Week 3 - Judicial Precedent Flashcards
Judicial Precedence
A court must follow and apply the law as set out in the decisions of higher courts in previous cases.
Stare Decisis
Let the decision stand
Obiter Dicta
Things said by the way
Ratio Decidendi
Reason for deciding
How to find ratio decidendi?
Difficult to identify - no label or bold print identifying rule
How might a judge in future cases use ‘Obita Dicta’ of an older case?
Persuasive binding use as guide - not binding
Which part of a judgment forms the part of the binding precedent ?
Ratio Decidendi (Reason for Deciding)
The Supreme Court may depart (move away) from previous decisions it has made in the past and avoid following its own precedent. Which rule, made in 1966 allowed this to happen?
The Practice Statement
What is ‘The Practice Statement (1966)’?
- Issued by Judicial Committee of House of Lords
- Before Statement, Lords were bound to follow their own precedents - bound to follow their old decisions. Law = stuck + outdated.
- Significant in allowing law to develop as Higher court = change mind + not follow old precedents
- Supreme Court = not bound by its own decisions.
Name 1 reason why the Supreme Court would not regularly interfere with existing precedent?
For consistency
Name 1 reason why the Supreme Court would depart from previous precedents and create a new precedent?
- Outdated
- Incorrect
If there was an appeal on point of law from Court of Appeal, which court would hear the appeal ?
Supreme Court
If there was an appeal from the High Court, which court would hear the appeal?
Magistrate Court
Settled hierarchy of courts
- Judges in higher courts. E.g. House of Lords = commanded greatest respect
- Rule = decisions of higher courts are binding on lower courts
E.g., Lower courts must follow rule of law (precedent) set by higher court.
3 operations of a system of binding precedent
- Law reports
- Settled hierarchy of courts
- Rules of law (Wilson et al 2020)
Who sets the precedence?
Supreme court
High Court
Court of appeal
Law reports
- All cases heard in superior courts = reported
- Appear w/in various editions of law reports
- Found on online databases
- Not practical concern but core aspects of accessing law
- Easily located
Hierarchy of Courts
- Judgements in higher courts. E.g., House of Lords have always commanded the greatest respect
- Rule = Decisions of higher courts are binding on lower courts
Rules of law
Principle that law should rule
What is a judgment?
- Contains a great number of ‘statements’
- Purely embellishments
List 4 Judicial Options
- Follow the precedent
- Distinguishing
- Overruling
- Reversing
What is ‘Follow the Precedent?”
Judicial decision that should be followed by a judge when deciding a later similar case.
What is ‘Distinguishing’?
- Where facts of case are deemed sufficiently different so that the previous case is no longer binding.
E.g., Balfour v Balfour (1919), Merritt v Merritt (1970)
What is ‘Reversing’?
- Takes place when the lower court has reached the wrong decision.
E.g., Gillick v West Norfolk & Wisbeck Area Health Authority case
*Wilson et al says “… by reversing a decision, a higher court is saying that the lower court’s decision is wrong (an appeal is said to be allowed)”
What is ‘Overuling’?
- A Higher court departs from a decision made in a lower court and the previous decision is no longer binding.
*Apply if the previous (lower) court has failed to apply the law properly.
E.g., R v R (1991) – the other ‘R’ is to protect their identity, involves a child or a sexual nature.
Advantage of Case Law
- Time - Saving = Saves time as no drafting +passing laws is necessary
- Flexibility = Law can change w/ times
- Consistency = Similar cases are dealt w/in same way
Disadvantage of Case Law
- Rigidity = Doesn’t change easily, bound by higher courts, bound by past decisions.
- Uncertainty = When courts distinguish cases + form new precedents
- Slow Growth = Cases are unclear + need reforming
