the doctrine of precedent Flashcards
how is case law created?
common law systems - sources of law = decisions made in legal cases
what is ratio decidendi?
principle of law on which decisions is based
true or false - ratio decidendi of previously decided similar case will be binding on lower or equal court
true
true or false - not the decision by the rule of law on which the decision is based
true
what is obiter dicta?
things said by the way
true or false a binding precedent must be followed?
true
case example for ratio decidendi (Rylands v Fletcher (1868) LR 3 HL 330)
- contractor built reservoir on defendants land, reservoir burst, water escaped and flooded plaintiff’s mine
- HL held defendant liable to plaintiff for damage caused to min by escaping water on the basis that a person who keeps something on his land that may cause damager to another is liable
- ratio = any person who keeps anything that is likely to cause damage to another person’s property if it escapes is liable for that damage
donoghue v stevenson (1932) AC 562
- neighbourhood principle
- the snail in the bottle case !! (brought the drink for the women so the women couldn’t sue)
- any manufacturer of products owes a duty to the consumer to take reasonable care in the preparation of goods which are sold to consumers
what is stare decisis?
rules known as judicial precedent i.e. stand by cases already decided
what do judge in lower courts must follow regarding decisions made by higher courts in earlier cases with similar facts?
the ratio
what do supreme courts do?
bind all lower courts, rarely overrule own decisions
what is per incuriam?
previous decisions made in ignorance of some authority
what are civil and criminal divisions bound by?
Supreme Court
true or false - criminal divisions may not follow own decisions if cause injustice
true
what are higher courts bound by?
court of appeal and Supreme Court
true or false - high court are bound by own decisions
false
what courts are the crown courts bound by?
all courts above it
can the crown court form binding decisions?
no
can high court judges sit in crown courts ?
yes and the decision is persuasive
what courts are magistrates and county courts bound by?
high court, court of appeal and Supreme Court
are the decisions made in the magistrates and county court reported on and produce binding/persuasive precedents ?
false
what court do the judges of the privy council sit in?
Supreme Court
true or false - the decisions of the privy council not binding on English courts but strong persuasive authority because seniority of judges
true
case example of the privy council (R v James and Karimi (2006))
CA held that in exceptional circumstances a PC judgement can bind English courts and overrule earlier HL judgement
what does s.2 HRA 1998 state about the cases decided in ECtHR?
must take account of the cases decided in ECtHR
do binding precedents have to be followed?
yes
persuasive precedent may be applied, dependent on: (4 factors)
- rank of court
- prestige of judge
- whether there was a dissent
- date of case
what are the 4 factors of the precedent?
- follow - will apply percent if facts of case are similar to previous case
- distinguish - will not apply on grounds that facts are not similar
- overrule - principle set down by lower court is overturned by a higher court in different later case
- reverse - higher court changes decisions on appeals from lower courts, in the same case on appeal, where the law has been misinterpreted
what are the 7 ways to avoid a precedent?
- distinguishing on facts - arguing facts are different in significant ways
- distinguishing point of law
- giving precedent very narrow ratio decidendi
- no clear ratio
- precedent inconsistent with later decisions go higher courts
- per incuriam
- outdated
