A.

Common law and Equity

Litigants developped the practice of petitioning the King himselfs because in Common law
system too highly formalized like no writs no remedy. In 14th century system so rigid and the
common law had only one remedy for damages.And Writs system also. Writs was a special
permission given by King to go to court. In this system “Fountain of Justice” King delegated
Lord Chanceller for making decision. Lord chanceller was an expert in common law and
litigant presented themselved directly Lord Chancellor.

End of the 15th Lord Chancellor created his own Court Court of Chancery decided base on
equity. It means fair and equitable decisions as distinct from common law.

End of 19th two court became one court with Judicatary Acts

Equity was a response to weaknesses of common law and exceptional jurisdiction. With
equity court was a court of conscience. When theese two court has conflict, there has been a
solution and it was admit equity should emport in case of conflit. Supreme court can freely
apply each system

Two systems are different they are two streams have met and run in same channel but don’t
mix.

The relationship between Parliament and judges

Parliamentary privilege= The conduct of Parliamnetary bussines cannot be subject to

judicial challenge Freedom of Speech

Sub-judice Rule : MPs will not criticise judicial decision – protection rule of law and
citizens to fair trials

Lord Steyn : Nevertheless, the supremacy of Parliament is still the general principle of our
constitution. It is a construct of the common law. The judges created this principle. If that is so,
it is not unthinkable that circumstances could arise where the courts may have to qualify a
principle established on a different hypothesis of constitutionalism’ =

Create-abolished

Parliamnet represent the people this is source of sovereignt

 Parliament is still sovereign but not so sovereign than when Dicey said that this doctrine was
pure and absolute. A pure and absolute supremacy or Parliament is obsolete.

 Judges begin to discuss the parliament supremacy and that this supremacy has been created
bythe judges -> so that they would have the right to change what they created.
According to Lord Steyn the judges have created the principle of parliamentary sovereignty. So if the
judges created the principle of parliamentary sovereignty, the judges could remove it. Lord Steyn is
not discussing the fact that Parliament is sovereign, but only its extend.

Judges can change the principle and bring parliamentary sovereignty to an end.

a. Are judge making law?

 Constitutionally, judges are subordinate to Parliament and may not challenge the validity of
Acts of Parliament. Bothe make the law but judges are subordinate to Parliament. The task of
the court is to imply what has been passed by parliament and has not the right to conteste
thevalidity of a statute ->

 However, there remains some leeway for judges to interpret statute. This raises the question of
whether the judges are able to ‘make law’? Comparaison between 2 decisions :

 Magor & St. Mellons Rural District Council v Newport Corporation (1952)

o According to him, the judges power of interpretation would be to file the gap left by
Parliament.

o Lord Simond disagreed

 Lord Scarman (1911-2004) : The objective of the judges is the formulation of principle.

 the judge has the right to create new principles to keep the common law alive.

a. What is precedent

 if we have a precedent case then when a court hears a later case which is similar in law
and in fact at precedent case, later case will be bounded by earlier case

 it is really hard to examine two cases similar so if the instant case is considered
sufficiently alike in law and in fact bounded - - sufficiently

 Precedent binding necessary consistency

b. The ration decidendi

 The ratio decidendi / statement is the judge’s personal reason for coming to the
decision

 When read judgement we ask why question and because test that’s a reasoning why
judge arrive this conclusion

o (Material facts : facts which are relevant) + the decision based on those facts.

 The doctrine of judicial precedent is described as an art of interpretation.

o Judge may base on his decision on more than one reasoning in this time all this
reasoning are binding

 Generally decisions given bay panel of judges at that time each judge delivers his
ownspeech because each want you to agree with his reasoning

 They do so even is they disagree with the majority. It can even happen that a dissenting
judgment is considered by a later court to be the correct judgment. It does not undermine the
legal decision, it only prove that there is a dynamic legal debate.

o Leading judgement

o Wach judge may use his own reasoning which arrive to the same solution

o Majority agreement as to the reasoning

 later judges can ‘downgrade’ one of the statements to mere obiter

dictum.

c. Obiter dictum

 It is not binding however an obiter statement can become later a ratio decidendi.

