judicial precedent - civil

Question 1

The d_______ system of precedent is where a judge has made law - this is referred to as ______ law.

Answer 1

doctrine
common

Question 2

Many laws have been created through the use of ________, where a judge makes a decision in a previous case which is then applied in future cases.
This makes the law consistent and therefore certain (rule of law)

Answer 2

precedent

Question 3

Precedent is used in what kind of cases?

Answer 3

both criminal and civil, where the facts of the case have not been covered by existing law.

Question 4

The k___ gave ______ the delegated power to make decisions on the basis of what they thought to be r___ and ______ in a specific case.

Answer 4

king
judges
right
wrong

Question 5

Judge made law remains ——— law, as parliament have not yet ——– the law.

Answer 5

common
codified

Question 6

Draw a diagram illustrating the heirarchy of the courts.

Answer 6

The Supreme Court
⬇️
The court of appeal
⬇️
The high court
⬇️
The inferior courts: the crown court the county courts and the magistrates court

Question 7

What courts are the supreme courts decisions bound by?

Answer 7

None - they are the most superior court.
Formerly the European court, technically, but not anymore under Brexit.

Question 8

What courts are the Court of appeals decisions bound by?

Answer 8

The Supreme Court, and their own previous decisions - apart from exceptions (Young v Bristol Aeroplane)

Question 9

What courts are the High court’s decisions bound by?

Answer 9

The court of appeal, the Supreme Court, and their own previous decisions.

Question 10

What courts are the inferior courts decisions bound by?

Answer 10

The Supreme Court, the CoA, the high courts divisions.
NOT by their previous decisions.

Question 11

What is Ratio decidendi ?

Answer 11

The part of the judgement which ultimately concludes the outcome: Refers to the reasoning for the decision.

Question 12

Who is bound by Ratio decidendi ?

Answer 12

Ratio decidendi Is binding, depending on the position in the court hierarchy. In all cases, the ratio decidendi of any court will be considered, but depending on the level of the court determines whether or not it is required to be followed (bound) - e.g, if a higher court sets the ratio decidendi then lower courts MUST follow, but if a lower court sets it, it is optional for the higher courts.

Question 13

What is ‘Obiter Dicta’ ?

Answer 13

Literally refers to ‘other things said’ - It refers to the rest of the judgements made which does not make up the ratio decidendi.

Question 14

Is obiter dicta binding?

Answer 14

The obiter dicta is not binding onto other courts (persuasive), however, this doesn’t mean that it is not an important part of a judgement, as it ultimately provides a foundation for the ratio of a case that judges may choose to follow. EXAMPLE - brown and Wilson.

Question 15

Describe the case of Brown.

Answer 15

Multiple men were found to have been inflicting GBH onto each other during sexual intercourse, resulting in some of the men being injured.
The ratio decidendi was that you cannot consent to GBH, during sex or at all, so all involved got prosecuted.
The obiter dicta was that, although you cannot consent to GBH, you can consent to tattoos or branding during sex.

Question 16

Describe the case of Wilson.

Answer 16

A man asked his wife for consent to brand is initials onto her buttocks, She agreed, but following an infection, she sued him for bodily harm.
The judge followed the obiter dicta set in the case of Brown and made the Ratio Decidendi that she had no claim since she consented.

Question 17

Describe Binding precedent.

Answer 17

Binding precedent is a judge’s decision that must be followed by courts below it.

Question 18

define ‘point of law’

Answer 18

crucial evidence and facts in a case

Question 19

In a criminal conviction, Lawyers from both parties research previous cases to ensure judges follow…

Answer 19

precedent.

Question 20

Describe the case of Donoghue vs Stevenson
HINT:🐌🍺
Then, add what kind of precedent this used.

Answer 20

The claimant found a snail in their ginger beer. the House of Lords (the Supreme Court now) stated that manufacturers owed a duty of care to their consumers, finding them guilty of negligence - and setting a binding precedent for all lower courts.

Question 21

Describe the case of Daniels vs White
HINT: 🥤🫧

Answer 21

The case followed the ratio decidendi from the case of Donoghue vs Stevenson; A corrosive substance was found in a bottle of lemonade, and it was held that the manufacturer owes a duty of care to the consumer and thus was found guilty.

Question 22

Define persuasive precedent.

Answer 22

Simply informs future decisions on the basis of similar cases - not binding.

Question 23

List the 5 forms of persuasive precedent:

HINT:
C🌎
O📃
L⏬️
D🧍
D👑

Answer 23

C ommonwealth courts
O biter dicta
L ower courts
D issenting judgements
D decisions of the Privy Council

Question 24

What kind of precedent is obiter dicta?

