LA2: Judicial Precedent Flashcards
Judicial Precedent
Ratio Decendi:
Reason for decision
Obiter Dicta:
‘Things said by the way’
Judge made law, where past judicial decisions create binding laws for other equal status or lower courts to follow, in cases involving similar facts.
Doctrine of Stare Decisis.
Need 3 things for Precedent to work:
- Stable court heirarchy: Bound by higher or equal courts, appeal courts can make new precedent.
- Reliable system of law reporting: law reports show case outcomes
- Agreement that everyone will follow rules of Stare Decisis: never want to make up laws.
Types of Precedent
Binding
Where the Judge is following the reasoning of senior or equal status courts, where the facts of the case are similar.
Persuasive
Precedent that comes from various places, However are not binding.
They can come from: Lower Courts e.g. CA doesn’t bind SC but precedent is persuasive
Section 2 HRA 1998- Take into account EU laws.
Precedents made in emergency situations aren’t binding on future cases
e.g. conjoined twins 2000- seperation operation go ahead.
Original Precedent
If there is no existing precedent on a case then the judge will ‘Declare’ what the law has always been and this will become precedent for future cases.
Declaratory Theory: Judges don’t make or create law, they ‘find’ it and declare it.
Donoghue v Stevenson 1932
Donoghue’s friend purchased ginger beer for them, Donoghue poured some into glass and rotting snail fell out. Donoghue was very ill but couldn’t sue Stevenson’s beause she hadn’t bought the beer.
New precedent that companies do owe duty of care to everyone (not just purchasers). Precendent came from ‘Love Thy Neighbour’ in Bible.
Following Precedent from ECJ
Judges must apply all relevant EU law to UK laws and follow decisions of ECJ. If UK need to interpret law they can ask under Article 267 Treaty of Functioning of European Union (TFEU).
UK isn’t bound by ECHR, but we do have to incorporate Human Rights Act 1998 into our laws.
ECHR provides judges with persuasive precedent that they can choose to follow if they want to. It is known to be “strongly persuasive”. Hard to follow ECHR precedent because they aren’t bound by theirown previous judgements and do what they want in each case they hear. Supreme Court (SC) won’t follow ECHR if they already have their own precedent.
Judicial Creativity:
Should Judges Make Law?
For and Against
For
- Law can develop and adapt to new situations and problems.
- Fills gaps Parliament have left out, Parliament can create new Act to overrule it if they don’t like judges decision.
- Keeps the law ‘on track’.
Against
- Seperation of Powers, agaisnt rules of Sovereignity.
- Precedents only based on case involved, judges don’t consider the effects.
- Declaratory Theory already used as a pretence for law making (almost covering it up).
Rules of Precedent:
Judges will try to FOLLOW previous precedents from higher or equal status courts
If a case has similar facts to a previous one, then the judge can use the precedent from that previous case.
Grant v Australian Knitting Mills 1936
Grant bought wool underwear online, he wore all 3 pairs for a number of months and began to suffer from sores and itching, nearly had to have leg amputated from infection- almost died. Underwear contained high amounts of sulphur, which should have been removed in washing process. He sued manufacturers.
Judge followed Donoghue v Stevenson precedent although the case facts weren’t very similar.Judge said that principles of law were the same: manufacturer owed duty of care to consumer. Grant won although he lost 75% damages for contributory negligence.
Practice Statement
The Supreme Court is allowed to depart from their previous decisions even if they weren’t made in error. This is to try and stop ‘Bad Precedent’ instead of waiting for Parliament to get rid of it.
First use in Conway v Rimmer. First major use in 1972:
British Railways Board v Herrington 1972
6yr old boy electrocuted on railway line, got through fence. Very similar to Addie v Dumbreck 1929. D’s were not liable at first but boys parents appealed.
Practice Statement used to overrule Addie v Dumbreck and make them liable. Occupiers owe a ‘common duty to humanity’ and could have forseen someone getting through fence.
Practice Statement 1966:
When to use it?
In Civil Cases
- If there is a conflicting Supreme Court decision: could happen if an appeal doesn’t go through CA.
- If there are two Court of Appeal (CA) precedents on the matter then they can choose which one to follow and which one to overrule: More than one venue for CA, same point might end up in the 2 courts at same time in 2 seperate cases.
- If the decision was made Per Incuriam (without due notice of the law): Unlikely, judges may fail to consider past precedent; if it arose in future court would have to overrule previous decision.
In Criminal Cases
Same points as before but one extra:
- Can overrule if precedent was misunderstood or misapplied: It would be unjust to follow in current case.
Awkward Precedents:
Distinguishing
A judge can find ‘One Material Fact’ that is different between cases and then ‘Distinguish’ the case from the precedent and Not Follow It. They will then create new precedent.
Bettini v Guy 1876:
Opera singer missed rehearsals but was willing to do show, company replaced him, he sued. Theatre liable because he was willing to do shows and hadn’t breached contract.
Poussard v Spiers 1917:
Opera singer missed rehearsals and 3 performances. She was replaced and sued. Judge Distinguished from Bettini v Guy 1876 because SHE breached the contract, not the theatre.
Awkward Precedent:
Reversing
This can only happen when a case is heard ‘on appeal’ from a lower court
judge can get rid of previous precedent used in the case before it came to the appeal court.
Donoghue v Stevenson 1932:
The ginger beer company Stevenson’s was originally not liable. The appeal court Reversed the precedent and said that they owed a duty of care, maiking them liable.
Precedent:
Pro’s
Con’s
Advantages
- Makes law stable and predicatble, judge try to follow past decisions: Grant v AKM 1936
- Precedent rules can make law more flexible and adaptable
- Judges ‘fill gaps’ by Declaring the law
Disadvantages
- Precedents are hard to get rid of, they make law stagnant.
- Distinguishing makes law unpredictable, only 1 fact has to be different to not follow precedent
- So much case law makes it complex and hard to follow: similar cases may have different precedents, all must be followed.
