Case law Flashcards
Precedent - Definition
Developed slowly. English courts are bound to follow decisions which have been reached in previous cases
Precedent - When does it apply?
A proposition stated in one case is binding in a later case if it is:
- A proposition of law
- Part of the ratio decidendi of a case
- Decided in a court whose decisions are binding on the present court
- There are no relevant differences between the two cases
Precedent - What is a proposition of law?
The proposition must be one of law not fact. One way of deciding whether something is a fact is to consider whether it can be proved or at least inferred from the evidence
Precedent - Ratio decidendi - The judgement
Ratio = a proposition of law which is binding
Obiter dictum = a proposition of law stated by a judge that is not necessary for his or her conclusion
Precedent - Ratio decidendi - How to find the ratio of a case
Any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion. Proposition of law with some extra reasoning
Precedent - What is the obiter dictum?
A proposition of law stated by a judge which is not necessary for his or her conclusion. Not binding
Precedent - What is the obiter dictum? - Types of obiter dicta
A proposition may be obiter if it is wider than necessary to decide the particular case. It may also be obiter if a judge speculates about the decision he or she would have made if the facts of the case had been different. Obiter if the judge is speculating. Will be obiter if it forms part of a dissenting judgment
Precedent - How to determine which court’s decisions are binding
General principle = all courts are bound by superior courts. Some courts are bound by previous decisions of their own courts. Courts are never bound by courts of a lower level
Precedent - How to determine which court’s decisions are binding - The European court of justice
Not bound by its own previous decisions as it does not have a concept of precedent.
Precedent - How to determine which court’s decisions are binding - The SC
Limited circumstances in which the SC will depart from its own previous decisions:
- Only been used where the previous decision causes injustice or impedes the development of the law or itself causes uncertainty
Precedent - How to determine which court’s decisions are binding - The court of appeal - Civil division
Usually bound by its own decisions and those of SC and ECHR. 3 exceptions as to when it doesn’t follow its own decisions:
1) Where its own previous decisions conflict
2) Where its previous decisions has been implicitly overruled by the SC
3) Where its previous decision was made per incuriam - through carelessness
Precedent - How to determine which court’s decisions are binding - The court of appeal - Criminal division
Usually bound by its own decisions and those of SC and ECHR. 3 exceptions as to when it doesn’t follow its own decisions:
1) Where its own previous decisions conflict
2) Where its previous decisions has been implicitly overruled by the SC
3) Where its previous decision was made per incuriam - through carelessness.
Additionally the court has a wider discretion where the liberty of the individual is at stake
Precedent - How to determine which court’s decisions are binding - The High court - Appellate jurisdiction Divisional court
These decisions are binding precedents for magistrates’ courts. These are bound by its own decisions subject to the same exceptions as the Civil division of the court of appeal.
Precedent - How to determine which court’s decisions are binding - Crown court
Not bound by its previous decisions but is persuaded by them
Precedent - How to determine which court’s decisions are binding - The county court, the family court and the magistrates’ court
They do not bind any other courts, not bound by their own decisions.
