Judicial Precedent

Question 1

What is Judicial Precedent?

Answer 1

the meaning of a previous decision should stand in inferior courts

Question 2

What are the two types of precedent?

Answer 2

• binding
• persuasive

Question 3

What is binding precedent?

Answer 3

must be followed. It generally comes from the ratio decidendi of the Supreme Court or the Court of Appeal.

Question 4

What is persuasive precedent?

Answer 4

should be followed in similar cases but is not binding but if not followed, there must be an explanation why. It generally comes from the obiter dicta of the Supreme Court or the Court of Appeal or from the ratio decidendi of the Privy Council/lesser courts.

Question 5

how is judicial precedent applied?

Answer 5

A case must be decided in the same way as a prior case if the material facts are sufficiently similar: stare decisis

Question 6

Case for stare decisis

Answer 6

Michael v Chief Constable of Wales

Question 7

how is a binding precedent introduced in law?

Answer 7

ratio decidendi (the reason for deciding) which is binding or obiter dicta (other things said) which is not essential or binding

Question 8

what can be the issue with determining ratio?

Answer 8

• difficult to determine
• unmarked
• old cases having weak authority
• not all reasons are essential
• cases may have more than one ratio

Question 9

What is a case for distinguishing between ratio decidendi and obiter dicta?

Answer 9

Howe

Question 10

when is there an exception to judicial precedent?

Answer 10

Courts can choose to distinguish a particular case when the facts are sufficiently different to past precedent. Example cases: Merritt v Merritt was distinguished from Balfour v Balfour.

Question 11

What are the benefits of judicial precedent?

Answer 11

• certainty and consistency: discretion and predicting an outcome
• flexibility to overrule due to the 1966 practice statement
• ability to evolve with the law to reflect social changes

Question 12

What are the disadvantages of judicial precedent?

Answer 12

• consistency and certainty can result in issues if the original decision is wrong or the law is outdated
• parliament has the option to override any judicial precedent eradicating it’s power