Origins of the Common Law
Stare decisis = stand by what has been decided. So once a principle of law has been laid down,
future cases with the same material facts must be decided in the same way
The ‘ratio’ of a judgment is the part which is binding on other courts. The ratio is the legal
principle or rule on which the court’s decision is based
Obiter comments are not regarded as binding, although they may be highly persuasive and
influential in subsequent cases.
A court may avoid following an otherwise binding precedent if it feels able to ‘distinguish‘ the
earlier case – eg by finding a difference in the material facts between the two cases
A precedent is overruled if a superior court in a later case decides the original precedent set in a
past case is wrong and sets a new ‘correct’ precedent instead.
If a judgment is reversed, or if a precedent is overruled, but only in part, some of the elements of
the former decision may be left intact.
The Supreme Court can depart from its own precedent – very careful when doing this
The Court of Appeal is generally intent on maintaining its own precedents but three exceptions
(a) If the CA came to previously conflicting decisions, ‘today’s’ CA can select the one to follow.
(b) If the CA’s own previous decision has been overruled expressly or impliedly by the Supreme
Court or House of Lords, it need not be followed.
(c) If the CA’s previous decision was made per incuriam.
Note that per incuriam does not simply mean that the earlier CA made an error. It only applies
when the previous court was not aware of a relevant authority (in case or statute) which would
have been binding on the court’ and that ignorance led to faulty reasoning by the court.
Equity
In cases of conflict, equity should prevail over common law.
The function of equity was to supplement the common law and not to supplant it. This is
reflected in the equitable maxim: equity follows the law.
,Despite the formal fusion of the common law courts and the Court of Chancery in the 1870s, the
conceptual distinction between common law (legal) rights and equitable (or beneficial) rights
remains crucial to the law
Equitable remedies are still discretionary in nature, whilst common law damages (financial
compensation) are available as of right
Equitable remedies:
- Specific performance
- Injunction
- Declaration
- Rescission
- Rectification
Primary and secondary legislation
Made with approval from parl
Primary = acts of parl
Secondary = created by gov ministers from powers given to them via an act of parl
The courts have no power to invalidate an Act of Parliament, they are empowered to examine
whether delegated legislation is made within the powers of the parent Act and ‘quash’ it, if it is
not.
Public (or general) Acts are Acts which relate to matters of general public concern.
A private (or personal) Act of Parliament is one which relates to particular places or to particular
people e.g., a local authority might be seeking the power to build a bridge.
A Government Bill represents the policy of the government of the day
A Private Members’ Bill is a bill promoted by a particular MP
Hybrid Bill = concerns matters of public importance and matters which directly affect private
entities such as companies
,The final stage in a Bill becoming an Act is the Royal Assent. There is no legal rule requiring the
monarch to assent to any Act passed by Parliament, this is just a convention now
An Act of Parliament takes effect from the day it receives Royal Assent, unless there is a
contrary provision in the statute.
Legislation does not always come into force on the same day it was enacted - it is usual for an
Act to include a commencement section detailing when the Act is to come into force.
Rules of Statutory Interpretation
Determining what Parliament intended when it enacted a piece of legislation.
The literal rule
words used in a statute are to be given their ordinary, plain and natural meaning
The golden rule
When the literal rule gives an absurd outcome, give the words the intention that the courts would
have meant
e.g., in the vicinity of the RAF base – technically the D was inside it not in the vicinity - absurd
that this doesn’t also include inside the RAF base – so use golden rule – it includes inside
The Mischief Rule
What mischief was the law trying to stop
Purposive Approach
What judges use now
The courts have been given additional powers of interpretation under the Human Rights Act
1998, which allow them, where appropriate, to interpret legislation in a (purposive) way to seek
compatibility with the European Convention on Human Rights.
Linguistic presumptions
- Expressio unius
where there is a list of items with no general words that follow. The presumption is that, because
this is a closed list, Parliament intended only to include those items that are stated.
- Ejusdem generis
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.
e.g., house, office, room or other place – these ‘other places’ must be inside as the specific words
all are
- Noscitur a sociis
A word is known by the company it keeps.
e.g., interest, annuities and other annual payments’,
The word ‘other’ at the end of the phrase implied that the first two words (interest and annuities)
were also annual. Therefore, the word ‘interest’ was held to mean ‘annual interest’.
Human Rights
, Lawful interference with qualified rights
For the state to interfere legitimately with a qualified Convention right, it must be shown that all
three of the following circumstances apply.
- The interference was in accordance with the law.
- The interference was in pursuit of a legitimate aim.
- The interference was necessary in a democratic society. (proportionate)
The Human Rights Act 1998
This meant rights in the ECHR were directly enforceable in the domestic courts.
Courts interpret UK domestic legislation in a way which is compatible with ECHR rights.
If a court considers that legislation is incompatible with a Convention right, may make a
declaration of incompatibility
Public authorities, including courts and tribunals, are required to act in a way which is
compatible with Convention rights. Parliament is not a public authority for the purposes of the
Act.
EU Law
Regulations - directly applicable in the legal systems of the Member States.
They apply in the Member States without those states having to enact any national legal
measures to implement them or to give effect to them.
Individuals will be able to rely on these in their national courts so long as certain conditions are
met – essentially that the EU law in question was sufficiently clear and unconditional in nature.
This is known as ‘direct effect’.
