Court Hierarchy and Precedent Flashcards
What is precedent?
a statement of law made by the court which is subsequently followed by other courts
How does precedent develop?
- Issue requiring solution
- The legislation is not clear
- The Courts provide interpretation based on certain concepts i.e.
The rule of law
Essential freedoms
Adherence to previous cases
What is the basic rule of precedent?
lower courts must take heed of higher courts
Who is and is not bound by decisions of the Supreme Court?
All lower courts are bound
the Supreme Court does not bind itself
When can the Supreme Court depart from its own previous decision?
If the previous decision causes injustice, impedes the development of law or causes uncertainty
This should be done sparingly
What effect do decisions of the Judicial Committee of the Privy Council have?
They are persuasive, not binding
Explain how the Court of Appeal binds / is bound
It is bound by the Supreme Court
It binds all lower court
There is a presumption that the Court of Appeal binds itself, but it can depart from its own previous decision in limited circumstances
When can the Court of Appeal depart from its own decision?
Where:
o It conflicts with another previous decision; or
o It has been implicitly overruled by the SC; or
o Was made per incuriam (i.e. through carelessness); or
o The decision was made by 2 judges on an interlocutory basis and the decision was wrong
It is rare for this to happen
Explain how the High Court (as an appellate body) binds / is bound
Bound by the Supreme Court and court of appeal
Binds all lower courts (inc. the High Court in the first instance)
There is a presumption that the High Court (Appellate) binds itself, but it can depart from its own previous decision in limited circumstances
When can the High Court (appellate) depart from its own decision?
Where:
o It conflicts with another previous decision; or
o It has been implicitly overruled by the SC; or
o Was made per incuriam (i.e. through carelessness); or
o The decision was made by 2 judges on an interlocutory basis and the decision was wrong
It is rare for this to happen
Explain how the High Court (as the court of 1st instance) binds / is bound
Bound by Supreme Court, High Court (appellate) and Court of Appeal
Binds all lower courts (i.e. the county court)
Is not bound by its own decisions, but judges should try not to depart from their decisions
Explain how the Crown Court binds / is bound
Bound by Supreme Court, Court of Appeal and High Court
Cannot bind any other courts and not bound by its own decisions, but they can be persuasive
Explain how the County Court and Family Courts binds / is bound
Bound by Supreme Court, Court of Appeal and High Court
Cannot bind any other courts and not bound by its own decisions
Explain how the Magistrates Court binds / is bound
Bound by Supreme Court, Court of Appeal and High Court
Cannot bind any other courts
When will the decision of one case be binding on another?
The following requirements are met:
o There is a proposition of law;
o The proposition is part of the ratio decidendi;
o The proposition is decided in a court whose decisions are binding on the present court; and
o The case is not capable of being distinguished from an earlier case
What is a proposition of law?
a judicial statement confirming a legal principle
Where can the proposition of law come from?
statute and/or case law
What is the difficulty with identifying the proposition of law?
Sometimes it can be mixed in with fact, but it is important it is a proposition of law and not fact
What is the ratio decidendi?
the legal reasoning of the case
What are the types of ratio decidendi?
Narrow ratio i.e. limited and specific applicability
Wide ratio i.e. broad applicability
Examples of narrow and wide ratio
Donoghue v Stevenson
* Narrow ratio - a manufacturer should take care to prevent injury from its products to consumers.
* Wide ratio - a person owes a duty to take reasonable care of their neighbours
What is an obiter statement?
These are propositions of law that don’t form part of the ratio but they may be relevant/significant to future cases
What effect do obiter statements have?
They can be persuasive but are not binding
What are the types of obiter?
A series of statements/discussion by the judge to explain their reasoning but is not crucial to the final outcome
Speculation of an alternative judgment, had the facts been different
What is affirming?
when a higher court confirms it agrees with the appeal before it
What is applying?
when a court indicates it is adopting statements or reasoning form other decisions
What is departing?
where a court disagrees with a previous decision of an equal court
What is distinguishing?
where a judge decided the facts of precedent are different to the current case and does not follow the precedent
What is overruling?
where a higher court comments on a previous unrelated decision by a lower court and declares it to be wrong
What is reversing?
a higher court disagrees with an earlier decision of a lower court in the same proceedings
Where is the obiter usually found?
Not always, but often dissenting part of a judgment
(NB: if there is an SBAQ which refers to a ‘dissenting judgment’ and you are asked to identify what the extract is, it is probably obiter)
When can an obiter become ratio?
If it is used to form the legal reasoning in a subsequent case
