Law Making - judicial precedent (paper 2)

Question 1

What is stare decisis?

Answer 1

The idea that judges should follow the precedent set by previous cases

Question 2

Stare decisis: Judges make decisions in court, either to…

Answer 2

interpret Acts of Parliament or to decide a rule where there is no Parliamentary law

Question 3

Stare decisis: The decisions made by judges are then…

Answer 3

reported and can then be read by judges in the future looking at similar cases

Question 4

What is ratio decidendi?

Answer 4

The rules treated by the judges as necessary to reaching their conclusion

Question 5

Ratio decidendi: The ratio is part of… which can be…

Answer 5

judicial precedent which can be binding on future judges

Question 6

Ratio decideni: The ratio given by judges in higher courts must…

Answer 6

be followed by all lower level judges in future cases

Question 7

What is the example of ratio decidendi and explain how it relates

Answer 7

Donoghue V Stevenson (1932) the ratio of the case created tort of negligence, meaning all lower courts have to follow this precedent, as part of the operation of stare decisis

Question 8

What is obiter dicta?

Answer 8

Everything else the judge says in the case. Obiter dicta is not binding on future judges and is not law​

Question 9

Obiter dicta: Judges do not…

Answer 9

separate their judgements into ratio decidendi and obiter dicta. It is up to future judges, lawyers and legal academics to do that

Question 10

What are the three types of judicial precedent

Answer 10

Binding
Persuasive
Original

Question 11

What is binding precedent

Answer 11

Precedent that must be followed. Stare decisis in action

e.g
1. Court of Appeal must follow its own rulings, and all courts below it must also follow them
2. Donoghue v Stevenson 1932 is binding precedent

Question 12

What is persuasive precedent
(3 example)

Answer 12

Precedent that is not binding on a court, but a judge may consider it and follow it if they think it is correct

Example 1:
R v Gotts, the House of Lords followed obiter dicta from R v Howe even though they did not have to

Example 2:
Where court decides to follow the decision of a court lower in hierarchy i.e R v R, the house of lords agreed and followed CoA’s decision that prohibited martial rape

Example 3:
Judges following the decision from a court from a commonwealth country such as Australia

Question 13

What is original precedent
- give an example case

Answer 13

If a new issue arises and a case has never been decided before, the judge creates original precedent for future cases to follow

E.g Hunter v Canary Wharf 1997
- Court has to decide whether claimants could have compensation for a new building that interfered with their TV signal
- No judge had ever ruled on this subject before, so the case created original precedent

Question 14

What are the 4 methods for handling precedent

Answer 14

Following
Overruling
Reversing
Distingusing

Question 15

Explain what following is
- give an example case

Answer 15

When a judge considers a precedent relevant to the case at hand, and it is binding, then the precedent must be followed

That means the judge will follow the ratio decideni set in the precedent

e.g Inferior courts have followed the HOL precedent set in Donoghue v Stevenson

Question 16

Explain what overruling is
- give an example case

Answer 16

This is where a court, in a later case, states that the precedent decided in an earlier case is wrong

Overruling may occur when a higher court disagrees with the decision made in an earlier lower case

e.g Pepper v Hart (1992) overruled Davis v Johnson

Question 17

Explain what reversing is
- give an example case

Answer 17

This is where a court higher in the hierarchy, in an appeals, sets aside the decision of a lower court on the same case

e.g Sweet v Parsley 1970, house of lords reversed the decision of the high court on the same case

Question 18

Explain what distinguishing is
- give 2 example cases

Answer 18

A judge has proven that the facts of the present case are sufficiently different from the facts of the precedent, meaning the situation is different and the precedent does not have to be followed

Example 1: R v Brown - consent held not to be a defence for charges of GBH

Example 2: R v Wilson - court distinguished situation from R v Brown, which meant consent could be a defence

Question 19

What are the advantages of judicial precedent

Answer 19

Certainty
Flexibility
Just and Fair

Question 20

Judicial precedent - certainty

Answer 20

A large number of points in the law have already been decided
This is important because it means lawyers can advise their clients on whether the case is likely to be successful and therefore may save time and money

Importance of certainty emphasised by 1966 practice statement, agreeing with the rule of law should be ascertainable

Question 21

Judicial precedent - flexibility

Answer 21

The fact that decisions are decisions of judges and not statutory provisions means that they can be subsequently overruled or distinguished where they are incorrect, cease to be applicable or are simply not applicable to the instant case

e.g pepper v hart overruled davis v johnson (consulting the Hansard)

Question 22

Judicial precedent - just and fair

Answer 22

It is based on a principle of fairness i.e ‘treating cases alike’
Meaning that everyone should be treated in the same way

This reduces the amount of cases which reach court, as if the likely outcome is known, the parties can reach a settlement freeing up the courts to deal with the genuine disputes of fact or law

Creates public confidence in the system

Question 23

Disadvantages of judicial precedent

Answer 23

Complexity
Cost and rigidity
Illogical distinctions
Slowness

Question 24

Judicial precedent - complexity

Answer 24

Judgements are often very long and complex, even for courts to interpret and apply

Therefore there is an argument that telling the ratio decideni and obiter dicta apart is very difficult, meaning it is tough to identify the principles of a case as in Dodd’s case

Furthermore there are thousands of odd cases reported each year which adds to the complex nature of the doctrine and makes it difficult to find relevant precedent on an issue

Question 25

Judicial precedent - cost and rigidity

Answer 25

It can be extremely expensive for an individual to get a precedent overturned because the case may need to be heard by the supreme court

Quite often only large companies or local authorities can afford legal expenses

Therefore a bad precedent may continue to exist until it is overruled by the supreme court. Doctrine rigid means it can not be easily changed

Question 26

Judicial precedent - slowness

Answer 26

Judges are well aware that some areas of law need reform. However they can only make a decision if a case related to the issue comes before them in the court. Developing law case by case can take a very long time