The Doctrine of Precedent Flashcards
when does the doctrine of precedent apply (when is a proposition stated in one case binding in another)?
if it is a proposition of law, part of the ratio decidendi of a case, decided in court whose decisions are binding on the present court, there are no relevant distinctions between the two cases
what is a proposition of law?
it must be proved or inferred from the evidence
what is a ratio?
a proposition of law which is binding
what are the 3 main things a judge must do?
decide what the legally relevant or material facts are, state the relevant law, apply the law to the facts in order to decide the outcome
what are material facts
essential facts to the case e.g. that the D was in charge of the bicycle in Corkery v Carpenter
what does obiter dicta mean?
‘other things said’
why may a proposition be classed as obiter rather than ratio?
if a judge speculates about the decision they would have made if the facts had been different
what did Lord Hailsham LC say in Cassell v Broome 1971?
it is necessary for lower tiers ‘to accept loyally the decisions of the higher tiers’
who does supreme court bind?
below but not itself
who does the court or appeal bind
below and normally itself
who does the high court bind
appellate: below and normally itself
1st instance: below but not itself
who does the crown court bind
no one
who does the county and magistrates’ court bind
no one
who does the privy council bind
no one but highly persuasive
who does ECHR bind
no one but persuasive in matters relating to convention rights under s2 HRA 1998
who does family court bind
appellate: below and normally itself
below high court judges: no one
what are Lord Bingham’s 5 situations where judges would be reluctant to make new law?
citizens arranges affairs on basis of certain understanding of new law, defective legal rule needs to be replaced, issues of current social policy where there is no consensus in the community, parliament is currently addressing the issue, issue is too far removed from ordinary judicial experience
what is distinguishing?
a court decides the holding or legal reasoning of a precedent case that will not apply due to materially different facts between the two cases.
what is overruling?
a principle laid down by a lower court is declared incorrect and not followed by a higher court in a different later case
what is departing?
when a court departs from an earlier case
what is reversing?
decision of a court in the same case is altered by a higher court on appeal e.g. CoA comes to a different conclusion from High Court on point of law so the court will reverse the decision made by the high court
what are other persuasive decisions?
decisions of non-binding courts, obiter dicta, decisions of privy council, decisions of foreign courts, decisions of ECHR, statements in legal textbooks or periodicals
what is a civil law system?
legal systems based on roman law
what is common law based on?
case law and principle of precedent
