Precendence

Question 1

McFarlane v Tayside Health Board

Answer 1

An example of where there were a lot of dissenting opinions of the judges. Which is the ratio? Follow the general rules.

Question 2

Morgan Guarenty

Answer 2

1. Use of international jurisdictions can be very persuasive, but they are not binding.
2. The argument of age does not automatically remove the precedence of a case - here a case from ‘59 and ‘75 were disallowed, but a 1770s case was still considered to have precedence.

Question 3

The Mostyn case.

Answer 3

Ratio must be consistent with previous cases. It cannot go alone. Ratios are cyclical.

Question 4

Fortington v Lord Kinnaird

Answer 4

Subsequent legislation overtook a precedent - this no longer applied.

Question 5

Cope land v Gillies

Answer 5

Ratio didn’t consider all the relevant facts of the case (or not provided with them all) - erroneous - not binding.

Question 6

Donnelley v Donnelley

Answer 6

Age discounted a precedent.

Question 7

Tyrer v UK

Answer 7

While the ECHR is not binding, it should be taken into account under the human Rights Act 1998. Highly persuasive. However this case held that the ECHR itself should be interpreted in light of present day conditions. Not when it was made.

Question 8

Donoghue v Stevenson

Answer 8

1. Generality of the ratio - maufacturer of drinks? Of consumables? Or anything? Taken to be what is most likely within the context of the words.
2. The development of ratios and precedent - used in subsequent cases, but because it was so unclear, it was changed and developed. Even if they are binding they are not totally fixed.