Judicial Precedent Flashcards
Stare decisis
Stand by what has been decided
Judges make decisions in court which affect future similar cases.
Ratio decidendi
The reason for deciding.
At the end of a case the judge will:
- give a summary of the case
- review the arguments of both parties
- Explain the principles of law being used to come to the direction.
This creates the precedent for later judges to follow, the ratio in higher courts carries greater authority and must be followed by the lower courts.
In appeql cases, ther can arise issues where more than one judge explains the legal reasoning, and so confusion can arise from both explanations.
Obiter dicta
Other things said.
The remainder of the judgement explained by the judge, this is not binding.
However, sometimes there is difficulty as this is combined with the ratio decidendi, and so decisions must be made to separate these in later cases.
The practice statement 1966 - The Supreme Court
Prior to the statement, the SC was bound by its own decisions, unless a decision was made in error. The statement was issued in 1966 by the Lord Chancellor in London Street Tramways v London CC which allowed the Supreme Court to depart from previous decisions when it appears right to do so.
The first example was in 1972 in British Railways Board v Herrington, which changed the decision in Addie v Dumbreck (1929) on the duty of care owed to child trespassers.
Binding precedent
Precedent that must be followed, as the decision came from a senior court to the court hearing the case.
Persuasive precedent
Not binding, but the judge may consider previous judgements and be persuaded to follow it. It may not be binding as tbe judgement came from a lower court, privy council, statements made obiter dicta, other countries, or dissenting judgement.
Original precedent
If a point of law arises in a case that has never been considered before, whatever the judge decides will form a new precedent for future cases to follow. The judge should hse similar rules from similar areas - using analogy links
Actions - Following:
When a judge consiers a precedent relevant to a case, then it must be followed.
Actions - Overruling:
When a court in a later case stated the previous precedent was wrong. Overruling can occur when a higher court changes/overrules a decision in earlier fases in lower courts.
Actions - reversing:
Where a court higher in the hierarchy, in an appeal, overturns the decision of a lower court in the same case.
Actions - Distinguishing:
This is a method a judge can use to avoid following past devisions. The judge found the material facts of the case to be sufficiently different to allow distinction to be made and so previous decisions not binding.
