# data[].attributes.body
this is a method of interpretation which is based on delving into the fundamental and underlying reason for either a law or constitutional guarantee.

# data[].attributes.body
The judge is required to listen to the case and refer to the statute. The case must be very similar to what the statute says and a failure in this and the outcome of the case will be altered

# data[].attributes.headline
The Purposive approach- this is the approach to statutory and constitutional interpretation under which common law courts interpret an enactment within the context of the law's purpose.

# data[].attributes.subject
The Purposive approach- this is the approach to statutory and constitutional interpretation under which common law courts interpret an enactment within the context of the law's purpose.

# data[].attributes.body
This is one of the oldest rule.

The only time this rule can be applied is when there is ambiguity in the statute.  The court's role is to suppress the mischief which then the Act is aimed at and advance the remedy.

# data[].attributes.body
it is a flexible approach which allows judges to develop the law in line with Parliament's intention. The disadvantage is that judges are given too much power to develop the law ad usurping the power of Parliament.

# data[].attributes.body
This rule is the statutory interpretation which may be applied when an application of the literal rule would lead to an absurdity. This regards the courts to then may apply a secondary meaning.

# data[].attributes.body
should only be applied where there is ambiguity in the statute.

# data[].attributes.headline
Mischief rule- one of three rules of statutory interpretation typically used in English courts, the rules goal is to determine the mischief and detect the statuses in question in order to rectify essentially what part the law did  not cover.

# data[].attributes.subject
Mischief rule- one of three rules of statutory interpretation typically used in English courts, the rules goal is to determine the mischief and detect the statuses in question in order to rectify essentially what part the law did  not cover.

# data[].attributes.body
A rule of statutory or legal document interpretation which allows a shift from the ordinary sense of as words if the overall content of the document demands it.

# data[].attributes.body
The mischief rule of statutory interpretation is the oldest of the rules.  This third rule gives a judge more discretion than either the literal or the golden rule.

# data[].attributes.attachment_link.title
What Is The Mischief Rule Of Statutory Interpretation?

# data[].attributes.body
a principle that should always be followed to ensure success in general/particular activity.

# data[].attributes.body
POSITIVE

It says that the intention of Parliament is best found in the ordinary and natural meaning of the words used. It is used to interpret statutes.

NEGATIVE

finding the intention of parliament can be quite difficult

it is undemocratic

it might cause uncertainty if a judge changes the meaning of a statute

# data[].attributes.attachment_link.title
What is PURPOSIVE APPROACH? What does PURPOSIVE APPROACH mean? PUPROSIVE APPROACH meaning

# data[].attributes.body
the purposive approach its flexible also this rule allows a judge to add or ignore words in an act to help them give a decision that supports in their view why the act was created.

# data[].attributes.body
This rule is the basis of all court decisions in relation to statues. Here judges rely on the exact wording of the statute for the case. They don’t interpret meaning.

# data[].attributes.body
A rule of statutory or legal document interpretation which allows a shift from the ordinary sense of as word(s) if the overall content of the document demands it.

# data[].attributes.body
the words of the statute are given their natural or ordinary meaning and applied without the judge seeking to put a gloss on the words or seek to make sense of the statute

# data[].attributes.headline
The Golden rule- this is a rule that should always be followed in order to ensure the success in general or specific activities.

# data[].attributes.subject
The Golden rule- this is a rule that should always be followed in order to ensure the success in general or specific activities.

# data[].attributes.body
Where the court resolves an ambiguity by looking at the meaning of the statue as a whole, rather than individual sections of legislation.

# data[].attributes.body
This should be the first rule applied by judges. This means that under the literal rule, the words of the statute are given either natural or ordinary meaning applied. This means that it can be applied without the judge seeking to put a gloss on the words or seek to make sense of the statute.

# data[].attributes.body
Can be applied where the implementation of the literal rule would cause an absurd result.

# data[].attributes.body
A rule of statutory or legal document interpretation which allows a shift from the ordinary sense of as word(s) if the overall content of the document demands it.

# data[].attributes.body
Requires courts to give the meaning of a statue in its plain meaning.

# data[].attributes.body
Can be applied by the courts in order to resolve ambiguity that arises from the Literal rule. (Gardiner v Seven Oaks District Council (1950)).

# data[].attributes.body
It says that the intention of Parliament is best found in the ordinary and natural meaning of the words used. It is used to interpret statutes.

# data[].attributes.body
The Literal rule is when the court finds the exact definition of what the law is and using it to interpret statuses.

# data[].attributes.headline
Persuasive precedent-Persuasive precedent means precedent which a judge is not obliged to follow, but is of importance in reaching a judgment, as opposed to a binding precedent. 

# data[].attributes.subject
Persuasive precedent-Persuasive precedent means precedent which a judge is not obliged to follow, but is of importance in reaching a judgment, as opposed to a binding precedent. 

# data[].attributes.headline
Obiter Dicta-Statements made by a judge in the course of giving his reasons for a decision in a particular case that are not necessary elements of the reasons for decision. That is, the judge could have reached the decision without making the statements. Under the common law, obiter dicta are not binding on courts in subsequent cases.

