Judicial Precedent

Question 1

Define doctrine of precedent

Answer 1

Following decisions of previous case especially higher court. Based on stare decisis, meaning stand by what ya been decided and don’t unsettle the established

Question 2

What’s an example of the doctrine of precedent

Answer 2

Automatic telephone and electric co ltd v registrar of restrictive trading agreements (1965)

Court of appeal had made a decision in Schweppes ltd registrar of restrictive trading agreements (1965) on discovery of documents. One judge (Wilmer LJ) disagreed with other two. Same point arose in aforementioned case on same day and now the judges did not disagree as Wilmer bound by precedent

Question 3

What’s original precedent

Answer 3

A decision on a point of law never been decided before

Question 4

What’s binding precedent

Answer 4

A decision in an earlier case which must be followed in later ones

Question 5

What’s persuasive precedent

Answer 5

A decision which a judge doesn’t have to follow in later cases but might decide to (ie R v R (1991) HoL followed CoA in which man is guilty of raping wife )

Question 6

What happens in reference to Decisions of the Judicial Committee of the privy council

Answer 6

Not part of England and Wales hierarchy so decisions not binding but many judges SC members so respected and maybe be followed, ie law on remoteness of damage in fort law and the decision made by P C in Wagon Mound (no.1) (1961)

More recent example: a-g for Jersey v Holley (2005) PC ruled defence of provocation a defendant should be judged by standard of ordinary self control. In cases in 2005/6 CoA followed PC decision

Question 7

What does obiter dicta mean

Answer 7

Statements made in a judgment that were not part of law in deciding case, ie HoL in R v Howe (1987) ruled duress not a defence to murder, obiter dicta used to say it wouldn’t be available as attempted murder defence. R V Gotts (1992) tried to use defence of duress but courts used obiter dicta from previous case

Question 8

What’s a dissenting judgment

Answer 8

A judgment given by a judge who disagrees with the reasoning of the majority of judges in the case

Question 9

Points in the doctrine of judicial precedent

Answer 9

Every court is bound to follow any decision made by court above it in hierarchy and appellate courts generally bound by past decisions

Question 10

What are the two exceptions of lower courts being bound by higher ones

Answer 10

1) where there is a decision of the coj of EU when English courts have to follow that decision
2) cases involving human rights, as they need judgments opinions and decisions of EU court of human rights

Question 11

What’s the court hierarchy in civil cases

Answer 11

SC
CoA (civil division)
Divisional courts (family chancery)
High court 
County court 
Magistarates court

Question 12

Criminal case court hierarchy

Answer 12

SC
CoA (crim division)
Queens bench divisional court
Crown court
Magistrates court

Question 13

Courts, courts bound by it and courts it follows?

Answer 13

SC: all other courts in English legal system: EU court

CoA: itself with some exceptions, divisional courts and all lower courts: EU court
SC court

Divisional: itself with some exceptions, High court, all lower courts

High: county and magistrate (doesn’t have to follow other high court judges decisions but usually will, seen in Colchester estates (Cardiff V Carlton industries plc (1984) held were two conflicting decisions held then provided first decision has been fully considered then later one will be followed): EU, SC, CoA, divisional courts

Crown court: possible magistrates: all above courts

County court: possible magistrates: all above courts

Question 14

What is the practice statement

Answer 14

1966 lord chancellor issued a practice statement announcing a change to the rule of being completely bound by past decisions in ‘London Street Tramways V London County Council’ saying ‘they therefore proposed to modify their present practice and while treating former decisions of this house as binding, to depart from a previous decision when it appears right to do so’

Question 15

What case happened in 1898 and what happened

Answer 15

London street tramways V London county council, HoL bound by previous decisions, certainty of law decided as more important than potential hardship caused by it to an individual

Question 16

What happened in 1966 that’s relative to judicial precedent

Answer 16

Me Practice statement, HoL will depart from previous decisions when ‘right to do so’ however phrase is vague and gives little detail about when specifically to use it. HoL reluctant to sue it

Question 17

What happened in 1968 in regards to the practice statement

Answer 17

First use of statement in Conway V Rimmer (1968) on a technical point on document discovery

Question 18

What happened in 1972 in regards to the practice statement

Answer 18

First major use in Herrington V British Railways Bosrd which involved duty of care owed to a child trespasser. Previous case (Addie V Dumbreck (1929) decided occupier of land would only have duty of care for child trespasser if injuries happened delibarelty or recklessly but in Herrington lords decided social conditions changed so law should too

Question 19

What happened in 1973 in regards to PS

Answer 19

Knuller (publishing, printing and promotions) Ltd v DPP, certainty in law was important and PS would not always be used, Lord Reid saying ‘our change of practice in no longer regarding previous decisions as absolutely binding does not mean whenever we think a previous precedent was wrong we should reverse it. In the general interest in certainty of law we must be sure there is some very good reason before we so act’

