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.
explain the facts of Merritt v Merritt (1971)
F: D and C were married they separated and D agreed to pay £40 a month to his wife to pay off mortgage and when it was paid he’d transfer her the house he reduced £40 to £25 and refused to sign over the house.
explain overruling in relation to precedent
this is where a court in a later case states that a legal rule decided in an earlier case is wrong. this may occur where a higher court overrules a lower court
explain how overruling applied to Hall v Simons
court overruled previous decision, solicitors can be used
explain reversing in relation to precedent
where a court higher up in the hierarchy overturns a decision of a lower court in the same case. E.G. CoA may reverse a decision of the high court or the HoL may reverse a decision of the HoL
explain how reversing applied to R v Woolin
CoA upheld crown court decision of murder but the HoL reversed the ruling
what are magistrates courts for
trials of summary offences, committals to the crown court, family proceedings courts and youth courts
what are crown courts for
trials of indictable offences, appeals from the magistrates court, case for sentence
what are the administrable courts for
supervisory and appellate jurisdiction overseeing the legality of decisions and actions of inferior courts, tribunals, local authorities, ministers of the crown and other public bodies and officials.
what are the QBDs for
contract and tort etc, commercial court and admiralty court
what is the criminal division for
appeals from the crown court
what are the tribunals for
hear appeals from decisions on: immigrations, social security, child support, pensions, tax and land.
what are the county court used for
majority of civil litigation subject to nature of claim.
what are the divisional courts used for
appeals from the county courts on bankruptcy and land
what is the chancery division used for
equity and trusts, contentious probate, tax partnerships, bankruptcy and companies court, patents court
what is the divisional courts for
appeals from the magistrates courts
what are the high courts used for
family divisions
what is the civil division used for
appeals from the high court, tribunals and certain cases from county courts
what is the supreme court used for
the final court of appeal for all UK civil cases and criminal cases from England, Wales and Northern Ireland
describe the hierarchy of the UK courts
google it
explain the powers of the supreme court
its decisions bind all other courts in the English legal system, until 1966 it was bound by its own previous decisions
what was held in the London street tramways v London county council 1898
HoL geld that certainty in the law was more important than the possibility of individual hardship being caused through having to follow a past decision
in brief state what the lord chancellor said in his practice statement in 1966
“rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of law they therefore propose to … depart from a previous decision when it appears right to do so”
if there’s injustice then you can ignore precedent
explain the case of Knuller LTD v DPP (1973) in relation to the practice direction when the HoL was unwilling to use this power
“in the general interest of certainty in the law we must be sure that there is some very good reason before we act”
explain the case of R v Shivpuri (1986) in relation to the practice statement stressing criminal law should be certain so it is unsurprising that the HoL did not rush to use it
overruled Anderton v Ryan (1985) first use in criminal case court recognised that they might sometimes make errors and the most important thing was to put the law right
explain the case of R v G (2003) in relation to the practice statement stressing criminal law should be certain so it is unsurprising that the HoL did not rush to use it
overruled Caldwell recklessness (careful adult should have realised the risk) to D is only reckless if he realised there was a risk and goes ahead with it anyway.
what happened in 2009 to the HoL
The supreme court replaced the HoL, the constitutional reform act 2005 transferred the HoL powers to the supreme court initially it was unclear if this included the practice directions
what did the case Austin v London borough of Southwark confirm
the power to use the practice statement had been transferred to them but did not use it in this case (tenancy law)
what did the supreme court do in the case of Knauer v ministry of justice (2016)
they used the power to overrule 2 previous decisions of the HoL regarding the date damages should be calculated in the law of tort
recite the operation of judicial precedent in the HoL and supreme court
- 1966-practice statement- HoL will depart from their own previous decisions when it is right to do so
- 1968-conway v rimmer- first use of the practice statement only involves technical law on discovery of documents
- 1972-herrington v british railways board- first major use of practice statement on the duty of care owed to child trespassers
- 1973-Knuller ltd v DPP- certainty in the law was important and would not always use practice statement
- 1986- R v Shivpuri- first use of practice statement in criminal law
- 1993- pepper v hart-practice statement used to allow courts to look at hansard for the purpose of statutory interpretation
- 1898- London street tramways v London county council- HoL decide they are bound by their own previous decisions
- 2003- R v G and R- practice statement used to overrule the decision in Caldwell and recklessness in criminal law
- 2010- Austin v London borough of Southwark- supreme court state that the practice statement applies to it
- 2016- Knauer v ministry of justice- supreme courts uses practice statement to overrule 2 previous decisions as to the amount of damages payable in the tort cases or personal injury/ death
explain the exceptions that allowed the CoA’s own decisions in the case of young v Bristol aeroplane co. 1944
- where there are conflicting decisions in past CoA cases, the court can choose which one it will follow and which it will reject
- where there is a decision of the SC/HoL which effectively overrules a CoA decisions CoA must follow
- per decision is made per incuriam (through lack of care) not followed due to mistake/ carelessly not following an act or authority
explain the exceptions that allowed the CoA’s own decisions in the case of Rickards v Rickards 1989
- lord Donaldson said that it would only be in ‘rare’ and exceptional cases that CoA would be justified in refusing to follow a previous decision
- was used in this case because mistake was over a crucial point of whether the court had the power to hear that particular type of case
- therefore the previous decision had been made per incuriam
