Judicial Precedent

Question 1

what is stare decisis

Answer 1

let the decision stand (follow earlier decisions). Higher courts bind lower courts.

Question 2

ratio decidendi

Answer 2

judgement which forms precedent for future cases

Question 3

binding precedent

Answer 3

case from a senior court that must be followed in future cases

Question 4

obiter dicta

Answer 4

other things said. Rest of judgement. Judges don’t have to follow but it can give useful guidance

Question 5

persuasive precedent

Answer 5

a decision does not have to be followed but judge may decide to follow (usually in form of obiter dicta)

Question 6

operation of judicial precedent: FOLLOW

Answer 6

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

Question 7

Operation of judicial precedent: OVERRULE

Answer 7

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.

Question 8

operation of judicial precedent: DISTINGUISH

Answer 8

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

Question 9

Advantages Judicial Precedent

Answer 9

• 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

Question 10

Disadvantages of Judicial Precedent

Answer 10

• 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

Question 11

Practice Statement

Answer 11

1966. Able to depart from earlier decisions when it appeared right to do so (used by supreme court 2009-now)