Sources of law Flashcards
What is the doctrine of stare decisis?
‘Stand by what has been decided’, it is a doctrine of binding precedent in that lower Courts must follow decisions from higher Courts.
What is the ratio decidendi?
The reason for the decision/judgment given-it is binding and establishes a legal principle.
What is the obiter dicta?
A judge’s expression of opinion uttered in Court or in a written judgment, but not essential to the decision and therefore not legally binding as a precedent.
Can the Supreme Court depart from its own precedent?
Yes, since the 1966 Practice Statement, the Supreme Court can depart from its own precedent when it appears right to do so.
When can the Court of Appeal depart from its own precedent, refer to Young v Bristol Aeroplanes (1994)?
-If COA came to two previously conflicting decisions, they can choose which decision to follow
-If the Supreme Court have overturned a COA decision, the COA decision need not be followed
-When a previous COA decision was made per incuriam (without due regard for a statutory provision)
What is equity?
A body of principles and rules administered by the Court of Chancery before the 1800s that fill in the gaps of the common law and ensure fairness.
When equity and common law conflict, which one prevails?
Equity prevails over common law.
Describe the passage of a Bill through Parliament (legislative process).
First Reading-formality, bill is read out.
Second Reading-bill is debated.
Committee Stage-bill is scrutinised.
Report Stage-amendments are made.
Third Reading-further debate and vote.
Royal Assent by the monarch.
What date does an Act take effect?
If there is no commencement order, the Act will come into force from midnight at the start of the day of the Royal Assent.
What is the literal rule?
When words are given their plain, ordinary & natural meaning.
What is the golden rule?
A rule that allows Courts to modify the grammatical and ordinary meaning of words in a statute to avoid an absurd or inconsistent result.
What is the mischief rule?
This rule requires the Court to look to what the law was before the legislation was passed in order to discover what gap or mischief the legislation was intended to cover.
What is the purposive approach?
A method of interpreting statutes that considers the purpose of the law, rather than just the words of the statute.
It allows judges to consider the broader context and societal values, and to look beyond the strict language of the law.
Outline the linguistic presumption of ‘expressio unis est exclusio alterius ‘.
Expression of one thing is the exclusion of the other.
Tempest v Kilner (1846): If a list of specific words is followed by no general words, then the Act only applies to the items on the list.
Outline the linguistic presumption of ‘ejusdem generis’.
Of the same kind.
If a list of words is followed by general words, then the general words apply to the same kind of items as the specific words.
Powell v Kempton Racecourse (1899): other items mentioned in the statute related to places indoors whereas Tattersall’s enclosure was outside.
