Judicial Precedent

Question 1

For judicial precedent to work effectively it depends very much on three very important factors…

Answer 1

Hierarchy of the courts

Ratio decidendi (The Judgement)

Accurate law reporting

Question 2

Heirachy of the courts..

Answer 2

Every court is bound to follow any decision made in the court above it in the hierarchy
Appellate courts are generally bound by their own past decisions

Question 3

What allowed the COA to depart from past decisions?

Answer 3

Young v Bristol Aeroplane Co (1944) allows depature where
-There are two conflicting decisions of the court of appeal (they will choose the decision most appropriate)
-decision made per incuriam
-The decision of the court of appeal conflicts with a later decision of the Supreme Court (which must be followed)
OR
R v Taylor (1950): If the law has been ‘misapplied or misunderstood’ (only applies to criminal cases

Question 4

Supreme court could depart from previous decisions because of….

Answer 4

The practice statement 1966

can deviate from past decisions ‘where appears right to do so’

Question 5

List the 3 divisional courts and who binds them

Answer 5

The three Divisional Courts (Queen’s Bench, Chancery and Family) are bound by decisions of the Supreme Court and the Court of Appeal.The divisional Courts are bound by their own past decisions, although they operate similar exceptions to those operated by the Court of Appeal

Question 6

The inferior courts are

Answer 6

Crown Court, the County Court and the Magistrates’ Court. They are bound to follow decisions by all higher courts and it is unlikely that a decision by an inferior court can create precedent.

Question 7

A judgement made will consist of

Answer 7

obiter dicta
ratio decidendi
facts of case
verdict

Question 8

Obiter dicta

Answer 8

-includes other things said,not central to the decison itself but help make the decision clearer

Question 9

ratio decidendi

Answer 9

Ratio decidendi…whereas the obiter dicta are the lead up- to the decision, the ratio decidendi is the core of the decision itself. This is the part of the decision which has the effect of binding later courts. It is the piece later judges need to follow when looking at a case they are trying.
IS THE BINDING PRECEDENT

Question 10

3 Types of precedent

Answer 10

Original precedent-decision on a point of law never decided before
Persuasive precedent-doesnt have to be followed in later cases in courts but may be
Binding precedent- MUST be followed. is a decision from a previous case

Question 11

Distinguishing cases

Answer 11

BALFOUR V BALFOUR
MERRITT V MERRIT
both involved the sending of money however only merritt intended for legal relations

Question 12

Distinguishing,simply is

Answer 12

establishes differences in facts between two cases, to avoid using the last ones conclusion again

Question 13

overuling is

Answer 13

court states a past decision cant be considered good law anymore

Question 14

overrulling case

Answer 14

pepper v hart- previously hansard couldnt be used but NOW it can

Question 15

REVERSING VS OVERRULING

Answer 15

REVERSING deals with the overturning of a Judgement or Ruling of a Lower Court, whereas OVERRULING is the Overturning by a Superior Court of record of it’s Judicial Precedent or Precedent set by a Lower court

Question 16

Reversing is

Answer 16

If the decision of a lower court is appealed to a higher one, the higher court may change it if they feel the lower court has wrongly interpreted the law.

Question 17

Advantages of using precedent

Answer 17

• certainty (for lawyers advising clients)
• consistency (in legal system for following itself)
• time saving (by referring to a previous case)

Question 18

Disadvantages of using judicial precedent

Answer 18

• rigidity

- complexity