Generally speaking there are two types of laws in the UK. The first is statue law which includes Acts of Parliament – primary legislation – and secondary types of legislation such as rules and regulations. The second is common law – also known as ‘judge-made’ law or ‘case law’ – which is developed by judges as they hear cases and pass judgments on matters before them in court. Common law is necessary as in some cases statute law does not fully cover all aspects of a matter or is unable to adequately and fully guide the judge in the circumstances of the case. In these cases a judge will look at the decisions made by past judges on similar cases to guide their own decision.Common law is also often referred to as ‘precedent law’, as a case that comes before a court will often use a ‘precedent’ that was set by an earlier case as the basis of the argument put before the judge or jury. The decisions that the judge subsequently makes based on the current common law will then bind future judges who hear similar cases. This is to ensure that the law is applied consistently from case-to-case. Common law can develop to become highly complex as it can in some cases be in constant review as cases come before the courts.
A judge has slightly more discretion on how to apply the common law than it does with statute law. It is possible for a judge to distinguish the current case before them and therefore not apply a precedent to it because the judge does not find enough similarity between the case they are hearing at the moment and the precedents put before them. And, if a judge is of sufficient seniority, in a superior court, they may be able to make a new decision which will then create a new precedent that future judges will use; judges of lower seniority do not have this freedom or power.
However, it should be noted that common law is not used in isolation: all decisions consider both statute law and any common law precedents. Where they conflict, any relevant statute law will override any common law that may be relevant. In addition, the UK also incorporates many European laws into its body of law. If a judge finds that an EU law applies to their case, the court must also consider this, and certain provisions will override the statute and common law that may be applicable, but this is a fairly complex situation.
If you need advice on what laws apply to your case you should speak to a solicitor who specialises in the particular area of law. For example, a family law solicitor will be well versed on both the statute law and common law that applies to your family situation.
