Sources of English Law ( Case Law ) Flashcards
What is case law?
Law made by a series of decisions made by judges in the higher courts, it usually develops law rather than create new law.
What type of law is now most currently made by case law?
Contract and tort.
What are the two aspects of case law?
> The tools that judges use for statutory interpretation.
> The law of binding precedent.
What is Statutory interpretation?
The way that judges interpret complex and ambiguous statutes, in order to give the judgment that they believe parliament would have intended.
What are the different ways that judges can approach interpretation?
> Literal rule.
Golden rule.
Mischief rule/Purposeful rule.
Contextual.
What is the literal rule?
This is when judges take words at face value, it can cause absurd results.
What is the justification of using the literal rule?
Judges say that it is up to parliament, not court, to correct statute.
What is a good example of the use of the literal rule?
WHITELY V CHAPPELL ( 1868 - 1869 ). In this case the defendant acted as a dead person at a vote, it was illegal to impersonate any person entitled to vote. The judge ruled that the dead person was not entitled to vote and hence the defendant was not charged. Clearly this is an absurd result.
What is the golden rule?
This is when judges modify literal meaning of words to avoid absurdity.
What is a good example of the golden rule?
ADLER V GEORGE ( 1964 ). A defendant was charged with being in the vicinity of a prohibited area. They argued that they were not in the vicinity but rather, in the prohibited area, the judge used the golden rule to interpret vicinity as including the actual place.
What is the mischief rule/purposeful rule?
The mischief rule was commonly used when statutes used to set out their purpose, including what they were trying to remedy. It’s aim is to identify what Parliament were trying to prevent.
Where does the mischief rule originate from?
HEYDON’S CASE ( 1584 ).
What is a good example of the purposeful rule?
CORKERY V CARPENTER ( 1950 ). The defendant was charged with being drunk on the highway in charge of a carriage, however he was wheeling a bicycle, the court looked to see what statute intended, and decided a carriage included a bicycle.
What is the contextual rule?
The meaning of a ambiguous word is taken from the statute as a whole, used when words can have multiple meanings or are vague on their own, for example a statute that referred to other animals, then talks about cats and dogs, it would be reasonable to assume that other animals meant domestic pets, IE: not sharks etc…
What is an intrinsic aid?
Found within the statute, including the title, or in older statutes the preamble. Some acts will include interpretation clauses defining terms, EG: CONSUMER RIGHTS ACT 2015 includes definitions of ‘trader’.
