Judicial Precedent Flashcards
Stare Decisis
Stand by what’s decided
Who can set precedent
Superior Court (High, CoA, Supreme Court)
NOT Magistrates, Crown or County
What acts established the current court structure
Judicature Acts
Appellate Jurisdiction Act
Practice Statement
Issued by Lord Gardiner 1966
Overturned London Street Tramways v London County Council 1898
When was the practice statement first used
R v Shivpuiri 1986
Young v Bristol Aeroplane 1944 conditions
- If its previous ruling contradicts a supreme court decision
- If there are 2 conflicting CoA rulings - court must pick one
- Per Incuriam
R v Taylor 1950
Ignore previous CoA ruling if it will cause injustice - Criminal
Ratio Decidendi
Reason for deciding
Young Condition 1 Case
Family Housing Association v Jones 1990
Young Condition 2 Case
R v Parmenter 1991
Young Condition 3 Case
Rickards v Rickards 1989
Ratio Decedendi Case
R v Howe 1987
Ratio Decidendi was Duress is not a defence to murder
Donoghue v Stevenson 1932
Ratio Decidendi was manafacuturer had a duty of care to final consumer
Obiter Dicta
by the way. judges speculate on how they’d rule if the facts of the case were slightly different
Obiter Dicta Cases
R v Howe 1987 - HoL said obiter dicta that duress isn’t a defence to attempted murder either
R v Gotts 1992 - HoL found Gotts guilty of attempted murder despite defence of dress
Original Precedent
Created when no law or precedent exists
or when a case is distinguished as in Merritt v Merritt and Balfour v Balfour
Original Precedent Case
Gillick v West Norfolk & Wisbech AHA 1985
Binding Precedent
The Ratio Decidendi set in a case has binding force over itself and all lower courts
Binding Precedent Case
Donoghue v Stevenson 1932 binds all tort cases
Types of Persuasive Precedent
Decisions of lower courts
Foreign Courts
Judicial Committee of the Privy Council Rulings
Dissenting opinions of judges
Obiter Dicta
Decisions of lower courts case
HoL- Miliangos v George Frank
CoA - Schorsch Mier v Hennin
Foreign Courts Case
House of Lords - Lister v Halsey Hall 2001
Lord Steyn referenced the Canadian Supreme Court Case Bazley v Curry 1999
JCPC Case
AG for Jersey v Holley 2005
JCPC ruled it applied to whole UK not just Jersey
Dissenting Opinions of Judges Case
Candler v Crane Christmas 1951 - Lord Denning dissented
Upheld by House of Lords in:
Hedley Bryne v Heller and Partners 1963
Ways to avoid an awkward precedent
Practice Statement - SC
Young v Bristol Areoplane - High Court & CoA
Distinguishing
Overuling
Reversing
Overruling
Superior Court overrule another court in a different case
HoL - Hedley Bryne v Heller & Partners 1964 overruled Candler v Crane Christmas 1951- CoA
Distinguishing
When the facts are sufficiently different to distinguish from precedent.
Merritt v Merritt & Balfour v Balfour
Merritt distinguished from Balfour as couple weren’t ‘living in amnity’
Reversing
When a superior court reverses a lower court in the same case
Gillick
High Court Overruled by CoA and CoA overruled by HoL
Advantages of Judicial Precedent (5)
Consistency
Predictability
Flexibility
Detailed Practical Rules
Original Precedents
Disadvantages of Judicial Precedent (7)
Complexity
Volume
Uncertainty
Rigidity
Undemocratic
Retrospective Effect
Lack of Research
Complexity (Judicial Precedent)
Judgements are often complex and it might be hard to find the ratio decidendi
Volume (Judicial Precedent)
With so many judgements made each year it can be hard to find a specific precedent
Uncertainty (Judicial Precedent)
By not always following precedent the courts create uncertainty amongst lawyers
Rigidity (Judicial Precedent)
An unjust or outdated precedent can create further injustice until it reaches a court with the authority to overrule.
R v R 1991 overturned 1736 decision
Undemocratic (Judicial Precedent)
Its argued that judges overstep by creating law through original precedents
Retrospective Effect (Judicial Precedent)
Unlike Parliamentary Legislation it is backwards facing meaning, the act might have been legal but after the ruling it became illegal
Lack of Research (Judicial Precedent)
Parliamentary Legislation goes through consultation and research stages.
only arguments presented in court are considered
Consistency (Judicial Precedent)
Cases with similar facts will be treated in the same way
Predictability (Judicial Precedent)
Lawyers can advise clients with some degree of certainty
Government know which cases are likely to succeed and can issue legal aid
Flexibility (Judicial Precedent)
Judges can develop law through overruling an outdated or unjust precedent.
Especially useful in areas that aren’t a priority for parliament
Original Precedent (Judicial Precedent Advantage)
Can create law on areas where there’s parliament hasn’t legislated on
E.g. Gillick v West Norfolk & Wisbech AHA
