Judical Precedent

Question 1

Different types of precedent

Answer 1

Binding
Original
Persuasive

Question 2

How is binding precedent created?

Answer 2

Ratio decidendi- reason for the decision, binding on all lower courts

If the obiter dicta is used in a later case it becomes ratio and is binding.

Stare decisis

Question 3

What does state decisis mean?

Answer 3

Stand by the decision

Question 4

Describe binding precedent(8)

Answer 4

Binding precedent is a judges decision that must be followed. This can be created through a higher court giving a ratio decidendi and a lower court then gets a case with similar facts so it has to follow it such as in donoghue v Stevenson and daniels v white
It can also be created through a court choosing to follow the orbita dicta which means other things said by the way from another case with similar facts such as in brown and Wilson

Question 5

Describe original precedent (8)

Answer 5

This is where a case is about a new point of law which has not been considered in previous cases comes up and the judge makes new precedent.
This is mainly due to changed in tech or modern developments e.g. in hunter v canary warf new buildings interfered with tv signal in flats. HELD: as not a nuisance as it was purely recreational.
This is rare to happen today as usually it is already covered by a act or by common law

Question 6

Describe persuasive precedent(8)

Answer 6

Precedent that courts can choose to follow but don’t have to
Can be created through
Courts in other countries making a decision- usually in the commonwealth e.g. in R v Bentham they looked at R v sloan from Canada
Orbita dicta of other courts in similar cases e..g in brown and Wilson
Lower courts ratio decidendis e.g. in RvR
Dissenting judgements- judges that say why they disagree with the ratio decidendi e.g. in Hedley byrne v heller a dissenting judgement from Lord denning was followed from candler v crane Christmas
Decisions of the privy council- made of commonwealth judges e.g. in the Wagon mound

Question 7

How do you avoid binding precedent

Answer 7

ROD

Reversing- case goes on appeal and a higher court reversed decision of a lower court e.g. in sweet v parsley

Overruling- a higher court in a later case states that the legal ruling of a earlier case from a lower court is wrong e.g. in RvR

Distinguishing- a case is distinguished where the material facts of a case are different from a earlier case- judge finds important differences from the earlier case to create new precedent. E.g. in Balfour v Balfour and merritt v merritt

Question 8

Describe the development and use of the practice statement(8)

Answer 8

Before 1898 the HOL had the right to overrule their past decisions. London street tramways v London CC 1898 held certainty was more important so the rule of law is followed.
1898-1966 the HOL could not overrule decisions and the only way law could be amended was through parliament. E.g. in DPP v smith parliament had to overrule this decision with the criminal justice act 1967. This meant law couldn’t adapt to society.
In 1966 the lord chancellor issued the practice statement so the HOL could change the law “where it appears right to do so”
HOL was replaced with SC in 2009 and it was made clear in Austin v southwark LBC 2010 that the practice statement would apply to SC
In 2016 the SC used the practice statement in kanauer v ministry of justice to overrule 2 HOL decisions

Question 9

Describe how the COA can overrule itself(8)

Answer 9

Young v Bristol aeroplane it is outlined that the COA can overrule itself if:

there are 2 conflicting COA decisions e.g. in starmark enterprises v CPL

A COA decision conflicts with a SC or HOL decision

The COA decision was made in error

The criminal division can also refuse the right to not follow one of its previous decisions if the law had been misapplied.