RC5: Legal System and Judicial Precedent

Question 1

The Court system and key personnel

Answer 1

Supreme Court:
-Headed by the president of the supreme court, The Right Hon Lord Reed of Allermiur
-Justices were referred to as ‘Lady’ and ‘Lord’
-Owens v Owens

Court of Appeal- Criminal Division:
-Justices are ‘Lord Justices of the Peace’ and referred to as ‘Lord Justice’, ‘Lady Justice’
-Headed by the Lord Chief Justice, Lord Burnett

Court of Appeal- Civil Division:
-Headed by the Master of the Rolls, Sir Jeffery Vos

High Court:
-Queen’s Bench Division- President of the Queen’s Bench Division
-Family Division- President of the Family Division
-Chancery Division- President of the Chancery Division

County Court

Tribunals Judiciary

Magistrates Court

Crown Court

Question 2

What is judicial precedent ?

Answer 2

-Concerned with the importance of case law in our system

-It is lawyers term known as legal experience

-We’ve al done things before if proved to be successful; law is essentially nor different and nor should it be if we want some degree of certainty in our law.

Question 3

Advantages of judicial precedent

Answer 3

Lord Chancellor stated:

‘…a scheme of precedent is clearly capable of providing important benefits. It assists litigants to assess the nature and scope of legal obligations and, to the extent that it enables them to predict the likely outcome of disputes, it restricts the scope of litigation… It reflects a basic principle of the administration of justice that like cases should be treated alike… Rules of law based on a system of precedent are therefore likely to exhibit characteristic of certainty, consistency and uniformity’.
Adv:
-Gives certainty to the law

-It’s a curb on arbitrary decision making

-Provides a rational basis for judicial decision making

-Enables precedent to be set by those with experience

Question 4

Disadvantages of judicial precedent

Answer 4

-Makes the law inflexible

-Change is slow

-Can lead to injustice

-Encourages a tendency towards hair splitting in a legal argument

Question 5

Departing from precedent-HOLs/SC

Answer 5

Their Lordships regard the use of precedent as an indispensable foundation to decide what is law and its application in individual cases… nevertheless [to] recognize that too rigid adherence to precedent may lead to injustice in a particular case and unduly restrict the development of the law. They propose therefore to modify their practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so… This announcement is not intended to affect the use of precedent elsewhere than in this House.

Question 6

Stare Decisis

Answer 6

-Let the decision stand

-It’s a binding Precedent

-It’s the part of a judgment that must be followed by other courts dealing with analogous cases, i.e. the ratio decidendi

Question 7

How can we avoid preedent ?

Answer 7

-Distinguish
-Overrule

Question 8

Departing from precedent- COA

Answer 8

Bound by its own decisions subject to the exceptions in Young v. Bristol Aeroplane [1944] KB 718; [1946] AC 169

-Two conflicting decisions of CA
-Previous CA decision conflicts with a later decision of the HL / SC which failed to expressly overrule it. The CA is obliged to follow the HL / SC under the normal rules of precedent.
-“Per Incuriam” (“through lack of care”)

Davis v Johnson [1979] AC 264:
-Lord Denning argued in favour of CA not being bound by its own decisions
-When the case went to HL, Lord Diplock silenced Lord Denning’s arguments, reasserting the hierarchical nature of judicial precedent.