Judicial Precedent

Question 1

Stare Decisis

Answer 1

Stand by what’s decided

Question 2

Who can set precedent

Answer 2

Superior Court (High, CoA, Supreme Court)
NOT Magistrates, Crown or County

Question 3

What acts established the current court structure

Answer 3

Judicature Acts
Appellate Jurisdiction Act

Question 4

Practice Statement

Answer 4

Issued by Lord Gardiner 1966
Overturned London Street Tramways v London County Council 1898

Question 5

When was the practice statement first used

Answer 5

R v Shivpuiri 1986

Question 6

Young v Bristol Aeroplane 1944 conditions

Answer 6

1. If its previous ruling contradicts a supreme court decision
2. If there are 2 conflicting CoA rulings - court must pick one
3. Per Incuriam

Question 7

R v Taylor 1950

Answer 7

Ignore previous CoA ruling if it will cause injustice - Criminal

Question 8

Ratio Decidendi

Answer 8

Reason for deciding

Question 9

Young Condition 1 Case

Answer 9

Family Housing Association v Jones 1990

Question 10

Young Condition 2 Case

Answer 10

R v Parmenter 1991

Question 11

Young Condition 3 Case

Answer 11

Rickards v Rickards 1989

Question 12

Ratio Decedendi Case

Answer 12

R v Howe 1987
Ratio Decidendi was Duress is not a defence to murder
Donoghue v Stevenson 1932
Ratio Decidendi was manafacuturer had a duty of care to final consumer

Question 13

Obiter Dicta

Answer 13

by the way. judges speculate on how they’d rule if the facts of the case were slightly different

Question 14

Obiter Dicta Cases

Answer 14

R v Howe 1987 - HoL said obiter dicta that duress isn’t a defence to attempted murder either
R v Gotts 1992 - HoL found Gotts guilty of attempted murder despite defence of dress

Question 15

Original Precedent

Answer 15

Created when no law or precedent exists
or when a case is distinguished as in Merritt v Merritt and Balfour v Balfour

Question 16

Original Precedent Case

Answer 16

Gillick v West Norfolk & Wisbech AHA 1985

Question 17

Binding Precedent

Answer 17

The Ratio Decidendi set in a case has binding force over itself and all lower courts

Question 18

Binding Precedent Case

Answer 18

Donoghue v Stevenson 1932 binds all tort cases

Question 19

Types of Persuasive Precedent

Answer 19

Decisions of lower courts
Foreign Courts
Judicial Committee of the Privy Council Rulings
Dissenting opinions of judges
Obiter Dicta

Question 20

Decisions of lower courts case

Answer 20

HoL- Miliangos v George Frank
CoA - Schorsch Mier v Hennin

Question 21

Foreign Courts Case

Answer 21

House of Lords - Lister v Halsey Hall 2001
Lord Steyn referenced the Canadian Supreme Court Case Bazley v Curry 1999

Question 22

JCPC Case

Answer 22

AG for Jersey v Holley 2005
JCPC ruled it applied to whole UK not just Jersey

Question 23

Dissenting Opinions of Judges Case

Answer 23

Candler v Crane Christmas 1951 - Lord Denning dissented
Upheld by House of Lords in:
Hedley Bryne v Heller and Partners 1963

Question 24

Ways to avoid an awkward precedent

Answer 24

Practice Statement - SC
Young v Bristol Areoplane - High Court & CoA
Distinguishing
Overuling
Reversing

Question 25

Overruling

Answer 25

Superior Court overrule another court in a different case
HoL - Hedley Bryne v Heller & Partners 1964 overruled Candler v Crane Christmas 1951- CoA

Question 26

Distinguishing

Answer 26

When the facts are sufficiently different to distinguish from precedent.
Merritt v Merritt & Balfour v Balfour
Merritt distinguished from Balfour as couple weren’t ‘living in amnity’

Question 27

Reversing

Answer 27

When a superior court reverses a lower court in the same case
Gillick
High Court Overruled by CoA and CoA overruled by HoL

Question 28

Advantages of Judicial Precedent (5)

Answer 28

Consistency
Predictability
Flexibility
Detailed Practical Rules
Original Precedents

Question 29

Disadvantages of Judicial Precedent (7)

Answer 29

Complexity
Volume
Uncertainty
Rigidity
Undemocratic
Retrospective Effect
Lack of Research

Question 30

Complexity (Judicial Precedent)

Answer 30

Judgements are often complex and it might be hard to find the ratio decidendi

Question 31

Volume (Judicial Precedent)

Answer 31

With so many judgements made each year it can be hard to find a specific precedent

Question 32

Uncertainty (Judicial Precedent)

Answer 32

By not always following precedent the courts create uncertainty amongst lawyers

Question 33

Rigidity (Judicial Precedent)

Answer 33

An unjust or outdated precedent can create further injustice until it reaches a court with the authority to overrule.
R v R 1991 overturned 1736 decision

Question 34

Undemocratic (Judicial Precedent)

Answer 34

Its argued that judges overstep by creating law through original precedents

Question 35

Retrospective Effect (Judicial Precedent)

Answer 35

Unlike Parliamentary Legislation it is backwards facing meaning, the act might have been legal but after the ruling it became illegal

Question 36

Lack of Research (Judicial Precedent)

Answer 36

Parliamentary Legislation goes through consultation and research stages.
only arguments presented in court are considered

Question 37

Consistency (Judicial Precedent)

Answer 37

Cases with similar facts will be treated in the same way

Question 38

Predictability (Judicial Precedent)

Answer 38

Lawyers can advise clients with some degree of certainty
Government know which cases are likely to succeed and can issue legal aid

Question 39

Flexibility (Judicial Precedent)

Answer 39

Judges can develop law through overruling an outdated or unjust precedent.
Especially useful in areas that aren’t a priority for parliament

Question 40

Original Precedent (Judicial Precedent Advantage)

Answer 40

Can create law on areas where there’s parliament hasn’t legislated on
E.g. Gillick v West Norfolk & Wisbech AHA