1.6.1 What is case law?
By way of broad summary, case law, otherwise known as the ‘common law’, is the written application of the statute that has been established through decisions made by judges in previous cases in particular factual scenarios. It is built up from judgments given by higher courts when they interpret and apply statutes in the cases brought before them. Sometimes called ‘precedents’, cases are binding on all courts (in lower jurisdictions), and must be followed as good law in similar cases to help achieve correctness and consistency. Over time, these precedents are recognised, affirmed and enforced by the subsequent court decisions, thus continually refining and developing the common law. Or, the common law might change as society’s expectations change or as allied statutes change. You therefore need to be careful that cases you rely on have not been surpassed, negatively commented on, or overturned on appeal.
Case law differs from the laws enacted by Parliament, which include:
- statutes – statutes enacted by Parliament eg, the Sale and Supply of Alcohol Act 2012 (the Act)
- regulations – regulations established by government agencies based on statutes eg, the Sale and Supply of Alcohol (Fees) Regulations 2013. Regulations will generally be derived from, and subordinate to, the relevant statute.