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ENGLISH LEGAL SYSTEM: SOURCES OF LAW - CASE LAW (1)

England & Wales has a common law system. This makes it very different from the legal systems which exist in many other countries, many of which are civil law systems. The phrase ‘common law’ has different meanings in different contexts. However, in this series, when we use the phrase ‘common law’, we mean the following:


“a system of law which is based on judicial decisions”.


Judicial decisions are the decisions of judges and courts in the cases which come before them. Before we go any further, can you think of a simple definition of what a ‘case’ is? We have given one in text note [1] at the bottom of this post.


Judicial decisions are also called case law. A number of judicial decisions on a particular legal topic or issue (for example, the duty of care in negligence) is called a body of case law.

In the common law system, judges are not free to reach any decision they like. Except in very limited circumstances, they are bound by certain rules that they must follow when deciding cases. This is not like the situation in civil law jurisdictions, which rely on written statutes and codes.


One fundamental principle of the common law is the doctrine of precedent. Essentially, it means that judges and courts in cases must follow previous decisions in cases which are sufficiently similar. This rule that judges are bound by legal rules established in previous cases is called the principle of stare decisis.


Let’s stop there for a moment. What do you think the purpose (or purposes) of the doctrine of judicial precedent is? [2]


The doctrine of precedent also depends on the hierarchy of the courts. In the English legal system, some courts have more authority than others. In a future post, we will look at the hierarchy of English courts in more detail. For now, we should just note that the highest court in England & Wales is the Supreme Court of the United Kingdom. Below that is the Court of Appeal, which has a Criminal Division and a Civil Division. Below that are civil courts, such as the High Court of Justice, and criminal courts, such as the Crown Courts.


Essentially, judges and courts must follow decisions which have been handed down in courts with higher authority. For example, the Court of Appeal must follow and apply decisions handed down by the Supreme Court of the United Kingdom.


One interesting question is: is the Supreme Court of the United Kingdom bound by its own previous decisions? We will consider that question in the next part.


Text Notes

[1] A ‘case’ is a legal action (or ‘legal proceedings’) which is decided in a court of law.

[2] The main purpose of the doctrine of judicial precedent is to bring certainty and consistency to the law. It tries to ensure that in two similar cases, the outcomes are similar and consistent. This also produces and promotes the idea that the law is fairly and applied equally to everyone.



EXERCISES


Exercise 1

Choose a word or phrase (in bold) from the text which most appropriately completes the following sentences.


1. Although the judge said that he had sympathy with the claimant’s arguments, he said he was …………………………….. the decision of the Supreme Court in the case of Rock Advertising Limited v MWB Business Exchange Centres Limited [2018].

2. Several countries in the world have ……………………………………… systems, including Australia, New Zealand, India, and of course England & Wales.

3. There is a considerable …………………………………………………………….. on the duty of care in negligence, including Donoghue v Stevenson, Hedley Byrne v Heller, and Caparo v Dickman.

4. The Supreme Court of the United Kingdom is the highest authority in the …………………….. of the English court system.

5. In 2015, the Supreme Court of the United Kingdom ………………………………….. a very important judgment in the case of Cavendish Square Holding BV v Talal El Makdessi, on the issue of penalty clauses in contracts.


Exercise 2: Comprehension

Based on the text, are the following sentences true or false?

1. In the English common law system, cases are resolved by a judge deciding the facts and then applying a code to them.

2. Another way of saying ‘case law’ is ‘judicial decisions’.

3. The highest court in the hierarchy of the English court system is the Court of Appeal.

4. One of the main purposes of the common law system, and judicial precedent, is to bring certainty to the law.

5. The principle of stare decisis means that judges are free to make whatever decision about a case that they wish.






ANSWER KEY

Exercise 1

1. bound by

2. common law

3. body of case law

4. hierarchy

5. handed down


Exercise 2

1. False. Cases are decided by the court applying previous decisions in cases with similar facts.

2. True

3. False. It is the Supreme Court of the United Kingdom.

4. True.

5. False. The principle of stare decisis means that judges are not free to come to whatever decision about a case they wish. They must follow precedent.



© Cambridge Legal English Academy 2021



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