Judicial Precedent

Question 1

What are the three elements of the doctrine of precedent

Answer 1

• Stare decisis
• Ratio decidendi
• Obiter dicta

Question 2

Define and explain stare decises

Answer 2

“To stand by what has been decided” = follow decisions of previous cases

Question 3

Define and explain ratio decidendi

Answer 3

“Reason for deciding” = create a point of law (Tuberville v Savage = PoL that words can negate assault)

Question 4

Define and explain obiter dicta

Answer 4

“Other things said” = forms pursuasive precedent (Gotts -> Howe = no duress for murder)

Question 5

Explain the civil court hierarchy and powers

Answer 5

• Judicial Committee of the Privy Council (binds all commonwealth Cts, bound by none, Grant v Australian Knitting Mills, Wagon Mound)
• UKSC (binds all UK Cts, bounds by ECtJ on EU issues but not itself, Donogue v Stevenson, Brown)
• CoA civil division (binds all lower Cts + self, bound by UKSC + self with exceptions, Broome v Cassell, Miliangos v George Frank Ltd, Young v Bristol Aeroplane Co)
• CoA criminal division (binds all lower Cts + self, bound by UKSC + self)
• High Ct (binds all lower Cts + self, bound by UKSC + CoA + self)

Question 6

What was the 3 part test established in Bristol v Aeroplane Co as to whether the Court of Appeal civil division is bound to follow its own decisions

Answer 6

1 - choice between own conflicting decisions = choose which to follow
2 - choice between UKSC and CoA conflicting decisions = follow UKSC
3 - own decision made per incuriam = not have to follow

Question 7

What is the Practice Statement 1966

Answer 7

Allows the UKSC to not follow its own decisions with reason given. Part of established jurisprudence of appeals (Austin v London Borough of Southwark)

Question 8

Explain the three ways of avoiding precedent

Answer 8

• Overruling = upper Ct decide lower Ct was wrong (Jogee, Powell, English)
• Reversing = upper Ct overturns lower Ct decision on appeal (Re Pinochet)
• Distinguishing = case facts are sufficiently different (Merritt v Merritt from Balfour v Balfour, White Lion Hotels v James from Geary v JD Wetherspoons)

Question 9

Describe the advantages of judicial precedent

Answer 9

• Certainty
• Consistency
• Fairness
• Precision
• Flexibility (to avoid)
• Time saving (not decide on PoL every time it comes up)
• Can change override illogical statute
• Evolve to meet social attitudes

Question 10

Describe the disadvantages of judicial precedent

Answer 10

• Rigidity
• Complexity
• Illogical distinctions
• Bad precedent
• Slow growth (accident of litigation)
• Undemocratic (judge made law)