8 Judicial Precedent Flashcards
Situations where judges make law indirectly
- Applying an established rule of principles to a new situation or set of facts
- Interpreting statutes enacted by the legislature
In arriving at a decision, judges are bound to follow ____.
a certain accepted principles commonly known as precedents
Definition of precedents
A judgement or decision of a court of law cited as an authority for the legal principle embodied in its decision.
Stare decisis
Let the decision stand
Stare decisis et non quieta movere
To stand by the decision, and not to disturb the settled matters
Based on the principle,
‘like cases should be treated alike’
A binding precedent
When determining a dispute before the courts, judges will follow what their predecessors had decided earlier in a similar situation
When material facts are similar,
Court is required to follow the previous decisions of a higher court. Certain court must adhere to their own prior rulings and those of courts with equal/coordinate jurisdiction, whether from past or present, within the same judicial hierarchy.
In coming to a decision as to which precedent is binding, the judge is influenced by 2 main factors
- origin of the precedent (must originate from a court of appropriate rank, namely higher or same level subject to certain exceptions)
- contents of the precedent (ratio decidendi/legal reasoning)
The doctrine of precedent is based upon presumptions (2)
- Cases with the same or similar material facts should be decided in the same way
- Decisions made by the higher courts carry greater weight than lower courts, thus a court is normally bound by courts which are higher than them
Vertical stare decisis
The application of the doctrine from a higher court to a lower court (lower court accepts the decision of a higher court)
Horizontal stare decisis
The notion that a judge is bound to follow or respect the decision of an earlier judge of similar or coordinate jurisdiction
Obiter dictum
- In the course of judgement, a judge my express an opinion on a question of law not directly relevant to the case before him. His/her opinion is an obiter dictum (things said by the way)
- Not part of legal reasoning
- Not binding on courts although it may have a highly persuasive authority especially if it originates from a higher court
- Only the ratio decidendi is binding on subsequent cases
Terminologies (7)
- Binding precedent
- Persuasive precedent
- Overruling
- Reversing
- Disapproving
- Distinguishing
- Conflicting decisions
Donoghue v Stevenson [1932] AC 562
- Mrs Donoghue’s friend bought a bottle of ginger beer in an opaque bottle for her. The beer was poured to her tumbler and she drank some of it.
- Hr friend proceeded to pour the remainder of the contents of the bottle to the tumbler, the remains of a decomposed snail floated out.
- Mrs Donoghue developed gastroenteritis as a result.
- Mrs Donoghue sued the manufacturer of the ginger beer for negligence as she had no contract with the retailer (she did not buy the bottle of ginger beer herself).
- The House of Lords held that the manufacturer owed her a duty of care
- Claimant could recover damages from the manufacturer due to their negligence
The neighbour principle
Lord Atkin formulated the “neighbor principle,” stating that one must take reasonable care to avoid acts or omissions that could foreseeably harm their “neighbors”—those closely and directly affected by their actions.
Binding precedent
One which a court considers it must follow. Eg: High Court is bound by the Federal Court’s decision.
Persuasive precedent
One which a court is not bound to follow, but chooses to follow. Eg: The decisions of the superior courts in other parts of the Commonwealth jurisdictions.
Overruling
When a higher court in a later case decides that a legal principle established in a previous case by a lower or equal court was incorrect, effectively invalidating the earlier decision but does not affect the position of the parties in the overruled case.
Reversing
When a higher court changes the decision of a lower court in the same case on appeal, stating the lower court’s judgement was wrong.
Disapproving
When a higher court expresses disagreement with a decision of a lower court, in the sense of casting doubt on the ratio of the earlier case while not formally overruling it.
Distinguishing
Where a court distinguishes an earlier case on its facts, or on the point of law involved, it states some relevant points of difference between the earlier case and the present case, usually in order to conclude that the ratio of the earlier case is not binding on it.
Conflicting decisions
Where a court decides that the legal reasoning of more than one earlier binding cases are inconsistent with one another, it may choose which to follow
Appraisal of the doctrine
• There is a degree of certainty and predictability in the law so that people can plan their actions with a degree of confidence
• Strict adherence to precedent of the apex court is required so as to ensure certainty, stability and predictability in the judicial process
• The judicial precedent system is designed to be flexible enough to allow judges to adapt the law to meet the evolving needs of society, rather than being so rigid that it entirely limits judicial discretion.
