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Law AS - Sonia LA2 > Doctrine of Precedent > Flashcards

Doctrine of Precedent Flashcards

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1
Q

What is precedent?

A

Decisions made by senior judges that may bind decisions of all other judges in the future

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2
Q

What is precedent sometimes known as?

A

Case law or common law

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3
Q

What is judicial precedent based upon?

A

The latin phrase STARE DECISIS which means to stand by what has already been decided and do not unsettle the established

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4
Q

What are the 2 phrases and their meanings underneath stare decisis that are the 2 parts of precedent?

A

Ratio decendi - the reason for deciding

Obiter dicta - other things said

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5
Q

What is ratio decendi?

A

The most important part of the decision, your reason (statement) why you decided it

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6
Q

What is obiter dicta?

A

Other things said by judges that do not bind but may influence future judges in a similar case
HYPOTHETICAL SITUATION

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7
Q

What is the Donoughue v Stevenson case 1932?

A

Established a general duty of care in negligence (snail and ginger beer bottle)

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8
Q

What is the R v R case 1991?

A

Made rape within marriage an offence

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9
Q

What is the R v Howe case 1987?

A

Defense of duress is unavailable to a defendant charged with murder

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10
Q

What is the R v Worsley case 1967?

A

You cannot sue a barrister for work inside the courtroom only negligence outside the courtroom

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11
Q

What are the 3 types of precedent?

A

Persuasive precedent, original precedent, binding precedent

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12
Q

What is persuasive precedent?

A

Precedent a judge is not obliged to follow

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13
Q

What is original precedent?

A

No earlier decision has been made on this type of case so a judge creates a new decision/precedent

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14
Q

What is binding precedent?

A

Precedent that is binding for other judges to follow set by judges in the higher courts

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15
Q

What are the Privvy Council?

A

Many judges from the HOL

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16
Q

Is the privvy council part of the UK court system?

A

No

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17
Q

Do the privvy council have to follow their previous decisions?

A

No but they may be persuaded to follow it

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18
Q

If conflicting decisions are with the supreme court and the privvy council who should the privvy council follow?

A

Supreme courts decision

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19
Q

In what case did the court of appeal not follow the supreme court but the privvy council?

A

R v James 2005 and R v Karimi 2006

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20
Q

What did the supreme court say in R v Howe 1987?

A

The defense of duress should not be available for attempted murder either

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21
Q

How was the supremes court decision in R v Howe related to R v Gotts?

A

In R v Gotts they used the supreme courts decision that the defense of duress should not be available in attempted murder

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22
Q

What is dissenting judgement?

A

Where judges are unanimous and to reach a decision in a case they do majority rules.

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23
Q

What is a dissenting judge?

A

The judge who disagrees with the majority

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24
Q

What is the court hierarchy in civil cases?

A

Supreme Court, Court of Appeal (Civil division), High Court, County Court, Magistrates Court

25
Q

What is the court hierarchy in criminal cases?

A

Supreme Court, Court of Appeal (criminal divison), QBD or High Court, Crown Court, Magistrates Court

26
Q

What was the supreme court usually known as and why di it change?

A

House of Lords, because now we have clarity over wether it is a second chamber of parliament or in our legal court system

27
Q

What is the 1966 Practice Statement?

A

The supreme court can depart from previous decisions if they see it “right to do so”

28
Q

Who is the practice statement for?

A

Only the supreme court

29
Q

Who issued the practice statement?

A

Lord Chancellor and Lord Gardiner

30
Q

Why was the practice statement issued?

A

To create flexibility in the law so that precedent wouldn’t lead to injustices

31
Q

When was the first major time the PS was used in civil cases?

A

When the house of lords overruled decision in Addie v Dumbreck for Herrington v British Railway Board on the duty of care owed to a child tresspasser

32
Q

If the practice statement is used to frequently what could it lead to?

A

Too many inconsistencies in the law

33
Q

What was the case that lifted the ban on using hansard in statutory interpretation?

A

when the HOL overruled Davis v Johnson in Pepper v Hart

34
Q

Is the practice statement used in criminal cases?

