Precedence Flashcards
What is precedence based off
Stare decisis
Stare decesis
Stand by what has been decided
Original precedence case
Hunter V Canary Wharf
What is original precedence
Where no past cases can be used by the judge
Arrive by decision by reason if analogy - drawing examples from previous cases that are similar
Binding precedence
Must be followed if made by higher court in hierarchy or same level
Comes from the ratio decedendi
Persuasive precedence
Not binding form but judge can consider it
Comes for. Lowers court of orbita dicta, privy council like in wagon mound, dissenting judgement
Ratio decedendi meaning
Reason for deciding
What is ratio decidendi
Judge outlining what law and evidence lead to the outcome
Used in appeal
If given in higher court will bind lower court
Creates binding precedent
Orbita dicta translation
Other things said
Orbita dicta
Judges opinion of matter not legal reasoning
Used as persuasive precedence not binding
Ratio and orbita example
R V Howe - duress is no defence to murder in ratio - so binding
In orbita - should not be for attempted murder either
R c gotts - used orbita form Howe to form ratio that mean duress can be for attempted murder
Advantages to precedence
Certainty- advise client- know how it’s to be applied - practise stamens early used to keep consistency
Predictable
Fair - all cases treated same if same facts
Flexible - can change under practice statement or FORD
Time saving - prickle already been established will mean it can quickly be applied to many cases
Disadvantages precedence
Complex - over half million - work loads - hard to find relevant
Injustice - as so any cases expensive to fund lawyer to look through all
Uncertainty- ways of avoiding it
Undemocratic - judge bind lower courts so effcilt make law
Ridigty - lower court must follow higher courts so no flexibility
