Judicial Precedent

Question 1

stare decisis

Answer 1

‘stand by what has been decided & do not unsettle the established’

Cases decided alike due to judicial precedent; decision of legal principle must be applied in the same way in subsequent similar cases

e.g Automatic Telephone Co v RRTA followed decision in Schweppes Ltd v RTTA

Question 2

ratio decidendi

Answer 2

legal principle set out in a case decision; tells reason for the decision & sets precedent

Donoghue v Stevenson - Neighbour principle

difficult to establish R.D of previous cases as judgements constructed in a discursive manner; difficult to extract essential reasons for decision

e.g Harper v NCB could not identify R.D of Central Asbestos Co v DODD

Question 3

obiter dicta

Answer 3

comments made by a judge which do not relate exactly to the point of the case; NOT BINDING, but may be PERSUASIVE PRECEDENT

Question 4

R v Howe

Answer 4

Obiter comments by HoL applied as persuasive precedent in R v Gotts

Question 5

Law Reporting

Answer 5

In order to operate judicial precedent needs

1. SYSTEM OF CASE REPORTING
   decisions are recorded in order for judges to be able to refer back; known as law reporting
2. HIERARCHY OF COURTS
   each court or judge knows whose decisions they should follow

3.METHOD OF IDENTIFYING
parts of a judgement which bind a judge from other parts which need not be followed

Question 6

Original Precedent

Answer 6

created where issues not decided before comes before the court such as in Hunter v Canary Wharf

Question 7

Hierarchy of the Courts

Answer 7

a. Higher courts bind lower courts.
b. Appeal courts bound by own decisions.
c. Superior courts set binding principles

Question 8

Appellate courts

Answer 8

1. <b>EUROPEAN COURT OF JUSTICE</b>
   binds all lower courts on EU law matters
2. <b>SUPREME COURT</b>
   binds all lower courts but is bound by ECJ on EU law; can depart from previous decisions using <u>1966 Practice Statement</u>
3. <b>COURT OF APPEAL</b>
   bound by ECJ and SC; civil and criminal divisions do not bind each other but each division binds itself (some exceptions)
4. <b>DIVISIONAL COURTS</b>
   QBD, Chancery & Family; bound by ECJ, SC, CoA & own decisions

Question 9

Courts of First Instance

Answer 9

5. <b>HIGH COURT</b>
   bound by all courts above; binds lower courts and does not bind itself
6. <b>CROWN COURT</b>
   bound by all courts above; rulings on points of law techincally bind magistrates court
7. <b>COUNTY & MAGISTRATES COURT</b>
   do not create precedent; bound by all higher courts

Question 10

FORD

Answer 10

Following
court applies precedent set in previous case
- Donoghue v Stevenson followed in Grant v AKM

Overruling
later case states legal rule decided by lower court is wrong; decision then applies throughout course hierarchy
- R v G&R overruled R v Caldwell

Reversing
higher court reverses/changes decision of lower court in same case
- Sweet v Parsley

Distinguishing
judge finds material facts of case different so is not bound to follow previous precedent
- Balfour v Balfour did not bind Merrit v Merrit

Question 11

Persuasive Precedent

Answer 11

1. DECISIONS OF LOWER COURTS
   R v R
2. STATEMENTS MADE OBITER DICTA
   R v Howe

3.DISSENTING JUDGEMENTS
Atkinsons D.J in Rose & Frank v Cromptom Brothers followed by HoL

4. DECISIONS OF COMMONWEALTH COURTS
   HoL in R v Bentham considered Canadian case of R v Sloan
5. DECISIONS OF JUDICIAL COMMITTEE OF PRIVY COUNCIL
   decision of P.C in A-G for Jersey v Holley contrary to decision but followed later by HoL in R v Mohammed, R v James & Karimi; highly respected and often followed as many judges sit in SC despite not binding; acts as final court of appeal in some commonwealth countries

Question 12

1966 Practice Statement

Answer 12

HoL would depart from previous decision ‘when it is right to do so’ - (Conway v Rimmer)

So, law could change to keep up with social conditions without passing of legislation

Question 13

Jones v SOS for Social Services

Answer 13

Reluctant to use Practice Statement as SC regard certainty over individual injustice in the law as more important

Question 14

R v G

Answer 14

Overruled MPC v Caldwell on recklessness in criminal damage

Practice Statement has been used sparingly in criminal law as certainty is very important there

Question 15

Young v Bristol Aeroplane Co

Answer 15

Decisions within each division of Court of Appeal are usually binding unless one applies:

1. there are conflicting decisions in past CoA cases; court can choose which to follow & reject
2. CoA decision has by overruled by SC/HoL decision; CoA must follow the SC/HoL decision
3. decision made per incuriam(carelessly or by mistake not taking relevant legislation into account) - Williams v Fawcett

Question 16

Rickards v Rickards

Answer 16

Exceptions in Young v Bristol Aeroplane Co only used to refuse to follow previous decision in ‘rare and exceptional circumstances’

Question 17

R v Taylor, R v Gould

Answer 17

Criminal Division in CoA can depart from decision if law has been ‘misapplied or misunderstood’ as liberty is at stake

Question 18

Advantages of Judicial Precedent

Answer 18

<span>- <em>Cases decided alike</em> thus there is <b>certainty in the law</b>; allows lawyers to advise clients on likely outcomes of cases and so <b>agrees with rule of law</b> that law should be <em>ascertainable
</em>
- Allows for <em>flexibility</em> so law can keep up with<em> social changes</em> - <u><b>1966 PS</b></u> allows SC to change mind when<em> ‘right to do so’</em> like in <u>R v R&G and Caldwell </u>to make fairer law</span>

• Courts can distinguish a case on particular facts to <em>avoid following a precedent</em> like in <u>Merrit v Merrit</u>, allowing <em>freedom to develop law</em> & <em>keep it up to date</em>
• Allowing judges in individual cases to set legal principles <em>saves time as the same point does not need to be argued</em> in subsequent cases; allowing for <em>out of court settlements</em> where appropriate, <b>saving parties stress & uncertainty</b> of a trial; making a <b>more efficient court system</b> and saving money.
  </span>

Question 19

Disadvantages of Judicial Precedent

Answer 19

<span>- J.P is hugely complex & can be hard to find out law as with <em>over half a million reported cases;</em> <em>contrary to the rule of law</em> that law should be <b>ascertainable</b>: e.g court could not find R.D in <em><u>Central Asbestos Co v DODD
</u></em>
- Can be seen as <b>overly rigid</b> as lower having to follow higher courts can make bad decisions; plus <em>very few cases get to the SC</em> which can overrule CoA decisions.</span>

• Change depends on parties being <em>able to afford to appeal</em>; parties may <b>not be equal before the law</b> based on financial status
• System allows judges to make the law which is <b>undemocratic</b> as judges are not elected; <em>contrary to the separation of powers</em> where role of the judge is to interpet law, thus also <em>infringing parliamentary sovereignty</em>; e.g <em><u>Hunter v Canary Wharf</u></em></span>