Ch 4: Doctrine Of Precedent

Question 1

When does the Doctrine of Precedent Apply?

Answer 1

A proposition stated in one case is binding on a later case if it is:

• A proposition of Law
• Part of the Ratio Decidendi of a case
• Decided in a court which is binding on this one
• There are no relevant distinctions between cases

Question 2

What is a Proposution of Law?

Answer 2

It must be a proposition guided by interpretation of statute.

A proposition of fact is a proposition guided by evidence.

Question 3

What is the Ratio Decidendii?

Answer 3

It is the rationale which is necessary to justify the decision in a case.

Question 4

What is Obiter Dictum?

Answer 4

Any proposition of law stated by a Judge which is not NECESSARY for the conclusion.

Question 5

What steps must a Judge take when deciding their judgment?

Answer 5

• Decide what the legally relevant facts are
• State the relevant law
• Apply the law to the facts

Question 6

What defines a wide or narrow ratio?

Answer 6

The number of facts judged to be material. A ratio may be very narrowly prescribed to a scenario or be made into a general principle.

The correct ratio is usually neither the most wide or most narrow one.

Question 7

What is a Dissenting Opinion?

Answer 7

Arguments made by other judges which do not agree with the overall judgment of the majority.

Dissents are not binding (not part of the ratio) although may be persuasive

Question 8

What are common examples of Obiter Dictum?

Answer 8

• speculation about cases with alternative facts
• speculation of outcome in the absence of precedent
• arguments which are not necessary for the outcome of the case

Question 9

What is the first level of court which has binding powers of precedent?

Answer 9

High Court

Question 10

What powers of binding precedent does the Supreme Court have?

Answer 10

Bonds all courts below - but not itself

Question 11

What powers of precedent does the Court of Appeal have?

Answer 11

Binds all courts below, and NORMALLY binds itself.

Doesn’t bind Supreme Court

Question 12

Does the High Court Bind Itself?

Answer 12

As a court of 1st Instance - No

As a court of Appeal - Yes

Question 13

Does the Family Court bind itself?

Answer 13

If a High Court Judge - yes

Otherwise no

Question 14

What non-UK courts are considered Highly Persuasive?

Answer 14

• Privy Council
• European Court of Human Rights
• Court of Justice of the EU

Question 15

Which instances of the EU courts are highly persuasive?

Answer 15

• pre-Brexit judgements on matters of retained law are BINDING
• post-Brexit judgements oon matters of retained law are PERSUASIVE
• Judgements concerning the Withdrawal Agreement are PERSUASIVE

Question 16

Is the Supreme Court bound by its own decisions?

Answer 16

Until 1966 yes - as House of Lords

No longer

Question 17

What are the 5 exceptions to the Court of Appeal binding itself?

Answer 17

A) Where it’s previous decisions conflict

B) Where its previous decision have been implicitly overruled by Supreme Court

C) Where its previous decision was made per incuriuam

D) Where it was an interim decision made by two judges

C) Where one of its decisions is inconsistent with a subsequent decision by the European Court of Human Rights

Question 18

Are the Civil and Criminal Branches of the Court of Appeal bound by each other?

Answer 18

No firm decision - but assumption is yes

Question 19

Why do the Inferior Courts not bind themselves?

Answer 19

• Decisions are all first instance
• Only one judge hears a case at County Court
• in Magistrates Court decisions are made by lay people
• There are hundreds of courts across the country

Question 20

Other than Distinguishing a Case, what other options are there to deal with awkward precedent?

Answer 20

Overruling - where a Higher Court declares a lower court ruling incorrect

Departing - where a Higher Court argues to depart from existing precedent

Reversing - where a decision of a court is altered by a higher court on appeal.

Question 21

What is the impact of the Human Rights Act of 1998 on Precedent?

Answer 21

It requires courts to take into account the European Court of Human Rights decisions when dealing with issues which fall under the Human Rights Act.

They are not technically bound by decisions, but must “take into account”. In practice they are taken as binding.

Question 22

What is the Declaratory Theory of Common Law?

Answer 22

Judges do not make law - they only declare it.

The most judges do is apply existing principles to new sets of fact.

Question 23

Do Judges make law in modern times?

Answer 23

Yes. By creating new precedent which is binding, Judges can be said to create law where statute is ambiguous.

Question 24

What are the advantages of a Civil Law system vs a Common Law one?

Answer 24

Civil Law allows more change - as Codes can be amended and updated

Civil Law drafts legislation to state General Principles - this means that judgement is made on purposive interpretation.

Common Law offers greater certainty and consistency - due to the Doctrine of Precedent. But it is less flexible.

Question 25

Which is more persuasive: Obiter or Dissent?

Answer 25

Obiter. Obiter can be binding while Dissent is only ever persuasive