ACCA LW ^Eng Syllabus A. Essential Elements Of The Legal System - Explain what is meant by case law and precedent - Notes ^{1 / 7}

Case Law can be split into 2 different Categories

Case law basically means following what judges decided before (in identical circumstances)

1. Common law

   Judges create law by applying something called "Judicial Precedent".

2. Equity law

   Common law had faults (such as not recognising trusts) - so Equity law was created that held fairness as its principle. 

   It is referred to as a gloss to the common law.

Case law uses something called "stare decisis" (meaning to stand by a decision). Here judges follow the decisions of previous higher court judgements

The hierarchy of courts is as follows

1. Supreme court – binds all lower courts, but not itself

2. Court of Appeal – binds all lower courts, and itself

3. High Court – binds all lower courts, and usually itself

4. Crown/Magistrates/County courts cannot create precedent

What gets followed by the judges?

• Ratio decidendi (meaning the reason for the decision) – this is the binding element of the judgement - so must be followed

• Obiter dicta (meaning statements made by the way) – this is not binding, just persuasive

How can Precedents be challenged?

1. Overruling – A higher court sets aside a lower court ruling. The judiciary are however, reluctant to overrule longstanding authorities

2. Reversing – A higher court reverses the decision of a lower court -but only the conclusion. Much of the rationale was good and remains good law

3. Distinguishing – Avoids any precedent as the material facts of two cases are not the same.

Advantages of the application of stare decisis

(a) Consistency – like for like cases will have the same outcomes
(b) Flexibility – new cases, new outcomes, new precedents - so law keeps pace with society
(c) Efficiency – Predictable case outcomes, no unnecessary repetition
(d) Evidence – there is a vast library of cases to refer to

Dis-advantages of the application of stare decisis

(a) Uncertainty – there are many ways in which precedents can be avoided (reversal etc)
(b) Fixity – many outdated laws may remain effective until challenged 
(c) Unconstitutional – the judiciary are not elected
(d) Evidence (again) – this time the vast library of cases may cause confusion