Types of Judicial Precedent

Question 1

What is Original Precent?

Answer 1

• When a case raises a new point of law that has never been decided. The Judges will make a decision on that point of law which will then become original precedent.
• They decide by looking at cases which are closest in principle and may apply similar rules known as reasoning by analogy.

E.G. - Donoghue v Stevenson - Created neglegence.

Question 2

What is Binding Precedent?

and a bit of case law too

Answer 2

Binding precedent is where a decision in a senior court is made to be followed by courts below it where relevant.

E.G. - the Ratio/precedent from Donghue had to be followed in Grant v Australian Knitting mills

Question 3

What is Persuasive Precedent?

Answer 3

This is a decision that a court is not bound to follow but can chose to follow if it wishes. Persuasive precedents come from a veriety of sources i.e. Obiter or things said in lower courts.

E.G. R v R, where the HoL chose to follow the CoA’s decision.

Question 4

What happened in Donoghue v Stevenson? And what Ratio was given?

Answer 4

• Donoghue found a decomposing snail in her ginger beer.
• The HoL made a new law that allowed C to sue the manufacturer. Ratio: Manufacturers owe a duty of care to consumers of their products

Question 5

What happened in Grant v Australian Knittings Mills

Answer 5

• C got a rash from wearing underwear made by D.
• The CoA had to follow the same decision as in Donoghue as that ratio was binding.

Question 6

What happened in R v R

Answer 6

• Hol considered the question of whether marital rape should be illegal. While doing this they looked at a similar case in the CoA, making that ruling persuasive on the HoL decision.

Question 7

What are the types of persuasive precedent?

Answer 7

• Lower courts: higher courts = not bound to decision - R v R
• Obiter Dicta: Obiter = usually not relevant to other cases - R v Howe + R v Gotts
• **Dissenting Judgements: **A Judgement that goes against the majority vote by judges is persuasive. Rose and Frank v Crompton Bros
• Privy Council Courts: This isn’t a UK court so UK courts don’t have to follow their decisions.
• **Decisions in other courts: **Some countries have similar legal systems to the UK. These rules dont bind us but we can look at them as persuasive. R v Bentham - chose to follow the Canadian case of R v Sloan about posession of firearms.