Week 3 - Judicial Precedent

Question 1

Judicial Precedence

Answer 1

A court must follow and apply the law as set out in the decisions of higher courts in previous cases.

Question 2

Stare Decisis

Answer 2

Let the decision stand

Question 3

Obiter Dicta

Answer 3

Things said by the way

Question 4

Ratio Decidendi

Answer 4

Reason for deciding

Question 5

How to find ratio decidendi?

Answer 5

Difficult to identify - no label or bold print identifying rule

Question 6

How might a judge in future cases use ‘Obita Dicta’ of an older case?

Answer 6

Persuasive binding use as guide - not binding

Question 7

Which part of a judgment forms the part of the binding precedent ?

Answer 7

Ratio Decidendi (Reason for Deciding)

Question 8

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?

Answer 8

The Practice Statement

Question 9

What is ‘The Practice Statement (1966)’?

Answer 9

• 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 Law = stuck + outdated.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.

Question 10

Name 1 reason why the Supreme Court would not regularly interfere with existing precedent?

Answer 10

For consistency

Question 11

Name 1 reason why the Supreme Court would depart from previous precedents and create a new precedent?

Answer 11

• Outdated
• Incorrect

Question 12

If there was an appeal on point of law from Court of Appeal, which court would hear the appeal ?

Answer 12

Supreme Court

Question 13

If there was an appeal from the High Court, which court would hear the appeal?

Answer 13

Magistrate Court

Question 14

Settled hierarchy of courts

Answer 14

• 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.

Question 15

3 operations of a system of binding precedent

Answer 15

1. Law reports
2. Settled hierarchy of courts
3. Rules of law (Wilson et al 2020)

Question 16

Who sets the precedence?

Answer 16

Supreme court
High Court
Court of appeal

Question 17

Law reports

Answer 17

• 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

Question 18

Hierarchy of Courts

Answer 18

• 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

Question 19

Rules of law

Answer 19

Principle that law should rule

Question 20

What is a judgment?

Answer 20

• Contains a great number of ‘statements’
• Purely embellishments

Question 21

List 4 Judicial Options

Answer 21

1. Follow the precedent
2. Distinguishing
3. Overruling
4. Reversing

Question 22

What is ‘Follow the Precedent?”

Answer 22

Judicial decision that should be followed by a judge when deciding a later similar case.

Question 23

What is ‘Distinguishing’?

Answer 23

• 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)

Question 24

What is ‘Reversing’?

Answer 24

• 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)”

Question 25

What is ‘Overuling’?

Answer 25

• 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.

Question 26

Advantage of Case Law

Answer 26

• 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

Question 27

Disadvantage of Case Law

Answer 27

• 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