Precedent

Question 1

what is meant by ‘stare decisis’?

Answer 1

determining points in litigation according to a precedent

Question 2

what are reasons for precedent following?

Answer 2

legal certainty
predictability
desire for just outcomes for similarity
highlight why decisions are distinct - ratio decidendi

Question 3

how is the law developed?

Answer 3

distinguishing between precedent is how the common law is developed

binding precedents from higher courts

Question 4

what is obiter dicta?

why can it be problematic?

Answer 4

form of persuasive authority that is not binding
similar weight to dissent, textbook extracts or legislative history

hard to distinguish the decision from the reasoning

Question 5

what case saw the adoption of SC obiter dicta authority over CA precedent?

why?

Answer 5

Ivey v Genting 2017

because of authoritative status of SC, obiter can exist in the same realm as lower court precedent

Question 6

what did the London Tramways 1898 case establish?

Answer 6

that HL could overrule their precedents

that SC/HLs precedents should only be overruled by Parliament
this was practice until 1966

Question 7

what was the impact of the Practice Statement 1966?

what was the reasoning?

Answer 7

HL/SC could depart from precedent, if sticking to it would mean perpetuating a legal error, without the need of parliament

‘too rigid adherence’ to precedent restricts the ‘proper development of the law’
errors within the law seen by the courts in Derry v Peek and impacted the distinguishing in HB v H

Question 8

how did Willers v Joyce articulate when the 1966 Practice Statement should be invoked?

Answer 8

if it is believed there is a genuine mistake in law that needs correcting

NOT because an opinion has shifted on a certain law

Question 9

why is there caution when overruling precedents?

Answer 9

courts are wary that overruling precedents is retroactive law making
the aim of legislation is to be prospective - legislative role

don’t want to capture people within the law
ex// individual acting on the current precedent and then it changing

Question 10

how is overruling precedent problematic?

Answer 10

those under previous, existing precedent loose out

Question 11

what is the declaratory theory?

Answer 11

when judges overrule precedent, they are ‘correcting’ legal mistakes

declaring what the law has always been and that prev courts got it wrong

enforcing immemorial custom (pre-existing unwritten rules)

Question 12

how does Blackstone describe the declaratory theory?

Answer 12

‘vindicating the common law’

not making new law

Question 13

what is persuasive authority?

Answer 13

a decision or other pronouncement of law

ex//
obiter dicta
lower court decisions
foreign court rulings 
academics textbooks

Question 14

what are reasons as to why foreign precedent should not bind or even be used as persuasive authority?

Answer 14

do not apply to specific legal, cultural or political context

takes up time, money and resources - lawyers could suggest extensive foreign precedents

undermines sovereignty of the nation who has made the law

ranking of foreign precedents and thus foreign legal order

undermines rule of law - might lead to citizens being caught out

lawyers/ courts should take the litigants seriously and consider the specific case - not another case that happens to be similar

Question 15

what are reasons for following foreign precedents as persuasive authority?

Answer 15

all courts work for the common purpose of justice

provides guidance for cases which the court has not yet experienced

helps to develop the court in making rulings

generates and alternative perspective

Question 16

what is an example of the HL using foreign precedents as a persuasive authority?

Answer 16

Re Spectrum Plus 2005

considered experiences of other jurisdictions when deciding to endorse prospective overruling

Question 17

what was Lord Goff’s perspective on following foreign precedents in Smith v Littlewoods?

Answer 17

‘our legal concepts may be different, and may cause us sometimes to diverge; but we have much to learn from each other in our common efforts to achieve justice’

Question 18

what is meant by ius gentium?

where was the principle applied in the US?

Answer 18

internationally convergent precedent

Roper v Simmons - looked to other nations on standards of imposing inhumane and degrading treatment (death penalty for an under 18)

Question 19

what should be the result of recognised difference in stance between nations, as recognised in Fairchild v Glenhaven?

Answer 19

‘must prompt anxious review’

Question 20

what are arguments for stare decisis?

'’against?

Answer 20

saves time, logical procedure, provides certainty, equal application of justice

requires distinguishing/overruling, prospective overruling doesn’t provide current litigants with justice, retrospective overruling undermines the court, litigants may feel like their case has been dealt with impersonally

Question 21

what are the different ways overruling can be understood?

Answer 21

declaring what the law has always been
removal of errors

recognition of judicial authority

depicting of the law in regard to judicial standards - ensure compatibility

Question 22

how does Sir P. Sales describe the relationship between the judiciary and the legislature?

Answer 22

judges cooperate with the legislature
there is not an unstable power balance

judiciary trust that the legislature has enacted law purposefully
legislature trust that the judiciary will interpret it appropriately, follow precedent

Question 23

when does Sir P. Sales argue law should not be applied by the judiciary?

Answer 23

‘when it becomes very clear that to do so would offend against prevailing conception of morality and social standards’

Question 24

how does Sir P. Sales describe the common law system in relation to precedent?

Answer 24

‘distinctive mode of common law reasoning is analogical and causistic’

‘conformity to previous rules or justification of the new by means of old values’’

Question 25

why would Aristotle support the practice of overruling precedent?

Answer 25

believed that it would be impossible for a general rule, stipulated in advance, to capture the nuance of a new situation

Question 26

how does Lord Reid describe the common law, as opposed to legislation?

Answer 26

common law is like a pair of handcrafted shoes which fit perfectly to the specific case

legislation is like mass-produced goods which don’t fit particularly well

Question 27

how could the generation of precedents have a liberating impact on decisions?

Answer 27

provides a plethora of outcomes based on interpretation of the case

BUT this in turn undermines the key and fundamental elements of the legislation to begin with

Question 28

in R (Youngsam) v Parole Board, how did Leggatt LJ argue that the establishing of precedent could be recognised by?

Answer 28

degree of unanimity amount judges
clarity of the ruling
whether there was intention to establish a new rule
whether it had been applied/ approved of in later cases
whether it had been criticised in later cases
the court hierarchy in regard to who made the decision