Legal System: Case law and precedent Flashcards
When is a proposition stated in one case is binding in a later case?
If its:
1. proposition of law (not fact)
2. part of the ratio decidendi
3. decided in a court whose decisions are binding on present court
4. cases cant be distinguished
What is ratio decidendi?
The central legal reasoning of a case, capable of creating a precedent
What is obiter dicta?
Statements that are not ratio/unimportant to the outcome but which might have future significance
What effect do ratio decidendi and obiter
dicta have on future cases?
- Ratio decidendi-binding
- Obiter dicta-persuasive but not binding
What does obiter generally involve?
(i) judge speculating about the decision they would have given if the facts of the case had been different;
(ii) the judge addressing submissions that were made in legal arguments but that are no longer relevant given the ratio of the case; or
(iii) dissenting judgments;
What is Stare Decisis
‘The previous decision should stand’
Confirms previous court decisions can and should be relied on.
Hints at the need for lower courts to take note of higher ones
Is the ECtHR binding?
No, persuasive in matters relating to convention rights under s2 HRA
Is the Court of Justice of the European Union binding?
Binds on EU matters subject to Brexit
Is the Privy Council binding?
Highly persuasive
Is the Supreme Court binding?
Binds courts below but not itself
Although ordinarily it will follow its own decisions
Is the Court of Appeal (Criminal Division) binding?
Binds courts below and normally binds
itself.
Criminal Division more flexible than Civil
Is the Court of Appeal (Civil Division) binding?
Binds courts below and normally binds
itself.
Less flexible than criminal
Is the High Court binding?
1st instance: Binds courts below but not itself
Appellate: Binds courts below and normally binds itself
Is the Family Court binding?
High Court Judges and above:
Appellate: Binds courts below and normally binds itself
Below high court judges: binds no one
Is the Crown Court binding?
Binds no one
Are the County and Magistrates Courts binding?
Binds no one
When wont the CoA/Divisional Court of the High Court (appellate jurisdiction) bind themselves?
Can depart from prev decision where it:
1. Conflict with own prev decision
2. Conflicts with SC (or HoL) decision
3. Was made per incuriam (ie the court neglected to consider a statutory provision or binding precedent)
check these are right
4. Was an interim decision by 2 judges
5. Inconsistent with subsequent ECtHR decision (persuasive not binding)
6. In criminal matters: obviously wrong and would lead to the appellant remaining in gaol
When are cases distinguished from a previous case?
Case is different in some material way from the precedent, either on the facts or law
When is proposition binding: what is a ‘proposition of law’?
judicial statement confirming a legal principle, derived from statute, case law, or other sources such as custom or academic commentary
When is proposition binding: examples of a proposition of law
- A company is a separate legal entity to its shareholders
- part payment of a debt cannot be satisfaction for the whole
- local authorities could have their actions challenged if their decisions were so unreasonable that no reasonable authority would ever consider making them.
- a party can only be liable for loss that was reasonably foreseeable
What are the types of ratio?
- Narrow: more limited and specific
impact - Wide: broad applicability
Example of narrow and wide ratio from Caparo
- NARROW: the auditor owed no duty to provide the shareholder with financial information to assist an investment
- WIDE: there should be first forseeability, second proximity, and third justness and reasonableness in all the circumstances
Example of narrow and wide ratio from Donoghue and Stevens
- WIDE: a person owes a duty to take reasonable care of their neighbours
- NARROW: a manufacturer should take care to prevent injury from its products to consumers
Where could a ratio derive from?
- Sentence or a collection of sentences by one judge
- Passage constituting several paragraphs from one judge
- Different passages, appearing at various places within the views of one or more judges
- A theme or themes within the judgment from various judges
tenor of the case as a whole
What are the types of obiter dicta?
- Proposition that is wider than necessary to decide the case
- Judge speculates as to what alternative judgment they may have given had the facts been different
Meaning of ‘Affirming’
when a higher court confirms it agrees with the appeal before it from a lower court
Meaning of ‘Applying’
when a court indicates it is adopting statements or reasoning from other decisions
Meaning of ‘Departing’
where a court of one level disagrees with a previous decision, in another matter, by an equal court.
Meaning of ‘Overruling’
where a higher court comments on a previous unrelated decision by a lower court and declares it to be wrong
Meaning of ‘Reversing a judgment’
a higher court disagrees with the earlier decision, in the same proceedings, of a lower court. Effectively this is what happens whenever an appeal succeeds.
How do courts treat precedents flexibly/get round them?
Ratio in one case could be:
1. Distinguished in another (common)
2. Overruled (if considered later by a higher court)
3. Departed from (can be by an equal court)
4. Reversed (if a higher court)
What are the 5 purposes of sentencing?
- Punishment of offenders
- Reduction of crime
- Reform and rehabilitation
- Protection of the public
- Making good to victims.
