Judicial Precedent: Types of Precedent

Question 1

What is stare decisis?

Answer 1

Stand by what has been decided

Question 2

What is binding precedent?

Answer 2

A judge’s decision must be followed

Question 3

What happens if a case invovles a POL?

Answer 3

Lawyers from both parties will research previous cases to ensure the judge follows precedent

Question 4

What happens at the end of a case?

Answer 4

There’s a judgement which gives the decision and explains the reasons for their decision

Question 5

What is included in a judgement?

Answer 5

Summary of facts
RD - Reason for decision
OD - make other comments
Verdict

Question 6

What is the Ratio Decidendi?

Answer 6

Reasons for the decision
Part of the judgement
Binding to all lower courts - if case is similar

Question 7

What are two cases for RD?

Answer 7

Donoghue v Stevenson
Daniels v White

Question 8

What happened in Donoghue v Stevenson?

Answer 8

C found snail in ginger beer
A manufacturer owed a DOC to the customer

Question 9

What happened in Daniels v White?

Answer 9

RD fron D v S applied
Corrosive substance in bottle of lemonade
Manufacturer owed DOC to customer

Question 10

What is the Obiter Dicta?

Answer 10

Other things said ‘by the way’ which is a decision that may be followed
Creates persuasive precedent
Becomes binding precedent id picked up in later case and made into RD

Question 11

What are two cases for OD?

Answer 11

Brown
Wilson

Question 12

What happened in Brown?

Answer 12

Group of homosexual men participated in sadomasochistic activities
Resulted in injuried
RD - Person can’t consent to sadomasochism
OD - Can consent to branding/tattooing

Question 13

What happened in Wilson?

Answer 13

OD from Brown picked up and made into RD so wife could consent to being branded

Question 14

What is Original Precedent?

Answer 14

When the POL invovled within a case is unique and has not been considered by the courts previously
If base decision on similar case, called ‘reasoning by analogy’

Question 15

What happened in Hunter v Canary Wharf?

Answer 15

TV was recreational, so was not a nuisance
Was the first time it had been decided so it was original

Question 16

Why is it rare for there to be original precedent?

Answer 16

There is usually an Act of Parliament or common law available to apply to the facts of the case

Question 17

What are the different types of persuasive precedent?

Answer 17

Courts in other countries
OD
Lower courts
Dissenting judgement
Decision of priviy council

Question 18

What is Courts in other countries?

Answer 18

Where other country uses a common law system (Commonwealth countries)
Only referred to when there is a lack of case law in the UK

Question 19

What cases can be used for decisions in other countries?

Answer 19

R v Bentham was about possession of firearm
Court invited to follow R v Sloan but didn’t

Question 20

What are lower courts?

Answer 20

Lower courts can be looked at and made into law
SC often follows decisions of CoA because the judges are very experienced

Question 21

What happened in R v R?

Answer 21

Law stated man couldn’t be guilty of raping his own wife - Changed by the CoA
HOL picked it up and followed it

Question 22

What is a dissenting judgement?

Answer 22

When a case has been decided by a majority of judges
Judges who disagreed will have explained their reasons (dissenting judgdment)
If similar case - goes to SC
SC may be persuaded by dissenting judgement and follow it

Question 23

What case can be used for dissenting judgement?

Answer 23

Candler v Crane Christmas - Lord Denning made a dissenting judgement which was followed in the case of Hadely Byrne v Heller

Question 24

What are decisions of the Privy Council?

Answer 24

Court rules on cases from Commonwealth and is not part of the UK hierarchy, doesn’t create binding precedent for English Courts

Question 25

What happened in the Wagon Mound No.1?

Answer 25

Oil leaking from ship and into harbour was held to be foreseeable damage but Privy Council reversed the decision and said the type of damage was not foreseeable/ too remote
Used for negligence now