Paper 2 - Tort & Law Making > Judicial Precedent > Flashcards

Judicial Precedent Flashcards

(94 cards)

Study These Flashcards
1
Q

What is the system of precedent also known as?

A

The doctrine of precedent.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What is judge-made law called?

A

Common law.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What is precedent?

A

When a judge makes a decision in a previous case that is then applied in future cases.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Precedent can be used in which two areas of law?

A

Criminal law and civil law.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Who was originally given the power to decide cases not covered by existing law?

A

Judges (given this power by the King).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Why does common law remain ‘common law’?

A

Because Parliament has not codified it.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What does stare decisis mean?

A

“To stand by what has been decided.”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What must judges do under the doctrine of stare decisis?

A

Stand by previous decisions.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Give an example of an area of law created by judges through common law.

A

Murder.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Give another example of judge-made law created through common law.

A

Negligence.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What are the 3 types of precedent?

A

Binding precedent, Original precedent, Persuasive precedent.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What principle makes binding precedent work?

A

Stare decisis — standing by what has already been decided.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

When must a binding precedent be followed?

A

When the earlier case is from a higher court and the facts of the current case are sufficiently similar.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Give an example of a binding precedent being used in later cases.

A

Donoghue v Stevenson established the neighbour principle; Daniels v White followed it.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What were the facts of Donoghue v Stevenson?

A

A woman drank ginger beer from an opaque bottle, discovered a decomposed snail inside, became ill, and sued the manufacturer.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What legal principle was created in Donoghue v Stevenson?

A

The neighbour principle — a manufacturer owes a duty of care to the ultimate consumer.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What happened in Daniels v White?

A

A man drank lemonade containing a harmful chemical and suffered burns.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Why was Donoghue v Stevenson relevant in Daniels v White?

A

It provided the binding precedent establishing duty of care in negligence.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

When was common law first established in England?

A

After the Norman Conquest in 1066.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What did William the Conqueror base early common law on?

A

The Doomsday Book — a record of landowners and occupiers.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

How did Norman kings develop the common law system?

A

By taking local customs and making them common (uniform) across the country.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What was the Curia Regis and what did the King’s chief ministers do?

A

They travelled around the country hearing cases and made decisions based on what they thought was right/wrong when no common law existed.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What principle did the King’s ministers adopt when dealing with similar facts?

A

They agreed to stand by each other’s decisions — stare decisis.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Why was recording decisions important for stare decisis?