Question 20

What happened in 1986 in relation to the practice statement

Answer 20

R v Shivpuri. First criminal use of PS, overruled a decision made in Anderton v Ryan (1985)

Question 21

What happened in 1993 in relation to the practice statement

Answer 21

PS used to allow courts to view Hansard for statutory interpretation purposes

Question 22

Give another example of a major use of the PS in the criminal system in 2003

Answer 22

R v G (2003), HoL overruled previous decision in Metropolitan police commissioner v caldwell (1982) on law of crim damage. In Caldwell it was ruled recklessness included the situation where defendant hadn’t realised the risk of his action would cause damage but an ordinarily careful adult would. R v G held that this was the wrong test to use, and the defendant is only reckless is he realises there’s a risk and does it anywya

Question 23

What happened in 2009 to the House of Lords

Answer 23

Replaced by Supreme Court

Question 24

What Act gave SC same power as HoL

Answer 24

Constitutional reform act 2005

Question 25

What happened in 2010 regarding the practice statement

Answer 25

Austin V London Borough of Southwark, SC states PS applies to it, but didn’t use it in this case as they took the view certainty in tenancy law is important

Question 26

How long has the EU CoJ bound Court of appeal

Answer 26

Since 1973, CoA has been bound as well as other courts

Question 27

Why does the SC bind the CoA

Answer 27

Because the SC is above the CoA in the hierarchy, and is also necessary in certainty in law. CoA tried to challenge this in Broome v Cassell (1971) and in Miliangos (1976) under Lord denning as they refused to follow HoL holding that damages could only be awarded in £. He said world climate he changed and sterling no longer stable currency. Miliangos appealed to HoL as CoA had no right to override HoL

Question 28

Why is the CoA bound by its own past decisions

Answer 28

Decided in CoA in Young’s case (1944) but there is minor exceptions. In Davis V Johnson (1979) CoA tried to challenge the rule as they had made the decision a few days earlier regarding interpretation of Domestic Violence and Matrimonial Proceedings Act 1976 but HoL confirmed CoA was bound by previous decisions as they had unanimously reaffirmed the rule in Young V Bristol aeroplane

Question 29

What’s the exceptions in Young’s case

Answer 29

CoA doesn’t have to follow choices when there’s conflicting past decisions, HoL/SC ruling overrides it or decisions made per incuriam (in error- but only used in exceptional cases as said in Rickards V rickards 1989 and thatnwas considered rare as the mistake was over a critical point whether the court had the power to hear the case’

Question 30

What’s a CoA being bound exception for criminal division

Answer 30

Law been misapplied or misunderstood, seen in R v Gould 1968 as people liberty at stake

Question 31

Define stare decisis

Answer 31

Stand by what’s been decided, follow the law decided in previous cases for certainty and fairness

Question 32

What does Ratio decidendi mean

Answer 32

Reason for deciding. Part of judgment that creates law

Question 33

What does obiter dicta mean

Answer 33

Other things said

Question 34

What does distinguishing mean

Answer 34

A method of avoiding a previous decision because the facts in the present case are different I.e Balfour V Balfour and Merritt v Merritt

Question 35

What’s overruling

Answer 35

A decision that states the legal rule in an earlier case is wrong, ie Pepper v Hart HoL overruling Davis v Johnson Hansard restrictions

Question 36

What three things can judges decided to do with precedent

Answer 36

Follow, overrule or distinguish

Question 37

What happens when a new Act of P is passed that contradicts a previously decided case

Answer 37

The Act is now law on that point, ie Law Reform (year and a day rule) Act In 1996, judicial decisions meant person could only be changed with murder or maslaughter if person died of injuries within a year and a day. The Act enacted that there’s no time limit even if the Victim dies a few years later of injuries.

Question 38

What happens when an act is unclear and needs to be interpreted

Answer 38

The decision will be precedent ie Offences against the person, inflict and harm

Question 39

What’s the advantages of precedent

Answer 39

Certainty= courts follow past decisions so likely to know how law will be applied

Law fairness and consistency: seen as just and fair that similar cases defies similar way

Precision= principles of law set out in actual cases

Flexibility= room for law to change

Time saving= cases with similar facts unlikely to go through same litigation

Question 40

Disadvantages to law precedent

Answer 40

Rigidity= can make law too inflexible so bad decisions in past may be perpetuated

Complexity= not always easy to find relevant cases can make it difficult to find ratio decidendi ie Central asbestos co ltd v Dodd (1973) said judges in CoA unable to find ratio

Illogical distinctions= can lead to hair splitting to avoid following past decisions

Slowness of growth= cannot make a decision if case before courts is to be decided if area of law needs reformation