the previous case because its ratio is obscure.
3- By declaring the previous case to be in conflict with a fundamental principle of law
4- By finding the previous decision to be per incuriam – e.g. a important case of statute is ignored.
5- Because the previous decision is one of several conflicting decisions at the same level
6- Because the previous decision has been overruled by statute.
7- Effect of Human rights act 1998
8- Reference of ECJ
Reversing a decision
It’s revised by the Court of Appeal that re-examine the case and it comes to a different decision. Affects the parties.
Overruling a decision
The case decided in the lower Court was based in decided precedent, now regarded as wrongly decided. Affects the precedent, but not reach affected parties in the original case.
