Case Law and Judicial Precedence

Question 1

What is the doctrine of Judicial Precedent?

Answer 1

Like cases should be decided alike.

Question 2

What is the doctrine of Stare Decisis?

Answer 2

It establishes that courts are bound to follow the decision of higher courts adn to follow the decisions of courts of equivalent standing, the later is subject to some limited exceptions.

Question 3

What are the requirements of a legal system to follow the doctrine of Judicial Precedent?

Answer 3

Clear Hierarchy of Courts, established and accurate law reports.

Question 4

What are the main elements of a case?

Answer 4

a) the facts of the case, b) the legal principles considered, c)details of the decision or outcome, d) the judges explanation of how they reached that decision by applying the legal principles.

Question 5

When is a lawyer or a judge able to use a previous case to determine a current case?

Answer 5

The facts of both cases are sufficiently similar, and they are able to refer to the specific part of the judgement which set out the legal principles upon which the earlier decision was made.

Question 6

What is the Ration decidendi of a case?

Answer 6

It is the reason for the decision. It is the binding part of the case.

Question 7

What does Obiter dicta mean?

Answer 7

Statements made which are not necessary to decide the issue before the courts. Obiter dicta is not binding.

Question 8

What are some questions you can ask to determine what is Ratio Decidendi vs. Obiter Dicta?

Answer 8

1) What is the legal question the court is being asked to decide. 2) What are the material, or legally relevant facts? 3) Which aspect of the judges reasoning are relevant to deciding the legal question.

Question 9

When more than one Judge deals with a case, as is the case in higher appelalate courts, what is the result called when there are not all judges are in agreement?

Answer 9

A divided court.

Question 10

What are the judgments called that do not agree with the majority judgement?

Answer 10

Dissenting Judgement.

Question 11

In a divided court, where is the Ratio Decidendi found?

Answer 11

In the opinions of the majority.

Question 12

What does the doctrine of stare decisis or binding precident tell us?

Answer 12

Higher Courts will be bound by their own decisions and bind those courts that are lower than them.

Question 13

Give Two Examples of exceptions to the rule that higher courts bind themselves and those courts below them.

Answer 13

1) When a high court decision is contradictory to the decision of the Court of Justice of the EU, then the decision of the Court of Justice of the EU should be follows. 2) When a decision which was made prior to the implementation of the Human Rights Act 1998 conflicts with the Act, then in limited circumstances, a court can decide not to follow its previous decision.

Question 14

With regard to Stare decisis, what rules does the Supreme Court Generally follow?

Answer 14

The Supreme Court binds all courts below it. It ususally considers its own decision as binding as well. However, it may treat its own decision as not binding if it seems right to do so. It will also treat the house of lords decisions as binding, in most cases.

Question 15

Give an example of a case where the Supreme Court departed from its own earlier decision.

Answer 15

Herrington v British Railway Board - it departed from its decision in Addie v Dumbreck.

Question 16

Give a few reasons why the Supreme Court may decide to depart from an earlier decision.

Answer 16

1) If it considers it right to do so, because the social of physical conditions which influenced the earlier decision no longer prevail. 2) If the supreme court decides that it got the law wrong.

Question 17

In relation to stare decisis, explain how the decisions of the Court of Appeal bind future decisions.

Answer 17

Court of Appeal decisions bind all courts below it, but not the Supreme Court which is higher. Additionally, it will bind itself, with exception to the situations which are layed out int he case of young v. bristole aeroplane company 1982.

Question 18

Give Three Reasons, which are outlined in Young v. Bristole Aeroplane Company, why the Civil Division of the Court of Appeal may depart from an earlier decision.

Answer 18

1) If there are two conflicting decisions, the Court of Appeal may choose which one to follow. 2) If a decision of the court of appeal conflicts with a later decision of the HOL or the SC, then it will depart from its own decision. 3) If a decision is made per incuriam ( meaning through carelessness).

Question 19

Explain the Binding Precedent for the High Court.

Answer 19

Decisions made at First Instance are binding to themselves, and all lower courts, but not divisional courts. Decisions made in divisional courts and binding on lower courts and that specific divisional court.

Question 20

Which Courts in the English Legal Court Hierarchy are not binding upon themselves or any other court?

Answer 20

Crown Court, Magistrates Court and County Court

Question 21

When is a case distinguishable, e.g. not similar enough to a previous case for stare decisis?

Answer 21

When the facts are not sufficiently similar.

Question 22

When is a decision no longer good law?

Answer 22

if it has been reversed or if it has been overruled.

Question 23

When has a case been Reversed?

Answer 23

When a decision made in one court is overturned by a higher court which is dealing with the same case, the earlier decision is reversed.

Question 24

When is a cased Overruled?

Answer 24

When a higher court overturns a legal principle which was established by a lower court in a Different Case, then the earlier decision is Overruled.

Question 25

What are the two types of Precedent?

Answer 25

1) Binding and 2) Persuasive

Question 26

List the mean to avoiding Precedent.

Answer 26

1) Overruling, 2) Reversing, 3) Distinguishing 4) Per Incuriam 5) House of Lords Practice Statement of 1996.

Question 27

What are the advantages of Precedent?

Answer 27

Time Saving, Certainty, Flexibility, Fairness

Question 28

What are the disadvantage of Precedent?

Answer 28

Uncertainty, inflexibility, unconstitutional

Question 29

What are law reports?

Answer 29

A law report is a report that provides with the judgment of a case plus other information includeing headnotes, summaries, catchwords and lists of cases considered.

Question 30

England does not have “official” law reports, but which reports should be used?

Answer 30

Law Reports published by teh Incorporation Council of Law Reporting for England and Wales.

Question 31

If the law reports published by the Incorporated Council fo Law Reporting for England and Wales have not reported on a decision, then which reports should be referred too?

Answer 31

Weekly Law Reports and then the All England Law Reports.

Question 32

What happends if the decision is not published in ICLR Reports, the weekly reports or the All England reports?

Answer 32

Then one should refer to one of the specialist reports available.

Question 33

Which Reports can be found on Westlaw?

Answer 33

ICLR Reports, Weekly Law reports and some specialist reports.

Question 34

Which Reports can be found on Lexis?

Answer 34

All England Law Report and European Court of Human Rights cases plus the Family courts reports and other specialist court reports