precedent Flashcards
what is the Ratio Decendi
the explanation of the legal principles on which the decision was made
what is precedent
the source of law where past decisions of the judges create for future judges to follow(case law).
what is Obiter Dicta
the rest of the judgement which may include passages where the judge might speculate on what his decision may have been if the facts were different- none of the obiter dicta forms part of the precedent but influences judges in later cases.
what is stare decisis
the principle that all courts will follow existing precedent to help ensure that the law is applied consistently through time and throughout all the courts in the country.
how many judges sit in courts of first instances
1 (2+ in more difficult cases)
how many judges can sit in the appeal court
5 judges
what are the 3 types of precedent
- original
- binding precedent
- persuasive precedent
explain what is meant by original precedent
where a point of law has never been decided before then whatever the judge decides will be a new precedent for future judges to follow.
explain what it meant by binding precedent
this is a precedent which must be followed even if the judge does not agree with it. it will only be binding where the material facts are sufficiently similar and the earlier decision was made in a court superior to the one where the current case is being heard. thus the CoA must follow the HoL and all courts below the CoA must follow it and the HoL. All UK courts are bound by decisions of the European court of justice.
explain what is meant by persuasive precedent
this is a precedent which is not binding but the judge has been “persuaded” to follow it because he feels it is correct (but only where it is not bound by a different precedent)
explain the case of Donoghue V Stevenson 1932
F: snail in a bottle, made claimant ill because her friend bought the drink they thought they couldn’t claim
H: claim was successful, modern law of negligence
what is reasoning by analogy?
it is another option for the judge where there is no clear precedent. they find a past similar case which is reasonably close in principle and to use the rule from the case. sometimes these cases used are very old.
explain the case of Hunter v Canary Wharf 1996
F: tort of nuisance, there was a tall building in the way of tv reception, court was asked to decide whether occupation of property was a sufficient link that entitled an occupier to sue in private nuisance
H: decided you can’t sue for the TV reception as it’s purely entertainment and therefore no right of action allowed.
what case was Hunter V Canary Wharf analogus to?
Aldred’s case- V claimed that D had erected a pig sty too close to his house, stench was unbearable
what precedent case arose from courts lower in the hierarchy
R v R (1991) - followed a decision that marital rape was illegal
what precedent case arose from privy council decisions
Thabo Meli- Ruled that duress couldn’t be a defence to the charge of murder
what precedent case arose from obiter dicta statements (especially if they were made in the HL)
R v Howe (1987)
explain following in relation to precedent
if the facts of a later case are sufficiently similar, the precedent from the earlier case is followed. only the house of lords is able to ignore or change previous precedent
explain distinguishing in relation to precedent
where a judge finds that a precedent to which he is referred is NOT STRICTLY RELEVANT TO THE MATERIAL FACTS OF THE CASE HE IS CONCERNED WITH AT THE PRESENT TIME the judge is said to DISTINGUISH the cases (i.e. say that they not sufficiently similar) and the previous precedent is therefore not binding.
explain the case of Balfour v Balfour (1919)
F:husband promised to pay wife £30 a month when he worked away, marriage broke down and wife wanted to reclaim money her husband owed her
H: common law doesn’t regulate agreements between spouses.
