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law paper 1 > PRECEDENT > Flashcards

PRECEDENT Flashcards

1
Q

Definition of stare decisis

A

Stand by the decision. Higher courts bind lower courts

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2
Q

Definition of ratio decidendi

A

Reason for the decision. The binding aspect of the decision

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3
Q

Definition of obiter dicta

A

Other things said. Not included in the ratio so persuasive not binding

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4
Q

Case examples of stare decisis

A 
.Eisenhower
.Chan Fook
.Robinson
.Clinton, Parker and Evans
.Donoghue and stevenson
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5
Q

Case examples of ratio decidendi

A

.Robinson
.Dica
.Brown and others

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6
Q

Case examples of obiter dicta

A

.Beard

.Khan and Khan’s obiter becomes ratio of Evans

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7
Q

What is binding precedent?

A

A decision made in the higher courts which all lower courts must follow in similar cases.

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8
Q

What happens if a higher court make a binding precedent?

A

This precedent becomes binding and the previous one is replaced

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9
Q

How is binding precedent imposed?

A

Via stare decisis and ratio decidendi

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10
Q

Which courts can avoid their own binding precedent?

A

The supreme court and the COA

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11
Q

What does every court have the right to do?

A

Distinguish

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12
Q

Can top-end courts be overruled?

A

No but the binding precedent can be avoided using methods of avoidance

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13
Q

Cases for binding precedent

A 
.Eisenhower
.Chan Fook
.Robinson
.Gillick
.Dica
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14
Q

What is original precedent?

A

Precedent which creates and provides new legal rule

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15
Q

When is original precedent made?

A

When there is no previous judicial decision on a point of law

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16
Q

Does original precedent follow any past decisions?

A

No, it is original

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17
Q

Who is most likely to make original precedent?

A

High-end courts

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18
Q

How is original precedent imposed?

A

Via stare decisis and obiter dicta

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19
Q

Is original precedent binding?

A

Yes because it is the first legal decision on that specific point of law

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20
Q

Cases for original precedent?

A 
.Chan Fook
.R v R
.Brown and others
.Donoghue v Stevenson
.Ireland and Burstow
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21
Q

What is persuasive precedent?

A

Something which is not binding but can influence the decision

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22
Q

How can persuasive precedent influence the decision?

A

It can be referenced in the ratio

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23
Q

What are the 5 types of persuasive precedent?

A 
.obiter dicta
.decisions from other countries
.privy council
.dissenting judges
.courts lower in the hierarchy
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24
Q

Where is persuasive precedent often made?

A

In the lower end courts

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25
Q

Can higher courts use lower courts persuasive precedent to influence their decisions?

A

Yes

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26
Q

Cases for persuasive precedent?

A

.Wagonmound (decisions from another country)

.Davis v Johnson (“groping around in the dark” denning)

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27
Q

What are the three methods of avoidance?

A

Overruling, distinguishing and reversing

28
Q

What is overruling?

A

When higher courts overrule a lower court’s decisions

29
Q

Which courts can overrule themselves?

A

The supreme court and the court of appeal

30
Q

How does the supreme court overrule itself?

A

The practice statement

31
Q

How does the coa overrule itself?

A

Other methods of avoidance

32
Q

Which case overruled Davis v Johnson?

A

Pepper v Hart

33
Q

What case was overruled by pepper v hart?

A

Davis v johnson

34
Q

Which case overruled Anderton v Ryan?

A

Shivpuri

35
Q

What case was overruled by Shivpuri?

A

Anderton v Ryan

36
Q

What case overruled Addie v Dumbreck?

A

Herrington v BRB

37
Q

What case was overruled by Herrington v BRB

A

Addie v Dumbreck

38
Q

In which case did Lord Denning say “groping around in the dark”?

A

Davis v johnson

39
Q

What is reversing?

A

The court which hears the appeal reverses the decision of the court below so that it no longer stands as precedent

40
Q

What are the cases for reversing?

A 
.woolin
.Hancock and Shankland
.Sweet v Parseley
.Barclays and various claimants
.Morrisons and various claimants
41
Q

What is distinguishing?

A

A judge can avoid following past precedent if he can distinguish a significant difference between the facts of the precedent case and his current case

42
Q

Is a judge bound by precedent after distinguishing?

A

No

43
Q

Which courts have the right to distinguish?

A

All courts

44
Q

Cases for distinguishing

A

.Brown and others and R v Wilson

.Sharpe and Shepherd

45
Q

What are the advantages of precedent?

A 
.develops the law
.fair and consistent
.flexible
.time saving
.precise
46
Q

How does precedent develop the law?

A

It can’t become outdated as it’s always being reformed and added to etc

47
Q

What is an example of precedent developing the law?

A

When Chan Fook established mental harm and R v R established marital rape

48
Q

How is precedent fair and consistent?

A

If a decision is made in a higher court, it will be applied to every similar case in a lower court, meaning they get the same or a similar outcome so everybody gets a fair and equal trial

49
Q

What is an example of precedent being fair and consistent?

A

Biological GBH (dica, adaye and konzane)

50
Q

How is precedent flexible?

A

If a past decision does not fit a case exactly, it can be avoided with distinguishing and form a new precedent. Precedent can also be reversed and avoided to suit each individual case best

51
Q

What is an example of precedent being flexible?

A

.Re A

.Herrington v BRB/ Addie v Dumbreck

52
Q

How is precedent time saving?

A

The body of precise law is so fast that there are fewer appeals made and less court time is taken up

53
Q

What is an example of precedent being time saving?

A

No reforms to non-fatals

54
Q

How is precedent precise?

A

The law has become so precise over the years and so variations of the same principles arise and fit a larger amount of cases

55
Q

What is an example of precedent being precise?

A

Howe and Gotts

56
Q

What are the disadvantages of precedent?

A 
.doesn't apply in retrospect
.rigid
.complex
.illogical distinctions
.unpredictable and unreliable
57
Q

How does precedent not apply in retrospect?

A

If the law changes, the precedent will only apply to future cases and will not change the outcome of previous cases, making it unfair

58
Q

What is an example of precedent not applying in retrospect?

A

Anderton v Ryan’s decision was not changed after Shivpuri

59
Q

How is precedent rigid?

A

Can be inflexible, especially when it takes a suitable case a long time to come around

60
Q

What is an example of precedent being rigid?

A

R v R

61
Q

How is precedent complex?

A

The high case volume can make finding the correct precedent to follow difficultly. The obiter and ratio can often be difficult to seperate too

62
Q

What is an example of precedent being complex?

A

Howe and Gotts

63
Q

How does precedent draw illogical distinctions?

A

Distinguishing can split hairs and lead to areas of the law becoming over complex

64
Q

What is an example of precedent drawing illogical distinctions?

A

Minor differences between cases can be so small so as to make the decision illogical. Wastes court time

65
Q

How is precedent unpredictable and reliable?

A

The results are uncertain until after the appeal process. Judges can also reach the same decision but by different lines of reasoning

66
Q

What is an example of precedent being unpredictable and unreliable?

A

Wastes court time and money

law paper 1 (34 decks)

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