Sources of Law and Legal System Overview Flashcards
Who does a decision of the Supreme Court bind?
All inferior courts and itself
Who does a decision of the Court of Appeal bind?
All inferior courts and itself
Who does a decision of the High Court bind?
All inferior courts and itself (unless there is a powerful reason to depart)
Who is a decision of the Upper Tribunal binding on?
The First Tier Tribunal, all inferior courts and itself
Who does a decision of the First Tier Tribunal bind?
No courts - may be persuasive
What courts do not hand down binding decisions for lower courts?
Family court, county court, crown court, magistrates’ court
What is the main difference between equity and the common law?
Equitable remedies are discretionary
If there is a conflict between the common law and equity, what one prevails?
Equity
What is the literal rule of statutory interpretation?
Words in statute are given their ordinary, plain and natural meaning, assisted if necessary by extrinsic aids such as a dictionary.
Will require in depth consideration of the words and phrases of a statute and how they may fit in with neighbouring sections and the Act as a whole.
Linguistic presumptions play an important role here.
What does Expressio Unius est Exclusio Alterius mean in the context of statutory interpretation?
That the express mention of one thing excludes its extension to others.
What presumption does expressio Unius est Exclusio Alterius raise and when may it be used?
Raises the presumption that because there is a closed list, Parliament intended only to include those items.
Presumption may be used where there is a list of items with no general words that follow
What does Ejusdem generis mean in the context of statutory interpretation?
Means of the same kind or genus.
What presumption does Ejusdem generis raise and when may it be used?
Raises presumption that where general words follow a list of specific words, the general words are interpreted so as to restrict them to the same kind of objects as the specific words.
Used where statute includes a generic but non-exhaustive list of items.
Interpretive task is to work out whether a particular item would fall within the list by looking at the words and seeing what characteristics they have in common. The general words must then include only words with these characteristics.
What does noscitur a sociis mean in the context of statutory interpretation?
Means company it keeps - means that words of statute are understood in the context of the statute itself.
Words are to be interpreted in the context of the statute as a whole not just section under consideration.
When will the golden rule be used?
To avoid unnatural and sometimes over-literal interpretations
What is the golden rule?
Where literal interpretation of the statute is used the statute makes no sense to such a degree that the court is convinced that this could not be the intention of Parliament. The court will then apply a different meaning to the words which although less literal makes more sense.
What is the mischief rule of statutory interpretation?
Allows the court to look at why the legislation was enacted ie what mischief was it trying to address.
It can then use that rationale to interpret ambiguity.
What questions should be asked when considering the mischief rule?
- What was the common law before making the Act?
- What was the mischief and defect for which the common law did not provide?
- What remedy for the mischief had Parliament intended to provide?
- What was the true reason for Parliament adopting that remedy?
