Precedent

Question 1

Doctrine of Precedent

Answer 1

• judge finds a prev. decision by higher court in a similar case they must follow it -> in Law reports -> fairness+ legal certainty

Question 2

Judgment

Answer 2

written record of a decision given by a judge in a case -> published Law reports

Question 3

stare decisis

Answer 3

a decision in an earlier case will stand as guidance for all future cases via. court hierarchy i.e Donoghue V stevenson ->duty of care is owed by manufacturers to
consumers. -> ‘neighbour principle’

Question 4

Ratio Decendi

Answer 4

• “the reason for deciding”.
  Ratio decidendi is the most important part of the judgment because it is the
  binding part of the decision.
• It must be followed by other judges in future
  cases. (in same court or lower down)

Question 5

R v Howe -> ratio decendi

Answer 5

i.e R v Howe Court ruled that the defence of duress is not
available to a charge of murder
. -> precedent in Ashlea Wilson
D -> 13 not rely on defence despite being too frightened of father

Question 6

Obiter Dicta

Answer 6

“other things said” by the judge.
Judges in future cases do not have to follow the obiter dicta (i.e. it is not
binding), but it can give useful guidance, e.g. helpful examples or
speculation about how the law might develop in the future.
i.e R v Gotts

Question 7

R V Gotts

Answer 7

The Court of Appeal were persuaded to follow obiter
dicta from the earlier case of R v Howe, in which the SC expressed the
opinion that duress should not be a defence to attempted murder.
Since Howe was a murder case, comments made about attempted
murder were not binding.

Question 8

Precedent & Act of law

Answer 8

Act of Law over Parliament

Question 9

Human Rights Act 2998

Answer 9

• freedom to ignore precedent higher courts if contravenes ECHR
• All courts take into account decisions of ECtHR
• i.e Re Medicaments (No.2), Director of Fair Trading v
  Proprietary Association of Great Britain

Question 10

Re Medicaments (No.2), Director of Fair Trading v
Proprietary Association of Great Britain

Answer 10

the Court of Appeal
refused to follow the House of Lords precedent of R v Gough (1996)
because it conflicted with decisions of the ECtHR.

Question 11

Types of Precedent

Answer 11

• Binding
• persuasive
• original

Question 12

Binding precedent

Answer 12

must be followed by future courts, depending on their
position in the court hierarchy (i.e. higher courts bind lower courts).
- based on principle of stare decisis
-precedent
can be binding due to the principle of being bound by a court’s own
previous decision (where no exception applies).
i.e R v Howe

Question 13

Persusive precedent

Answer 13

• lower courts -> sometimes seen CofA + SC i.e R v R -> ruled a man could be guilty of raping his wife
• Privy Council decisions ->HCA in many commonwealth countries -> presided over by many of our own SCJ -> Wagon Mound (No1) decision
  of the Privy Council which has since become one of
  the leading cases on remoteness in tort law.
• Orbiter dicta - R v Howe -> R v Gotts
• dissenting judgments ->whe a judge disagreed with a majority in CofA SC may be persuaded -> Hedley Byrne v Heller (1964), where an earlier dissenting judgment by
  Lord Denning was upheld.
• decisions of courts in other countries -> w. similar ideas of common law i.e canada
  In R v Bentham (2003), the Court was invited to follow the
  Canadian case of R v Sloan

Question 14

Persuasive precedent

Answer 14

• lower courts
• Privy Council decisions -
• Orbiter dicta
• dissenting judgments
• decisions of courts in other countries

Question 15

Persuasive precedent: lower courts

Answer 15

• lower courts -> sometimes seen CofA + SC i.e R v R -> HOL persuaded by Cof A -> ruled a man could be guilty of raping his wife

Question 16

Persuasive precedent: Privy council decisions

Answer 16

• Privy Council decisions
  ->HCA in many commonwealth countries
  -> presided over by many of our own SCJ
  -> Wagon Mound (No1) decision
  of the Privy Council which has since become one of
  the leading cases on remoteness in tort law.

Question 17

Persuasive precedent: Orbiter Dicta

Answer 17

• Orbiter dicta - R v Howe -> R v Gotts

Question 18

original precedent

Answer 18

when the point of law in a case has
never been decided before. There are no past cases upon which the judge
can base a decision, so the normal doctrine of judicial precedent cannot
apply as there is no precedent to follow. -> declared binding + original -> i.e Donoghue V Stevenson

Question 19

uses of precedent

Answer 19

• overruling
• distinguishing
• reversing
• SC + Practice Direction
• Court of Appeal + precedent

Question 20

Persuasive precedent: Dissenting Judgments

Answer 20

• dissenting judgments ->whe a judge disagreed with a majority in CofA SC may be persuaded -> Hedley Byrne v Heller (1964), where an earlier dissenting judgment by
  Lord Denning was upheld.

Question 21

Persuasive precedent: Decisions of courts in other countries

Answer 21

• decisions of courts in other countries -> w. similar ideas of common law i.e canada
  In R v Bentham (2003), the Court was invited to follow the
  Canadian case of R v Sloan

Question 22

overruling

Answer 22

This is where a court in a later case states that the legal rule decided in an
earlier (different) case is wrong and replaces it with a new precedent.
- via. court hierarchy
- certain circumstances SC + CofA may overrule prev. decisions
- i.e R v G

Question 23

R vG

Answer 23

SC overruled its previous decision
- Caldwell (1982)
- recklessness in crim. law
should be judged subjectively.

