Doctrine Of Precedenr Flashcards
BOP
Binding
Original
Persuasive
Binding
A precedent which must be followed
This usually operates through the court hierarchy because the binding precedent comes from an earlier case of a higher court
It may be binding because it is a previous decision of the present court and no exceptions apply
In order to be bound there must be similar material facts
The obiter of a case can develop into the ratio of another case- r v aluwalia (1992) and r y Dryden (1995)
Binding precedent found in the ratio of a case
Cases are capable of having more than one binding precedent- read v j Lyons & co (1947)
Eg Donoghue v Stevenson(1932) that a manufacturer of a product is liable to the end consumer of that product
Original
A precedent which involves a point of law which has never been decided before
When a new decision is made it becomes a new binding precedent (for the applicable courts) and a new original precedent
Original precedents can be a response to problems with existing lard or changing moral and social standards as well as wider economic and technological changes.
Original precedents can form the basis of the development of new legal principles- Donoghue v Stevenson (1932) the principles were followed in Grant v Australian Knitting Mills (1936)
One of the techniques used by judges when arriving at original precedents is known as “reasoning by analogy”. This happens where a judge relies on similar broad principle in an earlier case and compares it to the peasant novel case to produce an original precedent.
Hunter v Canary Wharf(1995) lost to reception) reasoned by analogy with Aldreds case (1611) loss of view.
Judges who issue original precedents can be accused of judicial law making but they would argue in their defence that they are simply applying known legal principles to a novel situation(declaratory theory)- Airdale NHS Trust v Bland (1993)
Example- Re S (adult: refusal of medical treatment (a Caesarian section) against the mothers wishes was lawful based on the best interests of the child.
Persuasive
This is a precedent in which the judge can look at the legal principles in other cases and if he/she is ‘persuaded’ by the legal reasoning then he/she may decide to follow that case and is said to have been persuaded by it.
Sources of persuasive precedents;
Courts lower in the hierarchy-
the judgement from a lower court mat persuade a higher court. Especially between COA and UKSC
Eg; R v R (1991) man guilty of raping wife- side with COA
Decisions of the Judicial Committee of the Privy Council-
Senior judges= highly persuasive despite them not having binding authority in domestic courts
Eg; the Wagon Mound (No.1) (1961)
Regarding remoteness of damage in negligence
Statements made by obiter dicta-
Persuasive coz they contain the thinking of the most senior courts and judges.
Eg; R v Howe (1987) and R v Gotts (1992) regarding the availability of the defence of duress
Dissenting judgement- disagree with decision may persuade higher court on appeal
Eg; Rose & Frank v Co Jr Crompton and Bros Ltd regarding the enforceability of contracts.
Decisions of courts in other countries- same principles of common law as UK. New Zealand, Australia, Canada.
Eg; R v Bentham- considered a number of American authorities as the case involved the possession of a gun. (Lawful in many parts of America)
Following
To ‘follow’ another case is to apply the same legal principle from an earlier case to a present case because the material facts were the same and the legal principle in the earlier case came from a court higher up the hierarchy or it was an earlier decision in the same court.
Reversing
A court higher up in the hierarchy overturns the decision of a lower court in the sand case.
Eg: COA in Sweet v Parsley (1969) upheld the decisions of the trial court and divisional court that the appellant was guilty of being concerned in the management of premises used for the purpose of smoking cannabis contrary to s.5(6) of the Dangerous Drugs Act 1965.
UKSC disagreed and reversed the decision of the COA.
This can be contrasted with affirming where a higher court agrees with the judgement of a lower court on appeal in the same case.
Overruling
Happens when a later court determines that the law in an earlier and different case was wrongly decided.
This might happen when a higher court believes that a decision made in a inferior court previously was wrong.
Eg; UKSC overruled RvR (1991) that a man could not be guilty of raping his wife.
Overruling can also happen when a court overrules its own earlier decision.
Eg; Murphy v Brentwood District Council (1991) and UKSC overruled Anns v Merton London Borough Council (1978)
Could be a statute being enacted which changes the law.
Distinguishing
Allows a judge to avoid binding precedent.
It works where the material facts of a case are different enough from a previous case (which would normally be followed) so as to allow the judge to draw a distinction between the facts.
Where this can be done the judge does not need to follow the earlier decision and he/she is said to have ‘distinguished’ the later case from the earlier case and they can set a fresh precedent.
Eg: Balfour v Balfour and Merritt v Merritt (1971)
Stilk v Myrick (1809) and Williams v Roffey (1990).
Rylands v Fletcher(1868) and Read v Lyons (1947)
R v Jordan and R v Cheshire (1991)
R v Wilson(1995) and Rv Brown and others(1994).
Involve availability of consent as a defence in non-fatal offences against the person.
Both cases involved willing ‘victims’.
However, in Wilson the court took the view that the assaults took place in personal adornment which was allowed.
But .. In Brown it was a sexual context and the courts did not think this should be allowed.
Thus, Wilson was different to Brown and therefore not bound to its ruling.
Advantages of Precedent
Certainty, predictability and consistency- London street tramways harsh approach. =plan affairs with knowledge of the consequences. Make a stable environment for business affairs and making contracts and allows lawyers to accurately predict outcome of any legal action.
Flexibility- Exceptions in UKSC and COA and distinguishing, overruling and reversing. Allow some judges some discretion. =Change law to meet changing conditions.
Huge body of law- decisions and principles have been refined and tested and the law has become settled, precise and predictable. Readily available to be used by clients and lawyers.
Disadvantages of Precedent
Not allow response to economic, social or technological advances. Eg- R v R (1991) rape
Flexibility- opens the potential for Judicial law-making and this goes against the doctrines of Separation of Powers and Supremacy of Parliament. And undemocratic judges not elected or answerable for their actions.
Large body= problems. Hard to find relevant precedents. Computerised databases. Finely distinguished cases can make the law complex and pedantic. Judgments can be long and complicated no distinction between obiter and Ratio ( Dodds case) (1973)
Precedent definition
Precedent is the term used to refer to a body of law built up by judges over hundreds of years in the courts of common law. Based on stare decisis= stand by what has been decided and do not unsettle the established. Stand by what matters.
Basis of some fundamental bits of law
Why do we have it?
Rules in general should be fair, just objective, consistent and rational.
If they are not, people will not respect and obey them.
Like cases should be treated alike.
This allows people to plan their actions in full knowledge of the possible consequences and it allows lawyers do accurately predict the likely outcome of a particular case. Certainty, predictability and stability to the legal system.
How does it operate / what does it need?
A system of case reporting so future judges can refer back to them.
Recording all the important judgements of known as law reporting.
Recording all the important judgements is known as law reporting.
A clear hierarchy of courts so that each judge knows who he or she should follow
A method of identifying the parts of a judgement which bind a judge from the other parts which need not to be followed and can be overruled.
Law reporting
Accurate record of earlier decisions Before 1865- shit in quality 1865-incorporated council of law reporting was set up under the authority of the court system Superior and appellate courts All England series 1936+ Reprint of (1558-1936) LexisNexis song Westlaw SC website and BAILI