Answer 24

Persuasive precedent

Question 25

What is the practice statement of 1966?

Answer 25

The House of Lords passed the practice statement which allows them to change any of their previous decisions when it appears right to do so, applying to both criminal and civil cases.

Question 26

Give case examples of the practice statement being used in a civil case:
HINT:🇬🇧🚊
(Be Right Back!)

Answer 26

Addie v Dumbreck (1929), the law was established that trespassers who get injured are not able to claim for personal injury from the occupiers of the land, and held that parents owe a duty of care to the tresspassing children, not the railway company.

This law was overruled in the case of British Railway Board (BRB) v Herrington (1972) by the House of Lords using the Practice Statement 1966, which held that the railway do owe a duty of care. They recognised that society had changed and therefore, so should the law.

Question 27

Give case examples of the practice statement being used in a criminal case:
HINT: Anderton v Ryan
HINT: IMPOSSIBLE

Answer 27

In Anderton v Ryan (1985) the House of Lords ruled that attempting the impossible was a defence. This was overruled using the practice statement in R v Shivpuri (1986) which stated that attempting the impossible was no defence and a person would still be found guilty. The reason for this being that the previous decision was made from a mistake (per incurium)

Question 28

What is the difference between binding precedent and persuasive precedent?

Answer 28

Binding precedent has to be followed, persuasive precedent doesn’t have to be followed (optional)

Question 29

1. Commonwealth courts persuasive precedent.
   What is this type of precedent and When is it referred to?

Answer 29

When we take the decisions of a case that is similar from another country with a similar legal system to us. ONLY when there is a lack of case law in the UK.

Question 30

1. Commonwealth courts persuasive precedent.
   Give a case example of this being used.

Answer 30

In R v Bentham (2013), which was about possession of firearm, the court was invited to follow the Canadian case of R v Sloan (1974) but decided not to.

Question 31

1. Commonwealth courts persuasive precedent.
   List the countries that can get referred to and why.

Answer 31

Australia, Canada and New Zealand.
They have really similar legal systems to us due to our history.

Question 32

2. Obiter Dicta persuasive precedent.
   Describe this type of persuasive precedent.

Answer 32

The rest of the judgements made in a previous case which did not make up its ratio decidendi - therefore it isn’t binding and is persuasive.

Question 33

2. Obiter Dicta persuasive precedent.
   When can obiter dicta becomes binding when..

Answer 33

It gets picked up and becomes the ratio decidendi In a later case.
This often happens with the SC and CoA judges’ obiter because of the high level of judiciary authority they have.

Question 34

3. Lower Courts persuasive precedent.
   Lower courts decisions can be —— – and —- —- —. The Supreme Court often follow decisions of the Court of Appeal because the judges are very experienced.

Answer 34

looked at
made into law

Question 35

3. Lower Courts persuasive precedent.
   Why is precedent from the lower courts persuasive?

Answer 35

Because of the authority of the courts in the court system, the lower courts cannot set binding precedent for any courts above them, their decisions can just be considered. However, if a higher court does pick up their decision, It can become binding - this often happens between the court of appeal and the Supreme Court, the CoA being lower.

Question 36

3. Lower courts persuasive precedent.
   Give a case example of the lower courts having persuasive precedent.
   HINT: 😖💍

Answer 36

R v R 1991 -
Before R v R, the law stated that a man could not be guilty of raping his wife. Following this case, the court of appeal made rape in marriage a criminal offence. Later, the Supreme Court picked up this rule.

Question 37

4. Dissenting judgements persuasive precedent.
   Explain what dissenting judgement means.

Answer 37

Dissenting - differing in the minority.
Judgements - decisions/opinions about a case

Dissenting judgements is when a case has been decided by a majority of judges, and the judges who disagreed will have to explain their reasoning. This is the dissenting judgement. If a case of a similar case later goes on appeal to the SC, the SC may be persuaded by the dissenting judgement and follow it.

Basically, some judges will be like “We disagree with the majority: here is why.” and then later down the line, if a case is on appeal at the SC, they can hear them out and agree that they’re kind of based.

Question 38

4. Dissenting judgements persuasive precedent.
   Give an example of dissenting judgement being used.
   HINT: C 🕯️ler v C 🏗C 🎅🏻,
   Lord 👖👎 -> H B v H

Answer 38

In the negligence case of Candler v Crane Christmas, Lord Denning made a dissenting judgement which was later followed in the case of Hedley Byrne vs Heller.

Question 39

5. Decisions of the Privy council persuasive precedent
   Explain what type of court this is and where it fits in to the court hierarchy.