Question 24

reversing

Answer 24

where a court higher up in the hierarchy overturns the
decision of a lower court on appeal in the same case, i.e. the
same case moves higher up the court structure.
- i.e Kingston (1984)

Question 25

Kingston

Answer 25

The Court of Appeal had quashed D’s conviction for sexual assault by
allowing a defence of intoxication. On appeal, the House of Lords
reversed the CA’s decision and ruled that he was still guilty.

Question 26

Distinguishing

Answer 26

• the facts of the case being decided are
  so different from an earlier precedent that the judge is
  not bound to follow the earlier case.
• The material facts of the case being decided must be sufficiently different
  for the judge to be able to draw a distinction from the earlier decision.
• The
  judge’s decision then creates a new precedent.
• i.e Merritt v Merrit

Question 27

Merritt V Merritt

Answer 27

• The case concerned an agreement between a
  married couple who had separated and were
  about to get divorced.
  -the earlier case of Balfour v Balfour
  (1918). In that case, a wife was unable to sue her husban lacked intention to
  create a contract.
• the Court of
  Appeal distinguished Merritt from Balfour on the basis that there were
  sufficient differences in the material facts of the cases.

Question 28

SC + Practice Direction

Answer 28

Constitutional Reform Act 2005 to
replace the judicial functions of the House of Lords. The case of Austin v
Southwark LBC (2010) confirmed that the powers of the old House of
Lords were transferred to the Supreme Court.
- usually follow own decision -> stare decisis
BUT… it can overrule its own decision
- ‘when it appears right to do so’ using pwrs contained in practice directions 3 + 4

Question 29

Use of Practice Direction

Answer 29

• Herrington V British Railway Board .
• The HoL overrule Addie v Dumbreck (1929)-> no duty of care
  owed to trespassers.
• Change law = social conditions
  & attitudes had shifted over time

Question 30

key points of court of Appeal and precedent

Answer 30

• The Court of Appeal must follow decisions of the Supreme Court.
• Decisions of one division of the Court of Appeal will not bind the other
  division.
• The Court of Appeal is generally bound by its own past decisions,
  apart from certain limited exceptions.

Question 31

Court of Appeal and precedent exceptions

Answer 31

• set out in Young v Bristol Aeroplane (1944)
  -Where a previous decision of the CA
  has been overruled by the SC, they must
  follow the SC. -> rules of court hierarchy
• two conflicting CA decisions, the CA can choose between them. -> i.e Parmenter
  -If the decision is made per incuriam
  (in error), CA can ignore bad law and
  create new precedent. i.e Rakhit v Carty
• avoid previous precedent where it
  is necessary to give effect to human rights, e.g. Mendoza v Ghaidan (2002).

Question 32

court of appeal criminal division - Precedent exception

Answer 32

The Court of Appeal (Criminal Division) has additional flexibility to depart
from its own previous precedent in criminal cases because a person’s
liberty may be at stake – R v Gould (1969).

Question 33

Paramenter

Answer 33

CA was forced to
choose between
conflicting decisions in
Spratt and Savage. It
chose Savage.

Question 34

Rakhit v Carty

Answer 34

CA ignored
earlier case which had
been decided without
reference to the Rent
Act 1977.

Question 35

adv of precedent

Answer 35

• certainty
• fairness + consistency
• flexibility
• Precision

Question 36

adv of precedent: certainty

Answer 36

• advise clients accurately -> plan affairs according to likely outcome
• provides stability for business arrangements to be founded on

Question 37

adv of precedent: Fairness and consistency

Answer 37

• Like cases are treated alike which is fair and promotes justice.
• The law
  is not subject to whims of individual judges which lends it greater
  credibility.

Question 38

adv of precedent: flexibility

Answer 38

judicial precedent being fairly rigid overall
- the
law can develop and evolve through distinguishing and overruling.
- This
means judges can develop the law to meet changing social, political or
moral conditions.

Question 39

Adv. of Judicial precedent: Precision

Answer 39

• refining law over hundreds of years the law -> very precise as minor variations on the same principles arise.
• A case which comes to court is a real (as opposed to theoretical) case
  – unlike Parliamentary law which tends to be much more general.
• Decisions of the courts can help to clarify the meaning of particular
  statutory provisions.

Question 40

disadv. of precedent

Answer 40

• rigidity
• complexity
• Illogical distinction
• slowness of growth

Question 41

disadv. of precedent : Rigidity

Answer 41

• law too inflexible w/ bad decisions perpetuated - long time for suitable cases to get to senior courts to change law
• more money, courage, persistence = senior courts to appeal

Question 42

disadv. of precedent : complexity

Answer 42

• hundreds of 1000s of reported cases -> difficult to identify & locate relevant case law
• judgments sometimes very long -> no clear distinction between obiter dicta & ratio Decendi
  -In Re A (2000),
  three judges gave different reasons to justify the separation of
  conjoined twins.

Question 43

Disadv. of precedent: illogical distinction

Answer 43

• some cases distinguished in minor/controversial points.
• ‘hairsplitting’ can lead to certain areas becoming over complex
  -R v Wilson (1996) and R v Brown (1991): the
  defence of consent was allowed in the former case, but not in the latter,
  arguably on the basis of sexuality.

Question 44

Disadv. of precedent: slowness of growth

Answer 44

• some areas unclear/need reform cannot make a decision unless there is a case before the courts to be decided
• For example, judges were not able to reform
  the law on marital rape until the case of R v R (1991).