Judicial Precedent

Question 1

Definition of the Doctrine of Precedent?

Answer 1

Following the decisions of previous cases

Question 2

What are the three types of Judicial Precedents?

Answer 2

Original Precedent
Binding Precedent
Persuasive Precedent

Question 3

Definition of Original Precedent?

Answer 3

A decision on a point of law that has never been decided before

Question 4

Case for Original Precedent?

Answer 4

Donoghue v Stevenson

Question 5

Definition of Binding Precedent?

Answer 5

A decision is an earlier case which must be followed in later cases

Question 6

Case for Binding Precedent?

Answer 6

Caparo v Dickman

Question 7

Definition of Persuasive Precedeent?

Answer 7

A decision which does not have to be followed by later cases, but a judge may decide to follow

Question 8

Case example of Persuasive Precedent?

Answer 8

R v R

Question 9

Rules of Hierarchy of Courts?

Answer 9

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

Appellate courts are bound by their own decisions

Question 10

What courts are Appellate Courts?

Answer 10

Supreme Court
Court of Appeal
Divisional Courts

Question 11

What are the two exceptions where lower courts do not have to follow Appellate Courts?

Answer 11

Where there is a decision of the Court of Justice of the European Union when the English court must follow that decision

Cases involving human rights

Question 12

Do Crown Courts have Binding Precedent?

Answer 12

No, but judges can use persuasive precedent and is not bound by its own decisions

Question 13

What case states Court of Appeals are bound by their own decisions?

Answer 13

Young v Bristol Aeroplan Co

Question 14

What are the 3 exceptions where Court of Appeal can depart from earlier decisions?

Answer 14

Earlier made mistakes (per incuriam)
Two Court of Appeal decisions conflict
Later decision in Supreme Court overrules decisions in Court of Appeal

Question 15

What are the 3 judgements?

Answer 15

stare decisis
ratio decidendi
obiter dicta

Question 16

Definition of stare decisis?

Answer 16

Stand by what has been decided and do not unsettle the established

Question 17

Definition of ratio decidendi?

Answer 17

The reason for the decision. This forms a precedent for future cases

Question 18

Definition of obiter dicta?

Answer 18

“Other things said” so it is all the rest of the judgement apart from the ratio decidendi. Judges in future cases do not have to follow it.

Question 19

What year was the Practice Statement?

Answer 19

1966

Question 20

What does the Practice Statement state?

Answer 20

The supreme court can depart from its own decisions when it appears right to do so. “it is right to do so”

Question 21

Cases where the Practice Statement has been used?

Answer 21

Herrington v British Railways Board - child trespasser duty owed

R v Shivpuri - first use in criminal cases

R v G and R - overrule decision in (Caldwell) on recklessness

Question 22

Definition of Overruling?

Answer 22

When the court decides that a precedent is incorrect and should no longer be considered good law.
Judges in higher courts can overrule the decisions in lower courts if they decide the legal principles are wrong

Question 23

Cases where Overruling was used?

Answer 23

Young v Bristol Aeroplane Co
Pepper v Hart
Davis v Johnson

Question 24

Definition of Distinguishing?

Answer 24

A method by which a judge avoids having to follow what would otherwise be a binding precedent. Where a judge finds that the case being heard has different material facts from the facts of the precedent. The judge can come to a different conclusion. Courts may be able to distinguish the present case from that in which the precedent was set if the judge finds that the facts of the case are sufficiently different.

Question 25

Cases for Distinguishing?

Answer 25

Balfour v Balfour and Merritt v Merritt

Question 26

Advantages of Judicial Precedent?

Answer 26

Flexibility - R v R
Gives a Just Outcome
Authoritative
Time Saving

Question 27

Disadvantages of Judicial Precedent?

Answer 27

Undemocratic
Rigidity - bad decisions difficult to change
Uncertainty
Difficult to identify ratio as different in all cases