Court Law and Precedent Flashcards
The Role Of The Courts And Common Law
The court’s primary role is to adjudicate cases and settle disputes; they have a secondary role as law-makers.
– Compare to Parliament, whose primary role is to make law.
• Common law refers to law developed through the courts (as distinguished from
‘Acts’ and ‘Statutes’, which refer to laws passed by Parliament).
Two ways in which courts can make law
Test cases
Statutory interpretation
Test cases
The courts can only make law when an appropriate test case comes before the court, where either no applicable law exists, or the existing law is ambiguous as to if/how it should be applied.
Statutory interpretation
Statutory interpretation refers to the practice of courts interpreting the meaning of the words in statutes when applying them to a case the court is hearing.
The doctrine of precedent DEFINITION
The process by which judges follow the reasons for their decisions – given by courts higher in the court hierarchy – when deciding on similar future cases.
Ratio decidendi DEFINITION
The ratio decidendi or ‘reason for the decision’ is the statement of legal principle that forms the binding part of the precedent.
Obiter dictum
– Obiter dictum, on the other hand, are statements ‘said by the way’; they do not form the binding part of the precedent, but may be persuasive.
Two types of precedent
There are two types of precedent: binding precedent and persuasive precedent.
• Essentially, judges can establish a new standard which all inferior courts within the same hierarchy must follow when deciding like cases (binding precedent), or that can potentially inform the decisions of other judges but that they are not bound to follow (persuasive precedent).
Binding precedent
Precedent created by courts higher in the court hierarchy that must be followed by a lower court when making a judicial court decision in cases of similar fact. Precedents that are binding on a court include The decision of a higher court in the same
hierarchy. The ratio decidendi is the only binding part of the precedent.
Persuasive precedent
Precedent that courts do not have to follow, but may be influential on court decisions either within the same court hierarchy but by inferior or the same courts, or within a different court hierarchy both domestic and abroad. Obiter dicta often forms the basis for persuasive precedent. Judges can decide as to whether or not to follow a persuasive precedent.
Snail in a bottle case name
Donoghue v Stevenson [1932]
Facts of Donoghue vs Stevenson case
The plaintiff (Mrs. Donoghue) drank half a bottle of ginger beer and found a partially decomposed snail at the bottom. She contracted gastroenteritis and shock, which she claimed was was a direct result of her consumption of the drink. She sued the manufacturer claiming his fault.
Decision, Ratio decidendi and impact of snail case
Decision: HOL found for the plaintiff, stating that the manufacturer had a duty of care to the ultimate consumer.
Ratio decidendi: that one should take reasonable care to avoid acts or omissions that you can reasonably foresee would be likely to injure your neighbour (your ‘neighbour’ being any persons who are closely and directly affected).
Impact: This case established the tort of negligence in England.
5 restrictions on judges to make law
Test case Hierarchy Type of case Personality Precedent
Test case restriction
Judges can only make law if there is a test case before them: that is, they must wait for a case to arise with a legal issue that has not previously been considered by any court, or which tests the validity of an existing law, or which requires the interpretation of an existing law (either statute or common law).
Court hierarchy restriction
The position of the court in the hierarchy: only superior courts in the hierarchy create precedent. These are the courts of record, where the judgments are reported.
Type of case
The type of legal case and the mode of trial: precedent is usually only established in cases on appeal (where there is no jury) or when hearing a civil case without a jury.
Personality restriction
some judges are conservative and see their role as adjudicators, not a law makers. Some judges are more progressive, who see their role as both adjudicator and law maker. A predominantly conservative court is likely to leave parliament to create new areas of law.