Judicial Precedent

Question 1

What is judicial precedent?

Answer 1

• The idea that judges will follow the decisions made in previous cases if the facts are similar

Question 2

What will the judgement contain?

Answer 2

• Ratio decidendi (reason for deciding) the principles of law which the judge based her decison on
• Obiter dicta (other things said) anything else the judge says in the judgement, she may speculate on what the outcome might have been if the facts had been different

Question 3

What is original precedent?

Answer 3

• If the point of law in a case has never been established, then whatever the judge decides will form a new precedent for future cases to follow

Question 4

What is binding precedent?

Answer 4

• A precedent from an earlier case which must be followed even if the judge in the later case does not agree with the legal principle

Question 5

What is pursuasive precedent?

Answer 5

• A precedent which is not binding on the court but a judge may consider it and decide that it is the correct priciple so she is pursuaded that she should follow it

Question 6

How might a judge follow the precedent?

Answer 6

If the facts are similar enough to a previous case, the law will be applied in the same way to reach a decision

Question 7

How can a judge avoid following a precedent by distinguishing?

Answer 7

• Judge finds that the facts of the case before are sufficiently different from facts of the precedent, she is not bound by previous decision
• CoA in Merrit v Merritt departed from its own decision in Balfour v Balfour on whether agreements between family members were legally binding - Merrit seperated

Question 8

How can a judge advoid following precedent by overruling?

Answer 8

• Court can state a decision in a previous case was wrong - can only occur when a higher court overrules a lower court
• Byrne; HoL overruled a previous decision

Question 9

How can a judge advoid following precedent by reversing?

Answer 9

• Where a court higher up in the hierachy overturns the decision of a lower court in the same case

Fitzpatrick; CA refused to allow same sex partner of a dead person to take over the tenancy, however HoL reversed this decision saying same sex couples are part of the family

Question 10

3 disadvatages of judical precedent

Answer 10

• Slow adaption to change (societal changes)
• Uncertainty as it is based on past decisions
• Can prevent the law from evolving

Question 11

3 advantages of judical precedent

Answer 11

• Allows for certainty and predictability lawyers can make decisions with greater certainty
• Guidance for future cases
• Consistency and fairness in the law