WEEK 8: CASE LAW (COMMON LAW AND EQUITY)

Question 1

What is Case Law?

Answer 1

Case law is a law that is based on judicial decisions rather than law based on constitutions, statutes, or regulations.

• Derived solely from the decisions of the court.
• The term is much wider as it includes decisions by the court in interpreting statutes.

Case law is derived from common law and equity.

Question 2

Which legislations refer to common law and equity?

Answer 2

• Article 160 of FC: “Law” includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof.
• Section 3 of the Civil Law Act 1956 (Revised 1972)
  English law means ‘the common law of England and the rules of equity.’

Question 3

What is Common Law?

Answer 3

• Body of rules developed by the old common law courts in England, and NOT by the Court of Chancery.
• Law made by judges, when they decided cases in court and not made by the legislature / parliament.
• Law common to the whole of England and not a local law.
• Law of England & of those countries that apply common law system, as opposed to civil law system.

Question 4

What were the names of some common law courts?

Answer 4

Old common law courts were developed during the reign of King Henry II of England.

• Court of King’s Bench.
• Court of Exchequer.
• Court of Common Pleas.

Question 5

What is the history behind Common law?

Answer 5

History: Common law developed in England after the Norman Conquest in 1066 (led by William of Normandy.

Before the Norman Conquest, England was ruled by the Anglo-Saxon people - little is known about the law in this period; rather primitive and influenced by Roman law.

Post Norman Conquest, William gained the Crown of England and became William I, he began to strengthen the government.
Centralised administration was set up under the King’s authority (King’s Council / Curia Regis) with the noblemen and church leaders.
- Performed legislative, executive and judicial functions.
- 1154, during the reign of King Henry II, Royal Courts were created out of King’s Council, located in Westminister.

Court officials of the King were appointed and sent out to hear cases in various localities.

• These court officials, also known as circuit judges, started taking notice of each earlier decision, including each other’s.
• Following earlier decisions was natural as it was more convenient.

Question 6

With following the decisions of other cases, what happened to the law in England back then?

Answer 6

This practice led to the development of the principle of stare decisis (‘let the decision stand.’)

• Contributed to the consistency of the application of law.
• Law became more predictable and certain.
• Judges started to select cases and decisions which were recorded and filed.
• Selected the best customs and later were used by all judges throughout the country.
• Led to the gradual emergence of a common law in England; a system of legal rules common to the whole of England.

Question 7

What are the courts of Common law?

Answer 7

“CURIA REGIS” / KING’S COURT
- Court of King’s Bench
Highest court during Middle Ages and Renaissance.
During Queens Time: QB.
Principal court for criminal case & hear dispute between citizen v King.
Now: Division of the HC.

Court of Exchequer
- Purely Administrative Exchequer of Receipt (collect Revenue)
Judicial Excequer of Pleas (Collect King’s revenue)

Court of Common Pleas
- Hears & decides civil disputes. 
- Common pleas: common people suits. 
Appeal: KB.
Now: merged with HC.

Question 8

What does equity mean?

Answer 8

Equity - literally means FAIRNESS.

-> body of rules developed first by Lord Chancellor (The King’s Right Hand Man) and later by the Court of Chancery.

Question 9

What is the history of equity?

Answer 9

Came into existence during the 13th century - at the time, Common Law courts had frozen the types of claims they would hear.

• Range of claims became narrow; process to bring the actions to court became so technical that jurors were often bribed.
• Due to these changes, plaintiffs with meritorious claims were often denied relief.

To counteract this discrepancy, remedies could be obtained by petioning to the King who had residual judicial powers.
- King began delegating the function of dealing with such petitions to the Chancellor (usually a clergymen and King’s confessor.)

Chancery evolved into a judicial body known as the Court of Chancery, the power of the court was fully recognised by the end of the 15th century.
Court of Chancery was in effect - developed as a court of conscience to counteract the defects that existed in the common law system.

Question 10

What was the function of a Lord Chancellor?

Answer 10

The function of the Lord Chancellor evolved into that of the highest judge - dealt only with civil disputes eg. property, contracts.

• Ensured fairness and justice if it was not provided by a common law court.
• Chancellor would question the litigants in person and make decision based on his own moral view of the case in question.
• Normally based on Christian precepts of fairness and their own conscience.

Question 11

What did the Lord Chancellor do?

Answer 11

Chancellor began to create a new remedy in an “ad hoc” way to suit each litigant.
Remedy under equity is known as ‘EQUITABLE REMEDY’.
- Chancellor developed equitable maxims as basis of their rulings.