Answer 39

The judicial committee of the Privy council. This court rules on cases from the Commonwealth and is not an apart of the British court hierarchy, so it does not create binding precedent for the English courts.

Question 40

5. Decisions of the Privy council persuasive precedent.
   Give an example of when this type of persuasive precedent was used
   HINT:🇦🇺⚙️

Answer 40

The Wagon Mound No. 1
Claimant was welding and as a result, oil leaked from his ship into the harbour, causing the oil to catch fire from a spark.
HELD: The trial judge held this was foreseeable damage, but the Privy Council reversed this decision and said the type of damage was not foreseeable - in technical terms, ‘too remote’. This principle is now used in English law to decide negligence.

Question 41

Stare decisis means that judges follow each other’s decisions when dealing with cases involving the same or similar facts. Under limited circumstances, a binding precedent can be avoided in a number of ways. Why might a judge wants to avoid a binding precedent?

Answer 41

Precedent can be outdated and not satisfy the public with the verdicts it causes.

Question 42

R
O
D
(avoiding binding precedent)

Answer 42

Reversing
Overruling
Distinguishing

Question 43

what does reversing do to avoid precedent?

Answer 43

When a case goes on appeal to a higher court and they reverse the decision of a lower court.

Question 44

Examples of reversing:

Answer 44

Sweet v Parsley
Tenants were found to be growing cannabis on property. The high court found the owner liable, but the court of Appeal reversed this decision and ruled that you cannot be guilty without knowledge.

Question 45

what does overruling do to avoid precedent?

Answer 45

A higher court in a later case states that the legal rule decided in an earlier case from a lower court is wrong. Some courts can overrule their own decisions, e.g the Supreme Court (the practice statement 1966) or the CoA using the exceptions from Young v Bristol Aeroplane.

Question 46

Example of overruling being used:

Answer 46

R v R
before 1991, rape in marriage was not considered an offence. The court of appeal ruled that it is a crime.

Question 47

Difference between overruling and reversing:

Answer 47

Reversing is when a case goes on appeal to a higher court and the previous decision gets reversed by them (sweet vs parsley) reversing is where the legal rule decided by a lower court in an earlier case is overruled by a higher court. (r v r)

Question 48

what does Distinguishing do to avoid precedent?

Answer 48

A case is distinguished where the material facts of a case are significantly different from an earlier case. The judge must find important differences between two cases so a new precedent is created.

Question 49

Give an example of distinguishing being used -
Balfour v Balfour
Merritt v Merritt
HINT: 💍❌🤝

Answer 49

Balfour v Balfour 1919 - husband promises wife £30 monthly whilst hes working abroad. The marriage failed and she made a claim for the money.
They held that since the agreement was during the marriage, it was a domestic arrangement with no intent to be create legal relation - setting binding precedent.
Merritt v Merritt 1971 - Husband left wife. He said he’d give an income if she paid off the mortgage. It was held that in this case there WAS an intent to create legal relations as the agreement was made after the marriage had ended.

Question 50

Give an example of original precedent.
Hint: 👨🏻‍🎤 v 🦜 wharf

Answer 50

Hunter v Canary Wharf - A new building was built which disrupted the TV signals in a nearby apartment complex. The judge ruled that the TV is not a necessity and so no further action is necessary.

Question 51

What are alternatives within original precedent?

Answer 51

-Reasoning by analogy (base the verdict off of similar cases)
-Turn to other countries for guidance.

Question 52

Structure for a describing question.

Answer 52

Broadly answer the question
⏬️
Give a factor
⏬️
Define factor
⏬️
Give example of factor
⏬️
Repeat for next factor

Question 53

From what years were the House of Lords / Supreme Court bound / not bound by their previous decisions?

Answer 53

Before 1898 - Not bound.
1898 - 1966 - bound.
1966 - Practice statement - not bound
2009 - HoL -> SC

Question 54

give the points for the power the CoA has in Judicial precedent.

Answer 54

• bound by SC only
• can overrule some previous decisions on exception (young v Bristol aeroplane)

Question 55

give the main points to avoid BP:

Answer 55

Describe the ways to avoid BP 8)
There are 3 ways to aroid BP. Reversing. This is where when a case goes on appeal, a nigher court con choose to reverse a Lower courts decision. this is seen in the sweet v parsely case.
Next, another way to avoid Bp is overruling. This is where a higher court decides the decision of a previous case in lower court was wrong.
This was done in the R v R case.
distinguishing. This is where the judge has to find major differences between the case that set the binding precedent, in which case they can then choose to not follow the BP. This is seen in Balfour v Balfour and merritt v merrit.