Sources of law: case law

Question 1

What is meant by precedent?

Answer 1

It refers to a previous judicial decision that established, developed, modified or clarified a legal principle or statement of the law. Also referred to as legal authorities

Question 2

What is contained within the judgment to a case?

Answer 2

• the ratio of the case (ratio decidendi)
• obiter dicta (other things said)

Question 3

Which part of the judgment forms binding legal precedent?

Answer 3

Only the ratio

Question 4

What does binding precedent mean?

Answer 4

It is a legal precedent that must be followed by other courts in future cases. The courts is bound to follow precedents set by courts that sit above it in the court hierarchy

Question 5

What is the principle of stare decisis?

Answer 5

It requires that previous decisions are followed by courts in subsequent cases with similar facts and legal issues. The principle is designed to promote certainty and consistency in the application of the law

Question 6

Is a court bound by persuasive precedent?

Answer 6

No but they may take it into account and in may influence the decision of a court in a future case

Question 7

Which courts set precedents?

Answer 7

• the Supreme Court
• the Court of Appeal
• the High court

Question 8

Which courts does the Supreme court bind?

Answer 8

All other courts in the court hierarchy and it is typically bound by its own decisions and by its predecessor the House of Lords/ It is permitted to depart from a previous decision when it appears right to do so but this is rarely exercised

Question 9

Which courts does the Court of appeal bind?

Answer 9

It binds all other courts in the court hierarchy and is generally bound by its own decisions although the civil division and the criminal division do no bind each other

Question 10

When can the Court of Appeal depart from an existing Court of Appeal decision?

Answer 10

Only where one of the exceptions in Young v Bristol Aeroplane Co Ltd apply

Question 11

What are the exceptions in Young v Bristol Aeroplane Co Ltd?

Answer 11

• where there are two conflicting decisions of the Court of Appeal it may choose which precedent to follow
• where a previous decision of the Court of Appeal has been expressly or impliedly overruled by a Supreme Court decision, it must follow the Supreme Court decision
• if the previous decision is deemed to have been made per incuriam which is if the court failed, through lack of care, to apply a relevant statutory provision or binding precedent when making a decision and this resulted in the court making a decision that would have been different had the relevant legal authority been applied

Question 12

Are decisions of the European Court of Homan Rights binding?

Answer 12

No but the courts are required to take them into account and its decisions are persuasive

Question 13

Are courts bound to follow decisions of the Court of Justice of the European Union?

Answer 13

No, the Supreme Court is no longer bound and may depart from existing precedents where it appears right to do so

Question 14

When must a court follow a precedent?

Answer 14

If the material facts of the case are the same or similar to a previous decision

Question 15

What is the difference between reversing a decision of a lower court and overruling one?

Answer 15

Reversing - describes the outcome of an appeal where the appellant court determines that the lower court’s decision was wrong
Overruling - is used to describe a court’s decision to declare that an existing precedent is wrong or no longer an accurate representation of the law

Question 16

Is it possible for a lower court to overrule a decision of a higher court?

Answer 16

No

Question 17

What does it mean if a court distinguishes a precedent?

Answer 17

It is when a court does not deem itself to be bound by an existing binding precedent because of material differences between the cases