Precedent

Question 1

Stare decisis

Answer 1

“stand by what has been decided and do not unsettle the establishment”, English system based on this, supports the idea of fairness and provides certainty in the law.

Question 2

Ratio decidendi

Answer 2

“reasons for the decision”, at the end of a case the judge makes a pronouncement, summary of facts, review of arguments, explain principles of law to decide. Principle forms binding nature of precedent

Question 3

Sir Rupert Cross

Answer 3

Defined ratio decidendi “any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusion

Question 4

Obiter dicta

Answer 4

“other things said”, remainder of the pronouncement, not binding, but can be persuaded to follow reasoning by hypothesis or analogy.

Question 5

Original Precedent

Answer 5

If the point of law hasn’t been decided before, whatever the judge decides becomes new precedent for future judges to follow. Usually takes place where the case if the first of its kind. Judges usually look at cases which are closest in principle to the new one

Question 6

Whether interference with television reception by large building was capable of constituting an actionable nuisance, 1990 Canary Wharf constructed, claimants sued for damages for interference with their television reception

Answer 6

Hunter and others v Canary Wharf Ltd and London Docklands Development Corporation 1995
Original Precedent

Question 7

Hunter and others v Canary Wharf

Answer 7

Lord Justice Pill drew analogy from an old case referred to as Aldred’s case 1610, citing what Wray CJ said in Bland v Moselely

Question 8

Binding Precedent

Answer 8

Precedent from a previous case which must be followed, even if the judge in the later case does not agree with the legal principle. Only created when facts in second case are sufficiently similar to the first, and decision was made in a superior or same level court

Question 9

Persuasive Precedent

Answer 9

Not binding, but the judge may consider it and decide it is the correct principle to follow

Question 10

Courts lower in the hierarchy: House of Lords agreed with Court of Appeal decision using same reasoning man could be guilty of raping his wife

Answer 10

R v R 1991

Persuasive Precedent

Question 11

Decisions by Judicial Committee of Privy Council: not part of hierarchy of course, since many judges sit in Supreme, decision treated with respect.

Answer 11

Law on remoteness of damages under tort, decision made in Wagon Mound (No 1) 1961, stood as persuasive precedent to others.

Question 12

Statements made obiter dicta: seen in law of duress as a defence to criminal charge, House of Lords ruled that duress could not be a defence to charge of murder

Answer 12

R v Howe 1987

Persuasive Precedent

Question 13

Dissenting judgement

Answer 13

Case has been decided by majority, dissenting judge will explain reasons, if goes to Supreme, possible they agree with dissenting view

Question 14

Decisions of courts in other countries

Answer 14

Especially where courts use same ideas of common law as in our system, applies to all Commonwealth countries

Question 15

Civil Hierarchy

Answer 15

European Court of Justice -> Supreme -> Court of Appeal -> Divisional -> High -> County -> Magistrates

Question 16

Criminal Hierarchy

Answer 16

European Court of Justice -> Supreme -> Court of Appeal -> Queen’s Bench Divisional Court -> Crown -> Magistrates

Question 17

European Court of Justice

Answer 17

Since Jan 1973, highest court affecting legal system, for points on EU law, decision made in this binding on all courts. Prepared to overrule its own decisions when necessary

Question 18

Supreme Court

Answer 18

Most senior, binds all others and is not bound by own past decisions

Question 19

Court of Appeal

Answer 19

Two divisions: criminal and civil, both bound by EU Court of Justice and Supreme. Must follow precedents made in own courts, but some exceptions

Question 20

Divisional Courts

Answer 20

Three divisional courts: Queen’s Bench, Chancery and Family, bound by decisions of those above and usually binding on themselves, some exceptions

Question 21

Courts of First Instance

Answer 21

Bound by all courts above, decisions in these courts usually binding on themselves, rarely create precedent

Question 22

High Court

Answer 22

Bound by all courts above, binds below it, usually bind themselves.

