Pre 1921 judgements.

Mycroft H

As the title really. I presume that British legal decisions in common law (privy council/high court) still stand to this day (unless overturned).

Lets say there was a judgement in 1900 in London which would have applied to Ireland at the time which was kept, so to speak after we gained independence in 1921 and a republic in '49. Or am I thinking of this completely backwards?

Milk & Honey

BX 19 wrote: »

As the title really. I presume that British legal decisions in common law (privy council/high court) still stand to this day (unless overturned).

Lets say there was a judgement in 1900 in London which would have applied to Ireland at the time which was kept, so to speak after we gained independence in 1921 and a republic in '49. Or am I thinking of this completely backwards?

The 1922 constitution and the 1937 constitution both contained carry over provisions laws. Any law which was not inconsistent with those constitutions was retained. That applied to all existing law whether of statute or common law origin.

icdg

BX 19 wrote: »

As the title really. I presume that British legal decisions in common law (privy council/high court) still stand to this day (unless overturned).

Lets say there was a judgement in 1900 in London which would have applied to Ireland at the time which was kept, so to speak after we gained independence in 1921 and a republic in '49. Or am I thinking of this completely backwards?

You're forgetting that while English judgements were even more closely followed in Ireland pre-1920 than they are now, Ireland had its own courts system pre-independence, mirroring almost (but not exactly the same as) England's, just as Northern Ireland does now. The House of Lords was the supreme court of the entire UK, but below that, Ireland had its own Court of Appeal and High Court, as well as a whole system of assizes, county courts, and courts of summary jurisdiction.

Peregrinus

icdg wrote: »

You're forgetting that while English judgements were even more closely followed in Ireland pre-1920 than they are now, Ireland had its own courts system pre-independence, mirroring almost (but not exactly the same as) England's, just as Northern Ireland does now. The House of Lords was the supreme court of the entire UK, but below that, Ireland had its own Court of Appeal and High Court, as well as a whole system of assizes, county courts, and courts of summary jurisdiction.

Yup. And even pre-Independence, precedents in English cases were persuasive in Ireland, but not binding. So a House of Lords decision in an Irish case (i.e. a case appealed from the Irish courts) would be binding on the Irish courts, but a decision in an English case (or, if relevant, a Scottish case) would not. But it would be very persuasive and if it involved, say, the interpretation of a statute which applied equally in England and Ireland, then it's hard to see that the Irish courts would not have followed it.

The formal position since 1937 is that the decisions of the pre-1922 Irish courts, and indeed the decisions of the 1922-1937 Irish courts, are not binding. But if they are in point to a case coming before the Irish courts today they are very, very persuasive.

Procrastastudy

OP if you have access to a legal database the following case may be of interest

Irish Shell v. Elm Motors [1984] I.L.R.M. 595

Specifically McCarthy J judgment.

There is also a case which eludes me at the moment where the Supreme Court states it would depart from Stare Decisis if there was a compelling reason to and the the Irish Courts where courts from X date (sometime in the 60's when the system changed). Thats a really bad explanation but hopefully someone will put me right and remind me of the case.

icdg

Procrastastudy wrote: »

There is also a case which eludes me at the moment where the Supreme Court states it would depart from Stare Decisis if there was a compelling reason to and the the Irish Courts where courts from X date (sometime in the 60's when the system changed). Thats a really bad explanation but hopefully someone will put me right and remind me of the case.

Would it have been owing to the courts of up to 1961 were still the courts of Saorstat Éireann carried over, and only when the Courts (Establishment and Constitution) Act 1961 was passed did the Courts envisaged by the Constitution of Ireland 1937 come into being?

Procrastastudy

icdg wrote: »

Would it have been owing to the courts of up to 1961 were still the courts of Saorstat Éireann carried over, and only when the Courts (Establishment and Constitution) Act 1961 was passed did the Courts envisaged by the Constitution of Ireland 1937 come into being?

Thats the one! There is a case where the situation is excellently covered in the judgment. It's bugging me I cant remember which.

Victor

The common law position may have been superseded by legislation.