Judicial precedent

Question 1

What is binding precedent?

Answer 1

Binding precedent is a judge’s decision which must be followed. Some courts can be bound by their own decisions so create binding precedent for themselves and some courts are bound based on their position in the hierarchy.

Question 2

What 4 points will the judges give at the end of the case?

Answer 2

• summary of the facts
• ratio decidendi: reasons for the decision using legal principles (binding)
• Obiter Dicta: the judge may make some other comments of the law (persuasive)
• the verdict

Question 3

Ratio decidendi:

Answer 3

To be bound, the case facts must be similar. Sometimes the obiter dicta of one case can develop into the ratio decidendi of another case.

Question 4

Ratio decidendi: 2 cases
Donoghue v stevenson and daniels v white

Answer 4

Donoghue v stevenson: Claimant found a snail in their ginger beer. The HOL’s ratio decidendi stated that a manufacturer owed a duty of care to the consumer

Daniels v white:
Corrosive substance in bottle of lemonade and the court followed the ratio decidendi of donoghue v stevenson.

Question 5

What is obiter dicta?

Answer 5

Obiter dicta is other things said ‘by the way’ which is a decision that MAY be followed so this is the part of the judgement which creates persuasive precedent. This is where the judge may speculate on how the decision may have been different considering other facts. This can become binding precedent if it is picked up in a later case and made into the ratio decidendi.

Question 6

obiter dicta: 2 cases
brown and wilson

Answer 6

Brown: A group of men participated in sadomasochistic activities which resulted in injuries and the obiter dicta was a person can consent to tattooing and branding

Wilson: the obiter dicta was picked up (from Brown) and made ratio so the wife could consent to her buttocks being branded

Question 7

What is an original precedent?

Answer 7

An original precedent arises when the point of law involved within a case is unique and has not been considered by the courts on a previous occasion. If the judge has based their decision on a similar case this is called ‘reasoning by analogy’.

Question 8

Original precedent case: Hunter v Canary wharf

Answer 8

Hunter v Canary wharf: new buildings interfered with TV signals in a block of flats.
Held: only recreational

Question 9

What are the three ways a judge can avoid a binding precedent?

Answer 9

Through reversing, overruling or distinguishing.

Question 10

What does it mean to reverse binding precedent and an example.

Answer 10

Reversing applies to where a case goes on appeal and a higher court reverses the decision of a lower court. For example, the CoA may disagree with the legal ruling of the High court and reverse the decision.
For example, in Sweet v Parsley the CoA decided that the teacher didn’t need knowledge of the drugs growing in her house to be guilty. the HOL reversed this decision and said she did.

Question 11

What does it mean to overrule a binding precedent?

Answer 11

A high court in a later case states that the legal rule decided in an earlier case from a lower court is wrong. Some courts can overrule their own decision e.g the supreme court can overrule itself using the Practice Statement 1966.
For example, in R v R the CoA overruled the old law which stated that a man could not be guilty of raping his wife.

Question 12

What does it mean to distinguish a binding precedent?

Answer 12

A case is distinguished where the material facts of a case are significantly different from the earlier case. The judge must find the important differences between the two cases so a new precedent can be set.
For example, in the case of Brown which involved whether GBH could be consented to during sex, it was decided that sadomasichism cannot be consented to during sex. The case of Wilson was then distinguished from Brown as it was a similar harm to tattooing

Question 13

What is the Practice Statement?

Answer 13

In 1966, it was agreed that the HoLs should have flexibility so the Lord Chancellor issued The Practice Statement 1966 to allow the Judges the power to change the law ‘where it appears right to do so’. The HoL of was replaced by the Supreme court in 2009 and the it had been made clear they will follow the practice statement as stated in Austin v Southwark LBC

Question 14

Background of the Practice Statement

Answer 14

Orginally, the HOLs had the right to overrule their past decisions which made the law flexible but uncertain. However, after London Street Tramways v London CC (1898) it was held that certaincy was more important to uphold the rule of law. So from 1898-1966 the HoL was completely bound by their past decisions and the only way a law could be amended was through passing an Act of Parliament like in DDP V smith. Then in 1966 it was found that judges should be allowed to use the practice statement when it ‘appeared right to do so’

Question 15

Case of Practice statement in Civil Law

Answer 15

In Addie v Dumbreck the House of Lords decided that the parents owed a duty of care to the trespassing children, not the railway company. This was overruled using the practice statement in BRB V Herrington which stated that the railway company did owe a duty of care. The reason for this was a shift in societies mentality

Question 15

Case of the Practice Statement in Criminal law

Answer 15

In Anderton v Ryan the House of Lords ruled that attempting the impossible was a defence. This was overruled using the Practice Statement in R v Shivpuri which stated that attempting the impossible was no defence and a person would still be found guilty. The reason was: the previous decision was made from a mistake (per incurium)

Question 18

Describe the hierarchy of the courts

Answer 18

1. The supreme court (formerly the HoL).
2. The Court of Appeal
3. The High Court
4. The inferior courts

Question 19

What is the Supreme court

Answer 19

This is the most senior court in the UK and its decisions bind all the courts below it. Before the practice statement 1966 it was bound by its own decisions but now it does not have to follow its previous decisions, although it usually does.

Question 20

What is the court of appeal

Answer 20

The decisions of the CoA forms binding precedent for all lower courts. However, the Court of Appeal is bound by the precedents from the Supreme Court. It is generally bound to follow it’s own decisions apart from a number of limited exceptions found in Young v Bristol Aeroplane

Question 21

What is the High Court?

Answer 21

The appellate within this court (the kings bench division, the chancery division and the family division) are bound by the SC and the CoA. It binds all courts below and is bound by all courts above.

Question 22

What are the inferior courts?

Answer 22

The inferior courts like the Magistrates Courts are bound by all higher courts. These courts are not bound by their own decisions nor do they bind other courts as they only create persuasive precedent.