Chapter 6-Law Making : Judicial Precedent

Question 1

First major use of the practice statement?

Answer 1

Herrington V British railways board 1972

On the duty of care owed to child trespasses

Question 2

First major use of practice statement in Criminal case

Answer 2

R V Shivpuri (1986)
It overruled the decision in Anderton v Ryan (1985) on attempts to do the impossible. They were only a year apart but it was said ‘the soon it is corrected the better’

Question 3

Practice statement 1966

Answer 3

House of Lords will depart from their own previous decisions when ‘it is right to do so’

Question 4

London Street Tramways v London county council (1898)

Answer 4

House of Lords decide they are bound by their own previous decisions.

Question 5

Pepper v Hart (1993)

Answer 5

Practice statement used to allow courts to look at Hansard for the purpose of statutory interpretation.

Question 6

R v G and R (2003)

Answer 6

Practice statement used to overrule the decision in Caldwell (1982) on recklessness in the law.

Question 7

Young v Bristol Aeroplane (1944) exceptions

Answer 7

There are conflicting past decisions
There is a HOL/ Supreme Court decision which effectively overrules the COA decision
The decision was made per incuriam (in error)

Question 8

Special exception for Young v Bristol aeroplane in criminal cases?

Answer 8

If the law has been misapplied or misunderstood (R v Gould(1968))

Question 9

Stare decisis

Answer 9

Stand by what has been decided

Question 10

Ratio decidendi

Answer 10

Reason for deciding

Question 11

Obiter Dicta

Answer 11

Other things said

Question 12

Binding precedent

Answer 12

A previous decision which has to be followed

Question 13

Persuasive precedent

Answer 13

A previous decision which does not have to be followed

Question 14

Original precedent

Answer 14

A decision in a case where there is no previous decision or law for the judge to use

Question 15

Distinguishing

Answer 15

Method of avoiding a previous decision because the facts in the present case are different

Question 16

Balfour v Balfour 1919 and Merritt v Merritt 1971

Answer 16

Both cases involved a wife making a claim against the husband for breach of contract.
Balfour it was decided no was no intention to create legal relations there was merely a domestic agreement , no legally binding contract
In Merritt they were successful as the agreement was made after they had separated and the agreement was made in writing.
Merritt was a legally enforceable contract