Common law fill the gaps left by statutes. Judge-made laws follows distinctive rules
--Stare decisis
--Ratio Decidendi (reason for deciding)
Criminal: convicted (G) ; acquitted (NG)
unanimous: all the judges on the bench agreed
Not all laws come into force after published in Gazette
Stare decisis
Pros--
Promotes certainty finis litium (Halsbury LJ)
Curbs arbitrary decisions
Maintains equality before the law
Provides an efficient and rational basis for decision making
Has some limited flexibility to respond to serve justice
Cons--
Inflexible
Can only respond/change if a case comes before it
Legal argument stretches to find ‘distinguishing’ on the facts
Court of Appeal bound by its previous decisions but Court of first instance not bound
litigation general rule: losing party pays winning party’s costs, but rarely full costs; winning party
will still incur unrecoverable costs
limitation period for contract and tort: 6 years
Advantages of judicial precedent
-Certainty in the law.
-Predictability and consistency in the application of law.
-Foundation for the orderly development of the law.
Disadvantages of judicial precedent
-Rigidity may lead to injustice and impede the development of the law.
-There is a need for a sufficient degree of flexibility for the law to adapt to changing social needs
and technological developments.
Per incuriam: a court judgement had failed to pay attention to statutory provision or precedents.
Case note:
1. Case name, citation, (+ any textbook/article ref.)
2. Court (+ Judges), parties, procedural history
3. Relevant facts
