Sources of Law Case Law Flashcards
What are the two main sources of law?
Legislation & case law
How is legislation made?
Passing through Parliament
What is the most authoritative source of law?
Legislation
What does new case law do?
Set new legal principles or develop existing legal principles
What happens when new case law is established?
Reported in a law report
What is the doctrine of judicial precedent?
Courts must follow precedents set by other courts within court hierarchy.
Ie the stare decisis
What is a precedent?
A previous judicial decision
What is case law?
Judge made law
What are the two form of legal precedent?
What two ways do the judges use when interpreting case law?
Binding & Persuasive
What is a binding precedent?
A precedent which must be followed by courts
What is a persuasive precedent?
A precedent which the court MAY rely on
Eg a case from another jurisdiction that its using to implement in England & Wales
What are the 4 operations of precedent
I.e which courts are bound or not
CRTs bound by decision of superior crt
CRTs not bound by inferior courts
Some crts bound by their previous decision
CRTs below High Court do not create precedents that bind courts above
What are the three courts that usually set precedents?
Supreme Court
Court of Appeal
High Court
What are the 3 exceptions where the COA can depart from its own previous decision
Two conflicting cases
Supreme Court has overruled
Per incurium v rare (lack of care)
Supreme Court
Binds all other courts
Bound by own decision
Only depart if right to do so
Must be compelling reason to depart
JCPC
Judicial committee of the privy council
No binding on domestic courts
Persuasive rather than binding
Decisions follows by domestic courts
COA
(Civil Division)
Bound by the Supreme Court
Binding on lower courts
Decisions don’t bind criminal division
Bound by own decisions
3 exceptions to depart
What are the 3 exceptions a COA can depart from own decision
Two conflicting decisions of COA
COA been overruled by Supreme Crt
Per incurium (lack of care) v rare
What is the case where the exceptions are laid out for the COA to not bind to their own decision
Young v Bristol Aeroplane Co Ltd
COA
(Criminal Division)
Bound by the Supreme Court
Binding on lower courts
Decisions don’t bind civil division
Bound by own decisions
3 exceptions to depart
PLUS as a Ds liberty at risk can depart from its own decision when LIBERTY OF A D IS AT STAKE’
Wider powers than the civil court
High Court
When an appellate court, appeals bound by Supreme Court, COA and itself
3 exceptions apply
When judicial review case bound by Supreme Court & COA
It is bound by itself
When a case of First Instance bound by supreme court & COA & High Court Divisional
High Court binds lower courts
Crown Court
Bound by COA & Supreme Court
Do not bind other courts
Not bound by previous decisions but they are persuasive
Mags Court
County Court
Family Court
Bound by superior courts
Do not bind themselves
Do not create precedents
Does the courts need to consider the HRA and are they bound by them
Yes but not bound by them are persuasive
Are the courts bound by the CJEU
Court of Justice of the European Union
Courts not bound by its decisions
If SC departs must be right to do so
Which part of the judgment is the only part that is binding?
The ratio decidendi part
Who usually advances legal advances on interpretation on case law?
The parties
When a case sets a precedent how is it reported?
In a Law Report
Who is the supreme courts predecessor?
House of Lords
