Judicial precedent Flashcards
1
Q
What is judicial precedent?
A
- The idea that judges will follow the decisions made in previous cases if the facts are similar
2
Q
Judge gives speech explaining the reason for his decision
What will the judgement contain?
A
- Ratio decidendi (reason for deciding) the principles of law which the judge based her decison on
- Obiter dicta (other things said) anything else the judge says in the judgement, she may speculate on what the outcome might have been if the facts had been different
3
Q
What is original precedent?
A
- If the point of law in a case has never been established, then whatever the judge decides will form a new precedent for future cases to follow
4
Q
What is binding precedent?
A
- A precedent from an earlier case which must be followed even if the judge in the later case does not agree with the legal principle
5
Q
What is pursuasive precedent?
A
- A precedent which is not binding on the court but a judge may consider it and decide that it is the correct priciple so she is pursuaded that she should follow it
6
Q
How might a judge follow the precedent?
A
If the facts are similar enough to a previous case, the law will be applied in the same way to reach a decision
7
Q
FORD
How can a judge avoid following a precedent by distinguishing?
A
- Judge finds that the facts of the case before are sufficiently different from facts of the precedent, she is not bound by previous decision
- CoA in Merrit v Merritt departed from its own decision in Balfour v Balfour on whether agreements between family members were legally binding - Merrit seperated
8
Q
FORD
How can a judge advoid following precedent by overruling?
A
- Court can state a decision in a previous case was wrong - can only occur when a higher court overrules a lower court
- Byrne; HoL overruled a previous decision
9
Q
FORD
How can a judge advoid following precedent by reversing?
A
- Where a court higher up in the hierachy overturns the decision of a lower court in the same case
- Fitzpatrick; CA refused to allow same sex partner of a dead person to take over the tenancy, however HoL reversed this decision saying same sex couples are part of the family
10
Q
3 disadvatages of judical precedent
A
- Slow adaption to change (societal changes)
- Uncertainty as it is based on past decisions
- Can prevent the law from evolving
11
Q
3 advantages of judical precedent
A
- Allows for certainty and predictability lawyers can make decisions with greater certainty
- Guidance for future cases
- Consistency and fairness in the law
