Sources of Law Flashcards
What is the doctine of Stare Decisis
Once a principle has been laid down, future cases with the same material facts must be decided in the same way
What is the test for determining whether an English court will follow a precedent?
- Proposition of law
- Part of ratio
- Higher Court
- No distinctions
What is a ratio?
Central legal reasoning of a case
What are examples of obiter?
- Statements of law not necessary to decisision (hypothetical, immaterial facts)
- Statements of law as the judge woudl like it but for the doctrine of precedent
- Dissenting Judgements
Which courts are not bound by their own decisions?
Supreme Court
First Instance High Court
First Tier Tribunal
Crown, County, Family, Magistrates
Which courts bind themselves?
Court of Appeal
Appellate Division High Court
Upper Tribunal
3 situations
When can the Court of Appeal (Appellate of High Court) depart from its own decisions?
- Previous conflicting decisions
- Previous decision overruled expressly or impliedly by SC
- Decision made per incuriam (faulty reasoning as unaware of relevant authority)
What does per incuriam mean?
Decision was based on faulty reasoning as unaware of relevant authority
When does a court ‘follow’ a decision?
Court follows decision in an earlier case due to almost identical facts
When does a court ‘approve’ or ‘affirm’ a decision?
Higher court agrees with lower court’s decision on appeal (same case)
When does a court apply a decision?
Follows an earlier case due to some factual similarities
When does a court distinguish a decision?
Departs from an earlier case due to difference in material facts
When does a court reverse a decision?
Higher court disagrees with earlier court on appeal (same case)
When does a court overule / overturn a decision
A higher court decides an earlier unrelated decision is wrong and sets out correct law
When does a court depart from a decision
Same court disagrees with a previous decision they made in a different case
If common law and equity conflict, which prevails?
Equity
How do common law and equitable remedies differ?
Common Law remedies are available as of right whereas equitable remedies are discretionary
Examples of equitable remedies
- Specific Performance
- Injunction
- Declaration
- Recission
- Rectification
- Account of Profits
When is Specific Performance available?
- Breach of contract (not employment contract or something that would require constant supervision)
- Valid contract
- Damages inadequate
What is a declaration and when is it available?
Legally binding statement about legal rights, existence of facts or a principle of law
Always available
What is recission and when is it available?
What? Setting aside contract
**When? **
1. Misrep, Mistake or Duress/Undue Influence; and
2. No bars
What is rectification and when is it available?
**What? **Corrects a contractual document to reflect parties’ intention
**When? **
1. Written contract
2. Minor error (not fundamental or extensive)
What is Primary Legislation?
Act of Parliament
What is Secondary Legislation?
Law created by Ministers or LAs under powers given in Parent Acts
(used to fill in details of primary legislation)
How does secondary legislation compare to primary legislation
equal statutory footing but can be quashed by courts
What is the difference between a private and public act?
Private: Affects particular place or people
Public: Relates to matters of general public conern
What is the difference between Government Bills and Private Members’ Bills
Gov: promoted by gov
Private Members: promoted by a particular MP
What is the difference between codifying and consolidating legislation?
Codifying: existing statutes into one new act (no changes)
Consolidating: any existing law into one new act (can change existing law)
When does an Act commence?
Date it receives royal assent or on commencement date set out in commencement section
Outline the legislative process for passing primary legislation
Start: Commons or Lords (if public finances then commons only)
First Reading: Read title AND date for second reading (formality only)
Second Reading: Debate by MPs
Commitee Stage: Close scrutiny by committee
Report Stage: Amendments debated AND committee report voted on
Third Reading: Final debate AND vote (if passes goes to other house to repeat process)
Royal Assent: Monarch approves Bill
Where does an Act apply?
Whole of UK unless stated otherwise
Can parliament amend statutory instruments
No - can only accept or reject
What is the literal rule?
Words are given their plain, natural and ordinary meaning
What is the Golden Rule?
Words are given their ordinary meaning unless this produces an inconsistent, absurd or inconvenient result?
What is the narrow and wide application of the Golden Rule?
Narrow: Word has more than one meaning and court chooses less absurd meaning but goes no further
Wide: Word only has one meaning but produces obnoxious result so court alters wording (e.g. obvious error)
What is the Mischief Rule?
Examination of legislator’s intent (identify wrong intended to correct and implement appropriate remedy)
What is the purposive approach?
Examines purpose of statute even if it means departing from words’ ordinary meaning
What is Expressio Unius?
Express mention of one thing excludes another (closed list)
What is Ejusdem Generis?
General words follow a list of specific words: general words only include same kind of objects as specific words (non-exhaustive list)
What is Noscitur a Sociis?
Known by the company it keeps (e.g. work out whether the thing is included in category stated in the statute: is a leopard a cat?)
What are Instrinsic Aids?
Any part of statute debated on by parliament (not margin notes)
* Includes interpretation section provided nothing contrary in main body
When can Hansard be used to interpret statute?
- Ambiguity or absurdity; and
- Clear statement by minister or promoter of Bill
What are the rebuttable presumptions when interpreting statute?
- Laws dont apply to Crown
- Not liable for criminal offence without guilty mind
- Unlikely to deprive of property or private rights
- Statute only affects future acts
- Statute is interpreted in line with existing common law
What is the Council of Europe?
Body resonsible for ECHR and ECtHR (separate to European Union)
What are the three categories of ECHR rights?
Absolute Rights
Limited Rights
Qualified Rights
What are Absolute Rights?
Never be interfered with
torture, slavery, retrospective criminal offences
What are Limited Rights?
Can be interfered with in specific circumstances
Life, liberty, fair trial
What are Qualified Rights?
Can be interfered with provided interference is prescribed by law, in pursuit of a legitimate aim and proportionate
freedom of expression, private life and association
What is the difference between a Monist and Dualist state?
Monist: international law binding automatically (European countries)
Dualist: court is not automatically bound by international law
When is international law applicable in the UK?
- UK is party to proceedings in an international court to whose jurisdiction it has agreed to submit; or
- UK has incorporated international laws into domestic legal system through an Act
What is the HRA?
Incorporates HRA into domestic law so directly enforceable in UK courts
Does Parliament have a duty to act compatibly with ECHR?
No - only courts, government and authority carrying out public functions)
What are the 2 main sources of EU law?
Primary Leg: Treaties
Secondary Leg: Regulations, Directives, Decisions and Case Law
What does directly applicable mean?
Automatically applies in MSs (no need to enact national legal measures to implement them / give effect)
What does Direct Effect mean?
Enforceable in national courts
What types of secondary EU legislation are directly applicable?
Regulations
Case Law (check this???)
What types of secondary EU legislation are directly effective?
Regulations
Directives (once implemented or date has passed)
Decisions
Case law? (CHECK!!)
When can infringment proceedings be brought against a member state and by whom and in what court?
MS fails to implement a directive properly or on time.
Can only be brought by European Commission
CJEU
How can an individual enforce improperly implemented directives in the national courts?
- Direct Effect (if failed to implement by implementation date)
- Indirect Effect (national courts must interpret domestic law compatibly with EU law where possible)
- State liability (comp for failure if serious consequences from state)
What is the CJEU?
Arbiter on questions of EU law (European Court)
Who can make references to the CJEU?
National Courts about interpretation of EU law or validity of primary / secondary EU legislation
European Commission on implementation of directives in infringement proceedings
Never individuals
What is a preliminary reference?
National court asking for CJEU’s advice on interpretation of EU law
Who decides how to apply a CJEU preliminary ruling on interpretation EU law?
National Court
Is there a right of appeal from national courts to CJEU?
NO
