Judicial precedent Flashcards
What is stare decisis
The doctrine that courts must follow previous decisions depending on where they stand in the hierarchy “stand by what has been decided and do not unsettle the established”
Who does the Supreme court bind
everyone and themselves
What is ratio decidendi
The decision that was made at the end of the case
What is the binding part of the judgement
The ratio decidendi
who issues the ratio decidendi
Judges
What is the obiter Dicta
Everything else said in the judgement
How can judges utilise the obiter dicta
Use it as persuasive precedent and apply it as their ratio
Examples of stare decisis
Robinson, Eissenhower, miller, Graham test, Rylands v Fletcher
describe the civil court hierarchy bottom to top
Magistrates, county, High court (chancery and family), civil CofA, Supreme Ct, CJEU
describe the criminal court hierarchy bottom to top
magistrates, crown, QBD, CofA, supreme Ct
What is binding precedent
where a lower court must follow the decision of a higher court if the case facts are similar
What part of a decision is the binding part
The ratio decidendi
How can the supreme court avoid binding precedent
By using the practice statement
How can any court avoid binding precedent
By using distinguishing
Examples of binding precedent (R,E,M)
Robinson, Eisenhower, Miller
What is original precedent
When the facts of a case are new, the decision made is an original precedent
Can original precedent be binding
Yes, all lower or same level courts must follow an original precedent
Examples of original precedent (DvS,M,G)
Donoghue v Stevenson, Miller, Graham test
What is persuasive precedent
Precedent that can be followed by any court
Who can make persuasive precedent
Any court
Is persuasive precedent binding
No
What part of the judgement is persuasive
The obiter Dicta
Example of persuasive precedent being used
Gotts used the obiter dicta of Howe ,that duress is not available for attempts, as their ratio decidendi
What is overruling
Where a higher court overrules the decision of a lower court and makes their own
How does the supreme court overrule themselves
They use the practice statement
What does the court of appeal use
The young exceptions
Examples of overruling
Pepper v Hart and Shivpuri
What is reversing
When the CofA hears a case and comes to a different conclusion and reverses the decision
Examples of reversing
Woolin, Hancock and Shankland, Sweet v Parsley
What is distinguishing
Where a judge finds that the material facts of a case are different to a previous case
What does distinguishing allow judges to do
Avoid past precedent they would otherwise have to follow
Example of Distinguishing
Balfour v Balfour and Merritt v Merritt - found that the distinguishing fact was that there was a written agreement in Merritt v merritt
What are the 5 advantages of precedent
Certainty, Consistency and fairness, precision, flexibility and time-saving
What are the 4 disadvantages of precedent
Rigidity, complexity, illogical distinctions and Slowness of growth
Explain the advantage of certainty of precedent
The courts follow past case decisions so people know what the law is and how it would be applied, lawyers can advise their clients accurately, the importance of certainty is highlighted in the house of lords’ practice statement
Explain the advantage of consistency and fairness of precedent
It allows for similar cases to be decided in the same way, this leads to fairness in the court system, it allows the law to be consistent and credible
Explain the advantage of precision of precedent
Principles of law are set out in case facts and decisions, It is well illustrated through cases, allows for the law to be precise
Explain the advantage of flexibility of precedent
There is room for the law to be changed if necessary, supreme court can use the practice statement, courts can also use distinguishing to avoid past precedent
Explain the advantage of time-saving of precedent
It is a time-saving process, where principles are already established cases don’t need to go through the lengthy process, more cases get dealt with
Explain the disadvantage of rigidity of precedent
Lower courts must follow the decisions of higher courts, past incorrect decisions are made again in present, few cases reach supreme court to be able to overrule the decision
Explain the disadvantage of complexity of precedent
There is a wide range of over half a million case laws, decisions are often very long, makes it difficult to extract the ratio decidendi
Explain the disadvantage of illogical decisions of precedent
The use of distinguishing can lead to ‘hair splitting’, makes some areas of law very complex, differences between cases can be very small and illogical
Explain the disadvantage of slowness of growth of precedent
Judges recognise that there is need for reform in law, they cannot do anything until a case is presented to them, only 50 cases reach supreme court a year, making it a small scope for reform