Question 23

Held that where there are two conflicting earlier decisions, providing decision has been considered in latter case, latest decision should be followed

Answer 23

Colchester Estates (Cardiff) v Carlton Industries plc 1984
High Court

Question 24

Crown, County, Magistrates Courts

Answer 24

Bound by all courts above, unlikely to create precedent, technically decisions made in Crown bind Magistrates and decisions made by County bind Family division of Magistrates

Question 25

Supreme Court

Answer 25

Main debate Supreme and HoL, extent should follow own past decisions. Originally, HoL could overrule own decisions. C19th disappeared

Question 26

Certainty in the law deemed more important than possible of individual hardship being caused

Answer 26

London Street Tramways v London County Council 1898 | HoL past decisions and Practice Statement

Question 27

Practice Statement 1966

Answer 27

Realised final Court of Appeal needed flexibility, from 1966 onwards, HoL allowed to change the law when it believed that an earlier case was wrongly decided

Question 28

First case changed with Practice Statement, concerning a technical point on discovery of a document

Answer 28

Conway v Rimmer 1968

Question 29

First major case changed with Practice Statement, involved law of duty of care to child trespasser, past case decided occupier of land only owe duty of care for injuries if been caused recklessly or deliberately. Lords held social and physical conditions changed since 1929

Answer 29

Herrington v British Railway Board 1972 | Addie v Dumbreck 1929

Question 30

PS stressed criminal law needs to be certain, first criminal case overruled on attempts to do the impossible, took place less than a year after the first and severely criticised by lawyers

Answer 30

R v Shipuri 1986 | Anderton v Ryan 1985

Question 31

HR Act states courts must take into account any judgement of ECHR. Referring to HR, courts not bound by precedent if leads to breach of HR, Court of Appeal refused to follow HoL in case, slightly different from decision of ECHR

Answer 31

``` Re Medicaments (No2) Director General of Fair Trading v Proprietary Association of Great Britain 2001 R v Gough 1993 ```

Question 32

Can be used to avoid following past decision. Judge finds material acts of case sufficiently different for him to draw distinction

Answer 32

Distinguishing

Question 33

Both involved wife claim against husband for breach of contract. In first decided that claim not proceed as no intention to create legal relations, no contract. Second successful as agreement made after separated and in writing

Answer 33

Balfour v Balfour 1919 Merritt v Merritt 1971 Distinguishing

Question 34

Court in later case states legal rule decided in earlier is wrong. Higher over lower

Answer 34

Overruling

Question 35

Higher court overturn decision of lower

Answer 35

Reversing

Question 36

Tort of negligence, landmark case, HoL recognised manufacturer owed duty of care to ultimate consumer, neighbourhood test created.

Answer 36

Donahugh v Stevenson 1932 | Judicial Law Making

Question 37

Extended DvS, held man who negligently started fire in roof owed duty of care of fireman injured trying to put it out

Answer 37

Ogwo v Taylor 1987 | Judicial Law Making

Question 38

Criminal law, judges major role in developing law on intention. Intent for murder now covers intention to GBH as well as intent to kill.

Answer 38

Judicial Law Making

Question 39

Precedent follows past decisions, people know what law is and how likely to be applied lawyers advise clients on likely outcome

Answer 39

Certainty | Advantages

Question 40

Only just and fair that similar cases should be decided in similar way, must be consistent to be credible

Answer 40

Consistency and Fairness | Advantages

Question 41

Principles of law set out n actual cases and can be built up over time

Answer 41

Precision | Advantages

Question 42

Law can change through hierarchy of courts and use of PS

Answer 42

Flexibility | Advantages

Question 43

Principle established, cases of similar nature do not need to go through extended process

Answer 43

Time Saving | Advantages

Question 44

Lower courts have to follow higher, no room for creativity, only appeal cases likely to alter law

Answer 44

Rigidity | Disadvantages

Question 45

Over half million cases, even with database, many percents, no clear distinction in pronouncements

Answer 45

Complexity | Disadvantages

Question 46

Use of distinguishing to avoid presented can lead to hear splitting - areas of law become very complex

Answer 46

Illogical Distinction

Question 47

Judges well aware some areas of law in need to reform but unless appropriate case, cannot influence the decision

Answer 47

Slowness of growth