Sources of Law Flashcards
What is stare decisis?
“Stand by what has been decided”
Once a principle of law has been laid down, future cases with the same material facts must be decided in the same way.
What is obiter dictum?
Where a judge comments on an area which is not necessary to reach a decision in the case. Can be persuasive.
Consists of:
- Statements of law not necessary to the decision e.g. on hypothetical facts or on facts which are not material
- Statements of the law as the judge would like it to be, but for the doctrine of precedent
- Dissenting judgments, i.e. view of the judge who disagrees with the majority.
When can the Supreme Court depart from its own precedent?
1966 recognised as being formally possible and necessary in some situations.
But must bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the need for certainty in the criminal law.
Affirmed in Austin v Southwark and Practice Direction 4.
When can the court of appeal depart from precedent?
Three exceptions where it can depart (Young v Bristol Aeroplane co Ltd):
- If the CA came to previously conflicting decisions, it can choose one to follow.
- If a previous decision has been overruled expressly or impliedly by the Supreme Court or House of Lords it need not be followed.
- If the CA’s previous decision was made per incuriam.
Per incuriam: does not simply mean that the earlier CA made an error, it only applies when the previous court was not aware of a relevant authority (in case or statute) which would have been binding on the court and that ignorance led to faulty reasoning by the court.
What happens if equity and the common law conflict?
Equity should prevail over common law.
But note: the function of equity is to supplement the common law and not to supplant it - equity follows the law.
When are equitable remedies awarded?
Only if damages would not be an adequate remedy.
What is specific performance?
An equitable remedy available for breach of contract.
An order by the court to compel a party to perform something they have promised to do under a contractural agreement.
Discretionary - not available as of right for every breach of contract. Only available where:
- There is a valid and enforceable contract
- Damages would not be an adequate remedy for the claimant
Specific performance is not available for breach of a contract for personal services or for the performance of contractual obligations which would require constant supervision.
What is an injunction?
An injunction is an order that requires a party to legal proceedings either:
- to do something (a mandatory injunction)
- to refrain from doing something (a prohibitory injunction)
An injunction may be awarded only where damages would not adequately compensate the claimant. Injunctive relief can be interim or final.
An injunction can be awarded unconditionally or subject to such terms and conditions as the court thinks fit.
What is a declaration?
A declaration is a legally binding statement by a court about any of the following:
- the legal rights of the parties
- the existence of facts
- a principle of law
Courts can make a binding declaration whether or not any other remedy is claimed - however a declaration alone is unusual.
E.g. a party might seek a declaration about the interpretation of a statutory provision applicable to their case.
What is rescission?
Rescission is the setting aside of a contract. It is available at common law and in equity.
It is granted at the court’s discretion and may be available where a contract has been concluded as a result of:
Misrepresentation - where a party has been induced to enter a contract by a false representation of fact
Mistake - where the contract does not correctly reflect the intentions of one or both parties
Duress or undue influence - where a party to the contract was put under unlawful pressure to enter into it
Rescission is only available where the parties can be put back to their pre-contractual position. This is not always possible especially where the contract has been partially performed or it was for a provision of service.
What is rectification?
Rectification corrects a document to reflect the parties’ contractual intention. Its main purpose is to correct mistakes made in recording agreements. Rectification only applies in the case of written contracts.
May be used to correct missing words or incorrect descriptions but not available if the errors are too fundamental or extensive.
What are public and private acts of parliament?
Public: acts which relate to matters of general public concern, deliberated in both houses and any lobbyists need to lobby an MP. Most legislation are public acts.
Private: Acts which relate to particular places or people. Usually stem from proposals by local authorities or large private company which wishes to acquire certain powers. e.g. local authority seeking power to build a bridge
What are government bills and private members bills?
Government bills: policy of the government of the day, based on ministerial proposals
Private members bill: promoted by an MP, does not start as official government policy. Often not successfully passed.
What are the stages for the parliamentary process in each house?
- First Reading: a formality, the bill’s title is read out and a date is set for a second reading
- Second reading: the main principles of the bill are debated by MPs
- Committee Stage: the detail of the bill is scrutinised by a legislative committee
- Report Stage: proposed amendments are debated and there is a vote on the committee’s report
- Third reading: final debate and vote on the bill. If passed it goes on to the other house
What is royal assent?
Final stage in a Bill becoming an Act.
No legal rule requiring the monarch to assent to any Act passed but there is a convention to that effect.
An act of parliament takes effect from the day it receives Royal Assent unless there is a contrary provision in the statute - more common for there to be a commencement section detailing when the Act is to come into force (typically delegated to the Secretary of State).
