Types Of Precedent Flashcards
What is binding precedent?
Precedent that must be followed by future courts lower in hierarchy
Usually binding precedent comes from higher court, but can be bound by courts own decision
Usually in ratio decidendi of judgment, but obiter dicta can develop into ratio e.g. Ashlea Wilson (2007) from obiter dicta of R V Howe (1987)
What is persuasive precedent?
Precedent that does not have to be followed but judge can choose to follow e.g. courts lower in heirachy, privy council decisions, obiter dicta, dissenting judgements, decisions in other countries
E.g. pursausive precedent in lower courts
R v R (1991) HOL persuaded by COA that man can be guilty of raping wife
Privy council decisions perusavir precedent
Highest court of appeal for commonwealth countries, but presided over by many of our own Supreme Court justices e.g. Wagon Mound (1961) now used in remoteness in tort law
Obiter dicta in persuasive precedent
Statements in obiter dicta not binding but May influence judges in f tire cases, especially by Supreme Court e.g. R v Howe 1987 and R V Gotts 1992
Dissenting judgments in persuasive precedent
Where case has been decided by a majority of judges, judge who disagreed will have explain reasons, if it goes to Supreme Court on Appeal, Supreme Court May be convinced and follow it e.g. Hedley Byrne v Heller (1964)
Decisions of courts in other countries in persuasive precedent
Especially for countries that use same ideas of common law as Uk e.g. Canada, Australia, New Zealand
E.g. R v Bentham (2003) followed Canadian R v Sloan (1974)
What is original precedent?
Precedent that comes about when point of law has never been decided, so no cases bound by.
Once declared it it’s bending and original e.g. Donoghue v Atevebson (1932) developed negligence law.
Mainly incdevoloment of technologies e.g. Hunter v Canary Wharf (1998) which interfered loss of tv reception using “reasoning by analogy”
