Judicial Precedent

Question 1

Judicial Precedent

Answer 1

Where judges create rules for other judges to follow in later cases

Question 2

Stare Decisis

Answer 2

• Standby what has been decided
• Dictates if court makes decision the same court must follow that decision, courts in lower hierarchy follow it.
• Promotes fairness//consistency&certainty in the law.

Question 3

Ratio Decidendi

Answer 3

• Reason for the decision,
• Judge must say why he’s made that decision
• Binding in court: // 1-facts are sufficiently similar (cases) 2-decision comes from the same court or higher.

Question 4

Donoghue v Stevenson
Ratio decidendi

Answer 4

• Ratio decidendi was manufactures owing duty of care to ultimate consumer.

Question 5

Obita Dicta

Answer 5

• Other things said,
• Everything else in judgement that is not the ratio decidendi it could be: 1-judges opinion 2-speculation on the facts 3-summary of the case Judges do NOT have to follow this (non-binding)

Question 6

Persuasive precedent

Answer 6

• Decision that is not binding on the court, but the judge may consider it and decide that it is a correct principle so he is persuaded that he should follow it
• Many different types of persuasive precedent

Question 7

Courts lower in the hierarchy (Persuasive precedent)

Answer 7

• Judgment from a case that was decided by a court lower in the hierarchy may be used as persuasive precedent
  -R v R (1991) - HOL followed the reasoning of the COA in deciding a man could be guilty of raping his wife

Question 8

Decisions of the Judicial Committee of the Privy Council
(Persuasive precedent)

Answer 8

• Not part of court hierarchy however presided many Supreme Court justices its reasonable to consider their decisions as precedent.
• EG: Attorney General for Jersey v Holley (2005)

Question 9

Judicial Committee Case
Attorney General for Jersey v Holley (2005)

Answer 9

• Clarified defence provocation in murder: should be looked from point of reasonable person, not of the D’s individual weakness (eg: mental state//intoxication.

Question 10

Statements made obiter dicta
(Persuasive precedent)
R V Howe

Answer 10

• Ratio : duress can’t be used as defence to murder
• Obiter : Duress may be valid under manslaughter//attempted murder//less serious crimes.
• This was then followed later in R v Gotts (1992).

Question 11

A dissenting judgement
(Persuasive precedent)

Answer 11

• When there have been a panel of judges on a previous case, the outcome will be taken from the majority decision
• Sometimes very sensible are persuasive things are said by the judges who formed the minority decision - called the dissenting judgment
• Therefore in a future case the HOL/SC may prefer the dissenting judgment and decide the case in the same way

Question 12

Decisions of courts in other countries

Answer 12

• Especially happens where the other country uses the same ideas of common law as in our system e.g. Commonwealth countries such as Canada, Australia and New Zealand

Question 13

Original Precedent

Answer 13

• if a point of law in a case has never been decided before, then whatever the judge decides will form a new precedent for future cases to follow.
• As there is no past law to follow - the judge may reason by analogy - Hunter v Canary Wharf (1995), about loss of TV reception reasoned by analogy with Aldreds case (1611) about loss of view
• Some people argue that creating an original precedent that other courts have to follow is going beyond the powers of the judiciary as they are not elected to make new law - however Parliament cannot be expected to create law for every conceivable scenario

Question 14

Binding precedent

Answer 14

• Precedent from an earlier case which must be followed even if the judge does not agree with the legal principle
• Only created when the facts of the second case are sufficiently similar to the original case and the decision was made by a court which is senior to (or in some cases the same level as) the court hearing the later case

Question 15

Ways of avoiding a binding precedent

Answer 15

1. Distinguishing
2. Overruling
3. Reversing

Question 16

Distinguishing
(Binding precedent)

Answer 16

• Judge must show difference in the material facts of the two cases, if sufficiently different then the instant judge not bound by the earlier case.
• EG: Balfour v Balfour and Merrit v Merrit.

Question 17

Balfour v Balfour and Merrit v Merrit
(Distinguishing)

Answer 17

• Both cases involved a wife making claim against husband for breach of contract.
• Balfour no claim as no legal intent only domestic agreement during marriage (pay wife maintanance)
• Merrit there was claim as it was a written agreement after separation (give house)

Question 18

Overruling
(Binding precedent)

Answer 18

• Higher court disagrees with legal principle established by lower court in previous case with similar facts.
• Higher court can change the principle and new principle must be followed by lower courts.
  EG: SC overruling decision of CoA

Question 19

BRB V Herrington Addis v Dumbreck
(overruling)

Answer 19

In Addie v Dumbreck, the HoL held that occupiers only owed a duty to trespassers to avoid intentional harm, offering minimal protection. In BRB v Herrington, this was overruled, and the court introduced a duty of ‘common humanity’, requiring occupiers to take reasonable care if they know of a danger and the likelihood of a trespasser. This is an example of the House of Lords using its power to overrule a previous decision.

Question 20

Reversing
(Binding precedent)

Answer 20

• Case appealed to higher court and a different decision is reached.
• EG: Sweet v Parsley - HoL reversed the CoA decision and found D not guilty as mens red couldn’t be proved.

Question 21

Sweet v Parsley
(reversing)

Answer 21

The Court of Appeal convicted a teacher for drug use on her property, but the House of Lords reversed the decision, ruling that mens rea was required for the offence. This is an example of reversing, where a higher court changes the decision of a lower court in the same case.

Question 22

Tomlinson v Congleton BC (2003)
(reversing)

Answer 22

The Court of Appeal held the council was liable after a man was injured diving into a lake, but the House of Lords reversed the decision, stating he was a trespasser who ignored clear warnings, and the council wasn’t liable. This shows reversing, where a higher court overturns the decision of a lower court in the same case.

Question 23

Hierarchy of the courts

Answer 23

Every court has to follow the decisions of courts which are above them in the court hierarchy.

Question 24

London Street Tramways v LCC (1898

Answer 24

-HOL held that certainty in the law was more important than the possibility of individual hardship being caused through having to follow a past decision
-therefore if a bad decision has been made the only way to change it would be a new Act of Parliament
-this rule of precedent became criticised over time and it was argued that allowing the former HOL to change their minds and depart from a previous bad decision would provide justice

Question 25

The Practice Statement 1966

Answer 25

-eventually it was agreed that the HOL should have more flexibility -in 1966, the Lord Chancellor issued a change to rule in London Tramways, called the practice statement: The HOL will depart from its previous decisions where 'it appears right to do so'

Question 26

Austin v London Borough of Southwark (2010) (Practise Statement)

Answer 26

-SC confirmed that the Practice Statement applied to the SC - Despite this they decided not to use this power in this case as it involved tenancy law and they believed that certainty in the law was crucial in this area

Question 27

Herrington v BRB (1972) (Practise Statement)

Answer 27

-a 6 year old boy wandered onto an electrified line and was badly injured -earlier case of Addie v Dumbreck (1929) had decided that an occupier of land would only owe a duty for injuries to a child trespasser, if those injuries had been caused deliberately or recklessly PRINCIPLE -HOL held that social and physical conditions had changed since 1929, and the law should also change

Question 28

Advantages of judicial precedent

Answer 28

- Certainty - Consistency and fairness - Precision - Flexibility - Time-saving - Filling gaps

Question 29

Disadvantages of judicial precedent

Answer 29

- Rigidity - Complexity - Slowness of growth