F4 CORPORATE AND BUSINESS__LAW(ENGLISH)-7

Chapter 2 Sources of English law 1.Case Law

Case Law

Common Law

Equity

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Chapter 2 Sources of English law 1.Case Law

(a) Common law This relates to the law created by judges through their application of the principles of judicial precedent. This important source of law was developed through the unificatio of the English legal system after the Norman Conquest, and has added certainty to the operation of law. (b) Equity law The initial development of the common law resulted in numerous faults, such as the failure to recognise trusts, and the operation of the Writ List. In order to overcome these problems, a separate source of law was created that held fairness as its principle. Until the Judicature Acts 1873 75 equity and common law were practised separate courts. Today they are practised in the same courts, and where the two conflict equity will prevail, and as such equity is referred to as a gloss to the common law.Slide 38

Chapter 2 Sources of English law 2.PrecedentStare decisis

Court hierarchy

Ratio decidendi

Obiter dicta

Overrule/reverse/distinguish Slide 39

Chapter 2 Sources of English law 2.Precedent

2.1 Case law operates upon the basis of stare decisis (to stand by a decision), whereby judges are bound by the previous decisions of judgements made by the courts above them in the hierarchy as follows: (a) Supreme court - binds all lower courts,but not itself. (b) Court of Appeal - binds all lower courts, and itself. (c) High Court - binds all lower courts, and usually itself. (d) Crown/Magistrates/County courts cannot create precedent. 2.2 The nature of precedent itself operates through the interpretation of judges decisions,requiring each decision to be separated into: (a) Ratio decidendi (the reason for the decision) - this is the binding element of the judgement. (b) Obiter dicta (statements made by the way) - this is not binding, but merely of persuasive authority and can be taken into consideration in later cases.

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Chapter 2 Sources of English law 2.Precedent

2.3 Established precedents will not be binding in the following circumstances: (a) Overruling - the procedure whereby a court higher in the legal hierarchy sets aside a legal ruling established in a previous case. As this is a direct challenge to the basis of stare decisis the judiciary are reluctant to overrule longstanding authorities. (b) Reversing - a procedure whereby a court higher in the hierarchy reverses the decision of a lower court in the same case. (c) Distinguishing - a precedent is avoided by demonstrating that the material facts of two cases are not the same.

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Chapter 2 Sources of English law 2.Precedent 2.4 Adv/Dis

AdvantagesConsistency

DisadvantagesUncertainty

EfficiencyFlexibility Bulk

FixityBulk Unconstitutional

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