Judicial Precedent Flashcards
The two parts of a judgement
Ratio decidendi and orbiter dicta
Ratio decidendi
The legal principle of a case- not the factual outcome
The ratio of a case becomes the binding precedent of that case
Obiter dicta
The other parts of the judgement once the ratio has been identified
It may contain legal principles which are also followed in later cases
Donoghue v Stevenson (1932) lady I’ll after consuming the decomposing remains of a snail in a opaque bottle of ginger beer a friend had bought her. Can’t sue cafe as she didn’t purchase the beer so she sue the manufacturer.
At the time of the case there was no duty owed between a manufacturer of a product and the end consumer, due largely to the possibility of intermediate interference.
Duty of care in negligence- neighbour principle- basis for the modern law of negligence
Central London Property Trust Ltd v High Trees House Ltd (1947)
The hierarchy of the courts
Court of Justice of the European Union
Supreme Court
Court Of Appeal-civil and criminal division
High Court- QBD, Chancery Division, Family Division
Crown Court and County Court
Magistrates
Judicial Committee of the Privy Council
European Court of Human Rights
The European Court of Human Rights
The Judicial arm of the European Convention on Human Rights
Before the Human Rights Act was passed in 1998 UK courts treated the decisions of the ECHR as persuasive only
There was no duty on a UK Court to follow an ECHR decision although they frequently did so- Malone v UK (1984)
Now has become part of domestic law
Section 2 of the HRA requires UK courts to “take into account” any decision of the ECtHR in so far as they are relevant in cases concerning a Convention Right
This means that domestic courts are required to take account of all jurisprudence of the ECtHR, not merely those cases brought against the UK, but are not bound by it
Kay and Others v Lambeth Borough Council and Leeds City Council v Pricd (2006) = ordinary rules of precedent apply and the higher domestic court must be followed in the interests of certainty
The Judicial Committee of the Privy a Council
Not bind any English Court
It is made up of Supreme Court Justices
Its decisions on points of law relevant to English Law are strongly persuasive
Doughty v Turner Manufacturing (1964) the COA preferred the JCPC decision in The Wagon Mound (1961) to its own previous decisions in Re Polemis (1921)
In R v James (2006) the COA preferred to follow the JCPC decision in Attorney-General for Jersey v Holley (2005) to the House of Lords decision in R v Smith (Morgan) (2004)
Reason- outcome of any appeal to the House of Lords would have been a foregone conclusion
The Court of Justice of the European Union
UK courts are bound by the CJEU but only matters of EU law (s3 European Communities Act (1972)) as seen in R v Secretary of State for Transport ex parte Factortame Ltd
Law Reporting
Accurate record of previous decisions
Existed since the 13th century but until 1865 they were variable in quality and reliability
In 1865 the Incorporated Council of Law Reporting was set up under the authority of the court system
All England Series reporting cases from 1936 onwards
LexisNexis, Westlaw.BAILI
UKSC
Binds all domestic courts both civil and criminal
It is generally bound by its own previous decisions subject to the exception of using the Practice Statement (1966)
The COA
Bound by the CJEU and the UKSC and binds all domestic courts below it
The two decisions of the court of appeal do not bind each other
Court of appeal is bound by its own previous decisions subject to limited exceptions
High court
Bound by CJEU, the UKSC and the Court of Appeal and binds all inferior courts below it
Inferior courts
Bound by all the courts above them
Do not generally produce precedent and do not generally bind each other
