Judicial precedent

Question 1

What is stare decisis

Answer 1

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”

Question 2

Who does the Supreme court bind

Answer 2

everyone and themselves

Question 3

What is ratio decidendi

Answer 3

The decision that was made at the end of the case

Question 4

What is the binding part of the judgement

Answer 4

The ratio decidendi

Question 5

who issues the ratio decidendi

Answer 5

Judges

Question 6

What is the obiter Dicta

Answer 6

Everything else said in the judgement

Question 7

How can judges utilise the obiter dicta

Answer 7

Use it as persuasive precedent and apply it as their ratio

Question 8

Examples of stare decisis

Answer 8

Robinson, Eissenhower, miller, Graham test, Rylands v Fletcher

Question 9

describe the civil court hierarchy bottom to top

Answer 9

Magistrates, county, High court (chancery and family), civil CofA, Supreme Ct, CJEU

Question 10

describe the criminal court hierarchy bottom to top

Answer 10

magistrates, crown, QBD, CofA, supreme Ct

Question 11

What is binding precedent

Answer 11

where a lower court must follow the decision of a higher court if the case facts are similar

Question 12

What part of a decision is the binding part

Answer 12

The ratio decidendi

Question 13

How can the supreme court avoid binding precedent

Answer 13

By using the practice statement

Question 14

How can any court avoid binding precedent

Answer 14

By using distinguishing

Question 15

Examples of binding precedent (R,E,M)

Answer 15

Robinson, Eisenhower, Miller

Question 16

What is original precedent

Answer 16

When the facts of a case are new, the decision made is an original precedent

Question 17

Can original precedent be binding

Answer 17

Yes, all lower or same level courts must follow an original precedent

Question 18

Examples of original precedent (DvS,M,G)

Answer 18

Donoghue v Stevenson, Miller, Graham test

Question 19

What is persuasive precedent

Answer 19

Precedent that can be followed by any court

Question 20

Who can make persuasive precedent

Answer 20

Any court

Question 21

Is persuasive precedent binding

Answer 21

No

Question 22

What part of the judgement is persuasive

Answer 22

The obiter Dicta

Question 23

Example of persuasive precedent being used

Answer 23

Gotts used the obiter dicta of Howe ,that duress is not available for attempts, as their ratio decidendi

Question 24

What is overruling

Answer 24

Where a higher court overrules the decision of a lower court and makes their own

Question 25

How does the supreme court overrule themselves

Answer 25

They use the practice statement

Question 26

What does the court of appeal use

Answer 26

The young exceptions

Question 27

Examples of overruling

Answer 27

Pepper v Hart and Shivpuri

Question 28

What is reversing

Answer 28

When the CofA hears a case and comes to a different conclusion and reverses the decision

Question 29

Examples of reversing

Answer 29

Woolin, Hancock and Shankland, Sweet v Parsley

Question 30

What is distinguishing

Answer 30

Where a judge finds that the material facts of a case are different to a previous case

Question 31

What does distinguishing allow judges to do

Answer 31

Avoid past precedent they would otherwise have to follow

Question 32

Example of Distinguishing

Answer 32

Balfour v Balfour and Merritt v Merritt - found that the distinguishing fact was that there was a written agreement in Merritt v merritt

Question 33

What are the 5 advantages of precedent

Answer 33

Certainty, Consistency and fairness, precision, flexibility and time-saving

Question 34

What are the 4 disadvantages of precedent

Answer 34

Rigidity, complexity, illogical distinctions and Slowness of growth

Question 35

Explain the advantage of certainty of precedent

Answer 35

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

Question 36

Explain the advantage of consistency and fairness of precedent

Answer 36

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

Question 37

Explain the advantage of precision of precedent

Answer 37

Principles of law are set out in case facts and decisions, It is well illustrated through cases, allows for the law to be precise

Question 38

Explain the advantage of flexibility of precedent

Answer 38

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

Question 39

Explain the advantage of time-saving of precedent

Answer 39

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

Question 40

Explain the disadvantage of rigidity of precedent

Answer 40

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

Question 41

Explain the disadvantage of complexity of precedent

Answer 41

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

Question 42

Explain the disadvantage of illogical decisions of precedent

Answer 42

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

Question 43

Explain the disadvantage of slowness of growth of precedent

Answer 43

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