Judicial Precedent: Types of Precedent Flashcards
(25 cards)
What is stare decisis?
Stand by what has been decided
What is binding precedent?
A judge’s decision must be followed
What happens if a case invovles a POL?
Lawyers from both parties will research previous cases to ensure the judge follows precedent
What happens at the end of a case?
There’s a judgement which gives the decision and explains the reasons for their decision
What is included in a judgement?
Summary of facts
RD - Reason for decision
OD - make other comments
Verdict
What is the Ratio Decidendi?
Reasons for the decision
Part of the judgement
Binding to all lower courts - if case is similar
What are two cases for RD?
Donoghue v Stevenson
Daniels v White
What happened in Donoghue v Stevenson?
C found snail in ginger beer
A manufacturer owed a DOC to the customer
What happened in Daniels v White?
RD fron D v S applied
Corrosive substance in bottle of lemonade
Manufacturer owed DOC to customer
What is the Obiter Dicta?
Other things said ‘by the way’ which is a decision that may be followed
Creates persuasive precedent
Becomes binding precedent id picked up in later case and made into RD
What are two cases for OD?
Brown
Wilson
What happened in Brown?
Group of homosexual men participated in sadomasochistic activities
Resulted in injuried
RD - Person can’t consent to sadomasochism
OD - Can consent to branding/tattooing
What happened in Wilson?
OD from Brown picked up and made into RD so wife could consent to being branded
What is Original Precedent?
When the POL invovled within a case is unique and has not been considered by the courts previously
If base decision on similar case, called ‘reasoning by analogy’
What happened in Hunter v Canary Wharf?
TV was recreational, so was not a nuisance
Was the first time it had been decided so it was original
Why is it rare for there to be original precedent?
There is usually an Act of Parliament or common law available to apply to the facts of the case
What are the different types of persuasive precedent?
Courts in other countries
OD
Lower courts
Dissenting judgement
Decision of priviy council
What is Courts in other countries?
Where other country uses a common law system (Commonwealth countries)
Only referred to when there is a lack of case law in the UK
What cases can be used for decisions in other countries?
R v Bentham was about possession of firearm
Court invited to follow R v Sloan but didn’t
What are lower courts?
Lower courts can be looked at and made into law
SC often follows decisions of CoA because the judges are very experienced
What happened in R v R?
Law stated man couldn’t be guilty of raping his own wife - Changed by the CoA
HOL picked it up and followed it
What is a dissenting judgement?
When a case has been decided by a majority of judges
Judges who disagreed will have explained their reasons (dissenting judgdment)
If similar case - goes to SC
SC may be persuaded by dissenting judgement and follow it
What case can be used for dissenting judgement?
Candler v Crane Christmas - Lord Denning made a dissenting judgement which was followed in the case of Hadely Byrne v Heller
What are decisions of the Privy Council?
Court rules on cases from Commonwealth and is not part of the UK hierarchy, doesn’t create binding precedent for English Courts
