Judicial precedent Flashcards
What is common law?
‘Judge made decisions’
What is meant by stare decisis?
to stand by things decided’ - A court should follow the precedent already established by a previously decided cases.
Cases that illustrate that ‘alike cases’ should be decided ‘alike’
-Donoghue V Stevenson- duty of care
-Grant V Australian knitting mills.- dermatitis from sulphur in underpants
What is meant by ratio decidendi?
‘the reason for deciding’
What was the ratio decidendi in Donoghue V Stevenson?
- a person owes a doc to those who it foreseeable will be affected by the act or omission
When will courts form original precedent?
-When a similar case has not come before the court before.
Example of original precedent?
-Hunter V Canary Wharf
Hunter V Canary Wharf?
- C’s complained about a loss of TV reception
-reasoned by analogy - drawing a comparison with a loss of a view meaning you cannot claim for it in nuisance.
Examples of persuasive precedent?
-dissenting judgements
-obiter dicta
-commonwealth courts
-privy council decisions
-decisions of lower courts
Example of a decision taken by a lower court?
R V R- Martial rape case- HOL followed the court of appeal
-clear that the law needed modernising
What is the judicial committee of the privy council?
-final court of appeal for commonwealth countries
-sits outside court hierarchy so not binding
-sc judges sometimes sit on privy council so very persuasive
-must follow binding precedent even if privy council disagrees.
What case establishes that judges must follow binding precedent even if privy council disagrees?
-Willers V Joyce
Willers v Joyce?
-lower courts should follow privy council if COA, house of lords or high court disagrees.
-privy council usually made up of supreme court judges.
Case that goes with commonwealth courts?
-Sunderland Shire Council V Heyman was adopted in Caparo v Dickman.
What is meant by Obiter Dicta?
-when a judge makes comments on the law- not specific to that case ‘other things said’
-might influence them
