Judicial precedent

Question 1

What is common law?

Answer 1

The ‘body of law’ that combines the passing of legislation but also the creation of precedents through case law.

Question 2

What is legislation?

Answer 2

A law or set of laws that have been passed by parliament

Question 3

What judicial precedent?

Answer 3

Refers to the source of law where the past decisions of judges create law for future judges to follow.

Question 4

When judges are bound by previous decisions made in similar cases, what is it called?

Answer 4

These previous decisions in cases are also called ‘precedents’

Question 5

What is the general rule of the hierarchy of courts when it comes to court being bound?

Answer 5

Every court is bound to follow any decision made by a court above it in the hierarchy

Question 6

What is the hierarchy of the Criminal courts?

Answer 6

Supreme court, Court of appeal (civil division), Kings bench Divisional court, Crown Court, Magistrate’s court

Question 7

What is the hierarchy of the Civil courts?

Answer 7

Supreme court, Court of appeal (civil division), Divisional courts, high court, county court

Question 8

What is a stare decisis and why is it good?

Answer 8

The doctrine works by requiring judges to follow the decisions that have been made in previous cases, thus ensuring that there’s consistency in the law and that people coming to the law will be able to make an educated guess as to the potential success and likely outcome of their case.

Question 9

In order that stare decisis works effectively there needs to be effective and accurate law reporting. There are a number of reliable records which judges can access, what are the 5?

Answer 9

-All England Law reports
-Weekly Law reports
-Newspapers
-Law journals
-The internet

Question 10

what are the 4 important factors involved in making sure the concept of stare decisis is operated effectively in courts?

Answer 10

-Binding precedent
-Original precedent
-Persuasive precedent including Obiter Dicta
-How the judges can avoid the concept of stare decisis

Question 11

What two distinct elements will the judgement at the end of a court ruling contain?

Answer 11

Ratio decidendi
Obiter dicta

Question 12

What is ratio decidendi translated in Latin?

Answer 12

Reasons for the decision

Question 13

What is the obiter dicta translated in Latin?

Answer 13

things said by the way

Question 14

What is the ratio decidendi?

Answer 14

The principle of law on which the decision in court was made. The binding part of a judicial decision is the ratio decidendi and that is what becomes the precedent which will bind future cases of a similar nature

Question 15

What must be known for precedent to work?

Answer 15

Precedent can only work if the legal reasons for past decisions are known. In the judges judgment they will usually state the facts of the case and the reasoning for the decision, which is what creates the precedent for judges to follow in future cases

Question 16

What is the obiter dicta?

Answer 16

The judge may go on to talk about other issues involved and to speculate about what his decision would or might have been if the facts of the case had been different.

Question 17

Is the obiter dicta binding?

Answer 17

No - things said obiter dicta aren’t binding in later cases because they are not strictly relevant to the matter in issue in the original case, but it may be persuasive precedent

Question 18

What was the ratio decidendi and obiter dicta in the case of Donoghue v Stevenson?

Answer 18

RD- a manufacturer owes a duty of care to the ultimate consumers who he intended his products to reach after leaving him
OD- the neighbor test was persuaded by the judge in this case

Question 19

What are the three types of precedent?

Answer 19

Binding
Original
Persuasive

Question 20

What is binding precedent and give a case:

Answer 20

When a case comes to court that is similar to a case that has already been decided the court has to follow the decision made in the first case: Carlill v Carbolic Smoke Ball Co

Question 21

What are the types of persuasive precedent? (there are 5)

Answer 21

-Courts lower in the hierarchy
-Decisions of the judicial committee of the privy council
-Statements made obiter dicta
-A dissenting judgement
-Decisions of courts in other countries

Question 22

What is original precedent and give a case:

Answer 22

This refers to the situation where a point of law has never before been decided in a case. This means that the courts has to opportunity to make new law: DPP v Smith

Question 23

What is meant by courts lower in the hierarchy as a persuasive precedent?

Answer 23

Where decisions of lower courts might persuade judges in higher courts

Question 24

What is meant by the decision of judicial committee of the privy council as a persuasive precedent?

Answer 24

English courts may take JCPC decisions into account and follow them, especially if there is no conflicting decision from a higher authority like the UK Supreme Court

Question 25

What is meant by statements made by obiter dicta as a persuasive precedent?

Answer 25

These statements refer to a judge’s comments or observations, in passing, on a matter arising in a case before him which does not require a decision.

Question 26

What is meant by a dissenting judgement as a persuasive precedent?

Answer 26

when a judge disagrees with the majority opinion in a court case and writes their own opinion explaining their reasons. This means that future judges might consider the reasoning in a dissenting judgment when making their own decisions, especially if they find the arguments compelling or if the legal landscape has changed in a way that supports the dissenting opinion.

Question 27

What is meant by decisions in courts of other countries as a persuasive precedent?

Answer 27

refers to the idea that rulings from foreign courts can be considered and potentially followed by domestic courts, even though they are not binding. These foreign decisions can be influential, especially if they offer compelling legal reasoning or address similar legal issues.

Question 28

What are the four ways to avoid precedent?

Answer 28

Follow
Overrule
Reverse
Distinguish

Question 29

What is meant by ‘follow’ as a way to avoid precedent?

Answer 29

If the facts of the case are significantly similar to an existing precedent, the judge should follow the previous decisions

Question 30

What is the reasoning by analogy of using ‘follow’ to avoid precedent?

Answer 30

In the context of judicial reasoning, this means identifying important similarities between the facts of the case before the court and the facts of an earlier case. The court will reason that, because the cases are ‘analogous’, the principle from the earlier case should be applied

Question 31

What is meant by ‘overrule’ as a way to avoid precedent? Give an example:

Answer 31

This involves 2 cases and can occur when a court is asked to review whether a previous created precedent is correct - The House of Lords overruled R v Miller by R v R

Question 32

What is meant by ‘Reversing’ as a way to avoid precedent? and what case showed this?

Answer 32

Where the court hearing the appeal disagrees with the legal reasoning of the court below: Sweet v Parsley

Question 33

What is meant by ‘distinguishing’ as a way to avoid precedent? What case showed this?

Answer 33

Allows judges to look at two cases which appear to be similar but which can be distinguished because of the different facts of the case: Balfour v Balfour and Merritt v Merritt