the doctrine of precedent

Question 1

how is case law created?

Answer 1

common law systems - sources of law = decisions made in legal cases

Question 2

what is ratio decidendi?

Answer 2

principle of law on which decisions is based

Question 3

true or false - ratio decidendi of previously decided similar case will be binding on lower or equal court

Answer 3

true

Question 4

true or false - not the decision by the rule of law on which the decision is based

Answer 4

true

Question 5

what is obiter dicta?

Answer 5

things said by the way

Question 6

true or false a binding precedent must be followed?

Answer 6

true

Question 7

case example for ratio decidendi (Rylands v Fletcher (1868) LR 3 HL 330)

Answer 7

• 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

Question 8

donoghue v stevenson (1932) AC 562

Answer 8

• 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

Question 9

what is stare decisis?

Answer 9

rules known as judicial precedent i.e. stand by cases already decided

Question 10

what do judge in lower courts must follow regarding decisions made by higher courts in earlier cases with similar facts?

Answer 10

the ratio

Question 11

what do supreme courts do?

Answer 11

bind all lower courts, rarely overrule own decisions

Question 12

what is per incuriam?

Answer 12

previous decisions made in ignorance of some authority

Question 13

what are civil and criminal divisions bound by?

Answer 13

Supreme Court

Question 14

true or false - criminal divisions may not follow own decisions if cause injustice

Answer 14

true

Question 15

what are higher courts bound by?

Answer 15

court of appeal and Supreme Court

Question 16

true or false - high court are bound by own decisions

Answer 16

false

Question 17

what courts are the crown courts bound by?

Answer 17

all courts above it

Question 18

can the crown court form binding decisions?

Answer 18

no

Question 19

can high court judges sit in crown courts ?

Answer 19

yes and the decision is persuasive

Question 20

what courts are magistrates and county courts bound by?

Answer 20

high court, court of appeal and Supreme Court

Question 21

are the decisions made in the magistrates and county court reported on and produce binding/persuasive precedents ?

Answer 21

false

Question 22

what court do the judges of the privy council sit in?

Answer 22

Supreme Court

Question 23

true or false - the decisions of the privy council not binding on English courts but strong persuasive authority because seniority of judges

Answer 23

true

Question 24

case example of the privy council (R v James and Karimi (2006))

Answer 24

CA held that in exceptional circumstances a PC judgement can bind English courts and overrule earlier HL judgement

Question 25

what does s.2 HRA 1998 state about the cases decided in ECtHR?

Answer 25

must take account of the cases decided in ECtHR

Question 26

do binding precedents have to be followed?

Answer 26

yes

Question 27

persuasive precedent may be applied, dependent on: (4 factors)

Answer 27

• rank of court
• prestige of judge
• whether there was a dissent
• date of case

Question 28

what are the 4 factors of the precedent?

Answer 28

1. follow - will apply percent if facts of case are similar to previous case
2. distinguish - will not apply on grounds that facts are not similar
3. overrule - principle set down by lower court is overturned by a higher court in different later case
4. reverse - higher court changes decisions on appeals from lower courts, in the same case on appeal, where the law has been misinterpreted

Question 29

what are the 7 ways to avoid a precedent?

Answer 29

1. distinguishing on facts - arguing facts are different in significant ways
2. distinguishing point of law
3. giving precedent very narrow ratio decidendi
4. no clear ratio
5. precedent inconsistent with later decisions go higher courts
6. per incuriam
7. outdated