Sound reasoning by analogy rest on substantially similarities between the

Sound reasoning by analogy rest on substantially

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Sound reasoning by analogy rest on substantially similarities between the precedent and the case at bar R Ltd v East Sussex County Council [2003] 1 WLR 348, 357-358 - Estoppels bind individuals on the ground that it would be unconscionable for them to deny what they have represented or agreed> concepts of private law should not be extended into “the public law of planning control which binds everyone” - Denial of public law concept of a legitimate expectation created y a public authority> abuse of power Deduction - Deriving specific conclusions from more or less well-established general principles or axioms - Apply broad case law principles or statutory provisions to the niceties of the specific case at bar Donoghue v Stevenson [1932] AC 562 “ snail in the bottle” - Duty which is common to all the cases where liability is established must logically be based upon some element common to the cases where it is found to exist - To seek a complete logical definition of the general principle > go beyond the function of the judge - The more general the definition the more likely it is to omit essential or to introduce non-essentials Limitation of case law reasoning - Practical limitation due to the sheer volume of reported cases - Inadequacy of the knowledge of judge> judicial sampling bias Benefits of case law reasoning - Demand legal principles be tailored to resolving disputes as they emerge and to clarifying statutory ambiguities as the practical problems of implementation arise - Better satisfy social needs than exhaustive codification Omychund v Baker (1744) 1 Atk 21, 26 ER 15, 23 - Civil code> very seldom can take in all cases that can possibly arise - Case law> “works itself pure by rules drawn from the fountain of justice and is for that reason superior to an act of parliament” 3. The Doctrine of Precedent - Doctrine of precedent/ stare decisis: two conflicting functions : obliges courts to deliver decisions coherent with applicable precedent; empowers current judges to set precedents that bind future judges Solicitor(24/07) v Law Society of Hong Kong (2008) 22 HKCFAR 117, 130-133 - Doctrine of stare decisis: the decision of final appellate court is binding on the intermediate court of appeal and the lower courts in the same system BEFORE 1997 in HK - Privy Council was the final appellate court and part of HK judicial system> decision on appeals from HK was binding on CA and lower courts - if its decision were not made on appeals from HK> sitting as final appellate court on another jurisdiction> not functioning as HK court as part of our judicial system> decisions on non-HK appeals were not binding on the courts in HK under the doctrine of precedent > persuasive authority( very great unless there were real grounds for distinction as it was unrealistic to expect PC to take a different view on a HK appeal from that taken in its
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earlier decision on a non-HK appeal) - decision of HL similar to PC unless local circumstances made it appropriate for HK to develop along different lines -
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