Types Of Precedent

Question 1

What is binding precedent?

Answer 1

A precedent which must be followed.
In order to be bound there will have to be similar material facts.

(Donoghue v Stephenson)

Question 2

What is an original precedent?

Answer 2

A precedent which involves a point of law which has never been decided before.
Judges can reason by analogy when arriving at original precedent.
Hunter v Canary Wharf (loss of TV reception)

Question 3

What is a persuasive precedent?

Answer 3

Where a judge looks at principles in other cases and if persuaded by the legal reasoning he may decide to follow the case- is persuaded.

R v bentham possession of a gun USA

Question 4

How can judges avoid following precedent?

Answer 4

Reversing, overruling, distinguishing

Question 5

What is reversing?

Answer 5

Where a court higher in the hierarchy OVERTURNS the decision of a lower court in the SAME CASE.

Question 6

What is overruling?

Answer 6

When a later court determines that the law in an earlier and DIFFERENT CASE was wrongly decided.
RvR marital rape

Question 7

What is distinguishing?

Answer 7

Allows a judge to avoid an otherwise binding precedent. Where the material facts are different enough so as to allow the judge to draw a distinction.
Balfour v Balfour and Merritt v Merritt

Question 8

What are the advantages of precedent?

Answer 8

• provides certainty, consistency and predictability- allows people to plan affairs lawyers can advise clients
• system of precedent is well established- 100s of years precise, readily available to lawyers saves time and money in not having to argue from scratch

Question 9

What are the disadvantages of precedent?

Answer 9

• doesn’t allow law to easily change with society and technology I.e. RvR
• any flexibility could denote judicial law making goes against separation of powers
• hundreds of thousands of cases may be difficult to find relevant precedent, judgements often long with no clear distinctions