Precedent

Question 1

Stare decisis

Answer 1

Past decisions of judges create law for future judges to follow. This is the principle of stare decisis (Stand by what is decided)

Question 2

Precedent depends upon having?

Answer 2

• Hierarchy of courts- courts must follow decisions of courts above them in the hierarchy
• Accurate law reports eg All England law Reports

Question 3

Original Precedent

Answer 3

judge makes a decision for the first time about a point of law. Donoghue v Stevenson

Question 4

Binding Precedent

Answer 4

If facts of case are very similar to a previous one, then judge must follow the previous decision (if the decision came from a higher court) Grant v Australian Knitting Mill

Question 5

Persuasive Presedent

Answer 5

judge doesn’t have to follow previous decision, but may choose to do so. R v R. 5 situations when this may occur:
• Decision was made by court lower in hierarchy
• Decision made by Privy Council
• Obiter dicta
• Dissenting judgement
• Courts in other countries

Question 6

Distinguishing

Answer 6

This is a way that Judges can avoid a precedent. Distinguishing - Judge rules that the facts of the present case and the previous precedent are sufficiently different for him not to be bound by previous case

Question 7

Overruling

Answer 7

This is a way that Judges can avoid a precedent. A higher court decides that the legal rule in a previous precedent set by a lower court is wrong

Question 8

Disaproving

Answer 8

This is a way that Judges can avoid a precedent. When a lower court or a court looking at another point of law dislikes a precedent but has to follow it. It can however create a persuasive precedent so that in another case a higher court might be persuaded to change the disliked precedent.