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

Question 34

What happens in the Supreme Court when it comes to judicial precedent?

Answer 34

This is the highest appeal court. The basic rule is that the Supreme Court binds itself and should follow it's own previous decisions. Originally the HOL has been quite flexible about overruling binding precedents that it had previously set. However, this approach started to disappear by the end of the 19th century the HOL made it clear that they preferred to take an approach which kept the law as it was rather than having the ability to change the law

Question 35

What did the house of lords day in London Street Tramways v London CC regarding past decisions of the House?

Answer 35

They decided that they would be completely bound by their own decisions. This meant that the law was certain but it couldn't change

Question 36

What did the House of Lords pass in 1966?

Answer 36

Practice Statement which allowed them to overrule it's own previous decision 'where it appears right to do so'

Question 37

Who issued the practice statement?

Answer 37

Lord Gardiner in 1966

Question 38

What does Lord Gardiner's statement mean ?

Answer 38

That previous decisions should only be followed if it will result in the reasonable outcome and if not then a new decision should be made

Question 39

When should the practice statement be used?

Answer 39

'sparingly' and only when right to do . Although it was passed in 1966 it was used very cautiously and it was not until 1968 that it was first used

Question 40

How was the practice statement used in Herrington v BRB and Addie v Dummbreck?

Answer 40

In the case of H v BRB, the lords overruled their earlier decision in A v D stating that the BRB owed a duty of care to a child who trespassed on a railway line. This was the lords first major use of the practice statement

Question 41

How was the practice statement used in Shivpuri and Anderton v Ryan?

Answer 41

From only the previous year it corrected an error of interpretation of the criminal attempts act 1987 on attempting the impossible. Shivpuri was the first use of the practice statement in criminal law

Question 42

Describe how and why the Supreme Court can depart from one of it's own precedents:

Answer 42

It has the authority to depart from it's own precedents, but this process is carefully considered. It can depart through stare decisis and precedent. The doctrine of stare decisis forms the basis of judicial precedent. Once a point of law has ben decided in a particular case, that decision become a binding precedent. The ratio decidendi of a case constitutes the binding part of the precedent, while the obiter dicta are persuasive but not binding. Departing from precedent can happen by overruling, distinguishing, or reversing.

Question 43

What does the Human Rights Act require Uk courts to do?

Answer 43

take account of decisions of the European Court of Human Rights. Uk courts are not required, however, always to follow the decision of that court

Question 44

What are the rules surrounding the decisions made by the CJEU after Britain's withdrawal from the EU?

Answer 44

The UK courts, including the Supreme court, are not bound by decisions of the Court of Justice of the European Union made after 11pm 31st December 2020. The UK courts may have regard to the Luxembourg Court's decisions if relevant, but they are not generally obliges to follow them

Question 45

What are the rules surrounding the decisions made by CJEU before Britain's withdrawal from the EU?

Answer 45

The SC are also free to depart from decisions of the CJEU taken before 11pm 31st December 2020. In deciding whether or not to depart from this retained EU case law, the courts will apply the same test that the SC applies when deciding whether to depart from it's own case law. This means that the SC will depart from a previous decision of Luxembourg Court where it appears right to do so

Question 46

Where does the Court of Appeal sit and what are the 2 courts?

Answer 46

In the Royal courts of justice in London - Civil Division - Criminal Division

Question 47

What are the 3 basic rules of the court of appeal?

Answer 47

- It's bound by decision in the supreme court - It binds itself - One division of the CofA will not bind the other

Question 48

What case demonstrates that the court of appeal is bound by decisions in the supreme court?

Answer 48

Family Housing Association v Jones

Question 49

What case demonstrates that the court of appeal is bound by itself?

Answer 49

Tiverton v Wearwell

Question 50

What case demonstrates that the court of appeal isn't bound by it's other division?

Answer 50

William v Faucett

Question 51

What is the rule surrounding the court of appeal criminal division when it comes to judicial precedent?

Answer 51

It can refused to follow a past decision of it's own if the law has been 'misapplied or misunderstood'. This extra exception arises because in criminal cases people's liberty is at stake as stated in R v Gould

Question 52

How could the court of appeal depart from a binding precedent?

Answer 52

The doctrine of precedent ensures that courts follow decisions made in earlier cases. There are three limited circumstances for departure: overruling , distinguishing, and reversing

Question 53

What are 4 advantages of judicial precedent?

Answer 53

- People know what the law is and how it applies to their particular case. This means that lawyers can advise their clients on the likely outcome - May prevent a judge making a mistake that he might have made if he had been left on his own without guidance - Fair and just that similar cases are dealt with in the same way - Allows for growth and development of the law, which can't be provided by parliament

Question 54

What are 4 disadvantages of judicial precedent?

Answer 54

- Judicial mistakes of the past may continue to be made unless bad decisions happen to come before the Lords reconsideration - Case law is very bulky and complex making it increasingly difficult to find law - When an appeal court overrules an earlier case this may cause injustice to those who have sorted out their affairs in reliance on it - Unless it can be distinguished a judge mjst follow a binding precedent, even thought he dislikes it or considers it a bad law