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Case Law: How to find and use case law: Precedent

What is case law? Where can you find Scottish and English case law? How can you check the status of case law?

Judicial precedent

Judicial precedent operates under the principle of stare decisis which literally means “to stand by decisions”. This principle means that a court must follow and apply the law as set out in the decisions of higher courts in previous cases.

Judicial consideration - affirmed, applied, reversed, overruled...

A court in handing down a judgment may consider a previous decision in several ways. A previous decision may be:

  • Approved - A higher court may state that another case heard by a lower court was correctly decided.
  • A decision may be Applied - A court may apply the reasoning of a previous case in a current case, where the facts are different from those of the previous case.
  • A decision may be Followed - A court may be bound by a previous decision where the material facts were substantially the same as in the instant case.
  • Or a decision may be Distinguished - A court may not follow a previous and otherwise binding decision because there is a difference in, for example, the material facts. The previous case remains good law.
  • In some instances a decision may be Disapproved - A higher court may state that another case heard by a lower court was wrongly decided. The court indicates that the previous case may not be good law - but does not expressly overrule it.
  • Alternatively a previous decision may be Doubted - A court while not expressly overruling a previous case may give reasons to show that it may have been wrongly decided.
  • Or a decision may be Not followed - A court may choose not to follow the decision of a court of coordinate jurisdiction where the material facts were substantially the same as the instant case.

Finally, a decision in a different case may be Overruled - A court may expressly overrule the ratio decidendi of an inferior court’s decision in another case.

In addition, if a case is appealed to a higher court, the decision of the lower court may be:

  • Affirmed – The same case is held to have been correctly decided by the lower court. It is good law.
  • Or a decision may be Reversed – The same case is held to have been wrongly decided by the lower court. It is not good law.

Furthermore, under the doctrine of parliamentary supremacy, a decision in a case may be superseded by legislation.

Importantly, if a case has been reversed, overruled (or superseded by legislative provisions) it is no longer good law and should not be relied on as authority.

Online sources of case law

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