Lec 4: Court Hierarchy and Judicial Precedent

Question 1

List the courts in the correct order

Answer 1

Supreme Court
COA
High Court
Crown Court/County Court

Question 2

Who is the head of each court ?

Answer 2

• SC is headed by president of SC
• Crim Div is headed by lor of CJ
• Civil Div headed by Master of Rolls
• High Court headed by president of the Queen’s Bench/Family Div/Chancery Div

Question 3

Ratio Decendi

Answer 3

Reason for the decision

Question 4

Judicial Precedent

Answer 4

Previous case which shows how the statute should be used

Question 5

Obiter Dictum

Answer 5

It refers to the passage in judicial opinion which isn’t necessary for the decision, persuasive where relevant

Question 6

Stare Decisis

Answer 6

Let the decision stand, should be the same for all

Question 7

What are the advantages of judicial precedent ?

Answer 7

• Gives certainty to law
• It’s a curb on arbitary decision making
• Provides a rational basis for judicial decision making
• Enables precedent to be set out by those with experience

Question 8

What are the disadvantages of judicial precedent ?

Answer 8

• Makes the law inflexible
• Change is slow
• Can lead to injustice
• Encourages tendency towards hair splitting in a legal argument

Question 9

What three requirements are needed for precedent to work ?

Answer 9

• Depends on a clear court hierarchy
• Requires identification of the predental value of a judgement
• Requires access to previous decision through law reports is a difficult one

Question 10

What are the other factors of precedent ?

Answer 10

• Age of the case
• Number of judges sitting
• Whether the decision is unanimous
• Number of reasoned decisions
• Effects of dissenting judgements
• Reputation of judges
• Extent of argument before court analysis of law

Question 11

How can courts avoid precedent ?

Answer 11

Distinguishing
Overruling

Question 12

Is the HOL’s/SC bound by its own decisions ?

Answer 12

Their Lordships regard the use of precedent as an indispensable foundation to decide what is law and its application in individual cases… nevertheless [to] recognize that too rigid adherence to precedent may lead to injustice in a particular case and unduly restrict the development of the law. They propose therefore to modify their practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so… This announcement is not intended to affect the use of precedent elsewhere than in this House.

Question 13

Is the COA bound by it’s own decisions ?

Answer 13

• The Court of Appeal declared it is bound by its own decisions subject to the exceptions in Young Bristol Aeroplane [1944] KB 718; [1946] AC 169
• Two conflicting decisions of CA
• Previous CA decision conflicts with a later decision of the HL / SC which failed to expressly overrule it. The CA is obliged to follow the HL / SC under the normal rules of precedent.
• “Per Incuriam” (“through lack of care”)