Stare decisis = stand by what has been decided. So once a principle of law has been laid down,
future cases with the same material facts must be decided in the same way
The ‘ratio’ of a judgment is the part which is binding on other courts. The ratio is the legal
principle or rule on which the court’s decision is based
Obiter comments are not regarded as binding, although they may be highly persuasive and
influential in subsequent cases.
A court may avoid following an otherwise binding precedent if it feels able to ‘distinguish‘ the
earlier case – eg by finding a difference in the material facts between the two cases
A precedent is overruled if a superior court in a later case decides the original precedent set in a
past case is wrong and sets a new ‘correct’ precedent instead.
If a judgment is reversed, or if a precedent is overruled, but only in part, some of the elements of
the former decision may be left intact.
The Supreme Court can depart from its own precedent – very careful when doing this
The Court of Appeal is generally intent on maintaining its own precedents but three exceptions
(a) If the CA came to previously conflicting decisions, ‘today’s’ CA can select the one to follow.
(b) If the CA’s own previous decision has been overruled expressly or impliedly by the Supreme
Court or House of Lords, it need not be followed.
(c) If the CA’s previous decision was made per incuriam.
Note that per incuriam does not simply mean that the earlier CA made an error. It only applies
when the previous court was not aware of a relevant authority (in case or statute) which would
have been binding on the court’ and that ignorance led to faulty reasoning by the court.
Equity
In cases of conflict, equity should prevail over common law.
The function of equity was to supplement the common law and not to supplant it. This is
reflected in the equitable maxim: equity follows the law.
,Despite the formal fusion of the common law courts and the Court of Chancery in the 1870s, the
conceptual distinction between common law (legal) rights and equitable (or beneficial) rights
remains crucial to the law
Equitable remedies are still discretionary in nature, whilst common law damages (financial
compensation) are available as of right
Equitable remedies:
- Specific performance
- Injunction
- Declaration
- Rescission
- Rectification
Primary and secondary legislation
Made with approval from parl
Primary = acts of parl
Secondary = created by gov ministers from powers given to them via an act of parl
The courts have no power to invalidate an Act of Parliament, they are empowered to examine
whether delegated legislation is made within the powers of the parent Act and ‘quash’ it, if it is
not.
Public (or general) Acts are Acts which relate to matters of general public concern.
A private (or personal) Act of Parliament is one which relates to particular places or to particular
people e.g., a local authority might be seeking the power to build a bridge.
A Government Bill represents the policy of the government of the day
A Private Members’ Bill is a bill promoted by a particular MP
Hybrid Bill = concerns matters of public importance and matters which directly affect private
entities such as companies
,The final stage in a Bill becoming an Act is the Royal Assent. There is no legal rule requiring the
monarch to assent to any Act passed by Parliament, this is just a convention now
An Act of Parliament takes effect from the day it receives Royal Assent, unless there is a
contrary provision in the statute.
Legislation does not always come into force on the same day it was enacted - it is usual for an
Act to include a commencement section detailing when the Act is to come into force.
Rules of Statutory Interpretation
Determining what Parliament intended when it enacted a piece of legislation.
The literal rule
words used in a statute are to be given their ordinary, plain and natural meaning
The golden rule
When the literal rule gives an absurd outcome, give the words the intention that the courts would
have meant
e.g., in the vicinity of the RAF base – technically the D was inside it not in the vicinity - absurd
that this doesn’t also include inside the RAF base – so use golden rule – it includes inside
The Mischief Rule
What mischief was the law trying to stop
Purposive Approach
What judges use now
The courts have been given additional powers of interpretation under the Human Rights Act
1998, which allow them, where appropriate, to interpret legislation in a (purposive) way to seek
compatibility with the European Convention on Human Rights.
Linguistic presumptions
- Expressio unius
where there is a list of items with no general words that follow. The presumption is that, because
this is a closed list, Parliament intended only to include those items that are stated.
- Ejusdem generis
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.
e.g., house, office, room or other place – these ‘other places’ must be inside as the specific words
all are
- Noscitur a sociis
A word is known by the company it keeps.
e.g., interest, annuities and other annual payments’,
The word ‘other’ at the end of the phrase implied that the first two words (interest and annuities)
were also annual. Therefore, the word ‘interest’ was held to mean ‘annual interest’.
Human Rights
, Lawful interference with qualified rights
For the state to interfere legitimately with a qualified Convention right, it must be shown that all
three of the following circumstances apply.
- The interference was in accordance with the law.
- The interference was in pursuit of a legitimate aim.
- The interference was necessary in a democratic society. (proportionate)
The Human Rights Act 1998
This meant rights in the ECHR were directly enforceable in the domestic courts.
Courts interpret UK domestic legislation in a way which is compatible with ECHR rights.
If a court considers that legislation is incompatible with a Convention right, may make a
declaration of incompatibility
Public authorities, including courts and tribunals, are required to act in a way which is
compatible with Convention rights. Parliament is not a public authority for the purposes of the
Act.
EU Law
Regulations - directly applicable in the legal systems of the Member States.
They apply in the Member States without those states having to enact any national legal
measures to implement them or to give effect to them.
Individuals will be able to rely on these in their national courts so long as certain conditions are
met – essentially that the EU law in question was sufficiently clear and unconditional in nature.
This is known as ‘direct effect’.
