Chapter 5 - Judicial Precedent Flashcards
What is the meaning of the term “stare decisis”?
To stand by cases already decided.
What does it mean to describe something said in a judgment as “obiter”?
Obiter dictum statements are a remark or opinion, ‘by the way’, and not officially part of the ruling, nor precedential for other cases (though they may be of persuasive authority in later cases).
Explain and contrast the proper uses of the words “reversing” and “overruling”.
Reversing occurs where a court higher up in the hierarchy overturns the decision of a lower court on appeal in the same case.
Overruling is where a principle laid down by a lower court is overturned by a higher court in a different, later case.
What is prospective overruling?
Prospective overruling is when a court upholds the existing precedent in the instant case but declares it overruled for the future.
What was the effect of the Practice Statement issued by Lord Gardiner LC in 1966?
The House of Lords was no longer bound by its own previous decisions, thus enabling it to meet changing conditions.
What does it mean to describe a judgment as having been given “per incuriam”?
It means the judgement was given by carelessness or mistake.
Is it open to the Court of Appeal to refuse to follow an authority of the Supreme Court where the Court of Appeal considers that it would cause injustice to apply it?
No, the Court of Appeal is bound by the decisions of the Supreme Court.
Is a judge of the High Court bound to follow a previous High Court authority?
Decisions of individual High Court judges are not binding on other High Court judges. However, they are of strong persuasive authority and are usually followed.
What does it mean to say of an authority that it can be distinguished?
An authority can be distinguished if it involves different legal principles and has different facts. As a result, an inconvenient precedent that would otherwise be binding can be circumvented.
What are the perceived advantages of the doctrine of judicial precedent?
The following of precedent
- is a convenient time-saving device
- leads to greater certainty in the law
- may serve the interests of justice by treating similar cases in the same way
What is a persuasive precedent (as opposed to a binding precedent)?
A persuasive precedent is one which is not absolutely binding on a court but which may be applied. An example of persuasive precedents would be the decisions of the Judicial Committee of the Privy Council.
A binding precedent, on the other hand, is a decided case which a court must follow even though it is considered to have been wrongly decided.
What are the objectives of the neutral citation of judgments?
The objectives of the neutral citation of judgments are to make it easier to store, distribute, search, and retrieve court judgments on the Internet.
