Judicial Precedent Flashcards
Information
what is stare decisis
let the decision stand (follow earlier decisions). Higher courts bind lower courts.
ratio decidendi
judgement which forms precedent for future cases
binding precedent
case from a senior court that must be followed in future cases
obiter dicta
other things said. Rest of judgement. Judges don’t have to follow but it can give useful guidance
persuasive precedent
a decision does not have to be followed but judge may decide to follow (usually in form of obiter dicta)
operation of judicial precedent: FOLLOW
judge applies same principle to current case. If decision by higher court judge usually has to follow it
e.g. Hill V Chief constable West Yorkshire
Operation of judicial precedent: OVERRULE
court in later case states earlier decision wrong. May occur when higher court overruled a decision made in earlier case by lower court.
e.g. supreme court uses practice statement to overrule a past decision of its own.
operation of judicial precedent: DISTINGUISH
Judge avoids following a precedent. Judge finds material facts of case different from case setting precedent different from case setting or decedent for distinction to be drawn between 2 - not bound by precedent
e.g. Merritt V Merritt distinguished Balfour V Balfour
Advantages Judicial Precedent
- allows law to be predictable promoting ADR
- consistency, promotes sense of justice
- Precision, exact details known by all parties
- Flexibility, bad precedent can be avoided using practice statement
- law can evolve to meet changing social attitudes
Disadvantages of Judicial Precedent
- Rigidity, binding decisions can restrict decisions made in interests of individual justice
- Complex, judgements very long not always easy to identify ratio decidendi.
- Bad precedent, needs another case or act of parliament
Practice Statement
- Able to depart from earlier decisions when it appeared right to do so (used by supreme court 2009-now)
