PRECEDENT Flashcards
Definition of stare decisis
Stand by the decision. Higher courts bind lower courts
Definition of ratio decidendi
Reason for the decision. The binding aspect of the decision
Definition of obiter dicta
Other things said. Not included in the ratio so persuasive not binding
Case examples of stare decisis
.Eisenhower .Chan Fook .Robinson .Clinton, Parker and Evans .Donoghue and stevenson
Case examples of ratio decidendi
.Robinson
.Dica
.Brown and others
Case examples of obiter dicta
.Beard
.Khan and Khan’s obiter becomes ratio of Evans
What is binding precedent?
A decision made in the higher courts which all lower courts must follow in similar cases.
What happens if a higher court make a binding precedent?
This precedent becomes binding and the previous one is replaced
How is binding precedent imposed?
Via stare decisis and ratio decidendi
Which courts can avoid their own binding precedent?
The supreme court and the COA
What does every court have the right to do?
Distinguish
Can top-end courts be overruled?
No but the binding precedent can be avoided using methods of avoidance
Cases for binding precedent
.Eisenhower .Chan Fook .Robinson .Gillick .Dica
What is original precedent?
Precedent which creates and provides new legal rule
When is original precedent made?
When there is no previous judicial decision on a point of law
Does original precedent follow any past decisions?
No, it is original
Who is most likely to make original precedent?
High-end courts
How is original precedent imposed?
Via stare decisis and obiter dicta
Is original precedent binding?
Yes because it is the first legal decision on that specific point of law
Cases for original precedent?
.Chan Fook .R v R .Brown and others .Donoghue v Stevenson .Ireland and Burstow
What is persuasive precedent?
Something which is not binding but can influence the decision
How can persuasive precedent influence the decision?
It can be referenced in the ratio
What are the 5 types of persuasive precedent?
.obiter dicta .decisions from other countries .privy council .dissenting judges .courts lower in the hierarchy
Where is persuasive precedent often made?
In the lower end courts
Can higher courts use lower courts persuasive precedent to influence their decisions?
Yes
Cases for persuasive precedent?
.Wagonmound (decisions from another country)
.Davis v Johnson (“groping around in the dark” denning)
What are the three methods of avoidance?
Overruling, distinguishing and reversing
What is overruling?
When higher courts overrule a lower court’s decisions
Which courts can overrule themselves?
The supreme court and the court of appeal
How does the supreme court overrule itself?
The practice statement
How does the coa overrule itself?
Other methods of avoidance
Which case overruled Davis v Johnson?
Pepper v Hart
What case was overruled by pepper v hart?
Davis v johnson
Which case overruled Anderton v Ryan?
Shivpuri
What case was overruled by Shivpuri?
Anderton v Ryan
What case overruled Addie v Dumbreck?
Herrington v BRB
What case was overruled by Herrington v BRB
Addie v Dumbreck
In which case did Lord Denning say “groping around in the dark”?
Davis v johnson
What is reversing?
The court which hears the appeal reverses the decision of the court below so that it no longer stands as precedent
What are the cases for reversing?
.woolin .Hancock and Shankland .Sweet v Parseley .Barclays and various claimants .Morrisons and various claimants
What is distinguishing?
A judge can avoid following past precedent if he can distinguish a significant difference between the facts of the precedent case and his current case
Is a judge bound by precedent after distinguishing?
No
Which courts have the right to distinguish?
All courts
Cases for distinguishing
.Brown and others and R v Wilson
.Sharpe and Shepherd
What are the advantages of precedent?
.develops the law .fair and consistent .flexible .time saving .precise
How does precedent develop the law?
It can’t become outdated as it’s always being reformed and added to etc
What is an example of precedent developing the law?
When Chan Fook established mental harm and R v R established marital rape
How is precedent fair and consistent?
If a decision is made in a higher court, it will be applied to every similar case in a lower court, meaning they get the same or a similar outcome so everybody gets a fair and equal trial
What is an example of precedent being fair and consistent?
Biological GBH (dica, adaye and konzane)
How is precedent flexible?
If a past decision does not fit a case exactly, it can be avoided with distinguishing and form a new precedent. Precedent can also be reversed and avoided to suit each individual case best
What is an example of precedent being flexible?
.Re A
.Herrington v BRB/ Addie v Dumbreck
How is precedent time saving?
The body of precise law is so fast that there are fewer appeals made and less court time is taken up
What is an example of precedent being time saving?
No reforms to non-fatals
How is precedent precise?
The law has become so precise over the years and so variations of the same principles arise and fit a larger amount of cases
What is an example of precedent being precise?
Howe and Gotts
What are the disadvantages of precedent?
.doesn't apply in retrospect .rigid .complex .illogical distinctions .unpredictable and unreliable
How does precedent not apply in retrospect?
If the law changes, the precedent will only apply to future cases and will not change the outcome of previous cases, making it unfair
What is an example of precedent not applying in retrospect?
Anderton v Ryan’s decision was not changed after Shivpuri
How is precedent rigid?
Can be inflexible, especially when it takes a suitable case a long time to come around
What is an example of precedent being rigid?
R v R
How is precedent complex?
The high case volume can make finding the correct precedent to follow difficultly. The obiter and ratio can often be difficult to seperate too
What is an example of precedent being complex?
Howe and Gotts
How does precedent draw illogical distinctions?
Distinguishing can split hairs and lead to areas of the law becoming over complex
What is an example of precedent drawing illogical distinctions?
Minor differences between cases can be so small so as to make the decision illogical. Wastes court time
How is precedent unpredictable and reliable?
The results are uncertain until after the appeal process. Judges can also reach the same decision but by different lines of reasoning
What is an example of precedent being unpredictable and unreliable?
Wastes court time and money
