13 February, 2016


If a decision would otherwise be a binding authority, it does not lose that status, merely because the point was not argued by counsel (this will be important only as a way of attacking a decision that is of merely persuasive authority). But what is called a decision sub silentio is not binding: that is to say, one in which the existence of the particular point was not perceived by the court, so that it was not discussed in the judgment. This is so, at least, where the precedent case is that of the same court.

No comments: