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Law making > Judicial Precedent > Flashcards

Judicial Precedent Flashcards

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1
Q

Ratio Decidendi - definition

A

The judges reasoning for coming to the decision

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2
Q

Ratio Decidendi - features

A
  • Concise statement limited to a few lines
  • Application of law to fact
    *Ratio is binding and must be applied in future when the facts are the same or similar
  • UKSC and CoA may have more than one ratio
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3
Q

Ratio Decidendi - cases

A

D v S - ratio was that the manufacturer owes a duty of care to a consumer
H v CW - ratio was that its not a private nuisance as it wasn’t intentional
Brown - ratio was that consent is not available for SNM activities

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4
Q

Obiter Dicta - definition

A

Other things said or comments made ‘by the way’

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5
Q

Obiter Dicta - features

A
  • Everything in the judgement beside the ratio is the obiter
  • Speculation - how result could’ve changed if facts were different
  • Speculation - different laws that could’ve applied
  • Statements in obiter are only persuasive precedent and don’t need to be followed.
  • Explain the ratio and why he reached this decision
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6
Q

Obiter Dicta - cases

A

D v S - obiter was the court set general principles of negligence and defined duty of care using the neighbourhood principle
H v CW - the obiter was that if it was intentional it would’ve been a private nuisance
Brown - obiter redefined the whole defence of consent

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7
Q

Binding precedent - definition

A

A precedent which must be followed by a court

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8
Q

Binding precedent - features

A
  • To be bound the facts must be the same or similar
  • Normally come from a higher court within hierarchy
  • Usually found in ratio
  • Obiter comment can be picked up and used in a case as ratio to form a BP
  • Cases may have more than 1 BP
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9
Q

Binding precedent - cases

A

D v S - BP was that the manufacturer owes a duty of care to a consumer
H v CW - BP was that its not a private nuisance as it wasn’t intentional
Brown - BP was that consent is not available for SNM activities

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10
Q

Ways to avoid a BP

A

DROP
Distinguishing
Reversing
Overruling
Per Incuriam

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11
Q

Distinguishing - definition

A

When the differences between the binding precedent and the facts before the court are highlighted

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12
Q

Distinguishing - features

A
  • Method to avoid a BP
  • Judges must find an important difference between the 2 cases and draw a distinction
  • If there is a difference the judge is not bound and can make a new decision
  • Its hard to do now because there is laws covering every single topic so a minute difference is needed. (‘splitting hairs’)
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13
Q

Distinguishing - cases

A

Balfour v Balfour and Merritt v Merritt
Merritt distinguished Balfour as the court recognised there was a difference.
Shepherd distinguished Sharp because the court recognised there was a difference.
Dalby distinguished Cato as the court recognised there were differences.

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14
Q

Reversing - definition

A

Occurs when an appeal court overturns a decision of the lower courts

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15
Q

Reversing - features

A
  • Higher court overturns the decision of a lower court on appeal in the same case
  • Higher court in hierarchy able to reverse an incorrect decision of an inferior court
  • Happens in the appeal courts
  • E.g UKSC can reverse the decision of the CoA
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16
Q

Reversing - cases

A

Sweet v Parsley
CoA held Sweet guilty as strict liability but the HoL reversed her verdict, and held her not guilty as there was no strict liability
Fearn v Tate Gallery
CoA held it wasn’t a private nuisance and the gallery was not liable, HoL reversed this verdict and said it was a PN

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17
Q

Overruling - definition

A

Occurs if a court overturns the precedent of a same level or lower court

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18
Q

Overruling - features

A
  • Where a court in a later case states that the legal principle or precedent in an earlier case is wrong
    *When a precedent is overruled, it is permanently removed and the new decision forms a BP
  • May happen if the previous legal rule was obsolete or wrongly decided
  • Overruling in the UK is retrospective, affects current case and all future cases
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19
Q

Overruling - cases

A

Pepper v Hart overruled Davis v Johnson and now Hansard is allowed to be used in court
G and R overruled Caldwell and now defendants of criminal damage are tested subjectively

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20
Q

Per Incuriam - definition

A

When a previous BP was made in error

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21
Q

Per Incuriam - features

A
  • Where a judge decided a case and ignored an act of parliament
  • If the judge declares a case PI they can now avoid the BP
  • The old BP would be removed and a new one created.
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22
Q

Per Incuriam - cases

A

Rickards v Rickards - CoA declared Podberry v Peak PI and said they would hear Rickards v Rickards case
Rahkit v Carty - CoA held that Kent v Millimead was PI as the judge had misread the Rent Act 1977

23
Q

What is the acronym for PP becoming BP

A

SOLDD

24
Q

Scottish court & other commonwealth countries - definition

A

Final appeal court in Scotland which creates PP’s

25
Q

Scottish court & other commonwealth countries - features

A
  • Decisions of the Scottish court & other commonwealth countries using a common law system can be referred to
  • Can only be referred to when there is a lack of case law in the UIK
  • Countries such as New Zealand, Canada and Australia can be referred to
26
Q

Scottish court & other commonwealth countries - cases

A

D v S - English court adopted PP regarding negligence (Scottish)
R v R - HoL adopted PP and criminalised marital rape (Scottish)
English court adopted PPs regarding consent in sport (Canada)

27
Q

Obiter dicta (PP->BP) - definition

A

Things said in passing or comments made by the way

28
Q

Obiter dicta (PP->BP) - features

A
  • Become a BP if its picked up in a later case and used as the ratio
  • Most are from HoL and CoA because of high level judges that write obiter
29
Q

Obiter dicta (PP->BP) - cases

A

In Wilsons case the HoL adopted the obiter from Brown as the ratio that held consent could extend to tattooing and branding
In Gotts case the HoL adopted the obiter from Howe and held that duress is not available for attempted murder

30
Q

Lower courts - definition

A

The senior courts have lower courts below them in the hierarchy

31
Q

Lower courts - features

A
  • Senior courts can look at the lower courts and adopt their PPs and make them BPs
  • UKSC often look at CoA and make them BPs
32
Q

Lower courts - cases

A

R v R - the HoL adopted CoA decision that marital rape is illegal

33
Q

Dissenting judgement - definition

A

Judges who disagree on a majority judgement

34
Q

Dissenting judgement - features

A

*Majority decisions take place in CoA and UKSC - when there’s more than 1 judge
* In both courts, judges are of equal rank (all highly expertise) so any that disagree will be recorded as dissenting judgment PPs
* Any dissenting judgement (PP) can be picked up and made into a BP

35
Q

Dissenting judgement - cases

A

C v CCC - Lord denning argued there should be a duty of care from negligent misstatement, this PP was picked up and made into a BP

36
Q

Decisions of the privy council - definition

A

Final appeal court for those countries within the commonwealth (it’s not in our hierarchy)

37
Q

Decisions of the privy council - features

A
  • Consist of the same judges from the supreme court
  • Because it isn’t UK law, decisions aren’t binding on english courts
  • Decisions are still influential and often followed as its the same high level judges
  • Countries include Canada, New Zealand, Australia
38
Q

Original Precedent - definition

A

When the point of law involved with a case is unique and hasn’t been considered by the courts before

39
Q

Original precedent - features

A
  • If the law doesn’t provide for modern development in technology
  • Judges must create a new law and this results in the creation of a new law
  • Judge will examine past cases that closely relate to the facts before court and adapt them, ‘reasoning by analogy’
  • Rare for OP to be created as usually an act of parliament or common law available to apply facts to case
40
Q

Original precedent - cases

A

Airedale NHS Trust v Bland
Victim in PVS after Hillsborough disaster, doctors sought permission from the courts in order to terminate life, court held that the doctors could terminate care and avoid liability for murder.
Hunter v Canary Wharf
CW building blocking tv reception, court decided a private nuisance did not exist
Re A
Conjoined twins, 1 set of organs, both would die if left, could operate to save 1 and kill other, court created new decision saying doctors could operate and avoid liability for murder

41
Q

Stare decisis - definition

A

‘Let the previous decision stand’
The process of judges following or standing by each others decision
Underlines the doctrine of precedent

42
Q

Stare decisis - features

A
  • Hierarchy of Courts
    upholds SD
    you need to know what court you’re in or you don’t
    know what you are bound by and need to stand by
  • Law Reports
    upholds SD
    SD relies on law reports because if the judges want
    to stand by a decision they have to be able to refer
    to it and know what it is
  • Ratio decidendi
    upholds SD
    when SD takes place the ratio is followed in a later
    case where the facts are the same or similar
  • Avoiding a BP
    overlooks SD
    ways to avoid standing by
43
Q

Practice Statement 1966

A

Allowed UKSC to overrule its own decisions in limited circumstances

44
Q

Practice Direction 3 & 4 / Austin v Southwark 2010

A

Both confirmed that the practice statement transferred from HoL to UKSC

45
Q

History of overruling in the supreme court

A

Before 1898 they were not bound by their own decisions
1898-1966 they were bound by their own decisions
1966 onwards they aren’t bound by their own decisions

46
Q

4 reasons to use the practice statement

A
  1. social change
  2. economic change
  3. error
  4. develop law
47
Q

Overruling in the supreme court - CIVIL

A

Addie v Dumbreck - BRB v Herrington
B v H overruled A v D because of social change, railway now owe a duty of care to child trespassers

Re united Railways of Havana & Regla Ware - Milliangos v George
Frank Textiles
M v G overruled R because of economic change and now damages can be paid in any recognised currency

Davis. v Johnson - Pepper v Hart
P v H overruled D v J to develop the law and now Hansard can be used in court

48
Q

Overruling in the supreme court - CRIMINAL

A

Anderson v Ryan - Shivpuri
S overruled A v R because of error and now attempting the impossible is a crime

Caldwell - R v G and R
G and R overruled Caldwell because of error and now defendants of criminal damage are tested subjectively

DPP v Lynch - DPP v Howe
Howe overruled Lynch to develop the law and now duress is not available for murder or secondary participation in murder

49
Q

TCP

A

The general rules of overruling in the CoA
Two conflicting CoA decisions
Conflict with HoL/UKSC
Per Incuriam
Additionally - Misapplied or Misunderstood

50
Q

What lead to TCP being created

A

Young v Bristol Aeroplane
(equivelent of practice statement)

51
Q

What happens when there are 2 CoA decisions

A

Choose 1 decision and overrule the other

52
Q

What happens when there is a conflicting decision with the HoL/UKSC

A

Must follow HoL and overrule own decision

53
Q
A

Law making (5 decks)

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