TYPES OF PRECEDENT

Question 1

BINDING PRECEDENTS
decisions made by judges…

Answer 1

• must be followed in future cases with similar facts

Question 2

BINDING PRECEDENTS
Donoghue v Stevenson

Answer 2

• poured the remainder of the ginger beer into her glass, there was decomposing remains of a dead snail
• claimant was unwell
• sued the manufacturer
• claim was in the tort of negligence and at the time this was a new idea
• held: manufacturer ordered a duty of care

Question 3

BINDING PRECEDENTS
Daniels v White

Answer 3

• bottle of lemonade gave the plaintiff felt a burning sensation
• found to contain a chemical
• compensation was available based on D v S

Question 4

BINDING PRECEDENTS
in 1066

Answer 4

• after the Norman Conquest, William the Conqueror began to establish the common law

Question 5

BINDING PRECEDENTS
they decided…

Answer 5

• when dealing with the same or similar facts, they would stand by each other’s decisions known as the stare decisis

Question 6

BINDING PRECEDENTS - RATIO DECIDENDI
this is

Answer 6

• the judges reason for the decision

Question 7

BINDING PRECEDENTS - RATIO DECIDENDI
if a case

Answer 7

with the same or similar facts appears, the ratio decidendi is applied

Question 8

BINDING PRECEDENTS - OBITER DICTA
this is…

Answer 8

• where a judge makes other statements around the reason for the decision

Question 9

BINDING PRECEDENTS - OBITER DICTA
in the obiter dicta…

Answer 9

• judge may speculate how the outcome of the case would have differed had the facts been slightly different

Question 10

BINDING PRECEDENTS - OBITER DICTA
difficulties…

Answer 10

• may arise in separating the RD from the OD as the judgement is in continuous form
• judgement can consist of many pages and there can be more than one judgement
• so there will be more than one ratio

Question 11

ORIGINAL PRECEDENT
involves…

Answer 11

• a point of law that has never been decided before; no existing common law or Act of Parliament

Question 12

ORIGINAL PRECEDENT
it is rare…

Answer 12

• since there is normally either a previous precedent or AoP that can be applied

Question 13

ORIGINAL PRECEDENT
they can be…

Answer 13

• a response to problems with existing laws or changing moral and social standards, as well as wider economic and technological changes

Question 14

ORIGINAL PRECEDENT
in order to make a decision…

Answer 14

• the judge is likely to use the rules from cases that have similar features
• this is called reasoning by analogy

Question 15

ORIGINAL PRECEDENT
some legal commentators…

Answer 15

• used to believe that the judge is only declaring what the law is

Question 16

ORIGINAL PRECEDENT
Lord Denning stated

Answer 16

• we do not change the law, we declare it. The law lies in the breasts of the judges

Question 17

ORIGINAL PRECEDENT
Airedale NHS trust v Bland

Answer 17

• judges had to decide waterhen it would be lawful to switch off the life support of Anthony Bland
• was unlikely he would ever recover
• held to be legal

Question 18

ORIGINAL PRECEDENT
Hunter v Canary Wharf

Answer 18

-large tower was built in East London and hundreds of citizens were able to claim compensation for year’s interference to their television reception
- held to be a nuisance

Question 19

PERSUASIVE PRECEDENT - COUNTRIES
this is when…

Answer 19

• the other country uses the common law system such as Commonwealth countries

Question 20

PERSUASIVE PRECEDENT - COUNTRIES
the decision…

Answer 20

• can only be referred to where there is a lack of case law in the UK

Question 21

PERSUASIVE PRECEDENT - COUNTRIES
Re S (1992)

Answer 21

• 9 month pregnant woman refused an emergency caesarean on religious grounds
• HC granted permission for this by following an American case with similar facts

Question 22

PERSUASIVE PRECEDENT - OBITER DICTA
this can…

Answer 22

• become a binding precedent if picked up in a later case and made into the ratio decidendi

Question 23

PERSUASIVE PRECEDENT - OBITER DICTA
this often…

Answer 23

• happens with the SC and CoA obiter because of the high level of judges that sit there

Question 24

PERSUASIVE PRECEDENT - OBITER DICTA
R Howe

Answer 24

• Duress was not a defence to murder
• Obiter dicta statements the judge also stated that duress could not be a defence to attempted murder

Question 25

PERSUASIVE PRECEDENT - OBITER DICTA
R v Gotts

Answer 25

• D was charged with attempted murder and tried to argue he could use the defence of duress
• but the obiter dicta statements from R v Howe were followed as persuasive precedent by CA

Question 26

PERSUASIVE PRECEDENT - LOWER COURTS
lower court decisions…

Answer 26

• can be looked and made into law

Question 27

PERSUASIVE PRECEDENT - LOWER COURTS
the SC…

Answer 27

• often follow of the CoA because the judges are very experienced

Question 28

PERSUASIVE PRECEDENT - LOWER COURTS
for example, R v R

Answer 28

• 1991
• HoL agreed with and followed the same reasoning of the CoA in deciding a man could be guilty of raping his wife

Question 29

PERSUASIVE PRECEDENT - DISSENTING JUDGEMENTS
when a case…

Answer 29

has been decided by a majority of judges, the judges who disagreed will have explained their reasons

Question 30

PERSUASIVE PRECEDENT - DISSENTING JUDGEMENTS
if this case or a similar later case…

Answer 30

• goes on appeal to the SC, the SC may be persuaded by the dissenting judgement and follow it

Question 31

PERSUASIVE PRECEDENT - DISSENTING JUDGEMENTS
Candler v Crane Christmas

Answer 31

• Lord Denning made a dissenting judgment which was followed in the case of Hedley Byrne v Heller

Question 32

PERSUASIVE PRECEDENT - DECISIONS OF THE PRIVY COUNCIL
this court…

Answer 32

• rules on cases from the commonwealth and is not part of the UK hierarchy
• so doesn’t create binding precedent

Question 33

PERSUASIVE PRECEDENT - DECISIONS OF THE PRIVY COUNCIL
Jersey v Holley (2005)

Answer 33

• PC decided that the decision made by the HoL in R v (Morgan James) Smith 2000 was actually wrong and they decided not to follow it