Legal System 4 - Sources of Law 3

Question 1

What are the two main sources of law?

Answer 1

(i) Legislation
(ii) Case law

Question 2

What is precedent?

Answer 2

It is a previous judicial decision that:
(a) established
(b) developed
(c) modified
OR
(d) clarified
a legal principle or statement of the law

Question 3

When a case law sets a precedent, it is reported in…

Answer 3

a law report

Question 4

What is the ratio decidendi?

Answer 4

It is the reason for the decision

Question 5

What is an obiter dictum?

Answer 5

= “other thing said”
statements other than the ratio decidendi

Question 6

Does an obiter dictum form part of the decision?

Answer 6

No, it supplements the decision

Question 7

Which part of a judgement forms a binding legal precedent?

Answer 7

Only the ratio decidendi

Question 8

What does stare decisis mean?

Answer 8

= “stand by previous decisions”

Previous decisions are followed by courts in subsequent cases with similar facts and legal issues

Question 9

What is a binding legal precedent?

Answer 9

It is a legal precedent that must be followed

Question 10

What is the impact of a persuasive precedent?

Answer 10

Courts may - but don’t have to - rely on it in reaching a decision

Question 11

Are courts bound by their own previous decisions?

Answer 11

Some courts are, but not all

Question 12

Do all courts create precedents?

Answer 12

No, only:
- the Supreme Court
- the Court of Appeal
- the High Court

Question 13

Is the Supreme Court bound by its own decisions?

Answer 13

Generally yes, but it may depart when it appears right to do so

Question 14

When may the Supreme Court depart from its own decisions?

Answer 14

It may depart when it appears right to do so

Question 15

When is the Court of Appeal (Civil Division) not bound by its own decisions?

Answer 15

Where one of the exceptions in Young v Bristol Aeroplane Co Ltd apply:
- two conflicting previous CA decisions
- previous CA decision overruled by Supreme Court
- previous decision made per incuriam

Question 16

When is the Court of Appeal (Criminal Division) not bound by its own decisions?

Answer 16

Where one of the exceptions in Young v Bristol Aeroplane Co Ltd apply

AND

where the liberty of an individual is at stake

Young v Bristol Aeroplane:
- two conflicting previous CA decisions
- previous CA decision overruled by Supreme Court
- previous decision made per incuriam

Question 17

When is a decision made per incuriam?

Answer 17

The court failed, through lack of care, to apply a relevant statutory provision or binding precedent when making a decision.

Question 18

Who is bound by Judicial Committee of the Privy Council (JCPC)?

Answer 18

No one - its decisions are persuasive, but not binding

Question 19

Is the High Court bound by its own decisions?

Answer 19

Yes, when acting as the court of first instance, it is bound by its own decisions unless the principles in Bristol v Aeroplane apply.

No, when exercising its supervisory jurisdiction, it may depart from its own previous decisions (power rarely exercised)

Question 20

Are decisions by the European Court of Human Rights binding?

Answer 20

No, but they are highly persuasaive

Question 21

Are decisions by the CJEU binding?

Answer 21

No

Question 22

What does “reverse” in the context of the doctrine of judicial precedent mean?

Answer 22

The appelate court determines that the lower court’s decision was wrong

Question 23

Are “reverse” and “overrule” the same?

Answer 23

No.

Reverse: The appelate court determines that the lower court’s decision was wrong
Overrule: The appelate court ceclares that an existing precdent is wrong or no longer an accurate representation of the law

Question 24

What does “overrule” refer to in the conext of the doctring of judicial precedent?

Answer 24

The appelate court ceclares that an existing precdent is wrong or no longer an accurate representation of the law

Question 25

Can a lower court overrule a higher court?

Answer 25

No

Question 26

What does “distinguish” in the context of the doctrine of judicial precedent mean?

Answer 26

A court does not deem itself to be bound by an existing binding precedent because of material differences between the cases.