A

Judges needed to know previous decisions to follow them; since 1865, accurate law reports record cases so precedents can be applied reliably.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
What is ratio decidendi?
The legal reason for the judge’s decision — this forms the binding precedent.
26
Why is ratio decidendi important in future cases?
When a later case has the same or similar facts, the ratio decidendi must be followed.
27
What is obiter dicta?
Extra comments made by the judge that do not form part of the binding decision.
28
How might obiter dicta help future cases?
Judges may use them as persuasive guidance, especially when they speculate on how different facts might have changed the outcome.
29
Why is it sometimes difficult to separate ratio decidendi from obiter dicta?
Judgments are written in continuous prose with no headings, can be very long, and multiple judges may give separate judgments — meaning more than one possible ratio.
30
What happens when multiple judges give judgments in an appeal case?
There may be several ratios, making identification more complex.
31
Which court is at the top of the UK court hierarchy (pre-Brexit / A-level context)?
The Court of Justice of the European Union (CJEU).
32
What type of precedent does the CJEU set?
Binding precedent on all UK courts on matters of EU law.
33
Does the CJEU bind itself?
No — it is not bound by its own previous decisions.
34
Where does the UK Supreme Court sit in the hierarchy?
Directly below the CJEU (for A-level purposes on precedent).
35
Does the Supreme Court bind itself?
No — because of the Practice Statement 1966, which allows it to depart from its own past decisions “when it appears right to do so.”
36
What kind of precedents does the Supreme Court set?
Binding precedents that all lower courts must follow.
37
Where does the Court of Appeal sit in the hierarchy?
Below the CJEU and the Supreme Court.
38
Who must the Court of Appeal follow?
All decisions of the CJEU and Supreme Court.
39
Does the Court of Appeal bind itself?
Yes — especially in the Civil Division, unless a Young v Bristol Aeroplane exception applies.
40
What type of precedents does the Court of Appeal set?
Binding precedents that the lower courts must follow.
41
When can the Court of Appeal (Criminal Division) avoid its own past decisions?
When a Young v Bristol Aeroplane exception applies OR when the law has been misapplied or misunderstood (as in R v Taylor and R v Gould).
42
Do the Civil and Criminal Divisions of the Court of Appeal bind each other?
No — they do not bind each other.
43
Who must the High Court follow?
All decisions of the courts above it.
44
What type of precedent does the High Court set?
Binding precedent for all courts below it.
45
Does the High Court bind itself?
Yes — the High Court binds itself.
46
Who must the Crown Court follow?
All decisions of the higher courts.
47
What type of precedent does the Crown Court set?
Persuasive precedent only.
48
Does the Crown Court bind itself?
No — because verdicts are decided by a jury, not by legal precedent.
49
Who must the Magistrates’ and County Courts follow?
All courts above them in the hierarchy.
50
What type of precedent do the Magistrates’ and County Courts set?
Persuasive precedent only.
51
When is a precedent considered persuasive?
When it comes from a court lower in the hierarchy or from the same level.
52
What is an original precedent?
A precedent created when a legal point has never been decided before and no existing common law or statute applies.
53
Why are original precedents rare?
Because usually a past case or Act of Parliament already covers the issue.
54
Why might an original precedent be created?
To respond to gaps in the law, new moral/social attitudes, economic changes, or new technology.
55
What method do judges often use when making original precedent?
Reasoning by analogy — using principles from cases with similar features.
56
What did Lord Denning famously say about judges and law-making?
Judges do not change the law; they declare it — but modern view accepts judges create law when deciding new issues.
57
Case: Airedale NHS Trust v Bland — what was the issue?
Whether withdrawing life support from a patient in a persistent vegetative state was lawful.
58
What was decided in Airedale NHS Trust v Bland?
It was lawful to turn off the life support machine — creating an important original precedent.
59
Case: Hunter v Canary Wharf — what was the issue?
Whether people could claim for interference to TV reception caused by a new tower.
60
What was decided in Hunter v Canary Wharf?
Hundreds could claim compensation for years of signal interference — another example of original precedent adapting to modern tech.
61
What is a persuasive precedent?
A precedent a judge may follow but is not required to — unlike binding precedent.
62
How does persuasive precedent differ from binding precedent?
Persuasive = optional influence. Binding = must be followed if from a higher court with similar facts.
63
What are the 5 sources of persuasive precedent?
Decisions of courts in other countries Obiter dicta Lower court decisions Dissenting judgments Privy Council decisions
64
When can courts look at decisions from other countries?
When the country uses a common law system (e.g., Commonwealth nations) and UK case law is lacking.
65
What happened in Re S?
Court followed an American case to allow an emergency Caesarean for a woman refusing treatment on religious grounds.
66
When can obiter dicta become persuasive precedent?
When a later court chooses to adopt the obiter as part of its ratio.
67
What was the persuasive obiter in R v Howe?
Duress is not a defence to attempted murder.
68
How was the Howe obiter used in R v Gotts?
CA followed it as persuasive precedent and refused duress for attempted murder.
69
Can higher courts follow lower courts?
Yes — especially the SC following CA reasoning (judges are experienced).
70
What did the House of Lords follow in R v R?
The Court of Appeal’s reasoning that a man can be guilty of raping his wife.
71
What is a dissenting judgment?
A judgment from the judge(s) who disagreed with the majority.
72
How can dissenting judgments become persuasive?
A later court (often Supreme Court) may prefer the dissent and follow it.
73
Case: Candler v Crane Christmas What did Lord Denning say in his dissent?
He argued accountants should owe a duty of care even without a contract.
74
Case: Hedley Byrne v Heller How was Denning’s dissent used later?
HOL overruled Candler and adopted Denning’s dissent instead — turning it persuasive.
75
Are Privy Council decisions binding?
No — but they are highly persuasive.
76
Case: Jersey v Holley (2005) What did the Privy Council decide?
That the HOL decision in Smith (2000) was wrong and should not be followed.
77
Case: R v James and Karimi What did the CA decide when faced with conflicting HOL and PC decisions?
They chose to follow the privy council.
78
What is distinguishing in judicial precedent?
A judge identifies significant differences between the facts of the current case and a previous case to create a new precedent.
79
Case example of distinguishing?
Balfour v Balfour: court refused to recognise contracts between married couples. Meritt v Meritt: court recognised contracts between separated couples as valid.
80
What is reversing?
A higher court changes the legal ruling of a lower court on appeal, creating a new precedent.
81
Example of reversing?
Sweet v Parsley: Crown Court guilty verdict overturned by Court of Appeal to not guilty.
82
What is overruling?
A higher court states that a legal rule from a previous lower court case is wrong.
83
Can a court overrule its own previous decisions?
The ECJ can overrule itself. The Supreme Court can overrule itself using the Practice Statement 1966. Court of Appeal divisions can overrule using exceptions in Young v Bristol Aeroplane.
84
What does per incuriam mean?
A previous case is ignored because the judge overlooked an important point of law.
85
Example of per incuriam?
Williams v Fawcett: a previous decision was not followed because it was made in error.
86
Why was the Practice Statement 1966 introduced?
To allow the House of Lords (now Supreme Court) to depart from past decisions when necessary, enabling the law to develop.
87
Example of first major use of the Practice Statement?
British Railways Board v Herrington (1972) overruled Addie v Dumbreck (1929).
88
Criminal example of the Practice Statement?
R v Shivpuri (1986) overruled Anderton v Ryan (1985).
89
Can the Supreme Court use the Practice Statement just because a precedent is wrong?
No. There must be a good reason, e.g., changing social/economic climate, justice, or development of the law (Jones v Sec. State for Social Services 1972).
90
Examples of reasons for using the Practice Statement?
Changing social climate Changing economic climate (Miliangos v George Frank Textiles 1976) Justice in individual cases Development of the law (R v R and G 2003 overruled R v Caldwell 1982)
91
What happened to the Practice Statement after the House of Lords became the Supreme Court?
Its powers were transferred and confirmed in cases like Austin v Southwark LBC (2010), though it wasn’t used in that case.
92
How does the Court of Appeal bind itself?
Each division binds itself (civil binds civil, criminal binds criminal), but divisions do not bind each other.
93
Exceptions for the Court of Appeal to avoid binding itself (Young v Bristol Aeroplane)?
1. Two conflicting CA decisions 2. CA decision conflicts with Supreme Court/House of Lords 3. Previous CA decision made per incuriam 4. Criminal division can avoid its previous decision if the law was misapplied or misunderstood (R v Gould).
94
Other powers of the Court of Appeal?
Hear appeals from lower courts Consider referrals from the Attorney General on points of law Consider lenient sentences Must disregard previous decisions conflicting with the Human Rights Act 1998 to align with ECHR
Paper 2 - Tort & Law Making
flashcards
Decks in class (24)
# Cards
Brainscape helps you reach your goals faster, through stronger study habits.
© 2026 Bold Learning Solutions. Terms and Conditions