Week 8

Question 1

What things make a precedent less authoritative?

Answer 1

If the facts are materially different

Less if given per incuriam, through lack of care as parts of law over looked

Less if point is not argued, advocate concede point of law

Less if very old or socially incongruous

Less once its rationale lapses

Question 2

What makes a case more authoritative?

Answer 2

If relied on in planned transactions

Question 3

What is the problem with overturning a previous decision in the Supreme Court?

Answer 3

Case law is both retrospective and forward looking. So when overruling a past decision, means previous precedent was wrong which means anything formed under this precedent can fall apart as it is based on a precedent that no longer exists.

Question 4

How many judges are required to over turn a decision?

Answer 4

In the Supreme Court it is 7. Need 4/7 to do so.

Question 5

Dick v Burgh*

Answer 5

Per Lord Wilberforce overruling Wood v Gray a case on the award of personal injury damages which was found, after full analysis, not to “rest upon any maintainable support”

The reasoning for the rule doesn’t rest upon any maintainable support and can therefore be overturned.

Question 6

What does cessante rations cessat ipsa lex mean?

Answer 6

A rule itself ceases when the reason for it ceases to apply

Like if statute is removed

Question 7

Miliangos v George Frank Textiles Ltd

Answer 7

Overruled United Railways of Havana and Régla Warehouse

A fundamental change in economic conditions that makes the basis of a precedent obsolete

Doesn’t mean, however, that rule has lost its status. It needs to be overruled first.

Question 8

What happens when the rationale of a rule isn’t good?

Answer 8

This doesn’t mean that the rule doesn’t exist. Appeal needs to be taken to the Supreme Court.

Question 9

What’s the separation between social climate and law?

Answer 9

A rule itself ceases when the reason for it ceases to apply. Must be overturned first, social climate and law very different.

Question 10

Example case of per incuriam

Answer 10

Gray’s Trustees v Royal Bank

Declines to follow

Question 11

Case for point not argued?

Answer 11

Elder v Elder

Concession of a point of law in court by advocate diminishes authority of precedent.

The Outer House may not consider itself bound by an Inner House décision given after a concession of law. May examine the rationale of the precedent afresh.

Question 12

Example of long reliance on a precedent in planned transactions?

Answer 12

Perrett’s Trustees v Perrett

Stood for half a century, probable that deeds have been framed in reliance upon it.

Question 13

Can decisions be authoritative even in other jurisdictions?

Answer 13

Yes D v S and Grant v Australian Knitting Mills

Question 14

Vertical and horizontal binding?

Answer 14

Decisions bind down and on the same line. Means courts are bound by their past decisions as long as they are appellate

Question 15

Example of case too old?

Answer 15

Logan v Wood 1561

Question 16

What happened in 1966 for Lords

Answer 16

Meant they could overrule their past decisions as per the Practice Statement

Question 17

What happens if the Supreme Court overrules an earlier decision in England?

Answer 17

Doesnt changes rules for Scotland.

Question 18

*Commerzbank v Large 1977

Answer 18

Same conditions as miliangos case, however, old Scottish case held against this.

Held: followed the decision of Supreme Court for miliangos because likely the be overruled if appealed in Scotland.

Question 19

Does the Supreme Court bind Scotland even on decisions in England

Answer 19

No, certain weight to them but not binding

Question 20

What about decisions on reserved matters?

Answer 20

Example of business:

Decision from a case in England about companies, reserved matter, likely binding in Scotland

Question 21

What about a decision form UKSC on damages in English case?

Answer 21

Not necessarily binding on Scotland since law on damages different in the two jurisdictions.

Question 22

What are judges in the CS?

Answer 22

Senators of the college of justice, meaning they can form in different ways

Question 23

Why is it important that the CS is a collegiate court?

Answer 23

Means the court can configure in different ways with the same judges sitting in the different configurations. Like Outer house, configuration for first instance, and inner house, configuration for appellate cases

Question 24

How many judges sit on the first and second divisions

Answer 24

Usually 5, but can be more or smaller. All judges might sit together to decide a case

3,5,7

Usually three judges sit on the inner house

Question 25

What happens if the whole court is assemble in the CS

Answer 25

Binds an ordinary division, 3 or 5, due to strength of numbers.