‘One who comes to equity must come with clean hands.’
‘Equity will not suffer a wrong without a remedy.’
‘Equity acts in personam’ (on person rather than on objects)
‘Equity will not assist a volunteer.’

Question 12

How was common law merged with equity?

Answer 12

Gradually equity evolved rules of its own.

• In 1873, the Judicature Acts ‘merged’ common law and equity.
• The former courts (all Common law courts and the Court of Chancery) were abolished and their jurisdictions were transferred to a new Court Judicature.

Question 13

What are the defects under Common Law?

Answer 13

Equity came into being to supplement the CL, to correct its defects, and mitigate its harshness.

• Law is very technical - if there was an error in its formalities, the person making the claim would lose the case.
• Only remedy is damages (monetary compensation) and it is not always suitable.
• Difficulties when a precedent is absent - judgement is made on the basis of precedent, the system came to to a standstill when there is no precedent.
• Courts do not like to overrule their own decision unless absolutely necessary - bad law can remain for a long time.
• Bribery and corruption.

Question 14

What are the differences between CL and Equity?

Answer 14

Common Law

• Developed by circuit judges from English customary law applying the principle of Stare Decisis.
• Complete system of law.
• Only offered damages as a remedy.
• Upholds rights irrespective of the motives or intentions of the parties.
• Remedies available as of right.
• Does not recogise the concept of trust and mortgage.

Equity

• Developed by Chancellors, in dealing with petitions addressed to the King from citizen complaining about the rigidity of CL.
• Complements the CL, could not replace it.
• Developed new remedies, known as equitable remedies.
• Acknowledges the CL and tries to provide an alternative solution.
• A court of conscience which ordered parties to do what was just & fair.
• Discretionary remedies.
• Recognise the right of beneficiary in trust deed and also mortgage right.

Question 15

What are some of the equitable remedies?

Answer 15

1) Injunction
An order to one of the party involved in a case to do / not to do something.

2) Specific Performance
An order that a contract should be carried out as agreed.

3) Rescission
Aims to return parties to their pre-contractual position.

4) Rectification
The correctness of an error / removal of defects, imperfections to the documents.

Question 16

What would happen if common law and equity should conflict?

Answer 16

IF COMMON LAW & EQUITY SHOULD CONFLICT, THE FORMER PREVAILS.

Question 17

What is a precedent?

Answer 17

A court decision that is considered as authority for deciding subsequent cases involving identical or similar material facts, or legal issues.

• > Incorporated into the doctrine of stare decisis and requires courts to apply the legal reasoning/principle in the same manner to cases with the same material facts.
• > The decision of the court is the actual determination of the dispute between the parties.
• > The decision becomes binding to only them.

Question 18

What is an ‘inter partes’ decision?

Answer 18

If the court found the “judgement of the Plaintiff”, this decision will be known as ‘inter partes decision.’
This is not a source of law and it is not binding and not part of the judicial precedent.
What becomes a source of law is the legal principle underlying the decision.
Only decisions made by superior courts are considered as a source of law.

Question 19

Where do we find the legal principle from a judicial decision?

Answer 19

A legal principle that can be extended to another case is the legal principle derived from the ratio decidendi (reason behind the decision).

Judicial decision = Judicial Precedent.

Question 20

How does judicial precedent work as a source of law?

Answer 20

• Material facts of the new case are the same as the material facts of an older case.
• Ratio decidendi in the older case will be applied (binding) in the new case.

Question 21

What is the strict application of precedents in the common law system known as?

Answer 21

The strict application of precedents in the common law system is known as the doctrine of binding legal precedent or doctrine of stare decisis.

• “Let the decision stand” / to stand by things decided.

In cases where material facts are the same, a court is bound to follow the prior decisions of a higher court.

• High Court is bound to follow the decisions of the Court of Appeal and the Federal Court.
• Court of Appeal is bound to follow the decisions of the Federal Court.
• The subordinate courts (Magistrate and Sessions Courts) are bound to follow the decisions of the superior courts.

Question 22

What is ratio decidendi?

Answer 22

It is the order for the doctrine of judicial precedent to work, it is necessary to be able to identify the legal reasoning behind the decision.

• In the course of delivering a judgement, the judge will set out their reasons for reaching a decision.
• It is basically the reasons which form the basis for the decision.
• Forms the legal principle which is a binding precedent that must be followed in future cases with the same material facts.
• Important to separate obiter dicta from ratio decidendi.

Question 23

What is an obiter dicta?

Answer 23

A statement of law made in the course of a judgement that does not form the basis of the decision.

