Common Law

General

Common law is one of the main sources of Irish law. It consists of a series of rules and principles developed by judges over the centuries. Many of the most important of business law rules are common law rules. Examples include contract law, civil wrongs (tort), agency and restitution. Many of the basic rules evolved over centuries of experience and are not really controversial or political in nature.

Irish common law rules share a common ancestry, with common law in England, Northern Ireland and most US States. Many of the basic rules evolved many hundreds of years ago and can be recognised in United States common law, even though it became independent from England over 230 years ago.  In most areas, Irish common law is identical or almost identical to Northern Irish and English common law.

In practice, many areas of common law have been recorded in leading and established textbooks. The leading UK practitioners\’ textbooks are very influential in Ireland. Over the last 40 years, substantial texts on Irish law covering the important common law areas have been published.

Precedent Legal Decisions

Common law involves courts deciding cases by following the principles laid down in earlier cases and written judgments. The decisions of the higher courts are binding on lower courts. This means that the Judges in lower courts must apply the principles as set out in similar cases by the higher courts. Previous important cases are set out in written judgements and are referred to as precedent.

In practice, the number of legal cases in which there is a written court decision, which is significant and becomes a legal precedent, is minimal. Much litigation takes place in the District and Circuit Courts, where written decisions are rare. Even in the higher courts,  written decisions will not be common, unless a novel point of law is involved.

The vast majority of the cases and disputes do not involve a new point of law. The will involve the application of existing legal principle to the particular facts of the case. There will be either no written decision or if the decision is recorded, it will have minimal significance as a precedent.

Methodology

Common law works by developing and applying existing principles to new circumstances. Judges do not make new law. They proceed by analogy with existing principles and apply them to new circumstances.

In practice,  there may be an element of a law making in applying an older rule or principle to new circumstances. However, Judges cannot make a radical new law or principle.

In many cases, what may appear to be a new point of law is little more than the application of existing principles. There can be a thin line between the development of new principles of law and the application of existing law to new  facts and circumstances

Courts and Legal Precedent

The court system consists of various levels of courts, Generally, there is an appeal from a lower court to a higher court. For example, there is an appeal from the District Court to the Circuit Court and from  Circuit Court to the High Court.  There is an appeal from the High Court to the Court of Appeal and in some cases a further appeal or direct appeal to the Supreme court in relation to legal points only

The Supreme Court is the highest court in Ireland. It deals mainly with issues of law. It hears appeals from the High Court. It hears references of points of law from other courts.

The Supreme Court does not hear witnesses and uses the written transcript. Supreme Court decisions are binding on the High Court and lower courts. The Supreme Court will issue a written judgment in many cases.

The High Court hears higher value civil claims. The High Court consists of about 37 judges. It hears appeals from the Circuit Court. There are several thousand written High Court judgments annually. They are binding on lower courts and other High Court Judges.

UK Influence

Because of the greater population and a greater number of written legal decisions at the courts of England and Wales and to a lesser extent, in order Northern  Ireland, judgements and decisions of those jurisdictions are of persuasive significance in Ireland, when there is no Irish precedent available..

The judgments of the higher courts in England and Northern Ireland are not binding on Irish courts but they are highly persuasive. They will nearly always be followed as a reflection of the development of common law. Because of the higher population and London’s preeminence as an international legal centre, there are a large number of UK legal precedents in key common law areas.

The English High Court, Court of Appeal and Supreme Court (formerly the House of Lords) have issued numerous written judgments and decisions for several centuries. The House of Lords was the highest court in Ireland until the 1930s.

In Northern Ireland, the High Court and Court of Appeal will often consider principles and older statute law which is identical to that in the Republic of Ireland.

The influence of Irish common-law transcends boundaries.  Sometimes Irish cases on similar common law principles or legislation are persuasive in England and Wales and Northern Ireland although cases, although their incidence is less, as a  smaller jurisdiction, whose law reports are published widely.

 

Equity

Until 1877, there were two distinct sets of courts and systems of law in Ireland.  The common law courts applied more rigid rules and had lesser discretion in their mode of operation. The courts of equity existed side-by-side with common law courts.

They dealt particularly with certain areas such as land law and trusts as well as particular types of remedies and relief  The courts of equity once had significant discretion but over time the rules became more established and crystallised so that no new principles could be developed or an example that courts of equity took any more discretionary approach delectable and discretionary approach and in many cases offered more flexible remedies and solutions to that offered by the common law courts

Before  1877  the common law and equity courts existed side by side In many areas many cases they dealt with different types of dispute so there was no conflict.  However, in certain areas, one  Court could effectively overrule the other court Generally the courts of equity took preference, for example, a person might be entitled to a certain strict legal right.  A court  of equity might issue an order restricting him from exercising that right because it was deemed unjust in the circumstances

In 1877 feet to the courts of common law and the courts of equity were merged so that common-law legal and equitable rules are applied in all courts. Where there is a conflict, the equitable rules have precedence.

Although all courts administer all rules,  the division of cases between particular judges reflect the old distinctions between equity (so-called chancery and legal (common law rules.

Modification by Statute

Statute law is increasingly the dominant source of law. In many cases, statute law has modified or codified common law rules. In other areas, the existing common law or judge-made law has been overruled or modified by legislation.  In many cases, there are judge-made common law rules and statute law side-by-side.

In some cases, the common law rules have been consolidated or put into a statute reflecting the y existing common law rules sometimes with minor or sometimes with more significant change.

The difference between statute law and the judge made law is not rigid. The way a particular statute or statute law is interpreted follows the principles of judge-made law.  Judges interpret statutes so that decisions as to what a particular statute means may itself be precedent and in that sense, a judge-made principle.

Parliament (the Oireachtas) can overrule judge-made law. However,  it can not overturn the decision of a judge in a particular case which has already occurred. Generally, it cannot change the law retrospectively.