judicial precedent

Question 1

judicial precedent

Answer 1

• the system of law which is made by judges whereby the past decisions of judges create law for future judges to follow

Question 2

stare decisis

Answer 2

• to stand by thing decided
• decisions of the higher courts are binding on the lower courts

Question 3

ratio decidendi (binding precedent)

Answer 3

• the rational for the decision (r v howe)
• precedent can only work if we know the legal reasons for past decisions

Question 4

obiter dicta (persuasive precedent)

Answer 4

• that which is said in passing (r v gotts)
• can be useful if a judge speculates on what the decision may have been had the facts been different

Question 5

other forms of persuasive precedent

Answer 5

• decisions made in the lower courts
• decisions made in courts in other countries

Question 6

practice statement - SC (avoiding precedent)

Answer 6

• can be used by the supreme court to change/alter their past decisions of they believe it is right to do so
• first used in british railways board v herrington to overrule addie v dumbreck

Question 7

rule in young v bristol aeroplane - COA (avoiding precedent)

Answer 7

• 3 circumstances where COA can refuse to follow previous decisions:
  1. conflicting decisions in past cases: can choose which one it will follow/reject

2. where a decision of the SC which will effectively overrule a COA decision, the COA must follow the SC
3. decision made per incuriam: carelessly or by mistake because a relevant act or other regulation has not been considered by the courts

Question 8

following (avoiding precedent)

Answer 8

• where there is a previous precedent and the judge in the case decides it it relevant, the judge should follow that decision

Question 9

distinguishing - all courts (avoiding precedent)

Answer 9

• the main device used by the judges in all courts for avoiding a binding precedent
• judges many distinguish the case on it’s facts
• balfour v balfour/merritt v merritt: involve a wife making a claim against husband for breach of contract

Question 10

overruling (avoiding precedent)

Answer 10

• where judges in higher courts can overrule the decisions of the lower courts if they consider the legal principles to be wrong

Question 11

certainty/predictability (JP ad.)

Answer 11

• lawyers are able to advise their clients with some degree of certainty

Question 12

consistency/fairness (JP ad.)

Answer 12

• doctrine of precedent brings consistency to the ELS: cases with similar facts will be treated in the same manner through the principle of stare decisis

Question 13

time-saving (JP ad.)

Answer 13

• once a principle has been established, cases with similar facts are unlikely to go through a lengthy court trial

Question 14

complexity (JP disad.)

Answer 14

• sometimes difficult to decide what the ratio decidendi of a case is
• one judge may give more than one ratio (e.g rickards v lothian)

Question 15

volume (JP disad.)

Answer 15

• a person may have to search through many volumes of law reports to discover the precise law on a matter

Question 16

slowness of growth (JP disad.)

Answer 16

• judges may be aware that particular of law is in desperate need of reform but they cannot change the common law until a case comes before them that concerns a particular point of law