As per Hargreaves Trustees v Schofield bound by Miller’s Trustees v Miller

Question 26

What happens if a court of 7 comes for the CS

Answer 26

Equivalent to the whole court

Question 27

What happens if IHCS wants to overrule it’s own decisions?

Answer 27

Past decision doesn’t have to go to Supreme Court, but has to be in front of more judges than the original case was decided by.

Morgan Guaranty v Lothian Regional Council (5) overruling Glasgow Corporations v Lord Advocate (3)

Question 28

Do divisions bind each other in the CS?

Answer 28

Yes, first and second and extra are all equal.

As per Galloway v Galloway

Question 29

What case shows binding relations horizontally?

Answer 29

Galloway v Galloway

Question 30

Are decisions of the inner house binding on the outer house?

Answer 30

Yes, but outer house is not bound by its own pay decisions as it is a court of first instance but chances are they will follow past decisions

Question 31

Are Lord ordinarys bound by past decisions of other lord ordinarys?

Answer 31

No, as per Galbraith v Galbraith 1971

Didn’t follow Warden v Warden as there was a more relevant, updated case.

Question 32

Do sheriff courts bind each other?

Answer 32

The sheriff appeal court now bind every sheriff court in Scotland as per the Courts Reform (Scotland) Act 2014. Also bind justice of the peace court

Question 33

Does the sheriff court of appeal bind itself?

Answer 33

Yes, apart from if there is a greater number of appeal sheriffs than heard a previous case

Question 34

Are solemn and summary proceedings the same when it comes to binding in the sheriff courts?

Answer 34

Yes they are

Question 35

Is the sheriff court bound by its past decisions?

Answer 35

No, it is a court of first instance but is likely to follow them.

Question 36

What is the highest appeal court for the Criminal system?

Answer 36

Effectively HCJ since very unlikely to go to the Supreme Court

Question 37

Is the Supreme Court binding on Scotland then for Criminal cases?

Answer 37

Again depends on similarity in that part of law, do England and Scotland share the same statute? Relevant but not necessarily binding.

Question 38

Is there an example of the HCJ not following the Supreme Court?

Answer 38

Ritchie v Prie 1972

Road Safety Act 1967 and decided not to follow previous House of Lords case.

Question 39

What is special about the HCJ?

Answer 39

Same judges as CS, same ideas as court of session:

Appeal court binds court of first instance

Bound by its own previous decisions

First instance court not bound by its own previous decisions

Question 40

Can HCJ overrule past decisions?

Answer 40

Larger panel of judges can overrule its own decisions

As per O’Neil v Wilson 1983

Question 41

What’s the difference between an appeal from the sheriff court in summary and solemn proceedings?

Answer 41

Summary goes to Sheriff Appeal court and solemn goes to HCJ

Question 42

Does the HCJ bind Sheriff Courts?

Answer 42

All HCJ decisions are binding on sheriffs in first instance matters

Question 43

Are HCJ first instance decisions binding on Sheriff court?

Answer 43

As per Jessop v Stevenson apparently, unclear though.

Same issue for OHCS for sheriff court

Question 44

Explain Mullen v Barr & Co

Answer 44

Father bought bottle of ginger beer for his children that had a mouse in it. Question of delictual duty of care between contracting parties. Sheriff substitute then sheriff then IHCS.

No fraud in the current case, nobody knew of mice and ginger beer is intrinsically dangerous

Question 45

Explain Donoghue v Stevenson

Answer 45

D and friend bought bottle of ginger beer which had decomposed snail, D suffered injuries because of this.

Appealed to second division before proof was heard. Appealed to HL on pleaded facts.

Question 46

What is the ratio of D v S

Answer 46

A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate customer in the form which they left him, with no reasonable possibility of intermediate examination, and absence of reasonable care in preparation will result in an injury to consumers life of property, owes a duty to the consumer to take that reasonable care.

Must be physical damage faced by claimant, economic loss not enough.

Question 47

Explain Lockhart v Barr

Answer 47

Court satisfied that there was negligence and, therefore, Barr were at fault. Based on facts so never very important.