TYPES OF PRECEDENT Flashcards
BINDING PRECEDENTS
decisions made by judges…
- must be followed in future cases with similar facts
BINDING PRECEDENTS
Donoghue v Stevenson
- 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
BINDING PRECEDENTS
Daniels v White
- bottle of lemonade gave the plaintiff felt a burning sensation
- found to contain a chemical
- compensation was available based on D v S
BINDING PRECEDENTS
in 1066
- after the Norman Conquest, William the Conqueror began to establish the common law
BINDING PRECEDENTS
they decided…
- when dealing with the same or similar facts, they would stand by each other’s decisions known as the stare decisis
BINDING PRECEDENTS - RATIO DECIDENDI
this is
- the judges reason for the decision
BINDING PRECEDENTS - RATIO DECIDENDI
if a case
with the same or similar facts appears, the ratio decidendi is applied
BINDING PRECEDENTS - OBITER DICTA
this is…
- where a judge makes other statements around the reason for the decision
BINDING PRECEDENTS - OBITER DICTA
in the obiter dicta…
- judge may speculate how the outcome of the case would have differed had the facts been slightly different
BINDING PRECEDENTS - OBITER DICTA
difficulties…
- 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
ORIGINAL PRECEDENT
involves…
- a point of law that has never been decided before; no existing common law or Act of Parliament
ORIGINAL PRECEDENT
it is rare…
- since there is normally either a previous precedent or AoP that can be applied
ORIGINAL PRECEDENT
they can be…
- a response to problems with existing laws or changing moral and social standards, as well as wider economic and technological changes
ORIGINAL PRECEDENT
in order to make a decision…
- the judge is likely to use the rules from cases that have similar features
- this is called reasoning by analogy
ORIGINAL PRECEDENT
some legal commentators…
- used to believe that the judge is only declaring what the law is
ORIGINAL PRECEDENT
Lord Denning stated
- we do not change the law, we declare it. The law lies in the breasts of the judges
ORIGINAL PRECEDENT
Airedale NHS trust v Bland
- 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
ORIGINAL PRECEDENT
Hunter v Canary Wharf
-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
PERSUASIVE PRECEDENT - COUNTRIES
this is when…
- the other country uses the common law system such as Commonwealth countries
PERSUASIVE PRECEDENT - COUNTRIES
the decision…
- can only be referred to where there is a lack of case law in the UK
PERSUASIVE PRECEDENT - COUNTRIES
Re S (1992)
- 9 month pregnant woman refused an emergency caesarean on religious grounds
- HC granted permission for this by following an American case with similar facts
PERSUASIVE PRECEDENT - OBITER DICTA
this can…
- become a binding precedent if picked up in a later case and made into the ratio decidendi
PERSUASIVE PRECEDENT - OBITER DICTA
this often…
- happens with the SC and CoA obiter because of the high level of judges that sit there
PERSUASIVE PRECEDENT - OBITER DICTA
R Howe
- Duress was not a defence to murder
- Obiter dicta statements the judge also stated that duress could not be a defence to attempted murder