 Obiter dictum is something written in the case that does not relate to the material facts

 A judge can make a statement of opinion, a hypothetical statement (‘if the facts had
been different then my decision would have been...’) -> hypothetical statement :

o - A judge can say what he would have decided had he not been bound by the
rule of binding precedent.

o - A judge can make a number of general comments on the law under

discussion.

 An obiter must be powerfully persuasive because:

o - it is generally the product of much thought by the judge, it is very relevant,

 o - it may be based on extensive argument on the point in question by the judge.

d. The Binding Precedent

 Principle of stare decisis . Let the decision stand’. It means that when a court make
decisions in a case, then any other courts which are of equal or lower statues must
follow what has been decided in the previous decision if the current case is similar to
the earlier case.

 Precedent is determined by the most superiour courts – hierarchy of domestic courts

 Not all precedents binding like county courts and High court at first instance

 Ways to discard binding precedents

o Technic of distinction : significant distinction btw two cases

o Per incuriam doctrine : there is fault in based previous decision

e. The issue of Flexibility

 It is not inconceivable that to do justice in an individual / exceptional case, it might be

necessary to depart from previous rules.
 Lord Halsbury said that it does not really matter that the law is made up of wrong
decisions provided that we have a final court making rulings. The rigidity of this rule
was increasingly criticized throughout the 20th.

f. Practice statetement of 1966 : Fundemantal document for modern practice of

Precedent

 House of Lords has changed its mind.

 The practice statement does not want to undermine the precedent. It does not clearly
explain in what circumstances where it would be right to depart from binding
precedent. It will be only apply by the House of Lords.

 Principled Approach:

o Precedent is still an indispensable foundation of the Common Law: it provides

at least some certanity – not absolute certanity
 o Too strict adherence to precedent can lead to injustice in a particular case #
lord Halsbury was saying that justice is not important in a particular case.

o Need for certainty in certain areas of law -> there is a danger in disturbing the
basis on which contract, settlements of property and fiscal arrangements, and
criminal law have been enter into. Special need certanity in criminal law

 In rather limited circumstances, it is entirely legitimate for the house of lords and
supreme court to depart from its previous rulings. However the House of Lords has
been very reluctant before using the practice statement as it is really aware of the
importance of the binding precedent.

 Young and airplane cases CoA

 Milangos Case : Lord Wilberforce trying to explain why it is acceptable in exceptional

circumstances to depart from sterling damages rule

o Lord Wilberforce is arguing against the idea that the courts should wait an
intervention by parliament.

o This ability of judges is not unlimited. There is a qualification -> parliament

may change the law when :

 - The rule is deeply entrenched

 - The choice of a new rule would be a difficult task at it would involved

more far-reaching research than what the court can carry out.
Practice statement problem

Issues of flexibility – If superiour courts departing from their own previous decision

 It makes the law will develop inconstantly.

 Lower court will not know how to develop principle

What happens if precedent decision incorrect is precedent binding?

19th It is important not to depart from previous decision In case of there is opinion about
previous decision in correct. Certanity is. The most important aim of HoL

With Practice statement 1966 lords changed its mind it is fundemantal document for the
modern practice of precedent

With this statement

Precedent is provides at least some certanity – not absolut

Need for certanity for certain areas of law like Criminal law need special certanity

In limited circumstances it is entirely possible HoL and Supreme court depart from previous
precedent

The sterling damages rule is a good example for this: It's a very old rule that damages are
only paid in sterling. And HoL decides that this application is no longer necessary and depart
from his previous precedents

In Moders Practice Court of Appeal absolutely bounded by Supreme Court previous decision
and precedents

But Court of Appeal can bound refuse to follow his previous decision if it satisfied that the
decision was given per incuriam – very limited circumstances
Ratio decidendi

Ratio decidendi was judges personal reason for coming decision

When we read judgement ask why question to find what lead the judge for decide.

Has 2 elements : relevant facts and decision what based on this material

Ratio decidendi was an art of interpretation

Where is ratio because its hard to find so mant pages

Judge may give the decision more than one reasoning and all this reasoning are binding

When the judges of panel give a decision there are different situation:

Leading judgement its easy to find it can be first judgement or longer than others

Same solution with different reasoning

Majority agreement reasoning

If various reasoning and no majority all reasonig is binding its Behrans principles

Obiter dictum not binding legally but hypetetical statement of judges and that highlt
persuasive

Obiter statement can be later ratio deicidendi