Sources Of Law (ELS) Flashcards
Stare decisis
“Stand by what has been decided”.
Once a principle of law has been set, future cases with the same material facts must be decided in the same way.
What is necessary for an English Court to be compelled to follow what has been stated in an earlier case?
Earlier case was decided by a court which binds it + relevant part of the earlier case is BINDING rather than persuasive
Ratio decidendi
“Reason for the decision”
The ratio (a legal principle or rule) of a judgement is the part which is binding on other courts.
How to identify the ratio of a case?
Consult a law report.
Obiter dictum
Where a judge comments on an area of law not applicable to the case, therefore the comments are not binding but they may be highly persuasive and influential.
E.g. Grosvenor Hotel London 1964
What does it mean to follow a decision?
When a court considers the facts of a case to be so similar to an earlier case that the law from the earlier case should be followed.
What does it mean to approve an earlier case?
If the court ‘following’ an earlier case is a higher court, the later decision is ‘approving’ the earlier decision.
What does it mean to apply the decision of an earlier case?
When a court considers the facts of an earlier case to have similarities to the case at hand and therefore applies the law in the earlier case. (Following the decision is if it is SO similar)
What does it mean to distinguish an earlier case?
Finding a difference in the material facts between the two cases.
What does it mean to reverse a case?
If a case goes to appeal and the higher appeal court disagrees with the lower court.
What does it mean to overrule a precedent?
If a superior court in a later case decides the original precedent from a past case is wrong and sets a new precedent instead. Also can be called overturning.
How could the SC depart from its own precedent?
Lord Gardiner L.C - too rigid adherence to precedent may lead to injustice and restrict development of law.
Austin v Southwark 2010 Lord Hope - SC would maintain this flexible approach
Young v Bristol Aeroplane Co. Ltd 1944
If the Court of Appeal came to previously conflicting decisions, the current court can choose which one to follow.
If one courts own previous decision has been overruled by the SC, it doesn’t need to be followed.
If the court’s previous decision was made per incuriam it doesn’t need to be followed.
What is the literal rule?
The words used in a statute are to be given their ordinary and natural meaning. The courts don’t need to consider what parliament might have meant.
What is the golden rule?
To avoid the unnatural and absurd outcome that can result from interpreting the outcome too literally.
E.g. Adler v George. It would be absurd told if was on offence to obstruct outside the RAF station but not to obstruct in the RAF station.
