Week 3 - The Doctrine of Precedent Flashcards
What are legal principles
The system of precedent applies to the legal principles or legal reasoning found in a case
Decisions on the facts of a case do not bind courts
What is Ratio Decidendi
The ratio of the case - the legal reasoning or legal principle or rule - forms the binding precedent
Sometimes when reading a case you will find the ratio is set out clearly in the case, and sometimes now so clearly
In the UK Supreme Court cases, we sometimes see more than one judge giving their reasoning for a particular outcome
What is Obiter Dictum
Obiter dictum can be translated as “things said in passing”
Do not form the ratio of a case
Lord Burrows states that the ratio can be understood as the reasoning for the decision but not further reasoning of points of law in the judgement and this further reasoning is known as Obiter Dictum
The operation of precedent
Binding Precedent - The court must follow the precedent established in previous case law
Distinguish - The court finds the case before it is not factually the same as the precedent and considers itself not bound by precedent
Not follow - Where there is conflicting case law, and the court decides not to follow a case or cases
Reverse - A decision of a lower court is changed by an appeal court
Overrule - A higher court changes an established
precedent - Important to note not every court has the power to overrule decisions
How does the UK Supreme Court select which cases to hear
- They have appeal panels which decide applications for permission to appeal
The criteria for granting permission to appeal is that it must
- involve an arguable point of law so there has to be a debate about what the law is
- Has to matter to most parties not just the ones in the case
- It has to be a suitable case in which to grant permission
What did the UK Supreme Court decide what a devolution issue is
Whether the authorities in Scotland, Wales, and Northern Ireland have acted within their powers or failed to comply with their duties
Devolution issues were previously heard by the judicial committee or the privy council until the creation of the Supreme Court
The Privy Council
Generally, has the power to reverse the decision of the lower courts in the country from which the case was referred
High Court of Justice
The High Cout is bound by the decision of the higher courts, and its decision binds lower courts
If sitting in its supervisory jurisdiction, it may depart as per Young
If sitting as the court of first instance, then its previous decision are persuasive but not binding
Court of Appeal
The Court of Appeal is bound by decisions of the Supreme Court, but its decisions is second in precedence in the English Legal System
The decision was made per incuriam (lack of care) when the court of appeal has failed to consider a binding precedent or legislation or failed to consider a key point of law
Assimulated EU Law
A considerable body of EU law and EU case law was incorporated into UK law post
Future decision Court of Justice of the EU will be discretionary consideration for the UK courts
