Judicial Precedent not done Flashcards
Stare decisis
Stand by what has been decided
Courts should follow previous case law
What does stare decisis depend on
Hierarchy of courts
Law Reprting
Hierarchy of courts system
Every court follows the decisions of the court above it
Appellate courts are bound by previous decisions
Higher courts create binding precedent. Lower courts…
Create persuasive persuasive
CJEU
CJEU is the highest court in the hierarchy
Created binding precedent for all European law
CJEU can overrule its own decisions
The Supreme Court
Senior court in the uk
Does not follow its own decisions
Court of appeal
Forms binding precedent
Bound by SC
Mainly has to follow own decision
The divisional courts
QBD, Chancery, Family
Bound by higher courts
Usually bind themselves
Create binding precedent
High court
Bound by all courts above and binds all lower courts
Don’t have to follow past decisions but typically do
Inferior courts
Crown, County, Magistrates courts are bound by higher courts
Create persuasive precedent
Law reports are what?
Compilations produced annually containing case law judgements
Recent case judgements are also available in newspapers and the internet
Types of Precedent (BOP)
Binding
Original
Persuasive
How is BP created
End of the case there is a judgement made by the judge. Gives decision and reasons for
What is included in the speech after a judgement is made
Summary of fact
Argument review
Principle of law used
The decision
Ratio Decidendi
Judges reason for decision. Concise 9 line statement. This decides the BP
When is a ratio decidendi followed
Simillar case facts
Cases can have more than one BP
Sometime the orbiter dicta of one case can develop into the ratio decidendi of another
Ratio decidendi
Decisions made by the way
Judge explains rationale behind decision and how the outcome may have differed with different case facts
Can become BP if picked up in a later case
Usually happens with higher courts due to the high level judges say there
Original precedent
When the point of law is unique and not been considered yet
Judge must create a new decision
This way of judging is called REASONING BY ANALOGY
Mainly due to terminology changes or modern developments
Rarer now as more acts have been made. Good to be rare as judges don’t make law
COLDP
Countries Obiter Lower Dissent Privy
Other country decisions
Commonwealth country common law used.
Only used if we don’t already have the case law
RvBentham =UK case encouraged to look for guidance from other countries. Refused.
RvSloan = Canadian case
Decisions of lower courts
Lower court decisions can be used for guidance.
SC looks at COA as judges are high level
Dissenting Judgements
If case decided by a majority decision the judges who rule not in favour will give their reasons
If case goes onto appeal the court may be persuaded instead by the DO
Decisions of the privy council
Rules on cases from the commonwealth and is not part of the UK so does not create binding precedent. As it consists of SC judges it’s decisions are highly persuasive
D.R.O.P.ing a binding precedent
Distinguishing facts
Reversing
Overruling
Per Incuriam
Distinguishing facts
A case is distinguished where the facts of the precedent and the facts of the current case are not the same.
Judge must find important difference between two cases
Reversing
When a case goes on appeal and a higher court reversed the decision of lower courts.
For example, the court of appeal may disagree with the legal ruling of the high court and form a different view of the law
Court of appeal may reverse this previous decision
Sweet v Parsley
Teacher discovers that students had been growing pot in her home that she let out to them.
Charged with being concerned with the management of premises which were being used for the purpose of smoking cannabis
HOL overturns decision
