Judicial Precedent Flashcards
What is ‘stare decisis’ when relating to Judicial Precedent
‘Stand by what has been decided and do not settle the established’ (i.e. following previous court decisions)
What is the ‘ratio decidendi’ when relating to Judicial Precedent
The reasons set out by the judge which are necessary to form a precedent for future cases (binding)
What is the ‘obiter dicta’ when relating to Judicial Precedent?
‘The other things said’ - what future judges don’t have to follow from the precedent (not binding)
Which courts have the power to set precedents?
- Supreme Court (formerly House of Lords)
- Court of Appeal
- Divisional Courts
Must a precedent made in a higher court be followed by a lower court?
Yes
Is a court bound by its own precedent?
Most of the time
Which case decided that certainty in the law should be more important than a potentially unjust decision (long time ago)?
London Street Tramways Co Ltd v London County Council [1898]
What did the PRACTICE STATEMENT issued by Lord [Chancellor] Gardiner (1966) do?
Allow the House of Lords to depart from a previous decision where it appears right to do so
When/What was the first use of the PRACTICE STATEMENT and how was it used?
First use was in R v Shivpuri (1986).
• This overruled a previous decision in Anderton v Ryan (1985) a case in
which most felt an error of judgment had been made.
Within each division of the CoA, decisions are usually binding… EXCEPT _________________
- Young v Bristol Aeroplane Co. Ltd (1944)
- When a past decision had been made by mistake, Rickards v Rickards (1989)
- If the law at the time had been misapplied or misunderstood. (R v Gould).
What are the advantages of Precedent?
Certainty - People (lawyers) know how the law is likely to be applied
Consistency and Fairness - similar cases should be decided in similar ways
Precise - principles of law are set out after each case relating to a precedent (more detailed and clear)
Flexibility - Supreme Court can always change a precedent using PRACTICE STATEMENT
Time-Saving - cases with similar facts are unlikely to undergo lengthy litigation
What are the disadvantages of Precedent?
Rigidity - Change in law will only happen if parties have the persistence and money to appeal their case
Complexity - It is hard to find all the relevant case law (nearly 500,000 reported cases)
Illogical Distinctions - the differences between some cases may be very small and appear illogical
Slowness of Growth - there may be a long wait for a suitable case to be appealed as far as the Supreme Court
