Judicial Precedent Flashcards
What is stare decisis?
‘Stand by what has been decided and do not unsettle the established’ so following decisions in previous cases
What is ratio decidendi?
The reason for the decision. This forms a precedent for future cases
What is Obiter dicta?
‘Other things said’ so it is all the rest of the judgment apart from the ratio decidendi. Judges in future cases do not have to follow it
Explain the hierarchy of the courts
- Every court is bound to follow the decision made by a court above it
- in general, appellate courts are bound by their own decisions
What is the practice statement?
Allows the House of Lords to depart from their own previous decisions when ‘it is right to do so’
What was the first use of the practice statement?
Conway v Rimmer
What was the first use of the practice statement in a criminal case?
R v Shivpuri
This overruled the decision made in Anderton v Ryan on attempts to do the impossible
What is binding precedent?
A decision in an earlier case which must be followed in later cases
What is persuasive precedent?
A decision which does not have to be followed by later cases but a judge can choose to follow
What is original precedent?
A decision on a point of law that has never been decided before
Explain the concept of overruling
A decision which states that a legal rule in an earlier case is wrong
Explain the concept of reversing
Where a higher court in the same case overturns the decision of the lower court
Explain the concept of distinguishing
A method of avoiding a previous decision because facts in the present case are different
Balfour v Balfour not followed in Merritt v Merritt -
Balfour - wife couldn’t succeed in a claim against her husband because there was no binding contract where as in Merritt there was
What are the advantages of precedent?
- Certainty
as courts follow past decisions - Consistency
because similar cases are decided in a similar way - Precision
as the principles of law are set out in actual cases - Flexible
as there is room for the law to change and Supreme law can use the practice statement to overrule cases and the use of distinguishing also gives all courts some freedom to avoid decisions and develop the law - Time saving
because where a principle has already been established, cases with similar facts are unlikely to go through litigation
What are the disadvantages of precedent?
- Rigidity
as the lower courts have to follow decision of higher courts and C of A has to follow its own past decisions, also few cases go to the Supreme Court - Complexity
as it’s hard to find all the relevant case law and hard to extract the ratio decidendi in some cases
Illogical distinctions -
The use of distinguishing has caused some areas of the law to have become very complex and differences in cases have become very small and illogical
Slowness of growth -
Judges cannot make a decision unless there is a case before the courts to be decided, may be a long wait for a suitable case to be appealed as far as the Supreme Court
