Legal and professional/ business environment

Question 1

Donoghue v Stevenson [1932] A.C. 562, Lord Atkin 580

Answer 1

“You must take reasonable care to avoid acts or emissions which you can reasonably foresee would be likely to injure your neighbour.”

Question 2

Young v Bristol Aeroplane Co Ltd [1944] KB 718

Answer 2

Two conflicting decisions of the court of Appeal.
Previous decision of the court of appeal, even if not expressly overruled, conflicts with a Supreme Court or the House of Lords decision.

Question 3

Practice statement (HL; judicial precedent) [1966] 1 WLR 1234

Answer 3

Not bound by its own previous decisions. But more than that claimed the power to ‘overrule’ its earlier decisions. This means the earlier ceases to exist and the new decision forms the continuing precedent.

Question 4

R v R [1992] 1 A.C. 599

Answer 4

“The husband cannot be guilty of rape …upon his wife., for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract”
Retrospective overruling.

Question 5

Pepper v Hart [1993] AC 593

Answer 5

Following the decision inPepper v Hart [1993] AC 593, if primary legislation is ambiguous or obscure the courts may in certain circumstances take account of statements made in Parliament by Ministers or other promoters of a Bill in construing that legislation. Previously, using Hansard in this way would have been considered a breach of Parliamentary privilege.

Question 6

R v Brown

Answer 6

Pseudo-masochistic sex.
You cannot consent to actual bodily harm and above in English Law, even if all the parties are willing.
Except such injuries that occur in hospital surgery, tattoos and piercing parlours, and injuries within the laws of sport.
Sporting injuries are allowed in the public interest. It promotes a fit and healthy society.

Question 6

Legal terminology: Approved.

Answer 6

This is where a higher court states that another case before a lower court was correctly decided.

Question 7

Considered.

Answer 7

This is something of a ‘catch all’ category. If a court has discussed an earlier reported case (particularly one decided by a court of equal status) but not reached any dramatic conclusion about its application then it will probably appear as ‘considered’

Question 8

Applied

Answer 8

This means that a court has regarded itself as bound by an earlier decision of another court and has therefore employed the same reasoning.

Question 9

Overruled

Answer 9

This is the opposite of applied. This is where a court has rejected and invalidated an earlier decision of a lower (or sometimes, but rarely) equal status to itself. Therefore, the power to overrule is limited by a court’s position in the hierarchy. This means not only that the higher court is bound not to follow the earlier decision but that it is negated of any legal force; indeed, it is regarded as never having been the law.

Question 10

Affirmed

Answer 10

This indicates that the court has agreed with the decision of a lower court in respect of the same case.

Question 11

Reversed

Answer 11

This is the opposite of ‘affirmed’. This means that the higher court has decided that the lower court in the same case came to a wrong decision. In other words the alteration of a judgment on appeal. A famous example of this is R v Woollin [1992] where the House of Lords refused to follow the approach taken by the Court of Appeal in the same case, upholding the defendant’s appeal against his conviction for murder and reversing the Court of Appeal definition of intention to kill.

Question 12

Distinguished

Answer 12

An earlier case will be ‘distinguished’ where a court has no power (or no wish) to overrule it, but does not want to apply it either. The court will therefore find some ground for saying it is different, and should not be followed. A court can distinguish where they decide that the case before them is materially different, either on the facts or on the point of law.

Question 13

Distinguishing

Answer 13

is an important category as it provides one of the main mechanisms by which the ‘common law’ refines (adapts) the scope of legal principles.

Question 14

The high court is divided into three divisions:

Answer 14

1. Kings bench division
2. Chancery
3. Family
   Each of these divisions has the capacity to act as a court to hear appeals from lower courts and, when acting in that capacity, the court is called ‘divisional court of the high court’.

Question 15

Kings bench division

Answer 15

One such Divisional Court - the Administrative Court - mainly considers the lawfulness of the acts and omissions of central and local Government, regulatory and disciplinary bodies, inferior courts and tribunals, and other public bodies and officials exercising public functions. This is known as its supervisory jurisdiction, which it undertakes through the procedure of Judicial Review. The Administrative Court has both a civil and criminal jurisdiction. The criminal function is normally appeals by way of case stated.