Civil Case Law and Precedent

Question 1

What is the concept/doctrine of precedent?

Answer 1

The concept of precedent is that the sayings of one court should influence others

Expects judges to build upon existing law rather than making new law

It reinforces the need for decisions to be consistent

• Doctrine of stare decisis means the previous decision should stand

Lower courts must take note of decisions made by higher courts

Question 2

How does precedent work in the Supreme Court?

Answer 2

Generally, bound by its own decisions but can depart (sparingly)

• Usually only departs where a prior decision causes injustice, cause uncertainty or impedes the development of the law

It should consider if any departure from a previous decision should be made by legislation

Binds lower courts

Question 3

How does precedent work in the Court of Appeal?

Answer 3

Bound by SC’s decisions and binds courts below it

Bound by itself unless its own previous decision:

• conflicts with another of its own
• has been implicitly overruled by SC; or
• was made through carelessness

Question 4

How does precedent work in the High Court?

Answer 4

Has a dual function as a court of first instance and an appellate body

1) Bound by itself in its appeal function, unless its own previous decision:

• conflicts with another of its own
• has been implicitly overruled by SC; or
• was made through carelessness

2) In first instance, decisions are not binding elsewhere in the High Court

• They are binding on lower courts though

Question 5

How does precedent work in the lower courts?

Answer 5

Do not bind each other and do not set precedents for other courts to follow

These decisions can only be referred to by other courts as persuasive

• Too much activity and not all cases are reported

Question 6

What aspects of a decision can become precedent?

Answer 6

A case is binding on a later case if it meets 4 requirements:

1) There is a proposition of law

• Judicial statement confirming a legal principle derived from statute, case law or both

2) The proposition is part of the ratio decidendi of the case

• Ratio decidendi = central legal reasoning

3) Proposition is decided in a court whose decisions are binding on the previous court

4) No relevant distinctions between the two cases; case cannot be distinguished

Question 7

Explain the concepts of ratio decidendi and obiter dicta in more detail

Answer 7

Two types of ratio decidendi

• 1) Narrow – more specific and relates to particular case facts, which allows courts to distinguish between cases
• 2) Wide – key legal reasoning is applicable to a wider range of situations

Obiter dicta (other things said)

• Proposition of law that is not necessary for the case’s conclusion but which may become significant in the future
• Could be a discussion to explain the ratio

Question 8

What is the key terminology in this area?

Answer 8

Distinguishing – court finds a reason to disagree, on the facts, with a decision of a higher court which would otherwise operate as precedent and bind it

Affirming – a higher court confirms it agrees with the appeal before it from a lower court

Applying – a court indicates it is adopting statements or reasoning from other decisions

Departing – happens when a court of one level disagrees with a prior decision in another matter by an equal court

Overruling – a higher court comments on a previous unrelated decision by a lower court and declares it to be wrong

Reversing – a higher court disagrees with an earlier decision of a lower court in the same proceedings

• Happens when an appeal succeeds