Types of Precedent (NOT AN EXAM QUESTION) Flashcards
What is judicial precedent?
Judicial Precedent means a judge’s decision from a previous case which becomes common law and must be followed by lower courts.
Judicial precedent is based on the principle of stare decisis, which means standing by each other’s decisions.
JP applies when dealing with the same or similar facts (like cases treated alike).
What are the 3 types?
- Binding precedent
- Persuasive precedent
- Original precedent
Binding precedent
the judge’s decision must be followed in all future similar cases.
Donoghue v Stevenson
C was unwell as a result of a dead snail being in her drink and sued the manufacturer. Her claim was in the tort of negligence and at the time this was a new idea. Lord Atkin allowed her claim based on the neighbour principle and this ruling has now become a binding precedent.
Persuasive precedent
where the facts of a case are the same or similar, the judge’s decision does not need to be followed but can be considered. There are different types of persuasive precedent.
Within a case judgment there is obiter dicta which are the other words said by the judge, to explain or illustrate his decision. They do not form part of the decision but may help explain the law, e.g. Hill v Baxter – hypothetical situations. Judges in higher court can consider the judgment from the lower court. Judges can also refer to decisions from other countries such as Scotland, Australia, USA.
Original precedent
where the facts of the case are so completely new that there is no common law or Act of Parliament that can be applied by the judge.
Bland
Bland had been in a persistent vegetative state for three and a half years, following the Hillsborough disaster. The House of Lords granted permission to withdraw support, knowing he would die.
Lord Denning said about original precedent: ‘We do not change the law, we declare it. The law lies within the breasts of the judges.’
