Legal Systems: Case law and Precident

Question 1

When is a proposition stated in one case is binding in a later case?

Answer 1

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

Question 2

When is proposition binding: what is a ‘proposition of law’?

Answer 2

judicial statement confirming a legal principle, derived from statute, case law, or other sources such as custom or academic commentary

Question 3

When is proposition binding: examples of a proposition of law

Answer 3

1. A company is a separate legal entity to its shareholders
2. part payment of a debt cannot be satisfaction for the whole
3. local authorities could have their actions challenged if their decisions were so unreasonable that no reasonable authority would ever consider making them.
4. a party can only be liable for loss that was reasonably foreseeable

Question 4

What is ratio decidendi?

Answer 4

The central legal reasoning of a case, capable of creating a precedent

Question 5

What are the types of ratio?

Answer 5

1. Narrow: more limited and specific
   impact
2. Wide: broad applicability

Question 6

Example of narrow and wide ratio from Caparo

Answer 6

1. NARROW: the auditor owed no duty to provide the shareholder with financial information to assist an investment
2. WIDE: there should be first forseeability, second proximity, and third justness and reasonableness in all the circumstances

Question 7

Example of narrow and wide ratio from Donoghue and Stevens

Answer 7

1. WIDE: a person owes a duty to take reasonable care of their neighbours
2. NARROW: a manufacturer should take care to prevent injury from its products to consumers

Question 8

Where could a ratio derive from?

Answer 8

1. Sentence or a collection of sentences by one judge
2. Passage constituting several paragraphs from one judge
3. Different passages, appearing at various places within the views of one or more judges
4. A theme or themes within the judgment from various judges
   tenor of the case as a whole

Question 9

What is obiter dicta?

Answer 9

Statements that are not ratio/unimportant to the outcome but which might have future significance

Question 10

What are the types of obiter dicta?

Answer 10

1. Proposition that is wider than necessary to decide the case
2. Judge speculates as to what alternative judgment they may have given had the facts been different

Question 11

What effect do ratio decidendi and obiter
dicta have on future cases?

Answer 11

• Ratio decidendi-binding
• Obiter dicta-persuasive but not binding

Question 12

What does obiter generally involve?

Answer 12

(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;

Question 13

What is Stare Decisis

Answer 13

‘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

Question 14

Is the ECtHR binding?

Answer 14

No, persuasive in matters relating to convention rights under s2 HRA

Question 15

Is the Court of Justice of the European Union binding?

Answer 15

Binds on EU matters subject to Brexit

Question 16

Is the Privy Council binding?

Answer 16

Highly persuasive

Question 17

Is the Supreme Court binding?

Answer 17

Binds courts below but not itself
Although ordinarily it will follow its own decisions

Question 18

Is the Court of Appeal (Criminal Division) binding?

Answer 18

Binds courts below and normally binds
itself.
Criminal Division more flexible than Civil

Question 19

Is the Court of Appeal (Civil Division) binding?

Answer 19

Binds courts below and normally binds
itself.
Less flexible than criminal

Question 20

Is the High Court binding?

Answer 20

1st instance: Binds courts below but not itself

Appellate: Binds courts below and normally binds itself

Question 21

Is the Family Court binding?

Answer 21

High Court Judges and above:
Appellate: Binds courts below and normally binds itself

Below high court judges: binds no one

Question 22

Is the Crown Court binding?

Answer 22

Binds no one

Question 23

Are the County and Magistrates Courts binding?

Answer 23

Binds no one

Question 24

When wont the CoA/Divisional Court of the High Court (appellate jurisdiction) bind themselves?

Answer 24

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

Question 25

When are cases distinguished from a previous case?

Answer 25

Case is different in some material way from the precedent, either on the facts or law

Question 26

Meaning of ‘Affirming’

Answer 26

when a higher court confirms it agrees with the appeal before it from a lower court

Question 27

Meaning of ‘Applying’

Answer 27

when a court indicates it is adopting statements or reasoning from other decisions

Question 28

Meaning of ‘Departing’

Answer 28

where a court of one level disagrees with a previous decision, in another matter, by an equal court.

Question 29

Meaning of ‘Overruling’

Answer 29

where a higher court comments on a previous unrelated decision by a lower court and declares it to be wrong

Question 30

Meaning of ‘Reversing a judgment’

Answer 30

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.

Question 31

How do courts treat precedents flexibly/get round them?

Answer 31

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)

Question 32

What are the 5 purposes of sentencing?

Answer 32

1. Punishment of offenders
2. Reduction of crime
3. Reform and rehabilitation
4. Protection of the public
5. Making good to victims.