Types of Precedent (SA P2)

Question 1

What is a binding precedent?

Answer 1

• Must be followed by future courts
• Usually found in the ratio decidendi of the judgement
• e.g R V Howe 1987

Question 2

What is persuasive precedent?

Answer 2

Does not have to be followed by later cases, but which the judge may choose to follow

Question 3

Courts lower in the hierarchy (PP)

Answer 3

• May be adopted/applied by higher court
• Mostly between court of appeal and supreme court

Question 4

e.g courts lower in the hierarchy (PP)

Answer 4

• R V R 1991
• HOL persuaded by court of appeal that a man could be guilty of raping his wife

Question 5

Privy council decisions (PP)

Answer 5

• Highest court of appeal (not in english and welsh hierarchy)
• Presided over many of our own supreme court justices

Question 6

e.g privy council decisions (PP)

Answer 6

• The Wagon Mound (No.1) 1961
• Decision of privy council, become one of the leading cases on remoteness in tort law

Question 7

Obiter dicta (PP)

Answer 7

Not binding but may influence judges in future cases (especially from supreme court)

Question 8

e.g obiter dicta (PP)

Answer 8

• R V Howe 1987
• HOL said duress should not be a defence to attempted murder
  Followed by court of appeal in R V Gotts 1992

Question 9

Dissenting judgements (PP)

Answer 9

• Case has been decided by a majority of judges (e.g 2-1)
• If it appeals to supreme court or another case on same point speaks to it, supreme court may follow the dissenting judgement

Question 10

e.g dissenting judgements (PP)

Answer 10

• Hedley Byrne V Heller 1964
• Earlier dissenting judgement by Lord Denning was upheld

Question 11

Decisions of courts in order countries (PP)

Answer 11

Especially where country uses same ideas of common law as us (e.g commonwealth countries)

Question 12

e.g decisions of courts in other countries (PP)

Answer 12

• R V Bentham 2003
• Court invited to follow Canadian case of R V Sloane 1974

Question 13

What is original precedent?

Answer 13

• When no point of law in a case has never been decided before
• No precedent to follow
• Once declared becomes binding and original

Question 14

Gillick V West Norfolk Health Authority (OP)

Answer 14

• 1986
• HOL had to decided whether girls under 16 could be prescribed contraceptive pill without parental consent
• Court decided they could, as long as they understood the possible risks and consequences of having sex (‘Gillick Competence’)

Question 15

Technology (OP)

Answer 15

• OP most likely to arise with development of new technologies
• Judged may use method of ‘reasoning by analogy’ to deal with novel situation

Question 16

e.g technology (OP)

Answer 16

• Hunter V Canary Wharf 1998
• Claimants complained construction of Canary Wharf Tower interfered with their TV reception
• Court drew analogy (comparison) between loss of view and loss of TV reception