# data[].attributes.subject
Obiter Dicta-Statements made by a judge in the course of giving his reasons for a decision in a particular case that are not necessary elements of the reasons for decision. That is, the judge could have reached the decision without making the statements. Under the common law, obiter dicta are not binding on courts in subsequent cases.

# data[].attributes.body
Latin for "to stand by decisions and not disturb the undisturbed". It means abide by precedent and do not disturb settled matters.

# data[].attributes.body
Ratio decidendi is a Latin phrase meaning "the reason" or "the rationale for the decision". The ratio decidendi is "the point in a case which determines the judgment" or "the principle which the case establishes".

# data[].attributes.body
These are not binding on the court, however a judge may consider such a precedent and decide that it is the correct principal to follow.

On other words, he is persuaded that he should follow it. They can come from 1) Courts lower in the hierarchy e.g. R v R (1991)

In this case the law lords followed the same reasoning as the Court of Appeal in deciding that a man could be guilty of raping his wife.

2) Privy Council decisions.

Obiter Dicta statements. This is particularly true of Obiter in the House of Lords e.g.

R v Howe (1987) the Lords ruled that duress could not be a defence for a charge of murder. So the Lords also followed Obiter that duress would not be available as an offence for someone charged with attempted murder.

But in 1992 R v Gotts , the Court of Appeal used this Obiter statement as a persuasive precedent to rule out a defence of duress in a charge of attempted murder.

A dissenting judgement is a judgement that disagreed with a majority view may be used to over rule the decision of the majority.

Decisions of court in other countries …especially where the same idea of common law are used, commonwealth countries e.g. Australia McLoughin v O’Brian (1983)

# data[].attributes.body
If a judge decides that the material facts of the case in front of him are sufficiently different from the material facts of the case containing the precedent then he is not bound by the precedent e.g. Balfour v Balfour (1919) and Merritt v Merritt (1990)

Both the cases involved a wife making a claim against her husband for breach of contract. In Balfour it was decided that the claim could not succeed because there was no intention to create legal relations, there was merely a domestic arrangement between husband and wife so there was no contract. In Merritt the court distinguished the case from Balfour because although the parties were husband and wife, the agreement was made parties were husband and wife, the agreement was made after they had separated. Further more, it was in writing, so it was a legally enforceable contract.

Sometimes ratios are wide – applicable to many further cases.

Some ratios are narrow – maybe not applicable to any.

Wide ratios have less material facts to consider than narrow ratios. Wide ratios are more difficult to distinguish.

Donoghue v Stephenson wide ratio and a rapid, extensive subsequent development of the law of negligence.

# data[].attributes.body
“Other things said by the way.”

These comments do not form part of the ration (reasoning) and are therefore not part of the precedent. For instance, sometimes a judge will speculate on what his decision would have been if the material facts had been different.

Sometimes, part of the Obiter Dicta may be put forward in future cases and although it will not form a binding precedent it may help to ‘persuade’ a later judge towards a particular view in the law.

N.B. It is sometimes difficult to distinguish between ratio and any headings as the judgement is usually in continuous form without any headings specifying what is ratio and what is not.

There may also be a number of speeches at the end of a case, depending on the number of judges sitting and how they have individually arrived at their judgement. This can mean that there is more than one ratio.

# data[].attributes.headline
Stare Decisis and stare decisis et non quieta movere

# data[].attributes.subject
Stare Decisis and stare decisis et non quieta movere

# data[].attributes.body
The English system of precedent is based on the Latin maxim: “Stare Decisis et Non Queita Movere”, stand by what has been decided and do not unsettle the established. The idea is that by following precedents, which are the previous decisions of judges, fairness and certainty will be provided.

Precedents can only operate if the legal reasons for past decisions are known. Therefore, at the end of a case (civil) there will be a judgement in which the judge will give not only the decision but also the legal reasoning which lies behind it.

# data[].attributes.body
If a point of law has never been decided before, then whatever the judge decides will form a new precedent for later cases to follow. Donaghue v Stephenson (1932) snail in a bottle case – negligence. As there are no past cases for the judge to base his decision on, he is likely to look at cases that are closest in principal and he may decide to use similar reasoning. This way of arriving at a judgement is known as ‘reasoning by analogy’ see handout 61.

# data[].attributes.body
This is where a court in a later case states that the legal rule decided in an earlier case has been strongly decided. This would normally happen when a court higher in the hierarchy over-rules a decision made by a lower court in a previous case.

However both the ECJ and the House Of Lords can over-rule their own decisions made in previous cases.

# data[].attributes.body
This is where a court higher up the hierarchy over turns the decision of a lower court in the same case. E.g. the Court of Appeal reverses a decision of the High Court.

# data[].attributes.headline
Stare Decisis et non quiwta movere- this means that courts should abide by precedent and not disturb settled matters.

# data[].attributes.subject
Stare Decisis et non quiwta movere- this means that courts should abide by precedent and not disturb settled matters.

# data[].attributes.body
Original precedent means a precedent that creates and applies a new legal rule. An original precedent is made when there is no previous judicial decision on a point of law. When the court has to form an original precedent, a judge will come to their decision by analogy.

# data[].attributes.body
Latin for "to stand by things decided". It is the doctrine of precedent.

# data[].attributes.body
This is the legal reason or principal which lays behind the decision and it is this ratio which will provide the precedent for judges to follow in future cases.