• Judge may go on to speculate about what his decision would or might have been if the material facts of the case have been different.
• Not binding but may be of persuasive authority in later cases.

OBITER DICTA = LEGAL OPINION (NOT THE LEGAL REASONING) BY THE JUDGE

Question 24

What are the different types of precedents?

Answer 24

Original precedent

• The case is new and has never been on trial.
• Any ruling/decision on this case will create an original precedent.
• A point of law in a case that has never been decided before.
• Donoghue v Stevenson (duty of care)

Binding precedent

• Precedent from an earlier case that must be followed, even if the judge in the current case does not accept the legal principle.
• Decision of the Federal Court must be followed by all lower courts.

Persuasive precedent

• Useful or relevant to a case.
• Not mandatory for the judges to apply persuasive precedent.
• Not binding, but may persuade a judge if he accepts the legal principle.
  
  • > Obiter dicta, a dissenting judgement, Privy Council decisions, decisions of Commonwealth courts, decisions of lower courts.

Question 25

What are the exceptions to (avoiding) a precedent? (acronym)

Answer 25

Distinguishing
Reversing
Overruling
Per incuriam

Question 26

What are the details of each exception to a precedent?

Answer 26

1) Distinguishing
- Where a judge is able to draw differences between the case he is deciding and a past case that he would usually have to follow.
- If there are not enough sufficiently similar material facts, this could be an exception.
- Method used by a judge to avoid having to follow a previous decision which he or she would normally be bound to follow.

2) Reversing
- Court overturns a decision made by a court lower than itself in the court hierarchy.
- The Court of Appeal could reverse a decision made by the High Court
- The higher court overturns a decision of a lower court, on appeal, in the same case on the basis that the decision was incorrect.
- A reversed decision thus ceases to become a precedent.

3) Overruling
- Overruling a previous precedent arises where a higher court decides, in a later case, held that the legal ruling or reasoning was not correctly applied or no longer appropriate.
- The earlier decision should now not be followed and the case is no longer considered to be good law.
- A higher court (Federal Court) decides a similar case on a basis of different legal principles. The previous rule is then overruled.

4) Per incuriam
“Through lack of care.” - refers to a judgement of a court that has been decided without reference to a statutory provision or earlier judgement.
- When it is decided in ignorance or forgetfulness of a relevant legislative provision or binding precedent which led to faulty reasoning, thus the decision is said to be wrongly decided.
- Judgement found to have been decided per incuriam does not have to be followed as a precedent by a lower court.

Question 27

What are some of the advantages of judicial precedent?

Answer 27

• Promotes equal treatment of law to the same subject matter.
• Important as law needs to be stable and uniform.

1) Certainty and consistency
- Judicial precedence means litigants can assume that like cases will be treated alike; no random decisions will be made.
- People are able to plan their affairs.
- Provides consistent decisions within the law, which also ensures fairness. It also offers reassurance in the law to people as they will not feel like they are treated unfairly.

2) Provides detailed practical rules
- As statutes provide general principals, judicial precedents offer clarity / detailed application of the law.

3) Avoidance of mistake
- Following previous precedents will avoid mistakes that prevent parties from appealing which would incur more cost and consume more time.

Question 28

What are the disadvantages of a judicial precedent?

Answer 28

1) Rigidity
- Forces judges to stand by a previous decision - encourages bad judicial decisions to perpetuate for a long time until a new precedent is set.
- Law can remain in place for a long time, even if it is outdated; change requires a case to come to a higher appeal court before new law can come about.

2) Complexity and volume
- Judgement from appeal courts may contain three or five separate judgements which may differ from each other.
- Judgement may be extremely long and it is for lawyers and judges in future cases to work out the ratio decidendi.
- There may be differing opinions on what the ratio is and what the obiter is.
- Difficult and more complex to determine which ratio will bind future cases of similar nature.

3) Uncertainty
- Result of a court case can be uncertain until the final judgement is made.
- Some judges maybe unwilling to depart from a precedent to make a change in the law.

Retrospective effect
Could be unfair in criminal cases if now an offence is created by the judgement.
Could amount to a conviction for an act that was not a criminal offence when it was committed.
RvR (1991) - the Court of Appeal decided that marital rape exists in English law and reaffirmed by the House of the Lord. When the defendant committed the act, it was not yet an offence.

Question 29

What are the components of a case?

Answer 29

a) Facts of the case
- Material facts.
- Context facts.
b) Legal issues
c) Decision/judgement of the case.
d) Legal reasoning.