Judicial Precedent

Question 1

What is judicial precedent?

Answer 1

Law made by judges, the process where judges follow previously decided cases where the facts are very similar

Question 2

Stare decisis

Answer 2

Where lower courts are bound to apply the legal principles set down by superior courts

Question 3

Ratio decidendi

Answer 3

Where a judge has based his decision and must be followed by judges in later cases. Forms a binding precedent

Question 4

Obiter dicta

Answer 4

Other statements of law which did not form the basis of the decision. Such cases may assist judges if they were relevant

Question 5

What is there is no existing precedent?

Answer 5

The court will declare the law and the case will become original precedent

Question 6

Binding precedent

Answer 6

This is precedent from an earlier case which must be followed by the current judge

Question 7

When will it only be used?

Answer 7

When the facts of the second case are sufficiently similar to the original case and the decision was made by a senior court

Question 8

How can you have a system of binding precedent and allow the law to develop?

Answer 8

• law must be certain so people can plan and lawyers can advise
• must be flexible so it can meet the times
• too much certainty and the law becomes inflexible
• too much flexibility and it becomes unstable
• needs to achieve a balance

Question 9

The binding nature of the ratio…

Answer 9

Creates a foundation of certainty

Question 10

Flexibility is introduced in 3 ways

Answer 10

1. Higher courts can overrule or reverse the decisions
2. Lower courts can distinguish from the precedents of higher courts
3. a court can depart from its previous decisions if it appears “right to do so”

Question 11

The 1966 practice statement

Answer 11

The House of Lords followed the approach set out in the London street tramways v London county council. Lords were bound to follow its decisions unless they were made in error.

Question 12

Limitations of the 1966 practice statement

Answer 12

Where a decision had been made without any regard to relevant legislation or precedent

Question 13

Lord chancellor issues the practice statement…

Answer 13

Where the house of lord would be able to depart from its own decisions when appropriate

Question 14

Criteria of practice statement

Answer 14

1. Used sparingly
2. Not to be overruled when it would create unfair problems
3. Decisions concerning the interpretation of statute should only be overruled in exceptional circumstances
4. Not to be overruled- if lords could not predict consequences of departing from the earlier rule and if it would be better to reform an area of law
5. Not to be overruled- because law laws feel an earlier courts understanding of the law was wrong
6. Not if making the law uncertain for lawyers
7. If it’s not inline with modern concepts and society

Question 15

While the court of appeal is usually bound to its own past precedent- there’s some exceptional circumstance

Answer 15

• 2 conflicting decisions of the court of appeal, the court may choose whatever one
• later inconsistent decisions of the HOL, court must follow the HOL decision
• when the decision was made per incuriam

Question 16

The advantages of judicial precedents

Answer 16

• certainty-know what to expect
• consistency and fairness-similar cases
• precision-case law helps to define law areas
• time saving-no dragging and passing laws
• flexibility- changes with time

Question 17

The disadvantages of judicial precedent

Answer 17

• rigidity- doesn’t change easy and bound by other courts
• complexity- hard to relevant cases even on a computer database
• slow growth- cases are unclear and need reforming
• illogical distinctions- distinguishes cause areas to be complex even if facts are not that different are small