A

Yes but not much as criminal law was stressed that it needs to be certain

35
Q

When was the first time the PS was used in a criminal case?

A

20 years after being issued - R v Shivpuri overruled decision in Anderton v Ryan 1986 on attempting to commit a crime that is impossible to commit

36
Q

Do the decisions made by each division of the COA bind each other?

A

No

37
Q

Which division of the COA must always try to follow the supreme court?

A

Civil

38
Q

What did Lord Denning believe about the PS and the COA?

A

The COA should be able to have the same power as the supreme court and depart from previous decisions to

39
Q

Denning refused to follow the earlier decision from Rookes v Barnard in Broome v Cassel but what happened?

A

He was reprimanded by the supreme court and told he could not do this

40
Q

What was the problem in the cases Schorsch Meier v Henning and Re Havana Railways?

A

Debate over wether damages should only be awarded in english pounds

41
Q

What did Denning argue in Schorsch Meier v Henning?

A

Due to economic changes there was no justification for keeping this law and damages could be awarded in any cuurency

42
Q

What did the HOL say about Dennings decision in Schorsch Meier v Henning?

A

He had no power to make his own decision

43
Q

If the power of the PS was extended to the COA what would be the problem?

A

It would undermine the power of the supreme court and it may be abolished
It would reduce certainty in the law

44
Q

What are the 3 exceptions for the COA to not bind itself?

A

1 - Where there is conflicting COA decision and supreme court decision the COA must follow the supreme court
2 - where there are 2 conflicting COA decisions the COA can choose which one to follow
3 - Where an earlier decision was ignored by the COA then the COA does not have to follow it

45
Q

Where were the 3 exceptions for the COA to not bind itself established?

A

In Young v Bristol Aeroplanes Co Ltd 1944

46
Q

What happened in the case decision in Williams v Fawcett 1986?

A

They used the 3rd exception as there was a confusion in the county court rules in the earlier decision

47
Q

In Davies v Johnson 1979 what happened?

A

Case concerning whether or not a violent partner could be excluded from the home if they have property rights, the law said no but Denning went against this and was reprimanded once again HOWEVER supreme court later agreed with his decision

48
Q

What do the cases R v Gould and R v Spencer say about the criminal divisions decisions?

A

The criminal division should keep the law certain but can depart from previous decisions if “the persons liberty is at stake”

49
Q

What are the 3 divisions of the High Court?

A

Queens Bench Division, Chancery Division, Family Division

50
Q

What do the 3 divisions of the high court have to follow?

A

Decisions set by higher courts but do not have to follow its own previous decisions, however their decisions bind all lower courts

51
Q

What are the 3 ways judges can avoid following precedent?

A

Overruling, distinguishing, reversing

52
Q

How can courts use distinguishing to not follow precedent?

A

By distinguishing between case facts and saying they are not similar enough (Merritt V Merrit said cases facts were to different in Balfour v Balfour)

53
Q

How can courts reverse precedent? (3)

A

Higher courts overturning decisions made by lower courts on the appeal of the same case (Kennedy 2007)
Criminal division can depart from decisions
Judges can say previous decision was made PER INCURIAM (in error)

54
Q

What are the advantages of judicial precedent? (6)

A 
Certainty
Consistency and fairness
Precision
Flexibility in developing the law
Time-saving
Practical
55
Q

What are the disadvantages of judicial precedent? (4)

A

Rigidity (law can be inflexible)
Complexity
Artificiality in the law (when a judge does not want to follow previous decision)
Slowness of growth

56
Q

What is the declaratory theory?

A

Judges do not create or change law they declare what the law has always been

57
Q

Which 2 judges agreed that judges do make law and what did Lord Denning say?

A

Lord Reid & Lord Denning

“The judges do every day make law”

58
Q

Who is one of the strongest judicial activists?

A

Lord Denning

59
Q

What 2 things allow judges to have more of a role in the law making body?

A

Practice Statement - allows them to be free to depart from previous decisions
Mischief Rule - allows judges creative scope to fill in the gaps based on parliaments intentions

Law AS - Sonia LA2 (7 decks)

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